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Sunday, September 30, 2012

Courts - "Another Big SCOTUS Term On The Docket"

Listen to NPR's Nina Totenberg:

A new Supreme Court term opens Monday. Hot-button issues that could come up include affirmative action, same-sex marriage and voting rights
Adam Liptak has this story in the NY Times, headed "Supreme Court Faces Crucial Rulings in Coming Term." Some samples:
The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term’s as the most consequential in recent memory. * * *

The texture of the new term will be different, as the court’s attention shifts from federalism and the economy to questions involving race and sexual orientation. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?

Robert Barnes' report in the Washington Post is headed "Supreme Court faces another high-profile term."

"Gaming Gay Marriage: Which case should the Supreme Court take?" is the headline to an excellent story by Emily Bazelon of Slate. Read in conjunction with Lyle Denniston of SCOTUSblog's article from Aug. 22nd, "Gay marriage cases: Now up to seven," and another from Aug. 24th headed "Court review of Prop. 8 opposed."

Posted by Marcia Oddi on Sunday, September 30, 2012
Posted to Courts in general

Ind. Gov't. - "Early balloting joins strict ID laws among Indiana's top voting issues"

A comprehensive survey article today in the Indianapolis Star, reported by Jon Murray, looks at key voting dates, early in-person voting, absentee voting by mail, turnout, a lawsuit targeting voter rolls, voter ID requirements, and vote centers.

Posted by Marcia Oddi on Sunday, September 30, 2012
Posted to Indiana Government

Ind. Courts - "Elkhart County officer reverses stance on fingerprint evidence used in murder conviction"

Amanda Gray of the Goshen News reported Sept. 28th:

A convicted murderer may see a new trial if a conviction vacation is approved by Elkhart Circuit Court Judge Terry Shewmaker, according to a Friday afternoon press release from the Office of the Prosecuting Attorney.

Lana Canen, currently incarcerated for the 2002 murder of Helen Sailor at the Waterfall High Rise apartments in Elkhart, may have her murder charges vacated, according to the release. Canen had been accused of being an accomplice in the beating, robbery and murder of Sailor. Canen’s codefendant, Andrew Royer, was also convicted in the murder of Sailor and is currently serving a 55-year sentence.

Elkhart County prosecutor Curtis T. Hill Jr. said that opinions changed on the validity of the conviction when Detective Dennis Chapman with the Elkhart County Sheriff’s Department changed his position on a fingerprint that he previously matched to Canen.

Chapman said he reviewed the photographs of the fingerprints in preparation for an Aug. 16 post-conviction hearing for Canen. He determined that he no longer believed the fingerprint found on a pill bottle at the scene matched Canen’s fingerprints, according to the release.

"After learning of Detective Chapman’s change in his opinion and a review of the evidence presented to the jury, I no longer consider Detective Chapman’s testimony at trial to be credible," Hill said in the press release. "As it is reasonable to believe that the jury relied upon Detective Chapman’s testimony in considering the evidence against her, it is clearly in the best interest of justice that the murder conviction against Lana Canen be vacated as we continue to re-evaluate the evidence and Canen’s role in the murder of Helen Sailor.

"We do not take this action lightly. While it is our responsibility to secure convictions when we believe it is right and just to do so, it is never right for us to preserve a conviction when to do so would not be just nor right," Hill said.

From the prosecutor's press release:
In the initial investigation, detective Dennis Chapman of the Elkhart County Sheriff’s Department performed the finger print analysis and during the trial rendered his professional opinion that the finger print recovered from a plastic pill container found in the victim’s residence matched the left small finger of Canen. Chapman had testified that he was a finger print examiner for two years with the Federal Bureau of Investigation, that he went through twelve weeks of training learning how to classify and examine finger prints, that he continued comparing finger prints after working with the FBI, both at the Cook Nuclear Power Plant and with the Elkhart County Sheriff’s Department, and that he had compared “several, maybe one hundred or so” finger prints as of 2005.

At the trial, Chapman testified that he had compared the lifted finger prints taken from the plastic pill container found in Helen Sailor’s room and that the print matched Canen’s.

During a deposition of Chapman on September 7, 2011, Chapman again reiterated his professional experience. In addition, Chapman testified that he easily performed over 100 comparisons of latent prints to known prints. Chapman further testified that he had not made any erroneous identifications in the past.

In preparation for the August 16, 2012, post conviction hearing, Chapman reviewed the photograph of the finger print he had previously identified as matching that of Canen. For the first time since testifying against Canen in her jury trial in 2005, Chapman determined that he no longer believed the finger print matched that of Canen. Chapman further testified to his new opinion at the evidentiary hearing on August 16, 2012.

This additional from the Elkhart Truth's report Friday:
Elkhart County Sheriff Brad Rogers is planning a press conference on Monday to speak about the case.
The ILB expects to report more details on this erroneous identification tomorrow.

Posted by Marcia Oddi on Sunday, September 30, 2012
Posted to Indiana Courts

Ind. Law - "Indiana firm wiggles out of doggy day care lawsuit filed by Wigglebutt Inn of Naples"

That is the headline to a long story in the Florida paper, Naples News, reported by Aisling Swift. The story begins:

NORTH NAPLES — It's a dogfight over the word "wigglebutt" — and The Wigglebutt Inn of Naples lost the first round.

U.S. District Judge Ann Conway ruled this past week that a judge in Florida doesn't have jurisdiction to order a business in Indianapolis — The Wigglebutt Doghouse — to stop using "wigglebutt" in its name.

In an order signed Thursday, the Florida-based judge also said there was no evidence that Ben Bierlein, who owns The Wigglebutt Doghouse in Indiana, had any contacts in Florida, a requirement to prove jurisdiction to keep the case in U.S. District Court in Fort Myers.

Posted by Marcia Oddi on Sunday, September 30, 2012
Posted to Indiana Law

Ind. Gov't. - "Hoosiers may pay $1.1B over 8 years to subsidize coal-gas plant"

Adding to the very long list of ILB entries about the controversial Rockville coal gasification plant, the Indianapolis Star today has a front-page story by Tony Cook. The new angle of this story are new estimates by its leading opponent, Vectren, of how much the plant would/will increase ratepayers' bills. The numbers appear at the end of the online version of the story:

My question - is there anything the next Governor of the General Assembly could do, if they wanted to, to stop or alter this project, or are the Indiana ratepayers already locked in? From the story:
Leucadia National Corp.'s planned $2.8 billion coal gasification plant at Rockport has received several important approvals but is waiting on several others.
  • Completed: Leucadia subsidiary Indiana Gasification signed a 30-year contract to sell synthetic natural gas to the Indiana Finance Authority, locking in an important source of guaranteed revenue. The Indiana Utility Regulatory Commission approved the contract in November 2011. More recently, the company received approval for final air and water permits from the Indiana Department of Environmental Management.

  • Pending: The company has applied for a federal loan guarantee from the U.S. Department of Energy that will be critical to moving the project forward. An environmental impact study is under way and was recently amended to include a proposed 440-mile carbon dioxide pipeline. A coalition of utility companies, environmental groups and consumer activists also is appealing the Indiana regulatory commission's approval of Indiana Gasification's sales contract with the state.
My other question is how much is Indiana Gasification's "guarantee" for 30 years in the future really worth in the event the project has failed to produce promised savings? How much may the plant really be worth in that case? From the story:
Mark Lubbers, Indiana project director for Indiana Gasification and a former chief adviser to Daniels, said in an email to The Star that concerns about the low cost of shale gas are overblown. * * *

Lubbers said the debate about Vectren's "absurd" estimates ignores other factors, such as Indiana Gasification's commitment to cover up to $150 million of any losses. The company also "guarantees" $100 million in savings by the end of the 30 years, Lubbers said.

If those savings aren't realized, Indiana Gasification can cover the shortfall in cash or extend its contract with the state at a lower price. Absent those two things, the state could force a sale of the plant to make up the difference.

Posted by Marcia Oddi on Sunday, September 30, 2012
Posted to Indiana Government

Friday, September 28, 2012

Ind. Courts - "Aqua argues jury should decide value: State’s justices to decide next step"

Yesterday the Supreme Court heard oral argument in Utility Center, Inc. v. City of Fort Wayne. Watch the oral argument here.

Niki Kelly of the Fort Wayne Journal Gazette covers the argument here in a long story.

Posted by Marcia Oddi on Friday, September 28, 2012
Posted to Indiana Courts

Ind. Courts - Interesting oral argument on administrative procedure

Yesterday the Supreme Court heard oral argument in the case of St. Joseph Hospital v. Richard Cain. Here was the write-up posted by the Court:

After the Fort Wayne Metropolitan Human Rights Commission entered a final order in favor of Richard Cain, St. Joseph Hospital filed a petition for judicial review pursuant to the Indiana Administrative Orders and Procedure Act. The petition was timely filed, but the petition was not timely verified, contrary to the requirement in Indiana Code section 4-21.5-5-7. The Allen Superior Court dismissed the petition on grounds it lacked subject matter jurisdiction. The Court of Appeals reversed and remanded for instructions for the trial court to consider the hospital's motion to amend the petition to add the verification and whether such an amendment would relate back to the original filing. St. Joseph Hosp. v. Cain, 937 N.E.2d 903 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer jurisdiction.
Nicki Kelly of the Fort Wayne Journal Gazette wrote this quite interesting story:
INDIANAPOLIS – Indiana’s Supreme Court justices heard arguments Thursday about whether the word “must” always means “must.”

Its ruling could decide whether St. Joseph Hospital has further recourse to fight a $31,469 racial discrimination award in favor of Richard Cain by the Fort Wayne Metropolitan Human Relations Commission. The commission ordered the hospital to cover back pay and other benefits after firing Cain – who is multiracial – for intimidating a co-worker but not firing the white co-worker for bringing a gun to work.

To seek judicial review, the hospital had 30 days to file an appeal in 2010. The hospital met that deadline, but the filing did not contain a verification of truthfulness statement required by the Administrative Orders and Procedures Act.

The trial court dismissed the case as a result, but the Indiana Court of Appeals disagreed, allowing St. Joseph to fix the procedural defect. The commission then appealed.

The state’s four Indiana Supreme Court justices – the governor’s latest appointment hasn’t yet taken the bench – seemed conflicted during the oral argument.

Several pointed out that the statute is clear by saying the filing “must” be verified within 30 days. And Justice Robert D. Rucker pointed out there have to be consequences if rules are to mean anything.

“Must means must,” he said.

Others seemed bothered the case could be kicked for omitting a single line in a filing.

Justice Mark Massa said the commission’s argument “elevates form over substance.” He also said other areas of the law allow for these types of procedural amendments.

“We don’t close the courthouse doors to people because they forgot to cross their t’s and dot their i’s,” he said.

Dawn Cummings, attorney for the commission, said repeatedly that the rules have to mean something or it throws the system into flux. For instance, she said the Court of Appeals precedent would allow future judges to ignore other parts of administrative law, such as accepting an appeal that was filed late.

Rucker noted there is a line of cases supporting her position, but two other recent decision cast some doubt, requiring the Indiana Supreme Court to provide clarity.

The justices will rule in the coming months.

Here is the video of the oral argument.

Posted by Marcia Oddi on Friday, September 28, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Steven Duncan v. State of Indiana , a 12-page opinion, Chief Judge Robb writes:

Following a bench trial, Steven Duncan was convicted of six counts of cruelty to an animal, all Class A misdemeanors. He raises three issues for our review: 1) Whether he knowingly waived his right to a jury trial; 2) Whether Indiana’s animal cruelty statute is unconstitutionally vague; and 3) Whether there was sufficient evidence to overcome a defense of necessity.
Concluding that Duncan did not knowingly waive his right to a jury trial because the trial court did not fully advise him of his rights and obligations, that the statute is not vague as applied to him, and that there was sufficient evidence to overcome a defense of necessity, we affirm in part, reverse in part, and remand.
In Paul Hardy v. State of Indiana , a 10-page opinion, Chief Judge Robb writes:
Paul Hardy appeals the trial court’s revocation of his probation in multiple cases. For our review, Hardy raises one issue: whether the trial court properly ordered him to serve all of his previously suspended sentences when it revoked his probation. Concluding the trial court did not abuse its discretion in its disposition of Hardy’s probation revocation, we affirm.
NFP civil opinions today (3):

Victor J. DiMaggio, III v. Elias Rosario and Mark Nebel (NFP)

Joy M. Graf v. Craig W. Graf (NFP)

Marvin Smith v. City of Richmond and City of Richmond Public Works (NFP)

NFP criminal opinions today (12):

In State of Indiana v. Jamie Ray Scheckles (NFP), a 6-page opinion, Judge Vaidik writes:

The State charged Jamie Ray Sheckles with four felonies, and Sheckles and the State entered into a plea agreement for Class B felony dealing in a narcotic drug. According to the plea agreement, Sheckles was required to serve fifteen years in the Indiana Department of Correction but could petition for modification of his sentence after serving twelve years. Less than three years after he was sentenced, Sheckles filed a motion to enter work release, which the trial court granted. The State now appeals.

Because the restricted right to seek modification of his sentence was an explicit term in Sheckles’ plea agreement, the trial court became bound by that term when it accepted the agreement. Accordingly, the court could not modify Sheckles’ sentence until he served twelve years. We therefore reverse and remand.

Nathan W. Golden v. State of Indiana (NFP)

Paul Sparks v. State of Indiana (NFP)

Robert Owen Luetke v. State of Indiana (NFP)

Nathan Haas v. State of Indiana (NFP)

Matthew Thies v. State of Indiana (NFP)

Paul Plummer v. State of Indiana (NFP)

Michael S. Scroggins, II v. State of Indiana (NFP)

Robert G. Bollman, Jr. v. State of Indiana (NFP)

Michael Sopher v. State of Indiana (NFP)

Kevin D. Webster v. State of Indiana (NFP)

Curtis Bacon, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - 7th Circuit: "Mice, roaches in prison cells may be unconstitutional"

So reports Jonathan Stempel of Reuters in this story about yesterday's 7th Circuit opinion by Circuit Judge Posner in Calvin Thomas v. State of Illinois.

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

Thursday, September 27, 2012

Ind. Decision - More on: 7th Circuit rules in Taflinger suit

Updating this ILB entry from August 13, 2011, on remand, according to this new Indianapolis Star story by Jill Disis:

A federal judge in Indiana has ruled that the former coach of a Kokomo schools swimmer should pay her more than $2.5 million after he allegedly video taped her changing in the locker room.

The judge signed a default judgment for Indianapolis attorney Jonathan Little and his client Brooke Taflinger against Central Indiana Swimming and its former coach Brian Hindson.

Posted by Marcia Oddi on Thursday, September 27, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Details about the video transcripts project now released

Little has been made officially available about the "pilot project for audio/visual recordings in lieu of paper transcripts in preparation of the record and briefing on appeals" sponsored by the Supreme Court.

The ILB had entries reporting the reaction of local courts involved in the program on July 25th ("Courtroom Cameras On Trial 5 Cameras, 9 Mics Tested In Pilot Program") and July 30th ("Local courtroom one of three in state testing video transcripts").

Now the Supreme Court has made available the 8-page order, filed Sept. 18, 2012, but effective July 1, 2012, authorizing the project. Some items of interest [emphasis by ILB]:

Posted by Marcia Oddi on Thursday, September 27, 2012
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (1):

John Jorman, Jr. v. Review Board of the Indiana Dept. of Workforce Development, et al (NFP)

NFP criminal opinions today (2):

David Shane v. State of Indiana (NFP)

Donny Lee Sturgill v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 27, 2012
Posted to Ind. App.Ct. Decisions

Courts - More on "SCOTUS to rule on forced tests for DUI suspects"

Updating this ILB entry from September 26th, Lyle Denniston has an article in Constitution Daily titled "How much privacy does the Constitution guarantee for the blood’s chemistry?" A quote:

It is clear, under the Constitution’s Fourth Amendment, that government analysis of an individual’s blood or other bodily fluids is a “search” that can only be conducted within limits. Indeed, the court remarked in a blood search case in 1966 that “the integrity of an individual’s person is a cherished value in our society….Search warrants are ordinarily required…where intrusions into the body are concerned.”

But it was also in that very case – Schmerber v. California – that the court ruled that police can sometimes direct that a blood sample be made, in a drunk driving case, if there is an emergency situation that justifies the failure to first get a search warrant. That is the ruling that the Court will be analyzing anew in the new term that starts next Monday, in a case from Missouri.

The case is Missouri v. McNeely.

Posted by Marcia Oddi on Thursday, September 27, 2012
Posted to Courts in general

Ind. Law - Great Res Gestae article on apps for attorneys and paralegals

Cheryl L. Niemeier, Director of Library Services at Bose McKinney & Evans has written a great, 6-page article for the Sept. 2012 Res Gestae, titled "Apps, apps and more apps: an annotated list of free and low-cost iPad apps for attorneys and paralegals." With permission, the ILB is making it accessible here.

Posted by Marcia Oddi on Thursday, September 27, 2012
Posted to Indiana Law

Ind. Decisions - More on 7th Circuit decision yesterday in Bontrager v. FSSA

Updating yesterday's ILB entry, here is the ACLU of Indiana's press release, headed "ACLU of Indiana Wins Appeal on Cap for Dental Services: Court says individuals can't be denied medically necessary dental coverage under state's Medicaid program."

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

Wednesday, September 26, 2012

Law - "Conservative Veterans of Voting Wars Cite Ballot Integrity to Justify Fight"

Eliza Newlin Carney reports today in Roll Call - here are a few quotes:

Call them the voter fraud brain trust. A cadre of influential Washington, D.C., election lawyers has mobilized a sophisticated anti-fraud campaign built around lawsuits, white papers, Congressional testimony, speeches and even best-selling books.

Less well-known than Indiana election lawyer James Bopp Jr., who's made a national name for himself challenging the political money laws, conservative veterans of voting wars such as Hans von Spakovsky and J. Christian Adams nonetheless play a role similar to Bopp's in their behind-the-scenes fight to protect ballot integrity.

Both former Justice Department officials, von Spakovsky and Adams have worked alongside such anti-fraud activists as Thomas Fitton, president of Judicial Watch, and Catherine Engelbrecht, president of the tea party group True the Vote.

They've quietly stoked fears of election fraud among bloggers and grass-roots activists and buttressed a national ballot integrity movement built around pushing new state voter ID laws, cleaning up the voter rolls and mobilizing hundreds of volunteer poll watchers to bird-dog voters on Election Day. * * *

"This is a new area for conservatives to understand and figure out," Judicial Watch's Fitton said. His group has mounted what he calls "the first lawsuits of their kind" to force election officials in Florida, Indiana and Ohio to strip ineligible voters from the rolls. Fitton said his group promotes compliance with Section 8 of the 1993 National Voter Registration Act, which requires election officials to "make a reasonable effort" to remove ineligible voters from the rolls.

Voting rights activists have cast the anti-fraud movement as a politically motivated voter suppression effort funded by the billionaire businessmen Charles and David Koch. The Koch-funded American Legislative Exchange Council dismantled its Public Safety and Elections Task Force after accusations that ALEC had written model voter ID legislation adopted in several states.

The Lafayette Journal Courier ran this AP story by Ivan Moreno yesterday. It begins:
DENVER — Republican election officials who promised to root out voter fraud so far are finding little evidence of a widespread problem.

State officials in key presidential battleground states have found only a tiny fraction of the illegal voters they initially suspected existed. Searches in Colorado and Florida have yielded numbers that amount to less than a tenth of 1 percent of all registered voters in either state.

Democrats say the searches waste time and, worse, could disenfranchise eligible voters who are swept up in the checks.

“I find it offensive that I’m being required to do more than any other citizen to prove that I can vote,” said Samantha Meiring, 37, a Colorado voter and South African immigrant who became a U.S. citizen in 2010. Meiring was among 3,903 registered voters who received letters last month from the Colorado Secretary of State’s office questioning their right to vote.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to General Law Related

Ind. Courts - Justice-designee Rush is hiring law clerks

Anticipated openings: Two openings fall of 2012. Accepting applications through November 5, 2012. More info here.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Indiana Courts

Law - "Illinois law allowing hearsay to shape Peterson case," and the Indiana connection

On May 9, 2009 an ILB entry began:

The ILB has no plans to cover the Illinois Drew Peterson murder case.
The entry went on to quote from a Chicago Tribune story, including:
* * * prosecutors are expected to rely on a new Illinois statute -- one that Glasgow sought for months and that some call Drew's Law -- to allow Peterson's slain ex-wife, Kathleen Savio, to "testify from beyond the grave."

Peterson's defense team has vowed to challenge the law -- which would allow a judge to admit certain hearsay evidence into court -- as unconstitutional. * * *

Under the new hearsay law, which took effect in December, Glasgow could ask a judge to admit Savio's letters and alleged statements to friends and family into court. He would have to prove to the judge by a preponderance of evidence that Peterson murdered Savio to keep her from testifying against him, that Savio's statements are credible and that the best interests of the court would be served if the statements were admitted into evidence.

"It allows testimony from the grave, so to speak, about threats of violence made toward the victim," said defense attorney Lawrence Wolf Levin. But he said Glasgow would be taking a risk by relying on a law that could face legal challenges. Opponents of admissible hearsay argue that it goes against the 6th Amendment, which reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." "Nobody really knows whether this law will stand up and what its final viability will be," Levin said. A higher court could see it as a denial of due process and strike it down, making the Peterson case even harder to prove.

Well, I didn't cover the trial, but "Drew's Law" turns out to be relevant in Indiana.

This long Sept. 16, 2012 UPI story by Michael Kirkland is headed "Peterson convicted by 'voices from the grave.'" The very interesting article, which discusses three cases -- Ohio v. Roberts, Crawford v. Washington and Hamdan v. Rumsfeld, begins:

WASHINGTON, Sept. 16 (UPI) -- How could former Illinois police officer Drew Peterson be convicted in large part on hearsay evidence -- the words of someone who was not in court but reported by a third party -- when the Constitution gives any defendant the right to confront his accuser?

Specifically, the Sixth Amendment gives the defendant the right "to be confronted with the witnesses against him" so a defense lawyer can cross examine those witnesses and juries can evaluate witness statements in deciding guilt or innocence.

Fairly or not, jurors in Peterson's trial said hearsay statements by his third and fourth wives -- one murdered and the other presumed dead -- weighed heavily in their guilty verdict.

The answer, of course, is that the protections of the confrontation clause aren't absolute.

State law and U.S. Supreme Court precedent allow for exceptions, and with Peterson defense lawyers vowing to appeal, the high court may be the ultimate arbiter of whether his conviction was constitutional and should be upheld.

This Sept. 7, 2012 entry at the EvidenceProf Blog. A few snippets:
[B]y enacting "Drew's Law," Illinois created a statutory counterpart to Federal Rule of Evidence 804(b)(6). This new law created a new hearsay exception, with the admissibility of statements under the exception being determined by the court at a pretrial hearing. * * *

But here's the thing: In addition to Federal Rule of Evidence 804(b)(6) and "Drew's Law," there is the common law doctrine of forfeiture by wrongdoing, which allows for the admission of the same type of statements admitted under Rule 804(b)(6) and "Drew's law," but without a predicate showing of reliability.

The Indiana Connection:

Indiana has adopted Evidence Rule 804(b)(5):

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness. * * *
(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.
The federal rule is numbered 804(b)(6) and reads:
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
Indiana's rule was effective July 1, 2009 and has not yet been the subject of court interpretation. This may come soon, however. Yesterday the Court of Appeals heard oral argument (available here) in the case of Tyler A. White v. State of Indiana. Here is the writeup:
Tyler White appeals his conviction for murder following a jury trial. White presents the following issues for review on appeal: whether Indiana Evidence Rule 804(b)(5) (the “forfeiture by wrongdoing” hearsay exception) permits hearsay evidence only when the State proves by a preponderance of the evidence that the defendant’s purpose in procuring the unavailability of the declarant as a witness was to prevent the declarant’s appearance or testimony at a legal proceeding; whether the trial court abused its discretion when it excluded certain evidence relevant to a defense theory; whether Indiana’s feticide enhancement statute (IC 35-50-2-16) is unconstitutional; and whether the trial court should have “judicially supplied” a mens rea element to the feticide enhancement statute.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to General Law Related

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Sandra M. Bontrager v. Indiana FSSA (ND Ind., Simon), a 16-page opinion, Circuit Judge Kanne writes:

On May 5, 2011, Sandra M. Bontrager filed a putative class action complaint challenging Indiana’s $1,000 annual limit for dental services covered by Medicaid. The district court granted Bontrager’s request for a preliminary injunction, holding that Indiana is required to cover all medically necessary dental services, irrespective of the monetary cap. We affirm. * * *

The State’s potential budgetary concerns are entitled to our consideration, but do not outweigh the potential harm to Bontrager and other indigent individuals, especially when the State’s position is likely in violation of state and federal law. * * *

Although we are mindful of potential budgetary concerns, these interests do not outweigh Medicaid recipients’ interests in access to medically necessary health care. * * * The State cautions that it may end coverage of all dental services under its Medicaid plan if the $1,000 cap is no longer in place. Thus, this lawsuit may result only in a pyrrhic victory for the plaintiff. But the State’s likely violation of state and federal law cannot be ignored in order to preserve the status quo. Moreover, there are other avenues by which the State can limit its exposure to significant Medicaid costs. See, e.g., Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1255 (11th Cir. 2011) (“A state may also limit required Medicaid services based upon its judgment of degree of medical necessity so long as such limitations do not discriminate on the basis of the kind of medical condition.”); Coleman, 687 N.E.2d at 368 (the State may limit coverage “by narrowing the definition of medical necessity”).

III. CONCLUSION. Because the balance of the factors weighs in favor of granting a preliminary injunction, we AFFIRM the judgment of the district court.

In US V. Spears (ND Ind., Lozano), a 24-page opinion, Circuit Judge Sykes concludes:
In sum, we conclude that the evidence is sufficient to sustain Spears’s convictions on Counts 2 and 3 for aggravated identity theft and producing a false identification document, but insufficient to sustain his conviction on Count 4 for unlawfully possessing five or more false identification documents. As required by § 1028A(b)(2), the mandatory two-year sentence on Count 2 was imposed consecutively, but the sentences on the other counts were ordered to run concurrently. Although the sentence on the conviction we are reversing is concurrent to the sentences on the convictions that remain, “we cannot know whether the judge would have sentenced [Spears] differently in the absence of the [invalid § 1028(a)(3)] conviction.” United States v. Rappe, 614 F.3d 332, 334 (7th Cir. 2010). Spears is therefore “entitled to a shot at persuading the judge to give him a lighter sentence in view of the acquittal we are directing.” United States v. Shah, 559 F.3d 643, 644 (7th Cir. 2009); see also United States v. Dooley, 578 F.3d 582, 592 (7th Cir. 2009).

Accordingly, we AFFIRM Spears’s convictions for aggravated identity theft in violation of § 1028A(a)(1) and for producing a false identification document in violation of § 1028(a)(1). We REVERSE his conviction for unlawfully possessing five or more false identification documents in violation of § 1028(a)(3), VACATE his sentence, and REMAND for resentencing.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (11):

NFP civil opinions today (2):

Leaders Staffing LLC v. Review Board of the Indiana Dept. of Workforce Development and Jason P. Ballard (NFP)

Jessie M. Spears v. Review Board of the Indiana Dept. of Workforce Development and Meijer Stores Limited Partnership (NFP)

NFP criminal opinions today (9):

Steven J. Hirst v. State of Indiana (NFP)

Randy G. Cobb v. State of Indiana (NFP)

Jason Tye Myers v. State of Indiana (NFP)

Daniel Nolan v. State of Indiana (NFP)

Kevin A. Nasser v. State of Indiana (NFP)

Brandon King v. State of Indiana (NFP)

Joshua Banks v. State of Indiana (NFP)

Gregory D. Webster v. State of Indiana (NFP)

Baron D. McClung v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS to rule on forced tests for DUI suspects"

The SCOTUS yesterday granted cert in the case of Missouri v. McNeely (see SCOTUSblog).

David G. Savage of the LA Times writes about the grant today in a story headed "Supreme Court to rule on forced tests for DUI suspects: The high court takes on a Missouri case that will decide whether drunk driving suspects who refuse a breath test can be forced to submit to a blood test." The stroy begins:

WASHINGTON — The Supreme Court has agreed to decide whether motorists suspected of drunk driving who refuse to take a breath test can be forced to have their blood drawn at a hospital.

The ruling in a Missouri case, expected early next year, will help define the powers of the police and the rights of motorists when they are stopped for driving while intoxicated.

In most states, as a condition of obtaining a license, applicants must consent to submit to a test of their breath, blood or urine if stopped on suspicion of drunk driving. Failing to do so can mean their driver's license will be revoked. Moreover, a jury can be told their refusal to be tested is evidence of guilt.

But judges in some states have balked at going further and forcing suspects to have their blood drawn against their will. Several state high courts have deemed this an "unreasonable search" in violation of the 4th Amendment.

ILB: BTW, times flies - the SCOTUS reconvenes next week, on October 1st, which is the first Monday in October.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Courts in general

Ind. Courts - More on: New rule causes concern among many senior judges

Updating this ILB entry from yesterday, a former county judge writes this morning:

I am not a Senior Judge even though I qualify for certification if I desired. The rule is interesting.

A Senior Judge who may preside over over one or two cases a year in a court cannot practice in that court ever. Under the new rule, the Senior Judge's firm is likewise barred from appearing in that court. However, a local attorney can sit Judge Pro Tempore regularly and still practice in that court.

Everyone knows that a judge, or the judge's court reporter, who has a local attorney or two upon whom she can depend to sit JPT with little or no notice has a special place in that judge's heart, or, more importantly, in the hearts of the judge's staff members. Besides, if the regular judge believes it is conflict when a Senior Judge, or a member of the Senior Judge's firm, appears in the regular judge's court for a case, why shouldn't the regular judge simply recuse and a special judge be selected pursuant to TR 76 and TR 79? It isn't as if the Senior Judge is in that court more than a very few days each year.

Just MHO. Keep up the wonderful job!

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Indiana Courts

Ind. Courts - Chronological Case Summary and Record of Judgments and Orders

Useful article today in Indiana Court Times, written by Thomas Q. Jones and Lilia G. Judson. A sample:

A CCS entry should never be amended, corrected or deleted once made. It may be amended only by another corrective CCS entry. This becomes particularly important in the age of instant information. Some courts, with written approval of the Division of State Court Administration, post CCS entries on the Internet, and it is very important the record in a case does not change from one day to the next.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Indiana Courts

Ind. Law - "State’s tough drug-free zone law may be on its way out"

Maureen Hayden of the CNHI Statehouse Bureau reports today in the Logansport Pharos Tribune:

INDIANAPOLIS — Some key legislators want to do away Indiana’s tough, penalty-enhancing “drug-free zone” law, saying it no longer serves its original intent of protecting children from drug dealers.

The 1987 law can double or more the prison time for people caught with illegal drugs within 1,000 feet (equal to about three football fields) of a school, park, apartment complex or housing project. It was supposed to create a safe harbor around places where children gather. But critics question whether drug-free zones actually deter drug activity and instead result in unfairly harsh penalties that drive up prison costs.

State Sen. Brent Steele, an influential Republican lawmaker who’s already said he’ll push in the next session to decriminalize possession of small amounts of marijuana, believes it’s time for the drug-free zone law to go. The Bedford attorney and legislator said it is a “stupid, illogical” law that was born out of good intent but put into practice poorly. He cited studies, including one by DePauw University, that show drug-free zones now encompass huge areas in cities and towns and that the law has been used to nail people who didn’t know they were in a drug-free zone and who showed no intent of selling drugs to children. * * *

It’s a question the Indiana Supreme Court has looked at as well. In an important precedent-setting decision in February, the court reduced the 20-year prison sentence of a Kokomo, Ind., man convicted of possessing a relatively small amount of marijuana and cocaine within 1,000 feet of a school. The court said that had he been caught outside the 1,000-foot zone, he would have only faced a maximum prison term of 18 months. The court ruled that his 20-year sentence was “inappropriate” because it didn’t fit the nature of the offense. The court issued a similar opinion in another drug-free zone law case in June. * * *

The Indiana Prosecuting Attorneys Council is expected to oppose the elimination of the drug-free zone law. The Indiana Public Defender Council, meanwhile, supports such a move. The legislative Criminal Code Evaluation Commission is expected to take up the issue on Oct. 4, as they continue to review recommended changes to Indiana’s criminal laws.

ILB: The February 2012 Supreme Court decision mentioned was Antwon Abbott v. State. The June 2012 decision was Rondell Walker v. State.

Posted by Marcia Oddi on Wednesday, September 26, 2012
Posted to Indiana Law

Tuesday, September 25, 2012

Ind. Gov't. - More on "Payne resigns as DCS director"

The Indianapolis Star has an editorial today that begins:

Now that James Payne has taken the necessary step of resigning as director of the state Department of Child Services, attention must turn to the future of this vital agency.
This paragraph, which I will reformat as bullet points, sets out the remaining major issues facing the DCS:

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Indiana Government

Ind. Courts - New rule causes concern among many senior judges

The ILB has learned that several trial court judges and senior judges are concerned over a proposed change to Admin Rule 5(B)(4).

As part of the Senior Judge’s verification, s/he will as of Jan. 1, 2013 have to provide a verified written statement that “neither the senior judge, nor any firm with which the senior judge is associated practices law in the court.”

Some trial judges are upset because they read that portion as potentially leading to many senior judges giving up on senior judging to avoid impacting their firms’ ability to practice law.

Admin Rule 5(B) concerns payment and notification procedures for Senior Judges.

Subdivision (B)(3) covers "Qualification for Senior Judge Status." It reads in part:

(3) Qualification for Senior Judge Status. A person who is certified by the Indiana Judicial Nominating Commission may serve as senior judge. Each year the Indiana Judicial Nominating Commission [JNC] shall certify to the Supreme Court that a person who is certified: * * *
(f) agrees
(i) in the case of a senior judge appointed or assigned to serve a trial court, not to represent any client in any case before a court in which the senior judge is appointed or assigned as senior judge [etc.] * * *

(ii) in the case of a senior judge appointed or assigned to serve an appellate court, (1) not to represent any client in any case before an Indiana appellate court [etc.] * * *

Subdivision (B)(4) currently deals with the jurisdiction of senior judges. It reads:

(4) Jurisdiction. A senior judge shall have the same jurisdiction as the presiding judge of the court where the judge is appointed but only during the days that the senior judge is serving in such court. A senior judge who has been appointed to serve in a court shall have jurisdiction at any time during such appointment to officiate at marriages and administer oaths the same as the judge of the court of service. A senior judge retains jurisdiction in an individual case on the order of the presiding judge of the court in which the case is pending;

One of the revisions to Admin Rule 5(B) recently approved (Sept. 7, 2012) by the Supreme Court and effective Jan. 1, 2013, adds a new requirement on top of the list of requirements in Admin Rule 5(B)(3) for a senior judge to be certified by the JNC. But this requirement is to be imposed on the senior judge by the presiding judge wishing to use the senior judge.

The new language, awkwardly inserted at the beginning of Subdivision (B)(4), Jurisdiction, requires:

The senior judge shall provide to the presiding judge, and the presiding judge shall attach to the order, a verified written statement from the senior judge that neither the senior judge, nor any firm with which the senior judge is associated practices law in the court. The order shall be filed in the Record of Judgments and Orders of the court and a copy sent to the Division of State Court Administration.
As one reader writes:
I mean, I get not practicing in the court on the day that my law partner is senior judging, but how does that stretch out to never practicing in that court ever?

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Indiana Courts

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

For publication opinions today (3):

In Ray Evans v. Eric L. Thomas, a 7-page opinion, Judge Bradford writes:

Appellant-Respondent Ray Evans appeals from the trial court’s issuance of a protection order (“PO”) at the request of Appellee-Petitioner Eric Thomas. Evans contends that the trial court abused its discretion in denying his motion for continuance, that Thomas’s petition did not allege conduct sufficient to support a PO, that the trial court was required to conduct an evidentiary hearing, and that Evans’s due process rights were violated by the trial court’s issuance of the PO. We affirm.
In Charles Hall v. State of Indiana , a 10-page opinion, Judge Crone writes:
A deputy with the Crawford County Sheriff‟s Department attempted to initiate a traffic stop of a vehicle driven by Charles Hall. Hall, who was driving with a suspended license and also had an active methamphetamine lab in his vehicle, led the deputy on a high speed chase. Hall ultimately drove the vehicle off the road, left it in a field, and fled on foot. When the deputy found the vehicle, he had another deputy conduct an inventory search in preparation for impoundment. When the deputy discovered evidence of a methamphetamine lab in the vehicle, he turned the search over to the State Police‟s clandestine lab team. The search uncovered an active methamphetamine lab, finished methamphetamine, and various precursors. Hall was ultimately convicted of and sentenced on four offenses: dealing in methamphetamine, possession of precursors, operating a vehicle after a lifetime suspension, and resisting law enforcement. The trial court imposed an aggregate sentence of twenty-four years.

On appeal, Hall argues that the inventory search violated his Fourth Amendment rights, and therefore the evidence obtained from the vehicle should have been excluded. He also argues that his sentence is inappropriate. We conclude that Hall abandoned his vehicle; therefore, the search did not implicate the Fourth Amendment. In light of Hall‟s highly dangerous conduct and his lengthy record of convictions relating to driving and/or drug use, Hall has not persuaded us that his sentence is inappropriate. Therefore, we affirm.

In R.W. v. State of Indiana , a 13-page opinion, Judge Friedlander writes:
R.W. appeals the true finding that he committed an act that would constitute the offense of Attempted Burglary,1 a class B felony, if committed by an adult. On appeal, R.W. presents the following issue for review: Did the juvenile court err in admitting the taped statement of a custodial interrogation of R.W.? * * *

In short, we find no evidence indicating that Mother consented to the waiver of R.W.’s rights. Absent a valid waiver of rights, it was error to admit R.W.’s confession.

Having determined that the juvenile court erred in admitting the confession, we must now determine whether that error was fundamental. * * *

In summary, we conclude that the juvenile court committed fundamental error in admitting R.W.’s videotaped confession, which constituted the only evidence of the element of intent to commit a felony with respect to the allegation of burglary under Count 1. Therefore, the true finding under Count 1 must be reversed. We affirm the juvenile court’s finding that the State’s evidence established the allegation in Count 2 that R.W. committed acts that would constitute the offense of criminal mischief. Further, because we reversed the true finding on Count 1, with which the finding in Count 2 was “merged”, we remand with instructions to enter a true finding with respect to the merged Count 2.

NFP civil opinions today (2):

Daniel E. Stuckman, Sr. and Daniel E. Stuckman, Jr. v. Kosciusko County Board of Zoning Appeals and the Estate of Gary Stuckman (NFP)

Matt B. Helmen, M.D. v. Mary and Ronald McDaniel, Individually and as Administrators of the Estate of Christopher L. McDaniel, Deceased, and Phillip Lam, M.D. (NFP)

NFP criminal opinions today (5):

Holly Horst (Greczek) v. State of Indiana (NFP)

Scott Wayne Steele v. State of Indiana (NFP)

Cary L. Patrick v. State of Indiana (NFP)

Wesley Hood, Sr. v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Trial judge throws out Indiana teacher contract forms [Updated]

Charles Wilson of the AP is reporting:

INDIANAPOLIS (AP) — A judge has ruled that a standard teacher contract form that would have allowed Indiana school districts to change the hours or days that teachers work without adjusting their pay is illegal.

Marion County Judge Patrick McCarty permanently barred the Indiana Department of Education from using the forms, which all school districts in the state would have been required to use.

McCarty ruled that the agency doesn’t have the authority to unilaterally contradict existing contract law. He called the requirements the contract forms would have imposed “unconscionable.”

The ILB would be pleased to post a copy of this opinion if anyone can email a copy ...

[Updated] Here is a longer version of the AP story.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Ind. Trial Ct. Decisions

Courts - More on "Protecting Property Rights from the Army Corps of Engineers: The Supreme Court prepares to hear a major Takings Clause case"

Supplementing this ILB post from Sept. 20th, the AP is reporting:

NEW ORLEANS — A federal appeals court reversed itself Monday and threw out a judge’s landmark ruling that the Army Corps of Engineers was liable for billions of dollars in Hurricane Katrina flood damage that property owners blame on the corps’ maintenance of a New Orleans shipping channel.

The same three-judge panel from the 5th U.S. Circuit Court of Appeals that sided with plaintiffs earlier this year withdrew that decision and replaced it with a new ruling in the federal government’s favor.

The panel’s new opinion says the corps is completely insulated from liability by a provision of the Federal Tort Claims Act called the “discretionary-function exception.”

Here is a story from Richard Allen Greene of CNN.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Courts in general

Ind. Law - "Shadow" sex offender registries

The Criminal Law and Sentencing Policy Study Committee is holding its second meeting this Thursday, Sept. 27th.

Its last meeting, held August 23rd, concerned two topics, (1) criminal history providers, and (2) the sex and violent offender registry.

Thursday's meeting appears from the agenda to be limited to criminal history providers, even though, in the month between the two meetings, the 7th Circuit has issued a major opinion on due process and the Indiana sex offender registry.

Correcting registry errors and removing names from the registry that do not belong there must be addressed. But a reader has brought to the ILB's attention information that this issue is broader that just the official Indiana registry. It turns out there are "shadow" registries that may lie near the fringes of the term "criminal history provider."

See this column by Jon Yates in the March 3, 2012 Chicago Tribune. Some quotes:

Shortly after he was exonerated, Swift and his father cruised the Web to read news accounts of his story. What they found were several websites on which he was still listed as a convicted murder and rapist.

Swift said he immediately contacted the state to have his picture and information removed from the Illinois Sex Offender registry.

Within days, he said, his picture was gone.

Swift's lawyer, Joshua Tepfer, contacted another website that displayed Swift's mug shot, Offendex.com.

It, too, quickly removed the picture.

A third site, Mugshots.com, still displayed multiple pictures of Swift, along with his prison record and wrongful convictions. But Swift was not immediately concerned. The website, clearly states it is willing to take down mug shots if the person pictured has had his or her record expunged, if the person was pardoned, or if the case was dismissed.

"We're an ethical organization and we feel that if a mistake was made (dismissed cases) and/or the state forgave a person, we surely can accommodate as well," the website states.

It includes instructions to click the prominently displayed "REMOVE MUGSHOT" link at the top of its main page.

Tepfer said he clicked on the link and was taken to a page that instructed him to use one of the website's five "authorized vendors" for removing mug shots.

There was a catch though: Each charged $399 to get the mug shot removed, although the fifth vendor offered a special: Act within the next 24 hours, a salesman said, and the company would throw in a $25 Paypal voucher.

When the Chicago Tribune contacted Mugshot.com about its failure to remove the mag shot, the story continues:
The Problem Solver contacted Mugshots.com through its website later that day and asked why it hadn't removed Swift's picture.

Within hours, the website shifted Swift's mug shot to its main page and posted an explanation about why it would not remove Swift's picture.

"We have no interest in removing this entry for a fee, or for free," the unsigned post said. "There's simply too much public interest in it for us to consider a removal of this information."

It then included a link to Swift's mug shot on the Chicago Tribune's website. The mug shot was on a stand-alone "breaking news" Web page along with the three others who were originally convicted in the 1994 crime.

"So why would a writer at the Chicago Tribune come to us with a removal issue when his own publication publishes and not removing, nor updating, arrest records?" the website said in less-than-perfect grammar.

News stories about arrests remain part of the Tribune's online archive because "we don't unpublish stories," said Standards Editor Margaret Holt. In the Swift case, as with others, there was follow-up coverage that reported Swift's exoneration, she said. The Tribune website runs a "mugs in the news" feature, which did not include Swift's photo. Because all arrests do not lead to convictions, those photos expire from the website, the Tribune said.

The Problem Solver emailed Mugshots.com again to ask why it provides a link to remove mug shots if it doesn't follow through.

In an unsigned response, Mugshots.com emailed that the website has made the "ethical decision" to remove some mug shots, but such actions were at their discretion.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Indiana Law

Ind. Law - Guns on campus, nationally and in Indiana

Two recent stories:

A Sept. 22nd NT Times story by Dan Frosch, headed "University Is Uneasy as Court Ruling Allows Guns on Campus." Some quotes from the long story:

BOULDER, Colo. — During her 19 years teaching English at the University of Colorado Boulder, Karen Jacobs never gave much thought to whether one of her students was carrying a gun.

As the state’s flagship university, it had a longstanding firearms ban. So even in a place like Colorado, where gun rights are nearly as deeply cherished as John Elway and fresh snow, there was never a need for concern.

But ever since a State Supreme Court ruling in March forced the university to allow those with Colorado concealed weapon permits to carry their guns on campus, Ms. Jacobs and other faculty members have found themselves increasingly uneasy.

“This is a place where we depend on being able to speak our minds and offer sometimes controversial opinions in a free and open place,” she said. “The feeling among a percentage of faculty is that this will create a climate of fear and intimidation.”

Over the last two months, with the school year in full swing, anxiety over the university’s new gun policy has risen — driven in part by the mass shooting at an Aurora movie theater on July 20 by a troubled University of Colorado Denver graduate student and by the deep scars that still cut through the state from the killings at Columbine High School 13 years ago. * * *

Gun rights proponents, conversely, have argued that lawful gun owners should not be precluded from protecting themselves on college campuses, and they contend that gun bans make those campuses less safe.

Besides, they say, anyone disturbed enough to open fire is not going to heed university policy.

“This gives us the right to protect ourselves, where currently, many colleges suspend that right,” said David Burnett, a spokesman for Students for Concealed Carry, a national group that advocates for the right to carry legally permitted guns on public college and university campuses.

According to the group, more than 200 colleges and universities in the country allow individuals to carry concealed firearms.

“Very often people come back and say allowing students to carry guns is a crazy, paranoid idea,” Mr. Burnett said. “But we’re not just talking about letting students carry guns. It’s only those people who already have the permits.”

Ever since a shooting at Virginia Tech University left 33 people dead in 2007, the issue of whether guns should be allowed on campuses has been hotly debated in statehouses around the country.

Some 21 states have an outright ban on concealed weapons on campuses, according to data compiled last month by the National Conference of State Legislatures. Two dozen states leave it up to individual universities and colleges to decide.

Five states — Oregon, Mississippi, Wisconsin, Utah and Colorado — now have provisions permitting the carrying of concealed weapons on campuses, the group said.

The WS Journal on Friday, Sept. 21st had this story ($$) by Joe Palazzolo and Steve Elder, headed "Push to Let College Students Carry Guns Picks Up Steam: Public Campuses in Five States Permit Practice in Wake of Virginia Tech Killings." It begins:
At more college campuses across the country, students are winning the right to pack a gun.

Many colleges have long been allowed to make their own decisions about whether students can carry firearms on campus, and most still forbid it. But gun-rights advocates working through the courts and state legislatures have managed to secure a significant expansion of gun rights at public universities.

Students are now permitted by law to carry guns on public campuses in five states—four more than two years ago. * * *

Lawmakers in roughly 25 states have introduced bills to allow some form of concealed carry on college campuses in the past two years, according to Gun Free Kids. Only two became law. Most failed to pass, but in Mississippi and Wisconsin, lawmakers last year passed laws requiring schools to allow guns on campus with some restrictions. In Mississippi, a special certification is required to carry on campus, while in Wisconsin, schools can ban guns from specific buildings by posting signs at entrances.

Some of those failed attempts are likely to be revived. In Kansas, state Rep. Forrest Knox, a Republican, plans to again offer up a bill that failed this year. The measure would let people carry concealed weapons at publicly owned buildings, including ones on college campuses. "If you are not going to provide a way to keep illegal guns out, you can't stop legally owned guns from entering a public building," he said.

In the 2012 session, Indiana state senators Senators Banks and Kruse introduced SB 181, a bill with this digest:
Possession of firearms on state property. Prohibits a state agency, including a state supported college or university, from regulating the possession or transportation of firearms, ammunition, or firearm accessories: (1) on land that is; or (2) in buildings and other structures that are; owned or leased by the state. Provides for certain exceptions. Voids, as of July 1, 2012, any rules or policies enacted or undertaken by a state agency before, on, or after June 30, 2012, concerning possession or transportation of firearms, ammunition, or firearm accessories on land or in structures owned or leased by the state. Allows a person to bring an action against a state agency if the person is adversely affected by a rule, a measure, an enactment, or a policy of the state agency that violates this law.
The bill did not move out of first house committee in 2012.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Indiana Law

Courts - "This is a battle over the future of a fair and independent judiciary."

That is a line from this editorial today in the NY Times, about the judicial retention election in Iowa. It begins:

Two years ago, in what should have been a quiet judicial retention election, Iowa voters threw out three State Supreme Court justices for taking seriously their duty to protect fundamental rights. The three had provoked right-wing wrath for joining a unanimous 2009 ruling overturning the state’s prohibition on same-sex marriage. Conservative forces succeeded in ousting them by tapping antigay sentiment and attacking “activist” judges. Those same forces — aided openly this time by the state’s Republican Party — are now calling for the removal of David Wiggins, another capable judge who joined in the marriage decision.

This is a battle over the future of a fair and independent judiciary. And the battle is taking a new turn. Two prominent Republican politicians, Bobby Jindal, the Louisiana governor, and Rick Santorum, the winner of January’s Republican presidential caucuses in Iowa, will be joining a four-day “No Wiggins” bus tour of 17 Iowa communities scheduled to kick off Monday in Des Moines.

And yesterday, this opinion piece in USAToday by Arjun Sethi, an attorney in Washington, D.C. Some quotes:
This November, North Carolina Supreme Court Justice Paul Newby is up for re-election. The fact that Newby is currently part of a 4-3 conservative majority on the court, makes his re-election especially important to some very interested parties.

The North Carolina Judicial Coalition, a super PAC committed to re-electing the pro-business judge with an anti-gay record, is pouring money into Newby's campaign against Democrat Sam Ervin IV.

This is anything but unique. Organized money has a new target: judicial elections. * * *

Those running for judgeships are becoming spectators in their own races, pawns in a battlefield between pro-business groups and progressive forces. Groups unaffiliated with candidates — corporations, trade associations, unions, state parties — spent more money in the 2008 election cycle than did candidates on the ballot. * * *

Judicial elections were once innocuous events largely ignored by the media. When Americans won in court, they could usually be confident that evocative oratory and hard-hitting facts had prevailed, not deep pockets.

We needn't look far for solutions: judges should be appointed not elected. Federal judges receive lifetime appointments so that they are insulated from the political process. The states would be wise to follow their example.

Some states use a merit system in which judges are chosen by the governor from a list prepared by a special commission; others allow the legislature or governor to appoint judges. These state judges typically face periodic retention elections, and keep their seats so long as the votes cast in favor of retention outnumber those against.

However, even retention elections are no longer immune from organized money. * * *

The overwhelming majority of litigation in America occurs in state court. Homeowners fighting foreclosure, small businesses claiming insurance coverage, patients seeking damages, and consumers fighting banking fees, have all seen the inside of a courtroom.

Every one of us has a vested interest in a fair judiciary. Justice must not be for sale.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Courts in general

Ind. Law - Bar exam results available [now]

Results for July 2012 Indiana bar exam should be posted here shortly.

[Update] Yes, they are now available.

Posted by Marcia Oddi on Tuesday, September 25, 2012
Posted to Indiana Law

Monday, September 24, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In State of Indiana v. Russell Oney, a 9-page opinion, Judge Najam writes:

The State appeals the trial court’s order granting Russell Oney’s motion to set aside his 2002 guilty plea to the charge of operating a vehicle while an habitual traffic violator, a Class D felony (“HTV conviction”). The State presents a single issue for review: whether the trial court erred when it vacated Oney’s 2002 guilty plea to the HTV conviction on the ground that one of the predicate offenses to the HTV conviction had been reversed in post-conviction proceedings with the agreement of the State. * * *

The BMV’s determination in 1994 that Oney was an HTV was based on three predicate convictions and did not constitute manifest injustice. Nor did the BMV err, materially or procedurally, when it determined that Oney was an HTV in 1994. As such, when Oney operated a vehicle in 1999, despite his HTV status and resulting conviction, he was flaunting the law, even though one of the predicate convictions to his HTV status was later vacated. As such, we reverse and remand the trial court’s order granting post-conviction relief to Oney, vacating his HTV conviction, and allowing him to withdraw his guilty plea to that offense.

Marquis Dayvon Brooks v. Anderson Police Dept., City of Anderson, and Chris Barnett, a 12-page opinion, Judge Baker writes:
Appellant-plaintiff Marquis Dayvon Brooks appeals from the trial court’s order granting summary judgment in favor of appellees-defendants the Anderson Police Department, the City of Anderson, and Officer Chris Barnett (collectively, “the Appellees”). More particularly, Brooks argues that summary judgment was inappropriate because there are genuine issues of material fact regarding whether Officer Barnett violated the Reasonable Force Statute2 by permitting his police dog to bite Brooks during his arrest. Additionally, Brooks contends that a violation of the Reasonable Force Statute precludes the Appellees from alleging immunity under the Indiana Torts Claims Act.3 Concluding that there are genuine issues of material fact, we reverse the decision of the trial court and remand for further proceedings.
In Parkview Hospital, Inc. v. Geico General Insurance Company, an 8-page opinion, Judge Bailey writes:
Parkview presents the issue of whether the Allen County Superior Court properly dismissed, for lack of subject matter jurisdiction, the lien impairment claim asserting entitlement to proceeds from a Tennessee judgment recovered by Smith. * * *

The remedy Parkview seeks is recognition of a perfected lien, and attachment to a Tennessee judgment, without proof of causation and without prior notice upon the docket of that court. Although an Allen County, Indiana court can – pursuant to the Act – determine the amount Parkview is due from Smith personally on account of services provided to him, the Allen County court lacks jurisdiction to order a Tennessee judgment reinstated such that Parkview’s hospital lien could attach.

In other words, an Indiana court may decide that Smith’s personal liability for medical services is not extinguished, and there is an amount due and owing, but may not reinstate obligations of Gibbs or his insurer extinguished by compliance with the Tennessee Judgment. Indeed, Section 1 of the Act does not confer jurisdiction upon an Indiana court to entertain a “claim” of a hospital lien against a judgment unless the hospital has “enter[ed], in writing, upon the judgment docket where the judgment is recorded, the hospital’s intention to hold a lien upon the judgment, together with the amount claimed.”

In light of the foregoing, we affirm the dismissal of the claim against Geico. Affirmed.

InCarlos Hale v. State of Indiana, a 10-page opinion, Judge Baker writes:
Inasmuch as the show-up identification was not unduly suggestive, the trial court did not err by admitting it into evidence. Moreover, in light of the woman’s in-court testimony identifying the defendant, no fundamental error could have occurred even if the admission of the show-up identification had been error. Accordingly, we decline the defendant’s request to reverse his conviction.

Finally, we note that the fundamental error doctrine is being casually invoked whenever there is a failure to timely object at trial. This is not the purpose of the fundamental error doctrine, which is extremely narrow and reserved only for the most egregious circumstances.

In Gregory Kirk v. State of Indiana , a 30-page opinion, JudgeKirsch writes, beginning at p. 12:
Kirk next contends that the trial court abused its discretion by admitting testimony regarding the content of Kirk’s text messages. Specifically, he contends that the evidence should have been suppressed because it violated the unreasonable search and seizure provisions in Article I, Section 11, of the Indiana Constitution and the Fourth Amendment to the United States Constitution, and the State failed to prove an exception to the warrant requirement to justify the warrantless search of his cell phone. * * *

Where, like here, we can decide this issue without addressing the Fourth Amendment issue, we will do so. * * *

Unlike the Fourth Amendment, where we focus on the defendant’s reasonable expectation of privacy, under Article I, section 11, we focus on the actions of the police, concluding that the search is legitimate where it is reasonable given the totality of the circumstances. Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). As we consider reasonableness based upon the particular facts of each case, we give Article I, section 11 a liberal construction in favor of protecting individuals from unreasonable intrusions on privacy. Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008). * * *

Police then arrested Kirk for neglect of a dependent and public intoxication and, while performing a search incident to arrest, found he was in possession of marijuana, a pipe, and a cell phone. Immediately after finding Kirk’s cell phone, Detective Schwomeyer opened the inbox and looked at six to eight text messages. * * *

By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. * * * The State did not make clear the reason for the search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.

Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.

The State contends that the law enforcement needs to search the phone immediately were great because the contents of the cell phone could have been remotely cleansed. The State, however, fails to prove that this was a reasonable concern or to demonstrate that less intrusive means such as removing the SIM card or simply turning the cell phone off could not have been used to block any effort to remotely cleanse the cell phone until a warrant could be obtained. * * *

The State’s failure to act promptly to secure the contents of the text messages suggests that the warrantless search was not motivated by concerns about the destruction of evidence. Under these facts and circumstances, we conclude that the warrantless search of the cell phone was unreasonable under Article I, Section 11 of the Indiana Constitution, and it was error for the trial court to admit the testimony regarding the contents of Kirk’s cell phone.

NFP civil opinions today (4):

Thomas E. Lynch v. Arthur H. Huser (NFP)

Steven R. Brandenburg v. First Republic Mortgage Corporation (NFP)

Matthew M. Derrick v. Estate of Ruth F. Korn (NFP)

David Brown d/b/a DB Express v. Utility Peterbilt of Indianapolis (NFP)

NFP criminal opinions today (7):

Sean Cole v. State of Indiana (NFP)

Bryan Scholtes v. State of Indiana (NFP)

Olga Markova v. State of Indiana (NFP)

Justin L. Smart v. State of Indiana (NFP)

Andrew Humphreys v. State of Indiana (NFP)

Troy Marie Cain Cornell v. State of Indiana (NFP)

Charles Davis, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 24, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Payne resigns as DCS director"

Niki Kelly has posted this story at the Fort Wayne Journal Gazette website.

Posted by Marcia Oddi on Monday, September 24, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 21, 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, September 21, 2012. It is two pages (and 18 cases) long.

One transfer was granted last week, Joey Jennings v. State of Indiana - both appelle and appellant's petitions were granted. See this ILB entry from Sept. 19 and this one from Sept. 20 for more information.

In a second case, a petition for transfer failed on a tie vote. The case was Deer Park Management v. Giovanni Zanovello, a 2-1 NFP COA opinion involving a landlord-tenant dispute. The vote:

Transfer Denied - Dickson, C.J., and David, J., vote to grant transfer. Rucker and Massa, JJ., vote to deny transfer.

Posted by Marcia Oddi on Monday, September 24, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - "Liking It or Not, States Prepare for Health Law"

That is the headline to a story today in the NY Times, reported by Abby Goodnough. The long story begins:

PHOENIX — Like many Republican governors, Jan Brewer of Arizona is a stinging critic of President Obama’s health care law. When the Supreme Court upheld it in June, she called the ruling “an overreaching and unaffordable assault on states’ rights and individual liberty.”

Yet the Brewer administration is quietly designing an insurance exchange — one of the most essential and controversial requirements of the law. Officials in a handful of other Republican-led states say they are also working to have a framework ready by Nov. 16, the deadline for states to commit to running an exchange or leave it to the federal government to run it for them. That is just 10 days after Election Day, which is likely to decide the future of the law. * * *

The law requires all states to have exchanges, which are essentially online marketplaces where small businesses and individuals can shop for private health plans, in place by January 2014, when a requirement takes effect for most Americans to have health insurance or pay a penalty. If states fail to submit plans for running their own exchanges by the deadline, the law calls for the federal government to set up and run one for them, with or without their help. People with incomes between 133 percent and 400 percent of the poverty level can get federal tax subsidies through exchanges to make the price of coverage more affordable.

Posted by Marcia Oddi on Monday, September 24, 2012
Posted to Indiana Government

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

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

From Sunday, September 23, 2012:

From Saturday, September 22, 2012:

From late Friday afternoon, September 21, 2012:

Posted by Marcia Oddi on Monday, September 24, 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 (9/24/12):

Thursday, September 27th

Next week's oral arguments before the Supreme Court (week of (10/1/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/24/12):

Tuesday, September 25th

Wednesday, September 26th Thursday, September 27th Next week's oral arguments before the Court of Appeals (week of 10/1/12):

Wednesday, October 3rd

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, September 24, 2012
Posted to Upcoming Oral Arguments

Sunday, September 23, 2012

Courts - More on "Montana Rule Banning Party Endorsements of Judges Blocked"

Updating this ILB entry from Sept. 18th, Mike Dennison of the Helena Montanna Independent Record reported Sept. 21st in a story headed "Supreme Court candidates won’t accept endorsements from parties." The story begins:

While a federal court says political parties can now endorse nonpartisan judicial candidates in Montana, the two candidates for an open state Supreme Court seat said this week they won’t accept the endorsements — because a state judicial ethics code forbids it.

Ed Sheehy, a Missoula attorney running for the Supreme Court, also said Wednesday if a political-party endorsement is made, the judicial candidate has an obligation to tell the endorser to withdraw it.

“We can’t accept or use (the endorsement),” he said. “If you don’t tell (the endorser) to stop, you’ve violated part of the rule, because you’ve accepted it.”

Posted by Marcia Oddi on Sunday, September 23, 2012
Posted to Courts in general

Ind. Gov't. - Scandals near end of a Governor's term

About this time 8 years ago, the ILB recalls posting scandal-type stories about the Kernan/O'Bannon administration. For example:

Feb. 20, 2004 - "Kernan vows quick BMV reform: GOP critics call review a 'whitewash'"

August 30, 2004 and Sept. 1, 2004 - "Another indictment of an Indiana quasi-public entity" - re the problems at state quasi-public agencies such as the Intelenet Commission and PERF.

Also, from May 17, 2004: "Both the BMVC and now the IEDC were established to remove their functions from the direct control of the Governor, and instead place them under the control of an "authority" insulated from the voters by layers of bureaucracy. To my mind, and as I wrote last month, that is not a good thing ...".

Eight years later, Governor Daniels, who promised (the 2005 post is worth rereading) at the beginning of his term to "cut costs, [and] to use data to make decisions and measure performance," along with a "greater emphasis on management," has seen a number of scandals, including: Duke Energy and the Utility Regulatory Commission (IURC); the Department of Revenue (DOR) and the mislaid half a billion dollars; and a multitude of serious issues at both the Department of Child Services (DCS) and the Family and Social Services Administration (FSSA).

Posted by Marcia Oddi on Sunday, September 23, 2012
Posted to Indiana Government

Ind. Gov't. - The first Deloitte & Touch report on the DOR's $526 million error

See this ILB entry from April 16th and this one from June 10th for background.

An editorial today in the Fort Wayne Journal Gazette opines:

Answers regarding a $526 million tax error will have to wait until after Election Day, but the first step in the audit process raises troubling questions about whether the Indiana Department of Revenue can ensure the mistakes aren’t repeated.

Auditors for Deloitte & Touche presented a 27-page risk assessment to the State Budget Committee this month. It identified as “high risk” nine of 18 key business processes used by the Department of Revenue. Eight were classified as “medium risk” and one – providing taxpayer assistance – as “low risk.”

The report cautions that “risk” and “problem” are not synonymous. The observation about priorities – see box below – suggests that cutting costs was more important than getting the job done right.

A side-bar quotes from the report itself:
“Since 2008, (the Indiana Department of Revenue) has significantly reduced the time frame for processing paper returns while also cutting the cost per return for processing,” according to the report. “Conversely, support areas such as information systems management and financial accounting and reporting appear to have been a lower priority without the same degree of focus, and as such, the control environment and importance of financial and (information technology) controls may not have been as rigorous in detecting errors within the financial accounting systems. A comprehensive set of policies, procedures, and system documentation governing these areas does not appear to have existed, and there was a concern that staff turnover resulted in some control processes no longer being performed. Additionally, there was some concern that information systems may not be producing complete and accurate information to support the organization.”
Here is the 31-page report, headed "Financial Operations Risk Assessment of the Indiana Department of Revenue, August 2012."

The full report was made available via this post at the Indiana Senate Democrats blog, The Briefing Room. From the blog:

[This] report indicating potential insufficient levels of staffing and outdated applications comes on the heels of two consecutive departmental reversions totaling more than $8 million. In FY10-11, the DOR reverted more than $6.9 million or 12.9 percent of the agency budget and nearly $1.5 million in FY11-12.
Interestingly, the Report, paid for with tax dollars, repeats a disclaimer at the bottom of each page:
This report is intended solely for the information and use of OMB, DOR and the State Budget Committee and is not intended to be, and should not be, used by any other party, with the exception of oversight agencies for the performance of their oversight responsibilities.

Posted by Marcia Oddi on Sunday, September 23, 2012
Posted to Indiana Government

Ind. Gov't. - "Child welfare advocates question state's plan for children in need"

A new NWI Times child welfare story today by Marisa Kwiatkowski, part of the series, "Children in Peril." It supplements this story last Monday by the same reporter, headed "State officials offer solution to meet mental health needs of children."

Today's story begins:

While many child welfare advocates said Indiana's plan to close the gap in mental health services for children is a step in the right direction, others fear the proposal is nothing more than "blowing smoke."

The Indiana Department of Child Services announced Monday a plan to use community mental health centers to evaluate children who have mental illnesses and are a danger to themselves or others.

Officials from DCS, the Indiana Division of Mental Health and Addiction and the Division of Disabilities and Rehabilitative Services worked with others to develop the plan to get children needed services without court intervention. * * *

The state's plan offers families, school officials, residents, judges, probation officers, prosecutors and public defenders an avenue to secure mental health services for children without going through the court system.

But child welfare advocates say they are concerned the plan doesn't go far enough to address children's unmet mental health needs.

"This is blowing smoke," said Barbara Layton, executive director of the National Alliance on Mental Illness - Porter County. "This is not enough."

Layton and other advocates who work with children said the state's plan does not address the dearth of providers who can handle the specialized needs of children with mental illnesses.

Layton said the families she works with have children who already have used community wraparound services and short-term residential placement with little success.

"These children have much more serious issues that a Band-Aid is not going to fix," she said.

Posted by Marcia Oddi on Sunday, September 23, 2012
Posted to Indiana Government

Ind. Gov't. - Astonishing story today: "DCS Director Payne waged a behind-the-scenes fight to discredit and derail his agency's recommendations in a child neglect case that involved his grandchildren"

The lengthy (nearly 3-full pages in the paper), must-read, front-page story today in the Indianapolis Star, reported by Tim Evans, begins:

Even as he ran DCS, Payne became deeply immersed in the case, which began in 2010 when his grandchildren were taken from their mother by his agency as she was locked in a nasty divorce and custody battle with Payne's son.

It wasn't DCS' removal of the children, however, that Payne opposed. What put him at odds with DCS was his agency's push, about nine months later, to end the neglect case and permanently reunite the children with their mother.

Payne, in written responses to questions from The Star, stressed that his only role in the case was "as a grandparent, father and husband," and not in a professional capacity.

At no point during his involvement in the case, however, did Payne step aside from his leadership role with the agency -- a move ethics experts say would have been appropriate.

Payne received transportation assistance for the children through DCS, which is not available to all families, despite earning more than $130,000 and having a state-issued vehicle.

The Star's investigation, based on a review of hundreds of pages of documents related to the DCS and divorce cases, found:

  • Payne became directly involved in helping his son fight DCS, including consulting with his son's attorney and drafting a legal brief highly critical of his agency's work in the case.

  • The Code of Conduct that Payne instituted at DCS forbids employees and top officials from "personal and private interests" such as intervening in a case involving relatives.

  • Payne did not notify Gov. Mitch Daniels of his deep involvement in the DCS case or let the governor know that he at one point became the target of an investigation into whether he slapped one of his grandchildren while the child was in his care. The child abuse allegation did not prompt an independent probe. Instead, Payne, who denied the allegation, was investigated and cleared by his own agency.
The story has links to many documents.

The Star today also has an editorial headed "DCS' Payne crosses ethical line in case of his grandchildren." A few quotes:

James Payne, in getting personally involved in a Department of Child Services case involving his grandchildren, has grossly violated ethical guidelines, including, it appears, his own agency's code of conduct. * * *

All of that pales in comparison with the latest scandal. As The Star's Tim Evans documented Sunday, Payne in 2010 got intricately involved in a DCS case involving his grandchildren -- to the point that he worked to discredit his own agency's recommendations. * * *

The governor must give this matter his utmost attention in the days ahead. Payne is in his last months as DCS director, but it's difficult to see how he can continue to lead the agency in light of these revelations.

Posted by Marcia Oddi on Sunday, September 23, 2012
Posted to Indiana Government

Saturday, September 22, 2012

Ind. Courts - "Civility key to notable Lafayette legal community"

Chris Morisse Vizza reports for the Sunday Lafayette Journal Courier that begins:

The Tippecanoe County Bar Association now has three members sitting on Indiana’s highest courts.

Loretta Rush joins Chief Justice Brent Dickson on the state Supreme Court, while Margret Robb is chief judge of the Court of Appeals.

When asked if there is something special about Lafayette, local attorneys consistently mentioned one trait: civility.

Posted by Marcia Oddi on Saturday, September 22, 2012
Posted to Indiana Courts

Vacancy #2 on Supreme Court 2012 - "Loretta Rush's appointment to Indiana Supreme Court leaves crucial void in Tippecanoe courthouse"

This long story on Judge Loretta Rush's upcoming transition from Tippecanoe Superior Court 3 to the Supreme Court, written by Sophia Voravong, will appear in the Sunday Lafayette Journal Courier. Some quotes:

On Sept. 14, Gov. Mitch Daniels tapped Rush to fill the vacancy left when Justice Frank E. Sullivan Jr. retired this past summer to teach law. Rush has been a Tippecanoe County jurist for 28 years, with equal time spent in private practice and as juvenile court judge. * * *

She expects to formally join the Indiana Supreme Court in early November, with a public ceremony scheduled for mid-November.

Rush plans to remain in Lafayette and commute daily. * * *

Over the next six weeks, Rush said her priority is ensuring her caseload — 2,169 new cases, from child welfare and delinquency petitions to truancy and paternity challenges, were filed in Superior Court 3 in 2011 — is ready for as smooth a transition as possible.

She shares the caseload with juvenile court Magistrate Faith Graham.

“There’s going to be a learning curve for whoever takes over,” Rush said. “I care a lot about this court, and I want to leave it in as good of shape as possible.

“There are a lot of families I’ve known for a long period of time. ... I want to make sure nothing gets lost in the process.”

Rush’s legacy includes opening juvenile court proceedings on a case-by-case basis. Notably, she allowed media access after the March 15, 2005, abuse death of 4-year-old Aiyana E. Gauvin of Lafayette.

On March 24, 2005, Rush was asked to rule whether news outlets could access confidential child welfare records for Aiyana, a former ward of the state who had been removed from her biological mother’s home due to neglect and then was allowed to move in with her father, Christian Gauvin.

He later moved in with Michelle Gauvin, a change in living conditions that escaped the notice of caseworkers at the time. Aiyana’s child welfare case was closed, and she fell off the court’s radar until her death was discovered by police.

Cognizant of intense community interest from citizens who wanted to know just how Aiyana fell through the cracks, Rush had to consider the court’s longstanding tradition of privacy and closed-door proceedings to protect youths. She also faced objections by attorneys from the parties involved.

At the initial hearing in March, Rush denied the request to allow access to the case records. But two months later, asked to reconsider, she reversed course.

“We have to figure out what happened and prevent such things like this from happening again. We’ve got to change the system,” she said during the March hearing. “... I’m concerned that more children will be hurt if they don’t make significant changes in this system, and I think people need to know what goes on in this courtroom.”

Since then Rush has allowed news media and other interested parties to attend child welfare hearings on a case-by-case basis. * * *

Once Rush is sworn in, an interim special judge will likely be appointed. The governor is responsible for that short-term appointment, along with a Superior Court 3 judge to finish the four years and three months left in Rush’s third term, according to Tippecanoe County Clerk Christa Coffey.

See more on the process for filling the upcoming Tippecanoe Superior Court 3 vacancy here.

Posted by Marcia Oddi on Saturday, September 22, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - More on: Stories about our gun laws

Updating yesterday's ILB entry, the Indianapolis Star today has an editorial headed "Off-target gun laws in cross hairs" -- some quotes:

Rash legislation tends to wind up in litigation, and the predictable has come to pass in the case of two state laws on gun "rights" in the workplace.

Whether the lawsuit filed against ADM Enforcement by a terminated security guard will make for a clear test remains to be seen. But the incident that led to the firing -- accidental discharge of a semiautomatic rifle that the company had not authorized -- raises the same essential concerns the business community lodged against these 2010 and 2011 measures.

Thomas Jordan was not on his employer's property when the rifle he had in his car trunk went off as he was showing it to acquaintances. But the law says he could have had the weapon in his trunk or glove box on company premises, whether the employer approved or not. Nor could the boss even inquire about a gun, in his car or in his pocket, under the "don't ask, don't tell" provision of a second law.

Schools, utilities, domestic violence shelters and others were exempted from these laws, mocking the argument that they would make anyone safer. Businesses pleaded -- in vain -- that they too should retain the fundamental right to secure their property and prevent injuries for which they might well be liable regardless of a law that sought to tie their hands.

Should the current lawsuit reach the appellate level, the state could find itself spending time and money defending a distorted version of the right to bear arms against a compelling case for private property.

The laws at issue are IC 34-28-7, Possession of Firearms and Ammunition in Locked Vehicles, and IC 34-28-8, Disclosure of Firearm or Ammunition Information as a Condition of Employment.

Re another gun law
, IC 35-47-11.1, the 2011 law that bans local regulation of firearms, a reader writes to point to the generosity of the provision permitting recovery of attorney fees. Here is the provision:
IC 35-47-11.1-7. Civil actions; recovery of damages, costs, and fees

Sec. 7. A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:

(1) The greater of the following:
(A) Actual damages, including consequential damages.
(B) Liquidated damages of three (3) times the plaintiff's attorney's fees.
(2) Court costs (including fees).
(3) Reasonable attorney's fees.
As added by P.L.152-2011, SEC.4.
From the reader: "So you get 4X your atty fees as damages!!!!!!"

Posted by Marcia Oddi on Saturday, September 22, 2012
Posted to Indiana Law

Courts - "One district judge's take on the spat between Justice Scalia and Judge Posner"

From Sentencing Law blog.

Posted by Marcia Oddi on Saturday, September 22, 2012
Posted to Courts in general

Friday, September 21, 2012

Ind. Law - Stories about our gun laws [Updated at 6:45 PM]

Many changes have been made to Indiana's gun laws over the past few sessions. See, for example, this May 12, 2011 ILB entry. Two stories today are of interest.

"Voters may see more guns at polling places" is the headline to this story by Maureen Hayden, it appeared in the Logansport Pharos Tribune. Some quotes:

Don’t be surprised if you see somebody with a handgun at your local polling place this November.

A 2011 state law that barred local governments from enforcing their own gun restrictions also covers many public buildings where people go to vote.

Indiana Secretary of State Connie Lawson says the law is clear: Unless the polling place falls under the few exemptions in the law, legal gun owners have the right to openly bear their arms while they vote. “That matter has been settled,” Lawson said.

But it’s not quite been put to rest.

Last month, a Zionsville attorney who’s built a law practice as the unofficial enforcer of the 2011 law, filed a lawsuit on behalf of a northern Indiana man who was turned away from his polling place in a fire station during the May primary election after he refused to take off his holstered handgun.

Guy Relford thinks his client was a victim of ignorance of the 2011 law and predicts similar incidents may occur with the November election. “I routinely get calls from people who say their local officials and local law enforcement don’t know or understand the law,” Relford said. “But ignorance is no defense.”

The law in question, known as Indiana’s firearms pre-emption law, prevents local political subdivisions from having their own firearms ordinances. When it went into effect in July 2011, it also did away with local laws that prevented legal gun owners from carrying their weapons into public places like libraries, parks, city halls and fire stations. The law exempts courthouses and schools, where firearms may still be banned.

State Sen. Jim Tomes, a Republican from Wadesville who authored the law in his freshman year as a legislator, said it was intended for people like Relford’s client: Clay Edinger, a retired Marine and Iraq War veteran who is working on his masters degree in theology and studying to become a military chaplain. When Edinger went to vote, with his holstered handgun in plain view, he had a copy of the law with him, but was still turned away.

“(The law) was directed at people who have a license to carry a firearm, who’ve qualified for one, who’ve gone through the proper background checks with police,” Tomes said. “Some people imagined that we were going to have people shooting up libraries and parks and that just hasn’t happened.”

Tomes said Relford’s lawsuit has prompted questions about whether he thinks the pre-emption law should be amended to include polling places. His answer: “Absolutely not.”

While some gun rights advocates may encourage legal gun owners to test the law this fall, Tomes is not doing so and he cautions gun owners to be aware of the public perception of guns. “The media reports so many negative stories about guns and gun owners that people are living in fear,” Tomes said. “People are conditioned to react badly to the sight of guns.”

Tomes said the preemption law protects the rights of legal gun owners, but he doesn’t encourage licensed gun owners to openly show or display their legal firearms in public places. “The intent of the 2011 firearm preemption law was to provide a uniform policy for legal firearms carriers statewide, allowing them to legally carry their firearms in places they couldn’t before,” he said.

Tomes said his reasoning for not advising open displays is two-fold. First, he said, is that Indiana’s “concealed carry” law already allows legally licensed owners to have their firearms on hand in public places in case of an emergency. “Openly carrying a firearm in public venues works against the idea of having protection in the case of an emergency by most likely making any legal carrier a target of those who are illegally carrying firearms,” Tomes said.

The second reason echoes his concern about how the public perceives the guns. “(B)ecause people are not accustomed to seeing an openly carried firearm in public places, it’s common courtesy to keep them concealed as to not excite unnecessary fear,” Tomes said. “Most legal firearms carriers are responsible enough to extend this courtesy to fellow Hoosiers, carrying their firearms concealed as a demonstration of respect.”

"Security guard sues former employer after termination over gun policies" is the heading to a long story by Diana Penner in today's Indianapolis Star. Some quotes (there is much more to the story):
An Indianapolis man is accusing a security company of illegally firing him, violating Indiana laws that bar employers from banning weapons in personal vehicles and from even asking workers about gun possession.

The lawsuit, filed Wednesday in Morgan County, appears to be the first legal test of the two relatively new provisions of Indiana law — the “take your gun to work” provision that took effect in 2010 and the follow-up “don’t ask, don’t tell” measure, which kicked in in July 2011. * * *

Indiana law, argues Jordan’s lawyer Guy A. Relford, is clear on employees’ right to have firearms, including the AR-15 semi-automatic rifle Jordan owned, in their vehicles at work — as long as the weapons are legal, secured in a trunk or glove compartment otherwise kept of sight in a locked car. * * *

Relford said the company has no business “authorizing” weapons considered legal in Indiana, violated the 2010 legal provision with its email outlining a policy and then violated the 2011 by asking Jordan if he had a weapon in his car.

ILB: Re the first story, here is a note from Indiana attorney Jordan Stover that the ILB first posted Sept. 19, 2011, answering my question about "concealed carry vs. open carry":
Truth be told, Indiana doesn't issue "concealed carry permits," they issue "Licenses to Carry a Handgun," and the statutes never mention the word "concealed."

This creates a lot of confusion when people, lawyers included, see a story where a person was opening carrying a firearm, but has a "concealed carry permit." The natural assumption is that a concealed carry permit only permits concealed carry, and therefore the person openly carrying is somehow doing something wrong. So I just wanted to point out that our elected officials have not made such a distinction, and that they have explicitly allowed for both the open and concealed carry of weapons by people who have a license to carry a handgun.

The cite is IC 35-47-2-3, which uses the term "License to Carry a Handgun." The word concealed is not used in all of Chapter 2 regarding the Regulation of Handguns.

Here are the laws referenced in the above stories:[Updated at 6:45 PM]

A reader has called my attention to a story today in the Bloomington Herald-Times, which illustrates the operation of another gun law, IC 35-47-14, Proceedings for the Seizure and Retention of a Firearm.

The story by Laura Lane is headed "Man must give up guns after downtown Bloomington parking garage incident." Some quotes:

Robert Redington must give up his 51 guns.

And his license to carry a handgun has been revoked.

Monroe Circuit Judge Mary Ellen Diekhoff has ruled that 56-year-old Redington is a dangerous man who should not be allowed to possess or use guns, despite a Constitutional provision granting U.S. citizens the right to bear arms.

Under Indiana law, people diagnosed with mental illness who are determined to be a danger can be prohibited from owning guns.

Diekhoff’s order says that during a four-hour court hearing Sept. 5, Monroe County Deputy Prosecutor Jeff Kehr proved “by clear and convincing evidence” that Redington is dangerous as defined by law. She instructed the Bloomington Police Department to maintain possession of the weapons. * * *

Redington, who lives in Indianapolis, came to the attention of Bloomington police the night of Aug. 4 when two officers confronted him on the third floor of the parking garage at Seventh and Walnut streets in downtown Bloomington.

He had a hand-held range finder and was watching people come and go from Kilroy’s Sports bar across the street. Redington had two guns in his pants pockets, and a shotgun in the trunk of his car. * * *

While Redington was in the psychiatric unit, police got a warrant to search his home and found 48 additional guns, including a few handguns, but mostly rifles and shotguns. Three had no serial numbers, 10 had scopes attached and one shotgun had a sawed-off barrel. * * *

State law allows Redington to seek a review hearing within six months to again ask that the firearms be returned.

Once five years have passed, the judge court can convene a hearing and then order police “to destroy or otherwise permanently dispose” of the guns.

Posted by Marcia Oddi on Friday, September 21, 2012
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Janice Brandom v. Coupled Products, LLC, an 18-page, 2-1 opinion, Judge May writes:

Janice Brandom’s employer, Coupled Products, LLC, sued her for defamation after she made comments to a local newspaper about Coupled. Brandom moved to dismiss pursuant to the “anti-SLAPP” statute, Ind. Code § 34-7-7-5, which is intended to discourage lawsuits brought primarily to chill free speech about issues of public concern. * * *

As there was a genuine issue of fact as to whether Brandom genuinely believed she was being factual in her statements that Coupled demanded additional concessions or that she entertained serious doubts as to the truth of the statements, her motion to dismiss was properly denied. We accordingly affirm.

FRIEDLANDER, J., concurs.
BARNES, J., dissents with separate opinion. [which begins, at p. 15] I agree that Brandom’s statements related to an issue of public interest. I dissent, however, from the majority’s holding that genuine issues of material fact exist regarding Brandom’s good faith. As a result, I conclude that the trial court’s denial of Brandom’s motion to dismiss should be reversed. * * *

The difference between “discussing” concessions and “asking” for concessions is a mere matter of semantics that should not be used to chill free speech. The same can be said about the difference between surrendering life and dental insurance versus surrendering the employer contribution to the life and dental insurance. We are viewing here an important economic issue not only to the actual workers at the plant in question, but also to the entire citizenry of Whitley County. The good faith requirement should and must be present, but in this context, with collective bargaining in play, I believe Brandom’s conversation with the reporter was had in good faith. Remember, too, there is no direct quote in the article in question, and the reporter was free to, and undoubtedly did, capsulize, summarize, and characterize the conversation. In my view, the anti-SLAPP statute provides protection in such instances. I believe Brandom was entitled to her dismissal and protection under the statute.

In A.G. v. P.G., a 4-page opinion, Judge May writes:
A.G. (Father) appeals the extension of P.G.’s (Mother) protective order against him. He presents three issues for our consideration, one of which we find dispositive: whether there was sufficient evidence to support the extension of Mother’s protective order against Father. We affirm.
In Justin Taylor v. State of Indiana , a 4-page opinion, Judge May writes:
Justin Taylor appeals his conviction of Class D felony failing to register as a sex offender. We affirm. * * *

The registry requirement mandated Taylor provide his current address, and update his address within three days or seventy-two hours of relocation to a new residence. Taylor first registered on June 19, 2009 and reregistered with a new address on July 1, 2009.

In May 2011, Taylor was arrested and later convicted of criminal confinement. He was released to home detention on August 29. The home detention was to be served at 1725 Sloan, which was not listed as one of his addresses on the Sex Offender registry. In September, a compliance officer in the Sex and Violent Offender Registration Division learned Taylor was not living at either of the addresses listed as his residence on the Sex Offender registry.

The compliance officer learned of Taylor’s address from his home detention supervisor and arrested him there for failing to register as a sex offender. * * *

Taylor does not dispute he did not update his registry information when he was placed on house arrest at the Sloan street address, however, he contends he did not knowingly or intentionally fail to register because he was not aware he was required to register upon his release from incarceration to home detention: “he assumed they were closely monitoring him by ankle bracelet and other means. He was unaware he was required to submit himself to double monitoring.” We find his argument/defense without merit.

NFP civil opinions today (4):

Stephen Williams, Special Administrator of the Estate of Roscoe Petty, et al. v. Safe Auto Insurance Company (NFP)

The Kroger Company d/b/a Jay C. Food Store v. Deborah and David Tincher (NFP)

In Re: The Paternity of J.T.F., Minor Child, M.A.J.H., Father v. D.H., Mother, State of Indiana (NFP)

In Re The Civil Commitment of: J.B. v. Community North Hospital Gallahue Mental Health (NFP)

NFP criminal opinions today (8):

Keith A. White v. State of Indiana (NFP)

Derik Miller v. State of Indiana (NFP)

Mathew A. Johnson v. State of Indiana (NFP)

David T. Stephanoff v. State of Indiana (NFP)

Mark A. Johnson v. State of Indiana (NFP)

Pharoah D. Newton v. State of Indiana (NFP)

T.C., Jr. v. State of Indiana (NFP)

Ricky Rapier v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - LaPorte county officials discuss veterans court

Matt Fritz reports in the LaPorte Herald Argus on LaPorte County's effort to get its own drug court. Some quotes:

In the Porter County Veterans Court, veterans are first identified during their jail processing. Their information is then sent to the Veterans' Justice Outreach, which checks for their eligibility, then their court case manager does an assessment and makes sure they have a public defender or attorney.

If they accept help from the program, they must sign up with Veterans Affairs and accept the treatment programs it offers, like Alcoholics Anonymous, depending on their crime.

Any treatment they need that's not covered by the VA, such as anger management or a cognitive behavior programs, is then handled by the county,

"It's all about making sure they get the structure back into their lives and show up for work," said problem solving case manager Jackie Algozine.

But [Judge Julia Jent, supervisor of the Porter County Veterans Court] pointed out that the most important part about this program is the support group it offers.

This includes a veteran's mentor, who's experienced combat and knows what the affected veteran is going through.

Judges Thomas Alevizos, Jenniver Koethe and William Boklund attended the meeting and said the county was pursuing a similar court, especially since it's started a new court addressing people with drug issues.

Alevizos said it was a matter now of getting the stake holders together-the VJO, treatment providers, veterans and court representatives, to go through the planning process, getting a flowchart together and determining what treatments are available to vets.

Alevizos said the courts do take a veteran's background into account when they judge him, but this isn't the same as offering the support a special court would provide.

"If you give them a pass without treating the underlying condition," he said, "you're not solving the problem."

Jent pointed out that public safety was number one in her program, so crimes like murder, kidnapping or rape are not covered.

And the Porter County system, unlike the veteran courts in some states, will offer services to some veterans who didn't see combat (like the man who pulled bodies out of the Pentagon) or those who were dishonorably discharged. But this depends on circumstances.

Her program handles both misdemeanors and felonies, but the felonies are largely covered by the department of corrections, while she has to do fundraising for the $85,000 needed for the misdemeanor part of her program.

She noted that it was important to address misdemeanors before they become felons.

Posted by Marcia Oddi on Friday, September 21, 2012
Posted to Indiana Courts

Law - "Average compensation is $734,000 for male partners and $497,000 for female partners."

That is one of the pay gaps listed in this story, headed "Partner Pay Gaps Growing in BigLaw; Average Compensation Is $681K," in the ABA Journal on a survey prepared by Major, Lindsey & Africa and ALM Legal Intelligence.

Posted by Marcia Oddi on Friday, September 21, 2012
Posted to General Law Related

Thursday, September 20, 2012

Law - "NY Is First State to Require Law Students to Do Pro Bono Work to Get Licensed After Graduation"

See the post here at ABA Journal.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to General Law Related

Ind. Decisions - Supreme Court schedules oral argument in the school voucher challenge

The case is Teresa Meredith, Dr. Edward E. Eiler, Richard E. Hamilton, Sheila Kennedy, Glenda Ritz, et al. v. Mitch Daniels, in his official capacity as Governor of Indiana, Dr. Tony Bennett, et al.

This was a direct transfer from the trial court. See this ILB entry from Jan. 13, 2012, headed "Trial judge upholds school voucher law," for a copy of the trial court opinion.

Here is a copy of the Court's March 16, 2012 Rule 56(A) Order transferring the appeal to the Supreme Court, and denying the motion to expedite the appeal.

That is correct, transfer was granted March 16, 2012, but oral argument had not been set. Until today.

Oral argument is now set for November 21, 2012. The docket entry from 9/19/12 (and the first entry since 5/16/12) begins:

THE COURT HAS DETERMINED THAT THE ABOVE-CAPTIONED CASE WARRANTS ORAL ARGUMENT. THE ARGUMENT WILL BE CONDUCTED IN THE COURTROOM OF THE INDIANA SUPREME COURT, 317 STATEHOUSE, 200 WEST WASHINGTON STREET, INDIANAPOLIS, INDIANA. THE ARGUMENT WILL BE SIXTY (60) MINUTES IN LENGTH, EQUALLY DIVIDED BETWEEN APPELLANT(S) AND THE APPELLEE(S).

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Current vacancies in county courts

There are three vacancies currently listed on the Governor's Judicial Appointments page:

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Indiana Courts

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

For publication opinions today (3):

In Cody Waldrip v. Angela Waldrip, City of Bloomington, Indiana, Monroe County, Indiana, State of Indiana, a 28-page opinion, Judge Barnes writes:

Cody Waldrip appeals the trial court’s dismissal of his complaint against Angela Waldrip (“Angela”), the City of Bloomington (“Bloomington”), and Monroe County. We affirm in part, reverse in part, and remand.

The issues before us are:
I. whether Waldrip’s appeal was timely filed;
II. whether the trial court properly granted Bloomington’s motion for judgment on the pleadings;
III. whether the trial court properly dismissed all of Waldrip’s claims against Angela; and
IV. whether the trial court properly dismissed all of Waldrip’s claims against Monroe County. * * *

We affirm the dismissal of the complaint against Monroe County in its entirety. We also affirm the dismissal of those counts of the complaint against Angela that raised claims of false imprisonment, abuse of process, civil perjury, tortious interference with child custody and/or parenting time, and defamation. Waldrip has demonstrated prima facie error in dismissal of the counts against Angela for malicious prosecution and intentional infliction of emotional distress; we reverse the dismissal of those counts and remand for further proceedings on them. We also reverse the granting of Bloomington’s motion for judgment on the pleadings and remand for further proceedings on all of Waldrip’s claims against Bloomington.

In State Farm Mutual Automobile Insurance Company, Alan Steady v. Richard Kern, a 7-page opinion, Chief Judge Robb writes:
A jury found Alan Steady one-hundred percent at fault for injuries Ronald Kern sustained when the two were involved in a car accident, and a $98,000 judgment was entered against Steady to compensate Kern for his injuries. Because Steady was only insured up to $25,000, State Farm, Kern’s insurer, paid Kern underinsured motorist benefits. Steady requested that the trial court deem the judgment against him satisfied because Kern was compensated by State Farm, and the trial court granted Steady’s motion. State Farm appeals, raising one issue for our review: whether the trial court erred when it deemed the judgment entered against Steady satisfied. Concluding the trial court did err, we reverse and remand. * * *

The judgment entered against Steady should not have been deemed satisfied due to State Farm’s underinsured motorist coverage payment to Kern, and therefore the trial court erred. We reverse and remand to the trial court for further proceedings consistent with this opinion.

In Efren Mendoza-Vargas v. State of Indiana , a 12-page opinion, Judge Mathias writes:
Efren Mendoza-Vargas (“Mendoza-Vargas”) was convicted in Elkhart Superior Court of Class A felony dealing in methamphetamine, Class D felony maintaining a common nuisance, and Class D felony possession of marijuana. Mendoza-Vargas appeals and claims that the trial court abused its discretion in admitting evidence regarding Mendoza-Vargas’s post-Miranda statements to the police. Concluding that the police failed to scrupulously honor Mendoza-Vargas’s right to remain silent, we reverse and remand for retrial. * * *

Here, the record indicates that after being informed of his Miranda rights, Mendoza-Vargas was asked if he wanted to answer questions. Mendoza-Vargas responded by shaking his head “no.” This was an obvious invocation of his right to remain silent. But instead of immediately ceasing any questions, the police continued to question Mendoza-Vargas even after he had invoked his right to remain silent. The undercover officer told Mendoza-Vargas that he could “help himself out” by cooperating with the police, noted that dealing drugs carried a harsh prison sentence, and asked Mendoza-Vargas if he knew people in Elkhart County who dealt drugs. This can hardly be called “scrupulously honoring” Mendoza-Vargas’s right to remain silent. Instead, it was an effort to induce Mendoza-Vargas into answering questions.

The undercover officer then asked Mendoza-Vargas a question regarding rubber bands found in the house, prompting translator Gomez to remind the officer that Mendoza-Vargas had indicated that he did not want to answer any questions. Still, Mendoza-Vargas apparently understood enough English to comprehend the question without translation and asked Gomez whether he had to answer that question, indicating that he was unsure of whether he had to answer questions despite his invocation of his right to remain silent.

Then, instead of waiting for any substantial period of time, Gomez asked Mendoza-Vargas if he needed time to think about whether he wanted to answer any questions. Again, this appears to have been an attempt to induce him to cooperate by answering questions. When Mendoza-Vargas indicated that he needed a few minutes to think things over, the police gave Mendoza-Vargas some time. But when the undercover officer asked Mendoza-Vargas if he could ask him a question, he asked the question before Mendoza-Vargas indicated that he did, in fact, wish to answer questions at that time. And when Mendoza-Vargas chose to answer, the officer chose not to give Mendoza-Vargas new Miranda warnings.

Under these facts and circumstances, we are unable to conclude that the State met its burden of proving that Mendoza-Vargas’s right to remain silent was scrupulously honored. * * *

Here, we are unable to say that evidence regarding Mendoza-Vargas’s own incriminating statements had no impact on the jury’s decision. This is not a case where the evidence is overwhelming and the defendant’s own incriminating statements would have little impact on the jury’s decision to convict. Instead, the State argued the theory of constructive possession because Mendoza-Vargas was not found in direct possession of any of the substances and relied on Mendoza-Vargas’s statements during its closing argument to bolster its claim of constructive possession and intent. We therefore reverse Mendoza-Vargas’s convictions and remand for retrial, at which Mendoza-Vargas’s statements to the police shall be inadmissible given the police failure to scrupulously honor Mendoza-Vargas’s invocation of his right to remain silent.

NFP civil opinions today (1):

In the Matter of the Term. of Parent-Child Rel. of Ge.S. & O.S., and G.S. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

George Sanders v. State of Indiana (NFP)

D. Frank Winconek v. State of Indiana (NFP)

Abigail Begeman v. State of Indiana (NFP)

Ellis DeBerry v. State of Indiana (NFP)

Gerald Jerome Cox v. State of Indiana (NFP)

Robert Wendel v. State of Indiana (NFP)

Angela B. Tate v. State of Indiana (NFP)

Darius Jiggetts v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Ind. App.Ct. Decisions

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

In G&S Holdings v. Continental Casualty (ND Ind., DeGuilio), an 18-page opinion, Circuit Judge Rovner writes:

[from p. 3] On appeal, plaintiffs raise a number of challenges. With respect to the claims as a whole, the plaintiffs assert that the district court erred in applying the heightened pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in deciding the motion to dismiss. In addition, the plaintiffs assert that the court erred in granting dismissal with respect to each of the seven counts. We will examine these claims in turn. * * *

The decision of the district court is AFFIRMED.

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

Ind. Gov't. - "Is Bankruptcy a Viable Tool for Struggling Cities?"

Mike Maciag reports for Governing on whether "bankruptcy protection a viable option to save municipalities from financial ruin?"

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Indiana Government

Ind. Courts - Floyd Superior Court to consider next week if William Clyde Gibson III is competent to be tried for triple murder

Grace Schneider of the Louisville Courier Journal reports:

A judge has scheduled a hearing next week to discuss two key elements in the criminal case of accused triple-murder suspect William Clyde Gibson III — the New Albany man’s competency to stand trial and a potential change of venue if Gibson goes to trial.

Floyd Superior Judge Susan Orth set a 1:30 p.m. hearing Sept. 28 for discussions on a date for a competency hearing and on the location of Gibson’s first capital murder trial. That came during a closed session Wednesday between Orth, one of Gibson’s public defenders, and Floyd County Prosecutor Keith Henderson. * * *

Henderson said Wednesday that because of “a lot of logistics for the court,” the parties need to meet frequently to keep the proceedings moving toward the trial next year.

The first task for Orth is determining whether Gibson is competent to stand trial. In July, she granted a request from Gibson’s lawyers for a protective order prohibiting him from having contact with law enforcement, the media and the general public until he has undergone a mental evaluation and a competency hearing is held.

The protective order was designed to prevent Gibson from saying things that would incriminate him — something he’d already done in a letter to The Courier-Journal in which he wrote that he is guilty of the killings and willing to admit it in court.

Orth ordered two specialists from Jeffersonville — psychiatrist Steven Shelton and psychologist Heather Henderson-Galligan — to evaluate Gibson and report on their findings. Although those evaluations are sealed, the court docket in Gibson’s case shows that Shelton reported that he deemed Gibson competent to stand trial.

Henderson said the second evaluation report from Henderson-Galligan has been submitted, but he declined when asked Wednesday to disclose details during a short briefing with reporters.

At the competency hearing, both specialists could be called to testify, and Gibson also would be present, Henderson said.

Here are some earlier ILB entries.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Indiana Courts

Law - "After son's death, woman faces hefty tax bill on his student loans"

Read the long story for yourself - the Baltimore Sun has this Sept. 18th story reported by Ian Duncan that begins:

After Regina Friend's son Roswell committed suicide last year, she was at least relieved to know that the loans he took out to pay for his Temple University degree were forgiven. But now, the Cockeysville woman has learned she faces a hefty tax bill on those canceled loans.

"I thought I was done," she said. Then in June she spoke to her tax preparer, who told her that she will owe an estimated $14,000 to the Internal Revenue Service and the state comptroller on the loans she took out for her son.

"I don't think there will ever be closure for what happened. It's something I will have to learn to live with," Friend said. "But it is like throwing salt into a wound."

After Roswell Friend committed suicide in August 2011, the student loans he took out to cover his $17,000-a-semester bill at the Philadelphia school were discharged, and $55,400 in Parent Plus loans and interest his mother had accrued on his behalf was also canceled.

But according to IRS rules, loans that are forgiven in the case of death or permanent disability are treated as income. When the borrower dies, the IRS will not seek taxes — as happened with the loans Roswell Friend took out for himself — but when the borrower is a parent, it will.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to General Law Related

Ind. Decisions - "High Court Cuts Out Sentence Enhancement In Class Of Gun Crimes"

Another older decision, this one from July 31, 2012, is the subject of a story today by Jeff Neumeyer at the Indiana News Center. Although the story does not identify the decision, it is Anthony H. Dye v. State of Indiana. Some quotes:

In at least one category of handgun prosecutions in Indiana, offenders are now shielded from a large punishment enhancement.

The change ordered by the state Supreme Court can take up to 30 years off the criminal sentence in some gun cases. * * *

The old rules allowed a prosecutor to seek up to twenty-years for unlawful possession of a firearm by a serious violent felon, and also go for another thirty-years under the habitual offender statute.

In July, the state's high court, in an Elkhart case, struck down the habitual offender “add on”, saying that represented an impermissible use of double enhancements.

Allen County's prosecutor thinks the change is misguided.

" This is a pretty heavy penalty, and frankly, isn't this exactly the kind of person that we want to give that penalty to? Isn't that the person that really is at the top of the list when it comes to community safety," said Karen Richards.

Prosecutor Richards believes the ruling only impacts cases going forward, but she concedes it's possible there could be an attempt by aggressive defense lawyers to try and re-open cases already wrapped up.

In its ruling, the Supreme Court found that the enhanced penalty could not be used in these cases, unless “explicit legislative direction” is provided.

Richards says she’s open to working with lawmakers to tweak the statute language, to try and make the habitual offender component applicable once again.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Griffin’s sentence for murdering IU professor reduced by 5 years in appeals court"

That is the headline to a story today ($$) in the Bloomington Herald-Times, reported by Laura Lane. It begins:

The Indiana Court of Appeals has cut five years off the prison sentence of a decorated Marine convicted of stabbing an Indiana University English professor to death in 2009.
Confusing to the ILB is that the COA opinion in Griffin v. State of Indiana was filed March 21, 2012, 6 months ago. More from the story:
Michael Griffin’s 50-year term was reduced to 45 years. The appeals court judges cited Griffin’s contention that Don Belton sexually assaulted him two days before the murder and also Griffin being awarded the Purple Heart after being injured by a roadside bomb in Iraq as the reasons.

“In light of the tragic circumstances surrounding the offense, and the character of the offender as he conducted himself prior to the instant aberration, we find a 45-year sentence to be appropriate,” the court ruing states.

With credit for time served awaiting trial and two days of credit for each day behind bars, 28-year-old Griffin will be eligible for release in about 20 years, sooner if he continues his education in prison. He will be younger than his victim, who was 53 when he was killed, when he gets out.

Monroe County Chief Deputy Prosecutor Bob Miller, who presided over the case, stands behind the original sentence handed down May 17, 2011 by Monroe Circuit Judge Teresa Harper, who called the killing “heinous.” She factored in Griffin’s military service and its psychological effects as reasons to impose less than the maximum 65-year sentence.

Miller said the appeals court ruling appears to reflect a sympathetic attitude toward Griffin, who stabbed Belton 21 times, cut his throat and then wiped his bloody knife on the dead man’s pants before leaving.

“There was indeed, on the part of the court of appeals, some measure of sympathy toward the defendant given the facts of the case as presented by the defense,” Miller said Wednesday. “But we felt the original sentence was appropriate, given the violent nature of the assault and our belief that he had not been sexually assaulted as that concept is defined by law.”

The court ruling says the appeals court “cannot ignore the pervasive evidence that the homicide was in response to a sexual assault.”

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Filing and Counting Petitions Regarding Collaborative Care Agreements for Older Youth"

A new article in Indiana Court Times re "SEA 286-2012 [codified at IC 31-28-5.8], which creates a program (funded by Title IV-E of the Social Security Act) that can provide services to older youth who are ready to age out, or who have previously aged out, of the juvenile justice system as children in need of services (CHINS)."

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Indiana Law

Courts - " Protecting Property Rights from the Army Corps of Engineers: The Supreme Court prepares to hear a major Takings Clause case"

Although the headline brings to mind the current dispute in Indianapolis re the proposed Army Corps levee in Broad Ripple, the heading comes from this article in Reason, authored by Damon W. Root. A quote:

Does the Takings Clause still have any teeth left at all? We may soon learn the answer. On October 3 the Supreme Court will hear oral argument in the case of Arkansas Game & Fish Commission v. United States. At issue is whether a series of recurring floods sanctioned by the U.S. Army Corps of Engineers qualifies as a Fifth Amendment taking.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Courts in general

Ind. Decisions - More on: Supreme Court has granted transfer in Jennings v. State [Updated]

Updating yesterday's entry, the Jennings case docketed under the Supreme Court Cause No. shows that both petitions to transfer have been granted.

You may watch Tuesday's oral argument here.

Docket Inquiry

DATE TEXT
9/18/12 APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 09/19/12 AT 11:20 A.M.) ENTERED ON 09/19/12 KJ
9/19/12 ****** ABOVE ENTRY MAILED ******
9/18/12 APPELLANT'S PETITION FOR TRANSFER IS HEREBY GRANTED.
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 09/19/12 AT 11:20 A.M.) ENTERED ON 09/19/12 KJ
9/19/12 ****** ABOVE ENTRY MAILED ******

[Updated at 9:52 AM] Attorney Jill Acklin writes:

Transfer was denied in the other two cases that were part of the Jennings oral argument. The other two were Jesse Rayford (my client) and Dustin Tumbleson (represented by John Pinnow). Both Rayford and Tumbleson were NFP at the Court of Appeals.

Posted by Marcia Oddi on Thursday, September 20, 2012
Posted to Ind. Sup.Ct. Decisions

Wednesday, September 19, 2012

Ind. Decisions - Supreme Court has granted transfer in Jennings v. State [Corrected]

The Supreme Court has granted transfer in Jennings v. State. The oral argument was yesterday. The Supreme Court did not vacate the Court of Appeals decision, however.

CAUSE NO.: 53S01-1209-CR-00526
LOWER COURT CAUSE NO.: 53C030906CM2250

JENNINGS, JOEY V. STATE OF INDIANA

YOU ARE HEREBY NOTIFIED THAT THE SUPREME COURT HAS ON THIS DAY, 09/18/2012, ORDERED AS FOLLOWS:

APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 09/19/12 AT 11:20 A.M.) ENTERED ON 09/19/12 KJ

Jennings is mentioned in this Sept. 17th post from Prof. Schumm, and in Monday's post on Upcoming Oral Arguments.

[Corrected at 8:05 PM]

Appellate Rule 58(A). Effect of Grant of Transfer. The opinion or not-for-publication memorandum decision of the Court of Appeals shall be final except where a Petition to Transfer has been granted by the Supreme Court. If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated * * *

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Lawmaker proposes fine for 10 grams of marijuana or less"

Readers may recall that in the summer of 2011, the Criminal Law and Sentencing Policy Study Committee held a public hearing, at the behest of Sen. Karen Tallian, D-Ogden Dunes, on changing Indiana's marijuana sentencing laws, which are among the toughest in the nation.

In the 2012 session she introduced a bill on the topic. To quote a NWI Times story from Jan. 29, 2012:

INDIANAPOLIS | State Sen. Karen Tallian, D-Ogden Dunes, knows sometimes the best way to win support for a change in the law is to give people time to get used to the idea.

That's why Tallian did not request a committee vote on Senate Bill 347 last week but still spent nearly an hour explaining to a panel of state senators how Indiana would benefit by reducing criminal penalties for marijuana possession. * * *

But because 2012 is an election year, she said she thought it best to wait until next year to ask for a vote.

"This legislation is a work in progress," Tallian said. "We wanted to continue laying the groundwork."

See also this ILB entry from Feb. 10, 2012, headed "District 33 voters overwhelmingly favor marijuana decriminalization."

Today the Kokomo Tribune has this long story from Maureen Hayden, CNHI Statehouse Bureau. Some quotes:

Indianapolis — An influential Republican lawmaker believes it’s time for Indiana to decriminalize possession of small amounts of marijuana and plans to include language to do so in legislation to overhaul the state’s criminal code.

State Sen. Brent Steele, who’s played a critical role in criminal justice issues as chair of the Senate corrections committee, said the state’s marijuana possession laws are too harsh. Indiana law dictates that marijuana possession is a felony unless it’s a first-time offense and the amount is less than 1 ounce. * * *

At least 14 states have rolled back criminal penalties for possession of small amounts of marijuana, and 17 states and the District of Columbia allow the use of “medical marijuana” as pain treatment.

Steele, a conservative legislator from Bedford, likened Indiana’s marijuana possession laws to “smashing an ant with a sledgehammer.”

His proposal: make possession of less than 10 grams of marijuana a civil infraction that carries the penalty of a fine. Ten grams is equal to about 10 single-serving sugar packets or two joints.

Steele doesn’t support legalizing marijuana. He doesn’t want to do away with laws, for example, that carry tough penalties for people who drive under the influence of marijuana. And he’s convinced there are other laws that will catch people who are drug abusers.

“We’re talking about simple possession. Some kid caught with a couple of joints in his pocket,” Steele said. “Mere possession has nothing to do with use or abuse.”

Steele’s support for such a change is critical, as is the timing. A legislative study committee scheduled to meet Thursday is working on a massive plan to overhaul Indiana’s criminal code. * * *

Andrew Cullen, legislative liaison for the Indiana Public Defender Council and member of the committee that issued the report, thinks Steele will find bipartisan support in the Statehouse. “No one wants to encourage the use of drugs. But to make a low-level, recreational drug user into a felon is ridiculous,” Cullen said.

The House is expected to introduce its own version of legislation that would overhaul the state’s criminal code. State Rep. Jud McMillin, a former prosecutor from Brookville, is expected to carry the House version. McMillin said he hasn’t seen Steele’s proposal but said the penalties for some drug crimes need to be revisited.

“We need to be spending our resources on people who need to be put away,” McMillin said.

Steele’s role is seen as critical: He’s been an ally of Indiana prosecutors, who aren’t expected to support his push to reduce penalties for some drug possession crimes. He’s also been seen as a “rock-ribbed, law-and-order guy,” said Ed Feigenbaum, longtime publisher of the Indiana Legislative Insight newsletter. “For him to make this kind of concession is significant,” Feigenbaum said.

Steele hinted at his position last year when, as chairman of the Senate corrections committee, he cleared the way for a hearing on a bill that created a study on whether Indiana should legalize marijuana. That bill was authored by state Sen. Karen Tallian, a liberal Democrat from Portage.

Tallian, 61, and Steele, 65, don’t agree on much politically. But both are lawyers who’ve seen people sent to jail or prison for possessing small amounts of marijuana and both question whether that’s the right result.

Tallian has done polling on the issue and said there’s a growing public sentiment that Indiana’s marijuana possession laws may be too tough. “We don’t need to be putting kids in jail [for possessing marijuana] and making them into felons,” Tallian said. “I think most people will agree with that.”

See more about tomorrow's meeting of the Criminal Code Evaluation Commission at this ILB post from yesterday.

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Indiana Law

Courts - "The most detailed, persuasive complaint of its kind" that he has ever read

Steven Brill writes in his Reuters opinion blog about the Beef Products, Inc. complaint against ABC News, re a beef filler called “pink slime”:

To be sure, the great fun in writing about litigation is that if both sides have good lawyers (and Beef Products’ lawyer is heavyweight former Chicago federal prosecutor Dan Webb), one side’s arguments can look persuasive until challenged by the other side. So, maybe Beef Products’ case will evaporate when ABC answers.

But as an aficionado of these cases, I can report that this is the most detailed, persuasive complaint of its kind that I have ever read.

That caught my eye - fortunately for those curious, Brill links to the complaint.

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Courts in general

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

For publication opinions today (5):

In Columbus Regional Hospital v. Clyde Amburgey, Individually and as Executor of the Estate of Moreen Amburgey, a 13-page opinion, Judge Brown writes:

Columbus Regional Hospital (the “Hospital”) appeals the trial court’s denial of its request for partial summary judgment. The Hospital raises one issue which we revise and restate as whether the court erred in failing to enter summary judgment in its favor on the basis that the expiration of the statute of limitations with respect to two physicians foreclosed the suit brought by Clyde Amburgey, in his individual capacity and as administrator of the estate of his wife Moreen (collectively, “Amburgey”), against the Hospital. We affirm. * * *

Initially, we review Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147-153 (Ind. 1999), in which the Indiana Supreme Court discussed apparent or ostensible agency. The Court held that where a plaintiff alleges negligence was not committed by a hospital, but instead by a physician working at the hospital, the plaintiff must present a theory by which a court can find the hospital vicariously liable for the actions of a physician who practices there. * * *

With this background in mind, we turn to the issue of whether the expiration of the statute of limitations regarding any claim against Dr. Xu or Dr. Harris forecloses Amburgey’s claim against the Hospital. * * *

While Indiana has not addressed this specific issue, we observe that some of our sister states have concluded that the running of a statute of limitations with respect to a physician does not preclude a complaint against a hospital on a theory of vicarious liability and apparent authority. * * *

In light of Sword and the foregoing authorities which we find persuasive, as well as our review of the designated evidence in this case, we conclude that the trial court did not err in denying Amburgey’s Motion for Partial Summary Judgment and in finding that genuine issues of material fact exist regarding the claim of apparent agency.

In L.H. Controls, Inc. v. Custom Conveyor, Inc., a 41-page opinion, Judges Barnes writes:
L.H. Controls, Inc., (“LH”) appeals the trial court’s entry of judgment in favor of Custom Conveyor, Inc., (“CCI”) in the amount of $1,467,587.61. We affirm in part, reverse in part, and remand.

The restated issues before this court are:
I. whether the trial court properly awarded CCI $1,149,470 in lost profit damages for LH’s breaches of its contract with CCI;
II. whether the trial court properly concluded LH was contractually required to indemnify CCI for attorney fees and costs CCI incurred in this litigation; and
III. whether the trial court properly calculated the amount of contractual chargebacks to which CCI was entitled against LH and properly awarded CCI a money judgment for those chargebacks. * * *

We reverse the trial court’s award of lost profit damages to CCI in the amount of $1,144,470.00. We also reverse the award of $133,328.53 in attorney fees to CCI and the award of damages of $82,184.10 for CCI’s chargebacks, as well as the $5,259.38 set-off for LH the trial court had allowed against the $82,184.10. We affirm the award of $7,077.00 and $928.86 in costs related to CCI’s removal of the mechanic’s lien against Honda’s property. Together with the damages LH does not challenge on appeal ($59,696.60, $39,375.00, and $5,787.00), this will result in a total award to CCI of $112,864.46. We remand for the trial court to make the necessary corrections to its judgment.

In Lavelle Malone v. Keith Butts and Bruce Lemmon, a 10-page opinion in a case involving apro se appellant, Judge Brown writes:
Lavelle Malone, pro se, appeals from the trial court’s order granting a motion to dismiss filed by Keith Butts, Superintendent of the Pendleton Correctional Facility and Bruce Lemmon, Commissioner of the Indiana Department of Correction (collectively, the “DOC”). Malone raises one issue which we revise and restate as whether the court erred in dismissing his Action for Mandate for failure to state a claim upon which relief can be granted. We affirm.
In Duane Turner v. State of Indiana, a 27-page opinion, Judge Riley writes:
Turner raises two issues on appeal, which we restate as the following:
(1) Whether the post-conviction court erred in determining that Turner’s life sentence without parole is constitutional; and
(2) Whether Turner received effective assistance of counsel. * * *

Based on the foregoing, we conclude that (1) the post-conviction court did not err in denying Turner’s motion for summary disposition and granting the State’s motion for summary judgment on the constitutionality of Turner’s life sentence without parole. Further, the post-conviction did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of trial counsel. With one exception, we find that the post-conviction court did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of appellate counsel for failure to raise issues during Turner’s direct appeal. However, we conclude that Turner has met his burden to prove by a preponderance of the evidence that his appellate counsel was ineffective by failing to challenge his conviction for Class A robbery resulting in serious bodily injury and we therefore remand with instructions to reduce the Class A felony robbery conviction to a class B felony robbery conviction.

In Michael Carpenter v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Carpenter raises one issue, which we restate as whether the trial court properly admitted evidence found when officers attempted to serve an arrest warrant at the residence where he was living. * * *

We conclude that the officers did not violate Carpenter’s Fourth Amendment rights when they entered the house’s curtilage pursuant to an arrest warrant and looked into the bathroom window. * * *

The officers here had reason to believe that Howard lived at the residence and was present, and thus, the degree of suspicion was moderate. The degree of intrusion into Carpenter’s residence was minimal, and the extent of the law enforcement needs was moderate. We conclude that the officers’ entry into the curtilage and looking into the bathroom window did not violate Article 1, Section 11 of the Indiana Constitution.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Kenneth Kelly v. State of Indiana (NFP)

Bruce Kevin Pond v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Green paper filing, is it out of control?

Last week I wrote about my unsuccessful efforts to obtain a copy of a petition in the Charlie White case that had been filed as a confidential document.

Here is the appellate docket entry (29A05-1203-CR-00123). Note that I've highlighted the references to the color "green":

8/30/12 APPELLANT'S VERIFIED EMERGENCY PETITION TO STAY DIRECT APPEAL
AND REMAND TO FILE "DAVIS' PETITION" IN THE TRIAL COURT (6)
CERTIFICATE OF SERVICE (6) BY MAIL 08/30/12.
ENTERED ON 08/30/12 AS
8/30/12 ****NOTE: ORIGINAL OF PETITION TO STAY IS ON GREEN, ALL OTHER
COPIES ARE WHITE. ENTERED ON 08/30/12 AS
9/04/12 APPELLANT'S BRIEF (9) AND FOUR (4) VOLUME APPENDIX (1-GREEN)
FILED, CERTIFICATE OF SERVICE (9) BY MAIL 09/04/12. *ROTUNDA*
ENTERED ON 09/05/12 MC
9/19/12 TRIAL COURT CLERK NOTIFIED TO TRANSMIT TRANSCRIPT.

My failed effort to obtain a copy of this document (although a reporter obtained it from the court with no problem) led me to take a look at the procedure by which an attorney may file documents and designate them as "confidential." I wondered, can anything that might be potentially embarrassing be designated as confidential? How is this policed? The answers have surprised me.

I started at the trial level. TRIAL RULE 5(G) provides:

(G) Filing of Documents and Information Excluded from Public Access and Confidential Pursuant to Administrative rule 9(G)(1). Every document filed in a case shall separately identify information excluded from public access pursuant to Admin. R. 9(G)(1) as follows:
(1) Whole documents that are excluded from public access pursuant to Administrative Rule 9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document, marked “Not for Public Access” or “Confidential.”

(2) When only a portion of a document contains information excluded from public access pursuant to Administrative Rule 9(G)(1), said information shall be omitted [or redacted] from the filed document, and set forth on a separate accompanying document on light green paper conspicuously marked “Not for Public Access” or “Confidential” and clearly designated [or identifying] the caption and number of the case and the document and location within the document to which the redacted material pertains.

(3) With respect to documents filed in electronic format, the trial court, by local rule, may provide for compliance with this rule in manner that separates and protects access to information excluded from public access.

(4) This rule does not apply to a record sealed by the court pursuant to IC 5-14-3-5.5 or otherwise, nor to records, documents, or information filed in cases to which public access is prohibited pursuant to Administrative Rule (9)(G).

Admin. R. 9(G)(1) concerns case records excluded from public access; they are listed:
(a) Information that is excluded from public access pursuant to federal law;

(b) Information that is excluded from public access as declared confidential by Indiana statute or other court rule, including without limitation [see list in rule, it includes certain adoption records, records of grand jury proceedings, etc.]

(c) Information excluded from public access by specific court order;

(d) Complete Social Security Numbers of living persons;

(e) With the exception of names, information such as addresses, phone numbers, and dates of birth which explicitly identifies:

(i) natural persons who are witnesses or victims (not including defendants) in criminal, domestic violence, stalking, sexual assault, juvenile, or civil protection order proceedings, provided that juveniles who are victims of sex crimes shall be identified by initials only; (ii) places of residence of judicial officers, clerks and other employees of courts and clerks of court;
unless the person or persons about whom the information pertains waives confidentiality;

(f) Complete account numbers of specific assets,, loans, bank accounts, credit cards, and personal identification numbers (PINs);

(g) All orders of expungement entered in criminal or juvenile proceedings;

(h) All personal notes and e-mail, and deliberative material, of judges, jurors, court staff and judicial agencies, and information recorded in personal data assistants (PDA's) or organizers and personal calendars.

So here is the problem. Case filings are public, with the exceptions listed in Rule 9. But many attorneys misunderstand the use of the green paper -- they believe, for instance, that any document with a social security number is to be filed on green paper, as confidential, rather than simply redacting the number and filing the number on green paper.

Others misuse Trial Rule 5 to make confidential, for instance, divorce papers. This is easy enough to do, there is no certification requirement, and no penalties.

And what is the remedy for a member of the public or press who wants to see a green paper filing? There effectively is none.

Admin. Rule 9(I), titled "Obtaining Access to Information Excluded from Public Access," is the only route. It presumes that the green sheet was used correctly and it requires the filing of a verified petition with the court, a hearing, and places the burden on the requestor to show:

(a) Extraordinary circumstances exist which requires deviation from the general provisions of this rule;

(b) The public interest will be served by allowing access;

(c) Access or dissemination of the information creates no significant risk of substantial harm to any party, to third parties, or to the general public, and;

(d) The release of information creates no prejudicial effect to on-going proceedings, or;

(e) The information should not be excluded for public access under Section (G) of this Rule.

Of course all this is difficult to do if the requestor does not know what is in the "confidential" document.

I contacted attorney Maggie Smith, Frost Brown Todd LLC, to see if I had missed anything. Her response:

I teach on Administrative Rule 9 all over the state and, in my opinion, it is universally misunderstood and misapplied at every level.

You’re right that many attorneys make mistakes out of ignorance, but you’ve also correctly recognized that some use green paper as a sword to keep documents that should not be confidential out of the public view, and Rule 9(I) really is no help unless you know what was being excluded (and Rule 9(I) puts a huge burden on someone if the documents should never have been put onto green paper in the first place).

The Court of Appeals fairly regularly issues orders to show cause re: why a document that was filed on green paper should not be made public, but nowhere near the level of actual violations (likely because doing so would, in my opinion, require a full-time attorney devoted just to policing green paper issues).

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Indiana Courts

Ind. Gov't. - Another view of the DCS centralized hotline, from DCS

Mark Wilson of the Evansville Courier & Press has the story here.

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Indiana Government

Ind. Gov't. - "States Seek a Middle Ground on Medicaid: Some Governors Aim to Curtail Program's Expansion, Steer More People Toward Federally Subsidized Private Insurance"

Indiana is discussed in this Sept. 18th WSJ ($$$) story.

Also today, at 10:00 AM (also will be archived) on the Diane Rehm Show, State Strategies For Controlling Medicaid Costs.

Posted by Marcia Oddi on Wednesday, September 19, 2012
Posted to Indiana Government

Tuesday, September 18, 2012

Courts - "Montana Rule Banning Party Endorsements of Judges Blocked"

Karen Gullo reports for Bloomberg - some quotes:

Montana’s law making it a crime for political parties to endorse candidates in state judicial races was blocked by a federal appeals court that said it’s an unconstitutional ban on free speech. * * *

“Montana has a compelling interest in maintaining a fair and independent judiciary,” said U.S. District Judge Jed Rakoff, a Manhattan trial judge assigned to the appellate panel.

“Where Montana and the district court err, however, is in supposing that preventing political parties from endorsing judicial candidates is a necessary prerequisite to maintaining a fair and independent judiciary.” * * *

U.S. Circuit Judge Mary Schroeder dissented, calling the ruling a “a big step backward for the state of Montana.”

“This is the first opinion to hold that even though a state has chosen a nonpartisan judicial selection process, political parties have a right to endorse candidates,’” she said. “This means parties can work to secure judges’ commitments to the parties’ agendas in contravention of the non- partisan goal the state has chosen for its selection process.”

See How Appealing for other stories and a link to the opinion.

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Courts in general

Courts - "Missouri appeals court upholds summary of ballot measure changing judicial selection process"

Updating this ILB entry from earlier today, re "Lawsuit seeks to change how Kansas Supreme Court judges are appointed," Missouri is curently following another route in an effort to modify "the Missouri Plan" in its name-state.

David A. Lieb of the AP reports today in a story that begins:

JEFFERSON CITY, Mo. — A Missouri appeals court panel on Monday upheld the ballot summary that voters will see for a proposed constitutional amendment to change the process by which appellate judges are nominated.

The ruling by a three-judge panel of the appeals court also certified the measure to appear on the November ballot. * * *

At issue is a proposal dealing with the Appellate Judicial Commission, which screens applicants for vacancies on the state Supreme Court and the Court of Appeals. The measure would change the composition of the seven-member commission by allowing the governor to appoint four members, instead of three, and by making a Supreme Court judge merely an advisory member instead of a voting member of the panel. The other three panelists still would be chosen by members of The Missouri Bar.

The ballot proposal also would increase the number of nominees the panel submits to the governor for an appointment to four, instead of three.

The measure was referred to the November ballot by the Republican-led state Legislature, which has complained that members of The Missouri Bar — in particular, trial lawyers — have too much sway in the judicial selection process. But lawmakers did not write their own ballot summary for the measure, so that task fell to Democratic Secretary of State Robin Carnahan.

Carnahan's summary states that the proposal "gives the governor increased authority to:

— appoint a majority of the commission that selects these court nominees, and

— appoint all lawyers to the commission by removing the requirement that the governor's appointees be non-lawyers."

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Courts in general

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

Updating these three ILB entries from Sept. 10th (first, second, and third), where I posted the slideshow, "Review of IDOC Admission Cohort of FD and Select FC Offenders: Presentation to Indiana Criminal Code Evaluation Commission," but did not have a copy of actual final report, here now is the 78-page final report.

This is the DAWG final report to Criminal Code Evaluation Commission, the one that IUPUI profs did looking at the class D felons in DOC (and some of the Class C felons). My source noted: "It's a little confusing to read. 'New committments' doesn't mean first-time offenders. It means somebody who was sent to DOC on a conviction for a new crime. A little less than half of the D felons in DOC are there because they violated parole or probation conditions. The researchers wanted to keep the groups separate."

The next meeting of the Commission is this Thursday, Sept. 20. Here is the agenda. The focus Thursday will be the Review of the Criminal Code, a 365-page document available here. Be aware that it is nearly 10 MB.

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Indiana Law

Courts - Updating "Lawsuit seeks to change how Kansas Supreme Court judges are appointed"

This Sept. 15, 2010 ILB entry reported that a Kansas federal district court had refused "to grant a temporary restraining order against a nominating committee charged with selecting finalists for a vacancy on the Kansas Supreme Court." The entry links to earlier ILB posts. The parties challenging the Kansas judicial selection process were represented by Indiana lawyer James Bopp Jr.

On Sept. 13th the 10th Circuit, in a 26-page, 2-1 unpublished decision, affirmed the district court, ruling:

A group of Kansas voters, none of them lawyers, sued the attorney members of the Supreme Court Nominating Commission (Commission) and the Clerk of the Appellate Courts requesting a temporary restraining order and preliminary injunction to prevent any vacancies from being filled while this lawsuit is pending. The Commission is composed of five attorneys elected by attorneys and four non-attorneys appointed by the Governor. Appellant voters claim the selection of the Commission’s attorney members violates the one person, one vote principle of the Equal Protection Clause because the franchise is closed to all but attorneys. The district court denied the preliminary requests for relief before going on to dismiss the complaint for failure to state a claim. The voters appealed from the dismissal. AFFIRMED.
Here is Sept. 13th coverage from Steve Kraske of the Kansas City Star. It begins:
A divided U.S. Court of Appeals on Thursday rejected a challenge to the way Kansas selects its judges.

In a 2-1 ruling, the court in Denver agreed with a federal district court in dismissing a complaint aimed at the state’s longstanding merit system used to select members for the Kansas Supreme Court and the Kansas Court of Appeals.

Conservative lawmakers and Republican Gov. Sam Brownback have criticized the practice and sought to change it. That push is expected to continue during the 2013 session of the Kansas Legislature. A similar debate has raged in Missouri in recent years.

In Kansas, a nine-member Supreme Court Nomination Commission reviews applications for court vacancies and submits three nominees to the governor, who then picks the judge. Those judges then stand for retention in general elections after they have served at least a year on the bench.

What Brownback and others object to is the makeup of the nomination commission. Five of the nine members are lawyers who are selected by other attorneys around the state, meaning lawyers control the selection process.

The four other members are non-attorneys and are appointed by the governor. The process, referred to as “merit selection” of judges, was established in the 1950s as a way to limit the influence of politics on how judges are picked.

A group of four Kansas voters objected to the selection procedure and sued, arguing that it violates the one-person, one-vote principle of the Equal Protection Clause because only lawyers get to vote on the five members.

However, in rejecting the voters’ claim, Judge Terrence O’Brien ruled: “In the end, this court must defer to Kansas in decisions relating to the structure of its government. Kansas voters adopted merit selection as a middle ground between an appointment process scarred by abuse and an elective process susceptible to politicization.”

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Estate of Theresa Burnham; James Burnham v. Paulette Labean, Personal Representative of the Estate of Theresa Burnham (NFP)

NFP criminal opinions today (5):

Marlon Sims v. State of Indiana (NFP)

Trenell C. Bright v. State of Indiana (NFP)

Sergio Sandoval v. State of Indiana (NFP)

Robert Taylor v. State of Indiana (NFP)

Tavario Baskin v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Advocates urge Legislature to return 'safety net' to law relating to children"

Supplementing this ILB entry from yesterday, and this one, Marisa Kwiatkowski of the NWI Times reports today that:

Representatives from the Indiana Prosecuting Attorneys Council, Indiana Public Defender Council and Indiana State Bar Association testified Monday about the need to give prosecutors back the ability to file child in need of services 6 petitions, also known as CHINS 6, that claim a child is a danger to himself or herself.

Prosecutors lost the ability to file CHINS petitions in 2008 after a change in state law. The Indiana Department of Child Services is the only entity that can file such petitions.

DCS spokeswoman Stephanie McFarland previously said the 2008 changes were designed to have prosecutors and DCS work within their areas of expertise. She contended legislators also took away DCS' ability to file criminal cases.

JauNae Hanger, chairperson of the Civil Rights of Children Committee for the Indiana State Bar Association, said giving the authority back to prosecutors would ensure there is a "safety net" for children who need court intervention in order to secure services. Ideally, they would receive needed mental health services without the court.

Larry Landis, executive director of the Indiana Public Defender Council, said prosecutors need the ability to file CHINS 6 petitions in case other efforts fail.

"The issues really comes down to this: Do you think we need checks and balances or not?" Landis said. "We think we do."

This was the Commission on Mental Health and Addiction, here is yesterday's agenda.

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Indiana Government

Ind. Courts - “If ever a defendant has shown rehabilitation, it is the defendant in this case.”

That is a quote from Justin Suits' defense attorney. The AP story is headed "Parents upset at release of killer." Some quotes:

MUNCIE – The parents of a Delaware County woman don’t think it’s fair the man who killed their daughter walked out of prison five years to the day after being sentenced to 20 years.

Don and Sharon Strasser want state lawmakers to put a limit on how much time inmates serving sentences for violent crimes can get taken off their punishments for good time and other credits. Justin Suits was allowed to plead guilty to voluntary manslaughter in the killing of their daughter, 26-year-old Marva Diana Rhea. * * *

“We couldn’t understand it, quite honestly,” Sharon Strasser said. “They had been going for murder. ... We thought 20 years isn’t that much for murder.”

Mark McKinney, who was Delaware County prosecutor at the time, called the deal fair and said it probably would have been what a jury found because it was not a premeditated murder.

Suits’ defense attorney, Alan Wilson, is now a Delaware County circuit judge and declined through a spokeswoman to comment to The Associated Press about the practice of inmates having their sentences reduced.

But Wilson wrote in a motion last year while he was Suits’ attorney that his client had “greatly matured since his offense and subsequent incarceration, and is now prepared to resume his place in society and to be a productive citizen.”

He also noted that Suits had “engaged in extensive psychological counseling” and married a woman in December 2010 who was “seeking her Ph.D” at Ball State University.”

More from the story:
Suits entered prison with credit for 253 days he had spent in jail before his sentencing.

With the anticipation he would receive credit for good behavior, his first projected release date was Dec. 30, 2016.

In October 2009, a year was cut from Suits’ sentence because he earned an associate degree in applied science. And in 2011, prison officials subtracted 180 days from his sentence for taking part in substance abuse counseling.

An additional 183 days came off his sentence in exchange for participation in a program described as a “faith and character-based re-entry initiative.”

Then, nearly two years were subtracted from Suits’ prison term in recognition of his earning a bachelor’s degree in business management.

At the time of his release last week into a transition program, Suits had received two days shy of four years in prison reduced from his sentence because of program-based credit time.

Here is the story in the Sept. 16th Muncie Star-Press, reported by Douglas Walker, and headed "Killer's prison stay lasts five years: The parents of Justin Suits' victim are encouraging legislators to change how prison sentences are served."

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Indiana Courts

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

Updating these ILB entries from April, 2012, Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

Two national organizations are weighing in on the side of fired Catholic school teacher Emily Herx in her discrimination lawsuit against the local diocese.

Filed Monday in U.S. District Court by the American Society for Reproductive Medicine and the American Civil Liberties Union, the “friends of the court” briefs ask a district judge to rule in Herx’s favor in deciding the disability discrimination lawsuit filed this year against the Roman Catholic Diocese of Fort Wayne-South Bend.

Herx sued the diocese in April, claiming she was discriminated against for a disability when her teaching contract was not renewed. Herx, who suffers from infertility, a protected disability under the Americans with Disabilities Act, underwent in vitro fertilization. She argues her termination was a violation of both the Civil Rights Act of 1964, as well as the Americans with Disabilities Act.

The Equal Employment Opportunities Commission found in Herx’s favor in a January ruling.

In vitro fertilization treatment is banned under Roman Catholic doctrine, and when news of Herx’s treatment came to light, diocesan officials decided not to renew her contract. She had been a language arts teacher at St. Vincent de Paul School.

On Monday, Herx’s attorneys also filed their response to the diocesan request that the case be decided on written arguments only, rather than proceed to a trial. In July, U.S. Magistrate Judge Roger Cosbey granted their request, which put off requiring both sides to provide what could be mountains of documents and other evidence to each other in the process called “discovery.”

Diocesan attorneys want the court to dismiss Herx’s complaint because the diocese is a religious employer that acted in a manner consistent with its belief.

And should the courts allow the case to proceed, it could lead to “government entanglement” in matters of Catholic Church doctrine, teaching and governance, according to court documents.

A letter written by Bishop Kevin Rhoades last summer called the procedure an “intrinsic evil, which means that no circumstances can justify it,” according to court documents.

In documents filed Monday, Herx’s attorneys reiterate that this is not a case of religious discrimination, that Herx was not fired because of her religious views.

Rather, they argue, it is a case of disability discrimination solely, and while the Americans with Disabilities Act has some exemptions for religious employers, those exemptions do not apply in this case.

“Defendants … in fact have admitted that (Herx’s) contract was not renewed due to her undergoing IVF treatments,” Herx’s attorneys wrote in their motion.

The ACLU argues, in support of Herx, that the diocese’s behavior is illegal.

“Neither the statutes nor the Constitution give religiously affiliated employers a blanket right to discriminate against lay employees on the basis of sex or disability, even if motivated by sincerely held religious beliefs,” wrote New York-based ACLU attorney Jennifer K. Lee.

ILB: The ILB hopes to post all these filings...

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Indiana Courts

Ind. Courts - "Judges revise ‘parenting time’ rules in custody cases"

Maureen Hayden reports today in the Logansport Pharos-Tribune in a story that begins:

INDIANAPOLIS — After two years of review, Indiana judges have approved proposed changes to a comprehensive set of guidelines aimed at reducing conflict between parents in child custody cases.

The recommended revisions to the state’s Parenting Time Guidelines cover an array of issues that arise in custody battles, from where children spend their holidays to what happens when warring parents can’t agree on the most basic rules for visitation.

The proposed revisions to the 33-page guidelines were approved last week by the Indiana Judicial Conference, whose members include the state’s trial court judges. If approved by the Indiana Supreme Court, the revised guidelines are expected to go into effect early next year for use by courts throughout the state.

The guidelines serve as a model set of custody-related rules for courts and parents. While some of the language in the guidelines has changed, the basic premise driving them remains the same; that is, that under most circumstances, a child is best served by two actively engaged parents.

“In making any changes we tried to remember the reason for the guidelines is so children can have safe, stable, predictable parenting time with each parent,” said Steuben County Judge William Fee, who chaired a committee of judges who spent two years reviewing the guidelines that were first adopted in 2001.

Some of the changes set out rules for visitation and other matters in painstaking detail. They include, for example, specific times of the day when children can go from one parent to another, spell out what holiday celebrations take precedence over birthday celebrations, and how to evenly split up Christmas vacations that spill over into the New Year.

The revised rules include more detailed rules for how judges can handle issues involving “high-conflict” parents who are unable or unwilling to cooperate with each other or the court.

They also include language that underscores the guidelines’ larger intent: “Parents and attorneys should always demonstrate a spirit of cooperation.”

More from the story:
One area that the revised guidelines don’t yet include: Rules for when a “parenting coordinator” can be appointed by a judge to work with parents who are in deep dispute about visitation and other issues. The guidelines for parenting coordinators, including how they’re trained and whether they can make binding recommendations, are still undergoing some study.
Here is the proposal that is on the Indiana Courts website.

Posted by Marcia Oddi on Tuesday, September 18, 2012
Posted to Indiana Courts

Monday, September 17, 2012

Ind. Gov't. - More on "State officials offer solution to meet mental health needs of children"

This AP story published this afternoon reports:

DCS acknowledged that some parents who are unable to afford mental health services for their children have resorted to the juvenile justice system or by pleading guilty to neglect charges so the children become wards of the state, which then assumes financial responsibility for their care.

"For decades the only way these children have been able to get care is by entering the court system as a juvenile delinquent, or to have their parents claim neglect so the child can become a ward of the state," DCS chief of staff John Ryan said in a news release distributed by the agency. * * *

The Indiana Court of Appeals recently reversed a neglect conviction against an Indianapolis woman, ruling she had tried to get help for her daughter. [ILB: A reader writes that it wasn't a criminal case with a conviction; it was a CHINS adjudication.]

The Times of Munster and The Indianapolis Star reported earlier this year that DCS rarely used its power to provide mental health treatment for youths deemed a danger to themselves or others, and they often ended up in the juvenile justice system.

Re the Court of Appeals case, here is the July 1, 2012 story, "Decision may affect parents, children with mental illness," reported by Marisa Kwiatkowski of the NWI Times. A few quotes from the long story:
Last month, the appellate court reversed a juvenile court judge's order that a Marion County parent had neglected her teenage daughter, identified in court documents as V.H. The woman had refused to pick up her daughter from an emergency shelter until the girl received counseling services, court records state.

"It is apparent that mother, who is a working single parent, was addressing V.H.'s behavioral issues," Judge John Baker wrote in the appellate court's unanimous opinion. "This is something for which we should applaud parents rather than condemn them through coercive action."

Legal experts say the court's opinion may affect the Indiana Department of Child Services' policy of substantiating neglect findings against some parents in order to help them obtain services for their children with mental illness or a developmental disability.

Here is longer coverage from the July 1 ILB.

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Indiana Government

Ind. Courts - Two members of the Indiana Supreme Court and four members of the Court of Appeals of Indiana are up for retention in the November general election

History of Indiana's Judicial Retention Websites

In 2006 the ILB created the first Indiana Judicial Retention website. Here is the July 17, 2006 ILB entry where I first floated the idea. From the entry:

Last October I published in Res Gestae a column titled "Voting to Retain or Reject Indiana Appellate Judges and Justices." You may access a copy online here.

In the article I set forth the position that voters need information about judges' records in order to make informed decisions and to make the retention vote meaningful. The article concluded: "It is up to the state and local bar associations, the media, and the League of Women Voters and similar civic groups, to start now to assure that the citizenry will have the information they need to make their votes on retention meaningful."

Here is a July 20, 2006 entry with some reactions to my retention website idea.

The resultant ILB 2006 judicial retention website unfortunately is no longer available. I would have liked to keep it online for historical purposes, but that would have required my paying for the hosting in perpetuity. But here is a description of it from the Oct. 31, 2006 Chesterton Tribune. The ISBA contributed information (and photos) from its Judicial Retention Poll & Performance Evaluation.

In 2008 the judiciary itself created its own retention website, which is discussed in this Oct. 2, 2008 ILB entry.

In 2010 the judiciary's website was much improved over the 2008 effort. Here is the June 2, 2010 ILB post, which concludes:

Two additional things I would have liked to see: (1) The age of each judge. By law, an appellate judge must retire at age 75. Thus, whether a judge will be able to finish his/her term is a fact voters should be able to take into consideration. (2) Re the table, more difficult to display, but of significance, is whether or not an opinion a judge authored was transferred to the Supreme Court, and the action there.

Finally, it is the hope of the ILB that in the future these biennial judicial retention sites will be preserved so that they may be accessed by the public in the future. They are documents of historical significance.

To the best of my knowledge, there is no way in 2012 to easily access the 2010 or 2008 official retention website. And a look at the 2012 retention website reveals no age information of the judges and justices, despite its relevance for the voter.

The 2012 Judicial Retention Website

Here is the official 2012 site. In 2012, two members of the Indiana Supreme Court and four members of the Court of Appeals of Indiana are up for retention. It includes biographies, photos, videos of oral arguments, and an outstanding, interactive table of each candidates' judicial decisions. Best of all, it links to the actual publicly available opinions from the Court's database, not to West or Lexis.

For more information, see this June 21, 2012 ILB entry, which explain:

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

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

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

Other Information on the Individual Candidates

The Court's website will link to the "Indiana State Bar Association: 2012 Judicial Retention Poll Results,' when they become available. The ballots went out today.

The Fort Wayne Journal Gazette ran a long, Sept. 9th article by Niki Kelly on retention and specifically former Allen County jurist and current COA judge, Paul Mathias. Some quotes:

Mathias, 58, has become a bit of a hermit, sticking mostly to the confines of his Statehouse office to review cases and write decisions.

His most significant while on the bench so far has likely been tossing out the state’s voter identification law in 2009.

At the time, he concurred with his Court of Appeals colleagues and found the statute unconstitutional because it did not treat all Hoosier voters equally. The decision said the law favors Hoosiers using mail-in absentee ballots who do not have to show identification to vote, while those voting in person at the polls do.

The Indiana Supreme Court later disagreed and upheld the law – something Mathias said he doesn’t take personally.

“As long as a reviewing court doesn’t take a gratuitous swipe at me then they are doing their job and I’m doing my job,” Mathias said.

Over the years he said he never ceases to be amazed and saddened by the “terrible and tragic variations of criminal behavior.”

Mathias said he takes special interest in cases involving mental illness. And he enjoys dealing with issues that have never come before the courts before.

A recent example involved a car accident in which one driver waved a second driver through a traffic jam. The second driver then struck a motorcyclist. The motorcyclist was seriously injured and sued the first driver who initially waved the other person through.

Mathias dissented, feeling that the driver who waved the other one forward could not be held liable for the other driver’s actions pulling into traffic.

“I looked at what I thought Hoosiers would expect and I thought Hoosier values were based on personal responsibility,” he said.

Mathias called being on the Court of Appeals his “calling” and said he never even considered seeking one of three recent Indiana Supreme Court openings.

Although court rules keep him from campaigning for retention, he is hoping he isn’t the first appellate judge ever to lose retention.

“I realize I was very fortunate to be asked by the governor and the people of the state of Indiana to do what I do,” Mathias said. “I just consider it my role in life.”

He does get back to Fort Wayne about once a month to visit friends and colleagues.

On Sept. 16th the FWJG published this article about Constitution Day, authored by Judge Mathias.

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Indiana Courts

Ind. Gov't. - "State officials offer solution to meet mental health needs of children"

Marisa Kwiatkowski of the NWI Times reported this afternoon:

INDIANAPOLIS | State officials unveiled a plan Monday they believe will ensure parents don't have to plead guilty to neglect in order to secure services for their mentally ill or developmentally disabled children.

A Times investigation published earlier this year found there has been a multi-agency failure to provide intensive services to some children with severe mental illnesses or developmental disabilities. Children who do not receive needed services may enter the court system as juvenile delinquents or as children in need of services.

In some cases, The Times learned, parents -- who had been dedicated to seeking care for their children -- admitted to neglect in order to secure services.

"Everyone agrees -- from state agencies, to prosecutors, to judges, to probation officers, to mental health experts, to families -- that is not the way to help these kids," John Ryan, chief of staff for the Indiana Department of Child Services, said in a written statement.

Officials from DCS, the Indiana Division of Mental Health and Addiction, the Bureau of Developmental Disabilities Services, Department of Education, juvenile courts and prosecutors' offices developed a plan to get children needed services without court intervention. The plan was announced Monday during a Commission on Mental Health and Addiction legislative committee meeting in Indianapolis.

The plan calls for school officials, community members, judges, probation officers, prosecutors and public defenders to refer families with children in need of mental health services to a community mental health center access site. The site would evaluate children's levels of need.

Families of children who meet the level of need and are eligible for Medicaid will be referred to the Division of Mental Health and Addiction. DCS has agreed to pay for the services for children whose families are not eligible for Medicaid or whose private insurance will not cover the cost.

Families of children who do not meet the level of need will be referred to DCS' community partners program for services.

State officials said they hope the plan will close the gap in services for the segment of children whose families have struggled to secure services. * * *

Ryan said he hopes the state's plan will keep families from having to "abandon" their children at a facility and keep parents from having to plead guilty to neglect in order to get needed mental health services.

"I can't think of a more difficult decision for parents to make," he said.

The plan will be tested in Lawrenceburg, Ind., for two months before being rolled out statewide next year, officials said.

The story includes two charts, the existing process to secure mental health services, and the proposed process.

See the entire NWI Times "Children in Peril" series here, including this June 24th story by reporter Kwiatkowski, which brought statewide attention to this issue. It is headed "Parents advised to 'abandon' children in order to secure mental health services."

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending Septemeber 14, 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, September 14, 2012. It is one page (and 7 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Todd J. Posar v. Paula M. Posar (NFP)

Kent A. Easley v. Indiana Dept. of Correction, et al. (NFP)

NFP criminal opinions today (7):

Sarah L. Thompson v. State of Indiana (NFP)

Kyle Lynch v. State of Indiana (NFP)

Cory J. Pinkerton v. State of Indiana (NFP)

Jason Middleton v. State of Indiana (NFP)

Geramy Ridley v. State of Indiana (NFP)

Rolando Miguel-Gaspar Mateo v. State of Indiana (NFP)

Perry Odum v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Ind. App.Ct. Decisions

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

In Dowell v. US (SD Ind., Young), an 11-page opinion, Circuit Judge Williams writes:

Fred Dowell signed a plea agreement that specifically reserved his right to appeal “career offender” designation if the district court found him to be one at sentencing. After the court made this designation, Dowell claims that he then directed his attorney to file a notice of appeal to contest whether he was a career offender. However, his counsel did not file the notice of appeal. So Dowell filed a 28 U.S.C. § 2255 motion asserting that his counsel’s failure to file the directed appeal constituted ineffective assistance of counsel. The government opposed the motion, arguing that Dowell’s agreement in his plea not to challenge his sentence on collateral attack precluded relief. We agree with Dowell that if he told his attorney to appeal the issue specifically reserved in his plea for appeal and counsel did not do so, he received ineffective assistance of counsel which can be corrected in a § 2255 proceeding. We remand to the district court to make a determination as to whether Dowell told his attorney to file the appeal.

Posted by Marcia Oddi on Monday, September 17, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Relying on Not-Yet-Certified Indiana Appellate Opinions

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

Is it ever too soon to cite and rely on a recently issued but not-yet-certified opinion from the Indiana Court of Appeals or Indiana Supreme Court?

My view, consistent with every experienced appellate attorney I asked in the past few days, is no. Counsel, trial courts, and appellate courts regularly and appropriately cite and rely on recent opinions, and if transfer or rehearing is pending, counsel simply notes that subsequent history at the end of the citation.

This topic is timely for two reasons: (1) because the Attorney General’s office recently espoused a contrary view in a Third Circuit case, and (2) because some Indiana trial judges are not following the Court of Appeals’ published opinion in Jennings v. State, which is set for oral argument at the Indiana Supreme Court tomorrow, September 18th.

Appellate Rule 65

Parties have thirty days to seek rehearing or transfer after the Court of Appeals issues an opinion or thirty days to seek rehearing after the Supreme Court issues an opinion. Appellate Rule 65(E) explains that the clerk will not certify the opinion until “after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification.”

As a practical matter, although parties often seek transfer, the odds of a grant of transfer are less than 10%. Rehearing is seldom granted and usually simply to clarify a Court of Appeals opinion, or a Supreme Court opinion.

Rarely does the outcome change, although a notable exception is Hopper v. State, where the two dissenters were joined by newly appointed Justice David to undo a 3-2 Boehm opinion after his retirement.

In short, although some recently issued opinions may ultimately be reversed or revised, it is unlikely.

The last sentence of Appellate Rule 65(E) imposes the following restriction: “The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.” Rule 17(A) makes clear that parties refers to a “party of record in the trial court or Administrative Agency . . . .” Therefore, after the Court of Appeals or Supreme Court decides a case, the parties and trial court in that case cannot take action, such as holding a new hearing or reducing a damages’ award, until the opinion has been certified. This is illustrated by the recent Bei Bei Shuai case, where a defendant who prevailed in the Court of Appeals on her claim that bond should have been set nevertheless had to wait several weeks until transfer was denied by the Indiana Supreme Court [and the COA opinion was certified?] for the trial court to hold a hearing to implement that ruling.

The Attorney General’s View is Incorrect and Inconsistent

In recent filings in a Third Circuit case, the Attorney General’s office has taken a much broader view of Rule 65, which simply cannot be squared with its express language or long-standing statewide practice. After opposing counsel cited a recent Indiana Supreme Court case to the Third Circuit, the Attorney General’s office filed a letter that included the following:

An Indiana opinion must be certified before it may be cited as precedent. Ind. App. R. 65(E); see also Foundations of East Chicago, Inc. v. City of East Chicago, 933 N.E.2d 874, 875 (Ind. 2010) (“[P]arties shall not take any action in reliance upon the opinion or memorandum decision [by a court on appeal] until the memorandum or decision is certified.”).
Two days later, opposing counsel responded that “there is no prohibition upon citation anywhere in Rule 65(E), which provides that once an appellate decision is issued, neither the parties below nor the trial court may act upon it until certification after the time for rehearing.” The response continued by distinguishing the Foundations case, which “involved a party who convinced the court below to take action immediately following a decision on appeal (prior to the resolution of a petition for rehearing), which was specifically barred by Rule 65(E).”

Rather than agreeing with this interpretation, the Attorney General’s reply accused opposing counsel of being “unfamiliar with Indiana procedure.”

Contrary to the Attorney General’s view in that case, established Indiana practice and procedure allow citation of recently issued but not-yet-certified opinions. A quick Lexis search reveals thirteen Indiana Supreme Court or Indiana Court of Appeals’ opinions in the past year alone that include “trans. pending” or “reh’g pending” following one or more citations to not-yet-certified cases cited within the case. Examples include Rayford v. State, one of the cases set for the consolidated oral argument tomorrow, where the Court of Appeals raised the Jennings issue sua sponte while both rehearing and transfer were pending.

Moreover, the Attorney General’s own petitions to transfer in Jennings, Rayford, and Tumbleson each cite one or more of the opinions, even though transfer is pending in all three.

It is ironic, if not a bit troubling, that just days ago the Attorney General issued a press release seizing control of all Department of Child Services appeals in part, Zoeller said: “because appellate cases are highly complex and can result in new legal precedent, it now is necessary that the state government’s law firm – the Attorney General’s Office – harmonize the legal positions of DCS and other state agencies in appellate court, to ensure they are consistent with each other and with our state’s legal policy.” These recent filings are not harmonious.

Finally, if the intent of Rule 65(E) was to prohibit citation of non-certified opinions, it could easily be written to say so. For example, Rule 65(D) expressly states that not-for-publication memorandum decisions “shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.” But Rule 65(E) includes no similar language, and the practice of appellate courts and counsel make clear such decisions are routinely and appropriately cited.

Ethical obligations for attorneys

Professional Conduct Rule 3.3(a)(2) prohibits lawyers from “knowingly” failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” As highlighted by some of the responses during interviews for the Sullivan vacancy on the Supreme Court, attorneys and judges keep abreast of recent opinions through a variety of methods. Opinions are posted daily to the court’s website and featured in this blog and other online and print legal publications. If counsel knows of a recent, directly adverse opinion — even if it is not yet certified — he or she would be well-advised to disclose it.

Challenges for trial courts

Finally, consistent with the language of Rule 65(E) and the discussion above, trial courts appear obligated to follow recent, not-yet-certified opinions in cases other than the specific case pending rehearing or transfer. But months after Jennings, which arguably broke new ground from long-standing practices in misdemeanor sentencing, many trial courts are not following it.

Although the Court of Appeals’ published opinion is binding unless and until vacated on transfer, defendants around the state are being treated differently based not on a lack of clarity of its holding -- “the statutory phrase ‘term of imprisonment’ include[s] both the executed and suspended portions of a misdemeanor sentence, and because Jennings was sentenced to a 180-day term of imprisonment (composed of thirty executed days and 150 suspended days), his term of probation could not exceed 185 days” -- but apparently because they do not believe they are bound by it.

[Disclosure statement from Prof. Schumm: I served as co-counsel for the Marion County Public Defender Agency as amicus in Jennings. That brief is available here.]

Posted by Marcia Oddi on Monday, September 17, 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, September 16, 2012:

From Saturday, September 15, 2012:

From late Friday afternoon, September 14, 2012:

Posted by Marcia Oddi on Monday, September 17, 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 (9/17/12):

Tuesday, September 18th

Next week's oral arguments before the Supreme Court (week of (9/24/12):

Thursday, September 27th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/17/12):

Next week's oral arguments before the Court of Appeals (week of 9/24/12):

Tuesday, September 25th

Wednesday, September 26th Thursday, September 27th 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, September 17, 2012
Posted to Upcoming Oral Arguments

Sunday, September 16, 2012

Ind. Gov't. - "Attorney General's office will handle DCS appellate court cases"

Tim Evans reported Sept. 13th in the Indianapolis Star:

Attorney General Greg Zoeller said Thursday he will reassume responsibility for Department of Child Services appellate court cases in the wake of a controversial attempt by DCS to block a newspaper from publishing information about a call to the agency’s child abuse hotline.

Zoeller, who earlier criticized DCS’ move as “inconsistent with the First Amendment,” cited a need for better communication, as well as more consistency and expertise in representing the interests of the state.

The new approach, which Zoeller announced will take effect by Jan. 1 at the latest, will replace the current process in which the attorney general’s office had granted permission for staff attorneys from DCS to handle cases in the Court of Appeals.

Attorneys from DCS will continue to represent the agency in cases at the local court level.

In a brief written response, DCS chief of staff John Ryan did not sound fully on board with the new plan.

“Because our first responsibility is to the safety of children,” Ryan said, “we believe exploration and discussion are needed before such a decision can be finalized.”

Informed of the agency’s response, Zoeller spokesman Bryan Corbin told The Indianapolis Star: “The decision to assume appellate representation is already finalized.” He said state law gives the attorney general sole authority to decide who will represent Indiana agencies. * * *

Zoeller said attorneys in his office have more expertise and experience in appellate matters, and that such cases set precedent that can affect other state agencies and interests.

“It’s not just due to the errors,” he said, “but really the numbers, the volume and the complexity of some of the cases. It’s just better to bring it all back in house.”

Zoeller said he was caught off guard by the motion DCS filed against the South Bend Tribune and thinks his own office could have done a better job of communication. “That’s one that I learned about on a Saturday,” he said, which is not the kind of communication that he wants and needs.

In hindsight, Zoeller said, the change “is probably something I should have done earlier.”

Here is the entire news release. Here also is the letter "formally outlining the new consent arrangement, reserving appellate representation of DCS to the Attorney General’s Office and trial representation of the agency to DCS."

ILB: For more on the role of the Attorney General vis-à-vis the three branches of government, see this ILB entry from Sept. 9, 2012.

Posted by Marcia Oddi on Sunday, September 16, 2012
Posted to Indiana Government

Courts - "Savannah Dietrich attackers get slightly tougher sentence"

The Louisville case of sexual assault victim Savannah Dietrich appears to have concluded with her attackers getting slightly tougher sentences. See earlier ILB entries here. Here is the story by Jason Riley of the LCJ.

Posted by Marcia Oddi on Sunday, September 16, 2012
Posted to Courts in general

Ind. Decisions - Still more on 7th Circuit decision August 28th on Indiana sex offender registry

Updating this ILB entry from Sept. 4th, here is Alex Campbell's August 28th Indianapolis Star story on the 7th Circuit ruling. Some quotes:

A federal appeals court in Chicago ruled Tuesday that certain errors in Indiana's often-inaccurate sex offender registry violate offenders' rights and need to be addressed.

The court's opinion also placed the blame squarely at the feet of the Indiana Department of Correction. * * *

As part of the ruling, Wood cited reporting by The Indianapolis Star that uncovered numerous inaccuracies on the Marion County portion of the registry. The Star's investigation, published in April, also noted widespread inconsistency in how the registry is updated.

"Reducing the errors," Wood wrote, "is in the interest of the state as well as the plaintiffs."

That's a sentiment shared by several state lawmakers, and it comes in the midst of Statehouse hearings about the registry that will focus in part on how to make it more accurate.

Previous Star reporting centered on offenders being shown on the registry map at incorrect addresses. The appeals court case shed light on an additional concern.

David Schepers is a Pike County-registered offender who in 2006 was convicted of two counts of child exploitation. At some point, Schepers was incorrectly deemed a "sexually violent predator," meaning he faced tougher restrictions than he legally was supposed to.

When he tried to fix this, "the DOC provided no official channel or administrative mechanism allowing him to do so." He tried calling DOC officials informally, but that didn't work either. So he and the ACLU filed suit.

In its response, the DOC claimed that this didn't violate any due-process rights.

It also argued that it wasn't the agency to be held accountable for mistakes on the registry, saying that it "does not control the sex offender registry website." That's left to the Indiana Sheriffs' Association, the DOC argued.

The issue of who runs the registry has been raised before. Sheriffs' officials in each of Indiana's 92 counties update the registry.

When The Star uncovered issues with how Marion County dealt with offenders who were no longer required to register -- the county was keeping them on the map without updating their addresses, causing numerous errors -- Sheriff John Layton changed his agency's policy.

That rid his county's portion of its inaccuracies, but The Star found that policies varied from county to county.

The DOC helps put sex offenders on the registry before they are released from prison. But beyond that, it argued in court, it does not have much involvement in the registry's day-to-day upkeep.

Appeals court judges didn't buy that, citing state law and saying the argument "begins to unravel when one discovers that the reason why the Indiana Sheriffs' Association is the entity that publishes information on the Internet is because the DOC has contracted with it to do so."

So this error was on the DOC, Wood ruled. And given that Schepers faced extra living restrictions and the additional stigma of being labeled a "sexually violent predator" when he wasn't one, Wood wrote, his due process rights were being violated.

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

Law - LA Times reports "Over two decades, the Boy Scouts of America failed to report hundreds of alleged child molesters to police and often hid the allegations from parents and the public."

The story today in the LA Times, by Daniel Politi, begins:

Over two decades, the Boy Scouts of America failed to report hundreds of alleged child molesters to police and often hid the allegations from parents and the public.

A Los Angeles Times review of 1,600 confidential files dating from 1970 to 1991 has found that Scouting officials frequently urged admitted offenders to quietly resign — and helped many cover their tracks.

Volunteers and employees suspected of abuse were allowed to leave citing bogus reasons such as business demands, "chronic brain dysfunction" and duties at a Shakespeare festival.

The details are contained in the organization's confidential "perversion files," a blacklist of alleged molesters, that the Scouts have used internally since 1919. Scouts' lawyers around the country have been fighting in court to keep the files from public view. * * *

The Boy Scouts' lawyers have long contended that keeping such files confidential is key to protecting the privacy of victims, of those who report sexual abuse and of anyone falsely accused. But over the years, hundreds of the files have been admitted into evidence — usually under seal — in lawsuits brought by alleged victims. The Times reviewed 1,600 of the nearly 1,900 files that came to light as a result of a 1992 court case.

Hundreds more will soon become widely available. In June, the Oregon Supreme Court ordered the release of 1,247 of the Scouts' confidential files covering two decades beginning in 1965. The files were submitted in a 2010 lawsuit that resulted in a nearly $20-million judgment against the Scouts.

The release of the files, many of which were included in The Times' review, raises the prospect of a costly wave of litigation for the Boy Scouts. In many states, however, statutes of limitation will curb victims' ability to sue.

Posted by Marcia Oddi on Sunday, September 16, 2012
Posted to General Law Related

Law - "Party Laws Put Hosts on Hook: More States Targeting People Who Allow Underage Drinking on Their Property"

The ILB had several entries in 2007 on teen drinking parties and the liability of the parents who host them - see this story and its links.

The Sept. 11th Wall Street Journal had this story ($$) by Jennifer Levitz on "social host" laws. A few quotes:

[These laws] impose criminal or civil penalties on hosts who permit underage drinking on their property, regardless of who supplies the alcohol or whether anyone gets hurt. Some 28 states had adopted such laws as of January, up from 18 in 2005, according to the National Institutes of Health.

A handful of other states, including California, have passed more circumscribed laws imposing penalties on hosts if someone is harmed by underage drinking. And many cities and counties—from Cobb County, Ga., to El Paso, Texas—are passing or debating their own ordinances.

A map accompanying the story shows states which have prohibitions against hosting underage drinking parties.

Posted by Marcia Oddi on Sunday, September 16, 2012
Posted to General Law Related

Saturday, September 15, 2012

Ind. Courts - Federal Judge "asked to clarify Indiana's definition of retardation"

Dave Stephens, reporting for the South Bend Tribune, wrote in a story dated Friday, Sept. 14th that begins:

SOUTH BEND — How Indiana determines if someone is mentally retarded was at the center of a debate today for a man sentenced to die for shooting a police officer in 2001.

In 2009, the Indiana Supreme Court rejected an appeal that claimed Tom Pruitt — who mortally wounded Morgan County Deputy Dan Starnes during a shootout following a traffic stop — was mentally retarded and could not be executed.

Pruitt, now age 50, was convicted in 2003 of murder and sentenced to death, even though his attorneys have long argued he was not eligible to receive the death penalty because of his diminished mental capacity.

In 2001, in Atkins vs. Virginia, the U.S. Supreme Court ruled that executing criminals who are mentally retarded was a violation of the Eighth Amendment’s provision against cruel and unusual punishment. But the ruling left it up to each state to define what constitutes mental retardation.

On Friday, attorneys representing Pruitt and the Indiana attorney general’s office appeared before U.S. District Court Judge Robert L. Miller Jr., where they presented oral arguments in Pruitt’s appeal that still basically hinges on one question — is he mentally retarded?

Posted by Marcia Oddi on Saturday, September 15, 2012
Posted to Indiana Courts

Law - Fascinating article on "Constitutional Backdrops"

Prof. Lawrence B. Solum of Legal Theory Blog highlights this new "download of the week," Constitutional Backdrops by Stephen E. Sachs.

Posted by Marcia Oddi on Saturday, September 15, 2012
Posted to General Law Related

Vacancy #2 on Supreme Court 2012 - "Gov. Daniels names Loretta Rush to Indiana Supreme Court"

Big front-page story today in the Indianapolis Star by May Beth Schneider on Judge Rush's appointment to the Supreme Court, with some good quotes:

Indiana’s Supreme Court is no longer a men’s-only club, as Gov. Mitch Daniels on Friday picked Tippecanoe County Judge Loretta Rush as the state’s newest justice.

Rush, 54, becomes only the second female named to Indiana’s highest court and ends a 13-year male monopoly on the court.

When she is sworn in, Indiana will end its dubious status as one of three states in the nation, along with Idaho and Iowa, with no women on the top court. Daniels bypassed two earlier opportunities to erase that gender imbalance, saying that the most important factor was finding the best justice.

That remained his maxim, he said, asserting he chose Rush because of her qualifications and her conservative judicial temperament, not her gender. More important to him was her belief that legislators write laws, and the court only interprets them.

As he introduced Rush in a Statehouse news conference, Daniels said he “wasn’t oblivious to the fact that this (gender diversity) was not already a factor of our superb Supreme Court.”

But, he said: “Quality first, and factors like (gender) can be tie-breakers. I wouldn’t want anyone to think that that really was a necessary factor here. I do believe she was the clearly best available choice and I’m totally comfortable with it.”

He would have made the same pick, he said, if there already were two or three women on the top court.

Really?

More from the lengthy story:

Monica Foster*, an Indianapolis defense attorney who was recently named executive director of the Federal Community Defenders for the southern district of Indiana, greeted Rush’s appointment with one word: “Finally.”

“I’m just overjoyed about it,” she said. “I’m very, very pleased to see this selection. It’s a long time in coming.”

So long, in fact, that Joel Schumm, a clinical professor of law at the Indiana University Robert H. McKinney School of Law in Indianapolis, said Rush’s selection came as a surprise to many.

People, he said, had “given up” expecting to see Daniels’ choose a woman.

* * *

Foster said Daniels “has been pretty oblivious to how important it is to the profession” and “to women in the community that women be represented on that court.”

To say that this has been a leading topic of discussion among women in the legal profession is a grotesque understatement,” Foster said. “I think it’s a joyous day. Judge Rush is very well-qualified for this position.”

Of Indiana’s 315 state trial court judges, 65 are women, about 20 percent. Of the 15 appellate court judges, five are women.

Schumm noted that nearly half of the law students at IU are women. Yet when they look at the portraits of the 107 justices that hang on the Supreme Court walls, they see only one woman represented.

“It had become embarrassing,” Schumm said. “Indiana is now almost 200 years old, and for only four years there was a woman on the Supreme Court.”

He doubted Rush would decide cases differently simply because she is a woman. Her philosophy of judicial restraint is in line with that of the men Daniels has chosen – Steven David and Mark Massa.

But, he said, justices bring their life experiences to the job. “Having some representation for women makes a difference there,” he said.

ILB: I flagged Monica Foster's name because she is a nationally renowned criminal defense attorney, ranked at the top of her field. She was one of the applicants for the Indiana Supreme Court in 2010 and had an excellent application and interview. However, she did not make it past the first round. Monica Foster is but one of many dozens of highly qualified Indiana women - lawyers and judges - who applied to fill one of the three vacancies on the Supreme Court during the last two years.

Today's Star also has an editorial on the appointment. Some quotes:

Daniels, who has made two previous appointments to the high court, acknowledged on Friday the importance of having a team of justices that better reflects the makeup of the state's residents. But he also contended that professional qualifications should trump concerns about promoting diversity.

That's a straw man argument. Strong legal skills and experience are, of course, essential for anyone deserving of appointment to the Supreme Court. It defies credibility, however, to assert that not a single female judge or attorney over the past 17 years has possessed the qualifications to serve on the court before Friday's announcement.

Perhaps women have been consistently overlooked because they've lacked the right political connections. Or perhaps it was because the state's leaders over the years lacked sufficient appreciation for why it's important that the court bring a broad range of life experiences to its review of laws and legal arguments affecting more than 6 million Hoosiers.

Posted by Marcia Oddi on Saturday, September 15, 2012
Posted to Vacancy #2 on Supreme Court 2012

Environment - Martinsville groundwater contamination; now proposed by US EPA as Superfund site

ILB coverage of Martinsville's groundwater contamination dates back to 2004.

Today the Indianapolis Star has a story by Ryan Sabalow headed "EPA proposes aiding Martinsville with water-quality woes."

The Martinsville Pike and Mulberry Streets PCE Plume has been proposed to be added to the National Priorities List (NPL), via a Sept. 18, 2012 publication in the Federal Register.

A narrative describing why the site should be listed is here. It concludes:

The risk to community remains high due to rising levels of PCE in one of the Martinsville municipal wells and in several monitoring wells. NPL listing would allow for investigation of the nature and extent of the contamination of the possible sources, and enable the EPA to determine cleanup alternatives for the contaminated areas, protecting human health and the environment. Other federal and state cleanup programs were evaluated, but are not viable at this time. The EPA received a letter of support for placing the site on the NPL from the state of Indiana.

Posted by Marcia Oddi on Saturday, September 15, 2012
Posted to Environment

Friday, September 14, 2012

Ind. Decisions - "Huntington toy gun case gets OK to continue"

Yesterday's Supreme Court ruling in An-Hung Yao and Yu-Ting Lin v. State of Indiana is the subject of an excellent explanatory story today by Niki Kelly in the Fort Wayne Journal Gazette:

INDIANAPOLIS – The Indiana Supreme Court on Thursday cleared the way for criminal charges against two Texans who allegedly shipped trademark-infringing toy guns to Huntington.

The ruling means the unique criminal case against Yu-Ting Lin and An-Hung Yao can move forward. It had been halted pending the outcome of the interlocutory appeal.

“It is an area of the law where there is some ambiguity and it’s an opportunity to broaden Indiana’s law, to forge ahead,” Huntington County Prosecutor Amy Richison said.

According to court records, Lin operates Generation Guns, a Texas-based business that imports from Taiwan and then sells products labeled as “airsoft guns.”

Yao, vice president of a bank in Houston, is an associate of Lin’s.

The toys resemble real guns but shoot plastic pellets.

As part of an investigation into potential trademark infringements, firearms manufacturer Heckler & Koch – through an Indianapolis consulting firm and in cooperation with the Indiana State Police – ordered airsoft guns from Generation Guns.

H&K, which makes the MP5 submachine gun, directed that the toy guns be shipped to an address in Huntington County.

Richison then charged Lin and Yao with three counts each of felony theft and felony counterfeiting, and one count each of felony corrupt business influence.

Last year, the Indiana Court of Appeals threw out the charges claiming “there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana.”

Prosecutors hinged their case on the fact the product was shipped to Indiana. But the appellate court disagreed, saying there was no jurisdiction in Indiana because the toys were sold in Texas.

In Thursday’s ruling, the Indiana Supreme Court sided with local prosecutors.

“We cannot conclude that as a matter of law the defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge,” the decision said.

Lin and Yao also generally argued that the case should be resolved under civil trademark infringement law – not by criminal charges.

“By taking sides in this commercial dispute and trying to force a resolution in (H&K’s) favor under the coercive power of the criminal law, the state has subverted the process of rights-determination that trademark law is intended to embody,” the defense claimed.

But the Indiana Supreme Court – in a 4-0 decision – said it isn’t the court’s decision to determine whether a theft prosecution is the wrong tool. It is the court’s job to apply criminal statutes, and the ruling said there are questions of fact that can’t be determined on a motion to dismiss.

Richison acknowledged the unique nature of the case but said many civil and criminal statutes overlap in society today, such as when a person is convicted of murder and then is later sued by the victims’ family.

“Often so much money is involved (in trademark cases) that a monetary punishment isn’t enough to stop the activity,” she said.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - DCS tightens controls on release of information from its office

Kara Kenney of WRTV 6 reports:

In a Sept. 11 memo to all staff, DCS Director James Payne wrote that the agency’s executive team had created a Data Governance Committee to review all data requests and releases.

“Recently, we’ve encountered some problems with multiple people releasing information from various sources,” the memo read. “Sometimes this information gets misinterpreted and reported in such a way the is not consistent with other reports.”

Effective immediately, DCS will not release data to the public without a review from the committee, including press releases, staffing data, Power Point presentations, external emails, verbal or written communications and other presentations.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Indiana Government

Ind. Law - More on "Muncie woman accused of causing son's suicide; case highlights little-used Indiana law"

Updating this ILB entry from Sept. 12, Delaware County prosecutors have now dropped the "intentionally causes another human being, by force, duress, or deception, to commit suicide" charge.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Indiana Law

Ind. Decisions - More on cancelled oral argment in Black

A look at the Upcoming Oral Arguments entry from Monday shows that the oral argument in the case of Commissioner of the Indiana Department of Insurance. v. Tim Black was cancelled. Today the Court has posted this Order, filed Sept. 11th, that reads in part [emphasis by ILB]:

By order dated June 4, 2012, the Court granted transfer of jurisdiction over this appeal and vacated the Court of Appeals opinion. The parties have now filed a motion to dismiss this appeal because they have reached a settlement. * * *

Being duly advised, the motion is GRANTED and this appeal is DISMISSED. The oral argument setting for September 10, 2012, was vacated by prior order. Per Indiana Appellate Rule 58(A), the Court of Appeals’ opinion, reported as Comm’r of Ind. Dep’t of Ins. v. Black, 962 N.E.2d 675 (Ind. Ct. App. 2012), remains vacated and is not precedent.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Mark Clarke v. State of Indiana , a 12-page opinion, Judge Friedlander writes:

Mark Clarke appeals from the denial of his petition for post-conviction relief following his conviction for dealing in cocaine as a class B felony. Clarke presents the following issue for review: Did trial counsel render ineffective assistance in failing to advise Clarke with respect to the possibility of deportation in the event he pleaded guilty? We affirm. * * *

As a final matter, we take this opportunity to encourage criminal defense lawyers henceforth to ascertain the citizenship of their clients and to advise them of the implications attending convictions with respect to the risk of deportation. Among other things, such would obviate the need for post-conviction and appellate courts to undertake a “special circumstances” analysis. * * *

The State asks us to focus upon the clause, “the knowledge of the lawyer of the client’s status as an alien” as one of the facts a court should consider when deciding whether the failure to advise constitutes deficient performance. We need not address this question in the present case because the post-conviction court’s decision is affirmable on other grounds. We note, however, that this issue is percolating in other states and the early trend seems to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients. See, e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 905 (Mass. 2011) (“[t]hat the defendant’s counsel failed to ascertain that the defendant was not a United States citizen may be sufficient to satisfy the first prong of the Saferian standard because effective representation requires counsel to gather at least enough personal information to represent him”); State v. Paredez, 101 P.3d 799, 805 (N.M. 2004) (“[w]e hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain”); Salazar v. State, 361 S.W.3d 99, 102 (Tex. App. 2011) (the argument that there was no deficient performance because there was no indication the attorney knew the defendant had less than five years of legal resident status “is not persuasive because the counsel’s duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client’s individual circumstances”); but see State v. Stephens, 265 P.3d 574, 577 (Kan. Ct. App. 2011), review denied (“[t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a client’s probation or prison sentence, nor did the Padilla Court impose upon counsel the duty to investigate the citizenship or immigration status of every client in a criminal case). Judgment affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Mandy Craig v. State of Indiana (NFP)

Myron Markas Cook v. State of Indiana (NFP)

Antonio D. Jones v. State of Indiana (NFP)

Carlos E. Odom v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Ind. App.Ct. Decisions

Vacancy #2 on Supreme Court 2012 - Governor selects Loretta Rush to join Indiana Supreme Court

Here is the Governor's news release on the appointment:

INDIANAPOLIS (September 14, 2012) – Governor Mitch Daniels announced he has selected longtime Tippecanoe County juvenile court judge Loretta Hogan Rush as the next member of the Indiana Supreme Court. Rush will replace Justice Frank E. Sullivan Jr., who retired in July.

“In studying Judge Rush’s stellar legal and judicial career, hearing from a diverse multitude of her admirers, and observing her firsthand as she helped us bring reform and improvement to Indiana’s child welfare system, I concluded she is the best choice among a strong set of finalists,” said Daniels. “Her jurisprudential philosophy and her commitment to judicial restraint are firm and forthright. I have every confidence she’ll serve Indiana with the distinction we’ve come to expect from our Supreme Court.”

For the first 14 years of her career she was an associate, then partner, in the firm of Reiling, Teder, Withered and Rush in Lafayette. Among areas of her general practice, she focused on family law, business, corporate and probate cases.

Judge Rush, 54, of Lafayette, was elected to the bench in 1998 and has served since then in Tippecanoe Superior Court 3 in Lafayette. Her court focuses on juvenile cases, including guardianships, delinquencies, adoptions and protective order hearings. As the chair of the Indiana Juvenile Justice Improvement Committee, she has been closely involved with statutory and regulatory efforts to bring better and standardized child welfare practices to Indiana.

Rush’s reach goes well beyond her courtroom. For example, following the abuse or neglect deaths of several children in her community in the early 2000s, Rush decided to spearhead efforts to develop solutions. She approached local organizations to create a series of public forums to educate citizens about the critical issues of child welfare and available services and to form plans moving forward. Following standing room only public sessions, volunteer efforts began that continue today to improve the lives of children in the Lafayette area.

“I am honored to serve the people of our great state as the 108th Justice of the Indiana Supreme Court,” said Rush. “I intend to work with the other four justices to build on our Supreme Court’s record of excellence, integrity and respect for the law.”

The other finalists selected by the Judicial Nominating Commission were Judge Steven R. Nation, Hamilton County Superior Court, and Geoffrey G. Slaughter, an Indianapolis attorney.

Rush also has been involved in many diverse efforts to improve the justice system, including serving as chair of the Indiana Court Improvement Program Executive Committee, representing Indiana three times at the National Judicial Leadership Summit on the Protection of Children, and serving on the Indiana Supreme Court Judicial Technology and Automation Committee. Her court is one of three selected to participate in the Indiana Supreme Court Reporting Pilot Project. Rush also is the president of the Indiana Council of Juvenile and Family Court Judges, a group of 113 Indiana judges and magistrates who have juvenile and family law jurisdiction.

Rush has volunteered as a judge for the Indiana University, Maurer School of Law moot court competition, speaks to local school children about the court system, and assists with programs that deal with issues such as bullying, social isolation, teen violence and discrimination.

Rush earned her undergraduate degree from Purdue University and her law degree from the Indiana University, Maurer School of Law in Bloomington.

She and her husband, Jim Rush, are the parents of four children who range in age from 10 to 25.

A date for Rush’s robing ceremony will be determined by the Supreme Court.

A photo [of]the new Supreme Court justice may be found here.

Audio (MP3) of the program may be accessed here.

Here is a just-posted story from the Indianapolis Star.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

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

In Alan Kress v. Corrections Corp. of America (SD Ind., McKinney), an 8-page opinion, Circuit Judge Bauer writes:

The plaintiffs-appellants, Alan Kress and Randy Carr (“Appellants”), appeal an order from the Indiana district court denying class certification in part and an order granting summary judgment in favor of appellees Corrections Corporation of America, et al. (“CCA”), the owner and operator of the Marion County Correctional Center (“the jail”), located in Indianapolis, Indiana. We affirm. * * *

On appeal, Appellants seek review of the court’s decision to deny class certification of their claim regarding CCA’s reduction of daily pill calls for inmates from three per day to two per day, the court’s order granting summary judgment in favor of CCA, and the district court’s order denying Appellants’ motion to amend the judgment. * * *

For the forgoing reasons, we AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Ind. (7th Cir.) Decisions

Vacancy #2 on Supreme Court 2012 - Gov. Daniels appoints ...

Tippecanoe County Judge Loretta Rush!

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

Vacancy #2 on Supreme Court 2012 - Governor to announce selection at 10 AM

Governor to announce selection at 10:00 AM. The finalists are Judge Loretta Rush, Judge Steven Nation and Attorney Geoffrey Slaughter.

Click here for a list of all earlier ILB entries (currently numbering 84) on the process of filling the J. Sullivan vacancy.

Posted by Marcia Oddi on Friday, September 14, 2012
Posted to Vacancy #2 on Supreme Court 2012

Thursday, September 13, 2012

Ind. Decisions - Still more on use of the Davis-Hatton procedure [Updated]

Updating this ILB entry from earlier today, the ILB is among those interested in seeing a copy of the "emergency petition to stay the direct appeal of Charlie White and remand to file a David petition in the trial court." This petition was filed on Aug. 30, 2012 and the petition was granted Sept. 7th.

The petition normally would be a public document and is of interest in this high-profile case because it likely would cite instances where White's trial attorney was claimed to be ineffective.

However, the Clerk's Office has it marked "confidential." This is unusual. Apparently White's appellate counsel was able to green sheet the petition (file the pleading under seal) and keep it confidential without also filing a petition requesting the Court's permission to file the pleading under seal. Only if the Court publicly orders the pleading sealed should it actually be inaccessible to the public.

As one attorney the ILB contacted said: "Lawyers are able to self-police what goes on green paper, but I think we have a duty only to green sheet those things that fall under Administrative Rule 9(G)."

[Update at 4:14 PM] Although no one I talked to could get a copy of the petition from the Clerk's Office today, the Star obtained the document last week and quoted portions of it in a story that appeared earlier this week.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Ind. App.Ct. Decisions

Courts - "A hot – and very expensive – market for high court clerks" [Updated]

Tony Mauro reports in the Supreme Court Insider ($$) in a long story that begins:

After a history-making year at the nation's highest court, last term's Supreme Court law clerks are stepping into jobs at big law firms with jaw-dropping hiring bonuses of $280,000 or more.

With associate salaries at $150,000 or more at many large firms, that makes for a first-year investment approaching $500,000 per law clerk (not counting other bonuses or benefits). Put another way, clerks will earn more than twice the salaries of the justices they worked for. Not bad, given that ex-clerks are ethically barred from doing Supreme Court work for two years.

[Updated] See this post at Above the Law for much more.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Courts in general

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

For publication opinions today (3):

In Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O., and Partners in Health , a 2-1, 21-page decision with three opinions, Judge Kirsch writes:

The Millers raise several issues, of which we find the following to be dispositive: whether the trial court erred in granting summary judgment in favor of the Defendants based on a finding that the Millers’ proposed complaint was not timely filed. We reverse and remand. * * *

Here, the Millers filed their proposed complaint with the Department on March 18, 2008, approximately two weeks before the statute of limitations expired; however, they did not include the mandatory filing and processing fees with their proposed complaint. The Millers later mailed these fees via first-class mail, and the Department received them on April 7, 2008 – three days after the statute of limitations expired. The Millers, however, filed a complaint in Dearborn Superior Court before the statute of limitations expired.

The Millers argue that they substantially complied with the Medical Malpractice Act because they timely mailed the proposed complaint, albeit without the mandatory fees. They contend that, in providing the proposed complaint to the Department and to the Defendants, they substantially complied with the dictate of the statutory process. The Millers further claim that the process was completed when the fees were mailed on April 4, 2008. * * *

The Defendants contend that the Millers had a specific obligation imposed by Indiana Code section 34-18-8-2 to tender the filing and processing fees with their proposed complaint, and that the Department correctly determined that the Millers’ proposed complaint was filed on April 7, 2008, the date the Department actually received the filing and processing fees. We disagree. Because the matter before us arises from a proposed complaint filed before a medical review panel, and not from a complaint filed in our trial courts, we do not believe our decision here is controlled by existing precedent from our Supreme Court or this court. The present case does not involve any trial or small claims rules, and the rationale from cases interpreting such does not equally apply to cases under the Medical Malpractice Act. * * *

We often write of our desire to determine disputes on their merits. If that be so, our jurisprudence should be brought in line with this desire. The statute of limitations exists not only to spare courts from stale claims, but also “to insure that parties are given formal and seasonable notice that a claim is being asserted against them.” [cite omitted] Where, as here, the proposed complaint was delivered or mailed by registered or certified mail to the Department within the statute of limitations, but did not contain the filing and processing fees, and the fees were paid shortly after the plaintiffs were informed of their inadvertent failure to pay the fees, such complaints should be determined on their merits. This is particularly true, when, as occurred in the present case, such minimal delay in paying the fees did not prejudice the defendant in its ability to proceed in its defense of such a claim. The Defendants received seasonable notice of the Millers’ claim against them as they were aware of the proposed complaint when it was originally sent on March 18, 2008 and, believing that the proposed complaint was timely filed, they participated in normal preparation for the submission of evidence to the Medical Review Panel. We therefore conclude that the Millers rectified their error in failing to send the fees with the proposed complaint in a prompt fashion, and their proposed complaint should have been deemed timely filed. The trial court erred in granting summary judgment in favor of the Defendants. Reversed and remanded.

BROWN, J., concurs in result with separate opinion. [that reads in part] I concur in the result reached by Judge Kirsch that the court’s grant of summary judgment should be reversed, but I do so for different reasons. * * * [F]or purposes of the statute of limitations, a proposed complaint under the MMA is filed when it has been delivered or mailed by registered or certified mail to the commissioner.

Indeed, a plain reading of the relevant sections of the MMA demonstrate that, although paying filing and processing fees is necessary to bring an action under the MMA, it does not bear on the tolling statute under Chapter 7.

VAIDIK, J., dissents with separate opinion. [that reads in part] I respectfully dissent from both Judge Kirsch’s and Judge Brown’s interpretations of the Medical Malpractice Act. I believe that the statute is clear and that a proposed medical malpractice complaint is not considered filed until the filing and processing fees are paid. Our Supreme Court precedent also requires such a result. Because the Millers’ filing and processing fees were paid after the statute of limitation expired, I would affirm the trial court’s grant of summary judgment in favor of the Defendants.

Our Supreme Court has created several bright lines in the law. Statutes of limitation and filing fees are two of them. * * *

I get it. It is hard to punish the plaintiff for the errors of her attorney. But, although the remedy is less than perfect, the plaintiff is not without one. This is the quintessential case of bad facts that create bad law. Our Supreme Court and legislature have created a bright line with regard to statutes of limitation and payment of filing and processing fees. We have bright lines in the law for a reason: they bring certainty to the law. Because a proposed complaint is not considered filed until the filing and processing fees are paid and the Millers’ filing and processing fees were paid after the statute of limitation expired, I would affirm the trial court’s grant of summary judgment in favor of the Defendants.

In Cortney L. Schwartz v. Jodi S. Heeter, a 2-page opinion on rehearing, Judge Bailey writes:
In our original decision we stated, “Mother has failed to comply with Appellate Rule 46(A)(8),” and thus waived the question of her motions to modify support. We went on to “leave it to the trial court … to determine whether it will reconsider” its decision on those motions, which motions the court had previously denied. We now clarify our decision, and specifically the conclusion, to state that we leave whether to reconsider the motions and hear evidence on them entirely to the discretion of the trial court. Mother is not entitled to reconsideration as a matter of right. With this clarification, we affirm our original decision in all other respects.
In Michael Patrick Knott and Andrew John Knott v. State of Indiana , a 10-page opinion, Judge Kirsch writes:
The State of Indiana filed a complaint, in eminent domain proceedings, to appropriate a parcel of land owned by Michael Patrick Knott and Andrew John Knott (together, “the Knotts”) for the purpose of constructing a portion of Interstate 69 (“I-69”) through Greene County, Indiana. The Knotts filed objections to the complaint, and after striking the Knotts’ objections, the trial court issued an “Order of Appropriation and Appointment of Appraisers” (“Order of Appropriation”). The Knotts raise the following issue on appeal, which we restate as whether the Order of Appropriation is capricious, fraudulent, or illegal because it fails to comply with federal environmental laws and regulations. We affirm. * * *

While the Knotts object to the acquisition of their property on the grounds that the State failed to comply with NEPA, CAA, and the Transportation Act, Indiana’s eminent domain laws do not require the State to comply with these federal statutes prior to appropriating private property for a public purpose. * * *

In the instant case, the federal statutes upon which the Knotts’ objections depend (NEPA, CAA and Section 4(f) of the Transportation Act) do not concern the acquisition of property, but instead are related to collateral issues concerning the I-69 Project. The I-69 Project is not under review in this eminent domain action. While we recognize that these federal statutes provide important environmental protections and may require the State or INDOT to take certain steps prior to the commencement of construction of the I-69 Project, we hold that the federal statutes at issue have no bearing on the condemnation proceeding itself. The trial court did not err in striking the Knotts’ objections or in entering the Order of Appropriation. While we affirm the State’s authority to take the Knotts’ property, we regret the hardship that this condemnation may cause the Knotts, notwithstanding the payment of just compensation.

NFP civil opinions today (1):

In Re the Adoption of C.R.R. and S.A.R.; W.E.R. v. D.M.T. (NFP)

NFP criminal opinions today (4):

Carl S. Piatt v. State of Indiana (NFP)

Delon Churchill v. State of Indiana (NFP)

Parrin J. Garner v. State of Indiana (NFP)

Clay R. Firestone v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In An-Hung Yao and Yu-Ting Lin v. State of Indiana, a 13-page, 4-0 opinion, Justice Rucker writes:

Associated with a toy gun business, Defendants were charged with counterfeiting, theft, and corrupt business influence arising out of their conduct concerning toy semi-automatic weapons that were look-alikes of real weapons for which a gun manufacturer allegedly owned a federally protected trademark. Defendants moved to dismiss the charges; the trial court granted their motion with respect to counterfeiting on grounds that the facts alleged did not constitute an offense. On interlocutory review the Court of Appeals concluded that all charges should be dismissed on grounds that Indiana lacked jurisdiction. Disagreeing with our colleagues on this point, we affirm in part and reverse in part the judgment of the trial court. * * *

[A. Territorial Jurisdiction]

Consistent with the approach taken by the Court of Appeals in this case, the Defendants also claim there cannot be a more expansive understanding of jurisdiction under the criminal law than under the civil law. We disagree. * * *

Today, criminal jurisdiction is for the most part a creature of expansive state statutes designed in part to permit prosecution for consequences felt within a state resulting from criminal acts occurring outside a state. See Wayne R. LaFave, et al., 4 Criminal Procedure § 16.4(c) at 847-49 (3d ed. 2007).
In sum, we cannot conclude that as a matter of law the Defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to dismiss for lack of jurisdiction.

[B. Do the Facts Alleged Constitute the Offense of Counterfeiting?]

At first blush it seems intuitive that “written instrument” must at least consist of a document of some kind. But we agree with the Jacobs court that the Legislature broadened the scope and definition of “written instrument” to include more than just documents, paper, and other instruments containing written matter. Instead the definition includes “other objects or symbols of value, right, privilege, or identification.” It seems clear enough to us that a handgun or rifle – just as an unsigned Monet painting, Frederick Remington sculpture, or Tiffany vase – could be subject to counterfeiting. To require actual writing or markings on a replica in order to bring it within the reach of the counterfeiting statute would defeat the purpose of the statute and eliminate a very wide range of items. We are not convinced the Legislature intended such a result.

We conclude that Defendants’ airsoft gun is a written instrument within the meaning of the statute and therefore reverse the trial court’s dismissal of the counterfeiting charges.

[C. Do the Facts Alleged Constitute the Offense of Theft?]

At the heart of and woven throughout the Defendants’ argument is the insistence that this case should be resolved under civil trademark infringement law, not criminal law. * * * But whether a theft prosecution is “the ‘wrong tool for the job’ when it comes to defining intellectual property interests,” is not our decision to make. Rather, our job is to apply the Indiana criminal statutes as drafted by the Legislature. And under those statutes, the questions in this case include whether the Defendants, did beyond a reasonable doubt: 1) knowingly or intentionally; 2) obtain, take, carry, sell, convey, encumber, or possess property, or secure, transfer, or extend a right to property; 3) which property belonged to H & K; 4) without H & K’s consent; 5) with intent to deprive H & K of any part of the property’s value or use? And these are all questions of fact that cannot be determined on a motion to dismiss. * * * In this case, the trial court did not abuse its discretion in denying Defendants’ motions to dismiss the theft and corrupt business influence charges.

Conclusion. We affirm the trial court’s denial of the motions to dismiss the charging informations on jurisdictional grounds, and its denial of Defendants’ motions to dismiss the charging informations alleging theft and corrupt business influence. We reverse the trial court’s grant of the Defendants’ motion to dismiss the charging informations alleging counterfeiting.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Ind. Sup.Ct. Decisions

Stage Collapse - "Expert calls Ind. stage collapse compensation fair"

Charles Wilson of the AP reported Sept. 11th in a story that begins:

INDIANAPOLIS (AP) — Indiana did the best it could, given its financial constraints, to fairly compensate the victims of last year's deadly state fair stage collapse, the man who designed the compensation plan believes.

Victims' compensation specialist Kenneth Feinberg told The Associated Press that officials had limited resources to compensate the families of the seven people killed and the more than 50 people injured in the Aug. 13, 2011, collapse just before the country duo Sugarland was to perform. Indiana limits legal claims against the state to $5 million total per incident, and a charity fund raised about $1 million.

Feinberg, who oversaw victims compensation for the 9/11 terrorist attacks and the BP oil spill, and Indiana Attorney General Greg Zoeller divided the state's $5 million among victims. The families of the seven people who died were given upward of $300,000 each under the formula they devised. People who were physically injured generally had two-thirds of their medical costs covered by the state.

"It's one thing when you have an unlimited source of funds," Feinberg said in a phone interview Monday, "But when you have a limited fund like you had in Indiana ... then seeking some sort of alternative system to allocate limited resources makes sense for everybody."

This long news release from AG Zoeller, also issued Sept. 11th, begins:
INDIANAPOLIS -- At a 9/11 anniversary law school panel discussion that reviewed the Indiana State Fair stage collapse, Attorney General Greg Zoeller said the victim-compensation process that nationally renowned expert Kenneth Feinberg helped Indiana design is a model approach that could be used again in case of some future tragedy.

Zoeller today officially thanked Feinberg, an attorney and law professor, for his assistance to the Attorney General’s Office last fall in helping develop a claims process and formula for the first phase of compensation to State Fair victims. When seven people died and more than 50 were injured in the stage-rigging collapse August 13, 2011, the medical bills incurred exceeded the $5 million limits of the Indiana Tort Claim Fund. Facing difficult decisions about which victims could be paid within that cap, Zoeller soon after the disaster contacted Feinberg, the nation’s leading expert on victim compensation, and requested his assistance, which Feinberg readily offered.

“One year ago we were staring into the abyss with many unanswered questions on how to allocate limited state dollars under law to victims of a multiple-fatality, mass-casualty event. Ken Feinberg with his prior experience designing victim compensation plans after 9/11, the Virginia Tech shootings and the BP Gulf oil spill was the ideal expert who could help us navigate through these difficult financial and ethical decisions. We are enormously grateful for the wisdom, insight and moral authority Ken Feinberg brought to developing this process over several difficult months, and he donated his services at no cost to the state or taxpayers,” Zoeller said.

“We learned a great deal from establishing the successful compensation programs to pay the victims of 9/11 and other tragedies in our nation's recent history and it was a privilege to assist the Attorney General in designing a plan for Indiana State Fair victims. We hope it will be instructive to others in the future,” Feinberg said.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Stage Collapse

Ind. Gov't. - "Governor Mitch Daniels faces ethics complaint"

Mary Beth Schneider of the Indianapolis Star writes today on the ethics complaint Rep. Charlie Brown filed yesterday against Gov. Daniels. (This ILB post yesterday linked to the complaint/letter.)

One of the items cited:

Brown argued to [Inspector General] Thomas — a Daniels appointee — that, despite an informal opinion Thomas issued, Daniels should not lobby the legislative or executive branches for one year after leaving office, in compliance with an executive order Daniels issued in 2005.
Here is a longer story from Eric Weddle in the Lafayette Journal-Courier. The story links to a PDF of the Sept. 12th letter, item 3 of which reads:
3) Finally, despite a publicly circulated informal opinion from your office, any attempt by Governor Daniels’ to lobby the legislature would be a clear violation of Executive Order 05-12, section 8(a) which specifically prohibits any state officer from engaging in lobbying the executive or legislative branches of Indiana for one year after leaving government employment (attached exhibit 2).
ILB: The ILB made a similar point in a detailed August 19th entry, which concluded:
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 Thursday, September 13, 2012
Posted to Indiana Government

Ind. Law - Rochester attorney has blog, "Lawyers with Troubles"

New blog from Rochester attorney Ted A. Waggoner - Lawyers with Troubles. This post explains the concept.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Indiana Law

Ind. Decisions - More on use of the Davis-Hatton procedure

Updating last evening's ILB post, Plainfield criminal defense attorney Cara Wieneke explains that there are at least two reasons why an appellant may decide to pursue the Davis-Hatton procedure:

The most obvious reason, at least in my experience, for filing a Davis-Hatton petition is when the appellate attorney finds there is a strong post-conviction claim that is much more likely to provide relief than the appellate claims will. By employing the Davis-Hatton procedure, an appellant can seek relief quicker than if he waited for his case to move through the appellate process. The Charlie White case may be a good example of this. If White's appellate attorney felt that serious errors were made at trial but that trial counsel failed to properly preserve those errors for appeal, the Davis-Hatton procedure would allow White to return to the trial court and challenge the errors through an ineffective assistance of counsel claim.

Another reason why appellants may sometimes choose to file a Davis-Hatton petition is to supplement the record with additional information. The Kindred case may be a good example of this. By returning to the trial court and litigating his post-conviction claims, Kindred also supplemented the record for his direct appeal claims. Even though the Court's consideration of the direct appeal claims should be the same whether decided during a normal direct appeal or during a combined direct appeal/post-conviction appeal, one has to wonder if the additional information provided through the post-conviction hearing does not in some way bear favorably upon the original direct appeal issues.

The ILB asked Ms. Wieneke whether the emergency petition to stay the direct appeal would cite instances where the trial attorney was claimed to be ineffective. The response:
Yes, the emergency petition would likely include at least some instances of ineffectiveness because the petitioner has to show that judicial economy will be promoted by remand. Usually I do that through laying out exactly what my claims on post-conviction will be.

Posted by Marcia Oddi on Thursday, September 13, 2012
Posted to Ind. App.Ct. Decisions

Wednesday, September 12, 2012

Ind. Decisions - Opinion today explains Davis-Hatton procedure

This Sept. 10th ILB entry attempted to explain Charlie White's filing of an appeal, followed by a petition for PCR:

[T]he COA granted a Davis Petition on Friday, so the appeal has been dismissed for further proceedings in the trial court. Here is the Sept. 7th COA Order. In short, the direct appeal has been dismissed without prejudice so White can file a petition for post-conviction relief. Once the trial court rules on the PCR petition, then White can appeal the issues arising from, relating to the PCR and the issues he would have raised in his direct appeal.
Today's in an unrelated case, Jerry L. Kindred v. State of Indiana, Judge Vaidik gives a much better explanation of the use of the procedure on page 1 of the opinion:
Kindred filed an appeal but later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal utilizing the Davis-Hatton procedure.[1]
_______________
[1] The Davis-Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind. 1993), trans. denied; Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)). See also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court . . . for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the administration of justice.”).

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Wayne Brant v. City of Indianapolis, a 13-page opinion, Judge Baker writes:

In this case, we consider whether a pet owner with four barking dogs that annoy only one of his neighbors creates a sufficient nuisance to be in violation of a local noise ordinance. We conclude that the plain, ordinary, and usual meaning of the term “persons” as used in the ordinance necessitates our holding that the complaints of just one neighbor are insufficient.

Appellant-defendant Wayne Brant appeals the trial court’s ruling that he violated a local noise ordinance enforced by appellee-plaintiff, the City of Indianapolis (City). On appeal, Brant raises three issues, which we consolidate and restate as: (1) whether the plain and ordinary meaning of the term “persons” in the ordinance requires a finding that multiple persons were seriously annoyed or disturbed in order for a violation to have occurred; and (2) whether the ordinance is unconstitutionally vague as applied because its definition lacks an objective reasonableness standard.

We conclude that the trial court lacked sufficient evidence to find Brant in violation of the noise ordinance. Because we find this issue dispositive, we reverse the trial court’s ruling without reaching Brant’s constitutionality claim. * * *

In sum, we find that section 531-204(a) of the Revised Code requires more than one person to be seriously annoyed or disturbed by habitual and frequent animal noises and that the trial court’s judgment must be vacated because the City failed to produce evidence that more than one person was bothered by Brant’s barking dogs. Because we find these issues to be dispositive, we need not address Brant’s allegations that the ordinance is unconstitutional.

In Dezmon Gaines v. State of Indiana, a 9-page opinion, Judge Riley writes:
Gaines raises two issues on interlocutory appeal, which we restate as:
(1) Whether Indiana Code section 9-19-19-4, which prescribes the requirements for a vehicle’s tinted windows, is void for vagueness; and
(2) Whether Gaines’ search was reasonable. * * *

First, Gaines contends that the trial court abused its discretion when it declared the Officers’ traffic stop to be legal because of the vehicle’s illegally tinted windows. * * *

During the hearing on the motion to suppress, Officer Rood, who conducted the traffic stop, testified that upon approaching the vehicle, he could not see through the windshield into the car. He stated that he could “see people but [he] couldn’t see what was going on, the windows were tinted too much.” Officer Rood clarified that he could not tell how many people were inside the car until the window was rolled down. * * * [W]e are mindful that where the evidence is conflicting, we only consider the evidence favorable to the ruling. ... Therefore, based on Officer’s Rood testimony, we find substantial evidence of probative value to affirm the trial court’s ruling.

[T]he statute does delineate a scientifically objective measurement for compliance within its context. As such, the statute imposes firm boundaries on the window tint, thereby precluding any arbitrariness or discriminatory enforcement by police officers.

Moreover, the statute as applied to the current situation did not invite “overly broad discretion by police.” * * *

Based on the foregoing, we conclude that Indiana Code section 9-19-19-4 is not void for vagueness and the Officer’s search of Gaines was reasonable.

In Jerry L. Kindred v. State of Indiana, a 24-page opinion, Judge Vaidik writes:
This case involves an allegation of sexual molestation for which there was no evidence other than a child’s testimony. In 2010, Jerry L. Kindred was convicted of one count of Class A felony child molesting. He was sentenced to thirty-five years in prison, with five years suspended to probation. Kindred filed an appeal but later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal utilizing the Davis-Hatton procedure.

Kindred raises several direct appeal and post-conviction claims, one of which we find dispositive of his appeal. Accordingly, we address only that issue, which is: did the admission of certain evidence, including hearsay and vouching testimony, deny Kindred a fair trial and therefore constitute fundamental error? We reverse and remand. * * *

We need not determine whether any single error in the admission of vouching, hearsay, or other evidence detailed above was fundamental because we conclude that the cumulative effect of the admission of this evidence is fundamental error. We reach this conclusion because of the unique facts of this case, which turned entirely on A.G.’s credibility: A.G. alleged that Kindred put his finger inside her vagina. * * * Importantly, there was no physical or other evidence to corroborate A.G.’s allegations. Considering these facts in light of the extensive hearsay and vouching testimony that was admitted in error, we conclude that Kindred was denied a fair trial, and we reverse his conviction.

Having reached this conclusion, the question of whether Kindred may be subjected to a new trial depends upon an analysis of the sufficiency of the evidence. Browning v. State, 775 N.E.2d 1222, 1226 (Ind. Ct. App. 2002). When determining whether retrial is permissible, we consider all of the evidence admitted at trial, including the erroneously admitted evidence. Id. “If, viewed as a whole, that evidence would have been sufficient to sustain the judgment, retrial would not offend double jeopardy principles.” Id. The uncorroborated testimony of a child victim is sufficient to support a conviction for child molesting. Stewart v. State, 768 N.E.2d 433 (Ind. 2002) (citing Barger v. State, 587 N.E.2d 1204, 1308 (Ind. 1992)). Because A.G.’s testimony would be sufficient to justify a conviction, jeopardy has not attached and Kindred may be retried.

State of Indiana v. David Bisard - see separate entry here

NFP civil opinions today (4):

Brad A. Fisher v. Brandy Fisher (NFP)

In the Matter of the Adoption of J.W.; T. McD. v. G.C. (NFP)

In Re The Paternity of E.W.; T.S. v. J.W. and V.W. (NFP)

Term. of Parent-Child Rel. of Cord. L., Cort. L., & Cha. L., Minor Children, and their Mother, C.H.; C.H. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Ethel S. Taylor v. State of Indiana (NFP)

Kevin Joseph Shufford v. State of Indiana (NFP)

Robert Lee Pickens v. State of Indiana (NFP)

Troy E. Reik v. State of Indiana (NFP)

Aljerome Hill v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Democratic State Representative Charlie Brown of Gary has filed an ethics complaint against Indiana Governor Mitch Daniels with the State’s Inspector General’s Office"

See this post at IndyPolitics, which sets out a copy of the complaint.

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Indiana Government

Ind. Decisions - The ILB has asked Prof. Schumm for his quick take on today's opinion

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

End of the Road for Bisard?

I had long shared the view of many that the issues in Bisard were so novel and significant that the case would end with a decision from the Indiana Supreme Court. After reading today’s opinion from Senior Judge (former Chief Justice) Shepard, I think it is far more likely that transfer, if sought, will be denied 4-0 or the Court of Appeals’ opinion will be adopted by the Supreme Court under Appellate Rule 58(A)(1).*

Today's opinion does a masterful job of marshaling statutory language, legislative intent, and decisional law to support its conclusion. I’d be surprised if any of the justices disagreed with the result or thought transfer was necessary to somehow improve or tweak the analysis.
___________
*The 4-0 vote assumes a new justice has been appointed and that Justice Massa recuses based on the statements made about the case as a candidate for prosecutor.

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Muncie woman accused of causing son's suicide; case highlights little-used Indiana law"

Chris Sikich reports today in the Indianapolis Star:

The death of 16-year-old Charles Howard soon might raise a legal question seldom heard in Indiana courts: Can someone be held criminally responsible for a suicide in which they had no direct hand?

Police in Muncie arrested Sabrina Ann Howard, 40, Monday afternoon in connection with Charles’ death from an overdose of prescription medicine — her prescription medicine, according to court documents filed by police seeking charges against her. Muncie investigators say that when Charles took the pills on July 10, the day before his death in a Carmel hospital, his mother was aware of his unhappiness over her drug use and suspected him of the same.

Delaware County prosecutors are still weighing the charges that police are seeking against Howard, including a felony count of causing suicide. The law — passed in 1976, a decade before Michigan doctor Jack Kevorkian raised the separate legal issue of assisted suicide — defines the crime of causing suicide as intentionally causing another person “by force, duress, or deception, to commit suicide.” * * *

Legal experts, though, say convicting Howard of causing suicide will be difficult. It is rarely prosecuted. Former Marion County Prosecutor Scott Newman doesn’t recall ever filing the charge.

It would be difficult to prove in this case, he said, because it would require prosecutors to show Howard intentionally caused her son to commit suicide. Even the neglect charge, he said, could be hard to prove. Prosecutors would have to demonstrate how she knowingly or intentionally placed her son in danger.

Whether it’s pills, a gun or even an open window, he said, someone intent on suicide can find the means.

ILB: Here is the statute at issue:
IC 35-42-1-2 - Causing suicide

Sec. 2. A person who intentionally causes another human being,
by force, duress, or deception, to commit suicide commits causing suicide, a Class B felony.

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Indiana Law

Ind. Courts - "Jail records coming to smartphones"

Ron Wilkins reports today in the Lafayette Journal Courier:

If you need to know who’s in the Tippecanoe County Jail or who’s being released, there’s an app for that. That is, there will be soon.

The Tippecanoe County Sheriff’s Office is working with Appriss to have real-time information from jail records available to the public on apps for cellphones and tablets, Sheriff Tracy Brown said.

“It will allow people to view book-in data — our arrest information. The same stuff you can see in the blotter,” Brown said.

The free app will show a suspect’s name, address, age and charges, Brown said. It will include a book-in photo of the suspect and include how much the bond is.

“It allows us to send messages out, much like we do through Nixle,” Brown said, referring to an online service used by law enforcement agencies to alert subscribers of breaking emergencies. “There is such hunger for people to have that instant information. They’re going to be better connected to what’s going on. They feel this need to know.”

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Indiana Courts

Ind. Decisions - COA reverses trial court’s suppression of blood evidence in Bisard case and remands

The Court of Appeals of Indiana has issued an opinion in State v. David Bisard, an interlocutory appeal from the Marion Superior Court. The Appeals Court reverses the trial court’s suppression of blood evidence and remands.

In a 21-page opinion, Sr. Judge Shepard writes [ILB emphasis]:

Officer David Bisard of the Indianapolis Metropolitan Police Department had his blood drawn by a medical assistant following an accident in which one person died and two people were seriously injured. The State later charged him with several counts of operating while intoxicated and reckless homicide.

Bisard moved to suppress the blood test on multiple grounds. He contended that the medical assistant on duty had not followed appropriate protocols, and that in any event the Indiana Code prohibits medical assistants from drawing blood for these purposes. Largely agreeing, the trial court ruled that Indiana Code section 9-30-6-6 (2010) compels suppressing the evidence for purposes of the DUI charges, but not for the reckless homicide count.

We conclude that the medical assistant did in fact draw the blood in a way that followed physician-approved protocols, and that the statutes cited by Bisard do not reflect that the General Assembly intended to suppress blood evidence taken in a medical facility by a trained operator in the presence of the suspect’s lawyer. We therefore reverse. * * *

As is often the case with statutes written at different times and with different problems in mind, trying to shoehorn these provisions seems likely to produce results that the General Assembly never contemplated and did not intend. The one thing we can say for certain is that the Code does not direct that samples taken under these various alternatives be automatically suppressed, as it does for breath samples. We conclude that the legislature’s specific reference to applying the rules of evidence and the implied consent statutes’ global purpose, as the Supreme Court has said, to “acquire evidence of blood alcohol content rather than . . . to exclude evidence,” Abney, 821 N.E.2d at 379, means that, standing alone, the fact that the drawer is not on the list in subsection (j) does not compel suppression.

This is not to say that anyone may draw blood or that it may be drawn in any manner. Rather, subsection (j) tells us that blood may be drawn at a licensed hospital or by certain people if not at a licensed hospital. To the extent that someone else draws blood, the evidence must show that the person is properly trained and performed the draw in a medically acceptable manner. Here, Maga had been trained to obtain bodily substance samples and performed blood draws every day in her position as a medical assistant. As discussed above, we conclude that the procedure she followed complied with the available protocols for drawing blood.

We thus hold that the trial court erred by suppressing the evidence on the basis of subsections (a) or (j).

For interesting background, see this list of ILB entries. Of particular interest, this one from Oct. 13th, 2010.

Posted by Marcia Oddi on Wednesday, September 12, 2012
Posted to Ind. App.Ct. Decisions

Tuesday, September 11, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

Phillip A. Collins v. HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Act 2004-HE3, an 11-page opinion, appears to be Judge Pyle's first for-publication opinion since joining the Court of Appeals:

Phillip A. Collins (“Collins”) appeals the trial court’s grant of summary judgment in favor of HSBC Bank USA, N.A., As Trustee for Home Equity Loan Trust Series Act 2004-HE3 (“HSBC”). * * *

Under the circumstances of this case, where Collins does not contest the application of the collateral estoppel doctrine, has not shown an absence of a full and fair opportunity to litigate the issue in the chosen federal court system, and has not shown how the use of estoppel is unfair, we conclude that he is estopped from asserting claims previously lost and litigated. Affirmed.

In Pac-Van, Inc. v. Wekiva Falls Resort, a 5-page opinion, Sr. Judge Shepard writes:
When the losing party pays a judgment in full, does post-judgment interest keep running on the whole amount until the trial court calculates the amount due for the period between the judgment and the payment? The trial court here said yes. The statute and the cases are otherwise. * * *

We reverse the trial court’s award of post-judgment interest and remand with instructions to issue a new order reflecting $1076.09 in interest on the verdict and $919.43 in interest on the fees, for a total of $1995.52.

In Term. of Parent-Child Rel. of: Q.M. and E.M., Minor Children, B.M., Father v. Indiana Dept. of Child Services, an 8-page opinion, Judge Brown concludes:
An involuntary termination petition must allege, and the State must prove by clear and convincing evidence, that the child was either removed from the parent for at least six months under a dispositional decree or removed from the family home at least fifteen of the most recent twenty-two months “at the time the involuntary termination petition was filed.” D.D., 962 N.E.2d at 74; see also Ind. Code § 31-35-2-4(b)(2)(A). Based on the foregoing, it is clear that DCDCS failed to satisfy the mandates of Ind. Code § 31-35-2-4(b)(2)(A). Thus, the trial court committed reversible error in granting DCDCS’s involuntary termination petitions.

As DCDCS alleged, but failed to prove removal of the children according to the dictates of Ind. Code § 31-35-2-4(b)(2)(A), the trial court’s judgment terminating Father’s parental rights to Q.M. and E.M. must be reversed, and this case remanded for further proceedings consistent with this opinion.

In Aaron Young v. State of Indiana, a 7-page opinion, Judge May writes:
Aaron Young appeals his conviction of and sentence for three counts of Class A felony child molestation. He presents two issues for our review:
1. Whether the State presented sufficient evidence to prove he committed Class A felony child molestation; and
2. Whether the trial court erred when it found him to be a credit restricted felon. * * *

Young argues inconsistencies between A.Y.’s testimony at trial and her testimony during a deposition make her testimony incredibly dubious. “The fact that a witness gives trial testimony that contradicts earlier pre-trial statements does not necessarily render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002). * * * As a conviction of child molesting may rest on the uncorroborated testimony of the victim, Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992), reh’g denied, we hold A.Y.’s testimony was not incredibly dubious. * * *

Young argues the trial court erred when it determined he was a credit restricted felon because the acts alleged in Count II did not occur prior to A.Y.’s twelfth birthday. We agree. * * *

We hold A.Y.’s testimony was not incredibly dubious, and the State presented sufficient evidence to prove Young committed two counts of Class A felony child molestation. However, the trial court erred when it declared Young to be a credit restricted felon because the State did not prove he engaged in sexual intercourse with A.Y. when she was less than twelve years old. Accordingly, we reverse the determination that Young is a credit restricted felon, and remand for recalculation of Young’s credit time.

Brittany L. McConniel v. State of Indiana

NFP civil opinions today (5):

Term. of Parent-Child Rel. of: Z.G. (Minor Child), and D.G. (Father), and T.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

William Adams and Patricia Adams v. Chase Home Finance, LLC (NFP)

Lake County Trust Co., as Trustee for Lake County Trust 5434 v. United Consumers Club, Inc. (NFP)

In the Matter of a Minor Child in Need of Services, T.C., Minor Child, M.C., Mother v. Indiana Dept. of Child Services (NFP)

Zimmer, Inc. and Zimmer Dental, Inc. v. Jason Young, Renae Salvitti, and Implant Direct Sybron Manufacturing, LLC d/b/a Implant Direct Sybron Intl. (NFP)

NFP criminal opinions today (6):

J.Z. v. State of Indiana (NFP)

J.G. v. State of Indiana (NFP)

Argelio Gonzales v. State of Indiana (NFP)

Joseph V. Haas v. State of Indiana (NFP)

Dennis Yerk v. State of Indiana (NFP)

Robert A. Lesure v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on "Indiana legislators ask federal judge to allow them to defend state's immigration law"

Updating this ILB entry from Sept. 9th, the Fort Wayne Journal Gazettle has an editorial today about Attorney General Zoeller’s decision not to defend parts of Indiana’s immigration law, headed "Unjust criticism." It concludes:

As a spokesman pointed out, Zoeller aggressively defended the Indiana immigration law until the U.S. Supreme Court ruled states could not do what Arizona – and Indiana – was attempting. That Supreme Court ruling is now the law, and Zoeller is obligated to follow it.

Posted by Marcia Oddi on Tuesday, September 11, 2012
Posted to Indiana Courts

Courts - "In Facebook court cases, high tech and free speech collide"

Michael Doyle of McClatchy Newspapers reported Sept. 7th in a long, useful overview that begins:

WASHINGTON — “Like” the First Amendment? Then prepare for a fight, as courts and employers figure out whether a simple click on Facebook deserves free-speech protection.

It’s 21st-century technology meets an 18th-century Constitution, and the real-world implications are starting to erupt.

In rural Mississippi, two firefighters and a police officer are serving 30-day suspensions because they hit “like” on a controversial Facebook post.

In Virginia, a sheriff’s department employee said he was fired for “liking” a page sponsored by the sheriff’s political rival. One federal appellate court already is being asked to weigh in; others surely will follow.

“As we continue to develop new media and new means of expression, it is important to ensure that they are constitutionally protected,” Rebecca Glenberg, a lawyer with the American Civil Liberties Union of Virginia, said in an interview.

When users click “like” on a Facebook post, their names are displayed next to the post. They’re also visible to other users.

The Virginia-based 4th U.S. Circuit Court of Appeals is considering the case of Hampton, Va., sheriff’s department employees allegedly fired for using Facebook and other means to back their boss’s rival. One employee communicated the support by clicking “like.” Another wrote a Facebook post.

A trial judge concluded last April that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” He said it wasn’t the kind of “substantive statement” that courts traditionally have protected.

The subsequent appeal is the first to consider whether a Facebook “like” falls under the First Amendment, Glenberg said.

Underscoring the case’s importance, the ACLU and Facebook have filed separate friend-of-the-court briefs urging free-speech protections.

“I am not aware of any other instances of an employee being fired for ‘liking’ something,” Glenberg said. “There is, however, a trend toward employers monitoring employees’ social media use, so the potential for this sort of thing is certainly there.”

Posted by Marcia Oddi on Tuesday, September 11, 2012
Posted to Courts in general

Ind. Gov't. - "Kentucky child and adult protective services collecting non-emergency reports online"

See the story here about the Kentucky Child/Adult Protective Services Reporting System.

Posted by Marcia Oddi on Tuesday, September 11, 2012
Posted to Indiana Government

Monday, September 10, 2012

Ind. Decisions - More on "David Camm's attorneys ask Indiana Supreme Court to free him while he awaits third trial"

Updating this ILB entry from Sept. 6th, which included this quote from the LCJ:

Attorneys for David Camm have asked the Indiana Supreme Court to order him released from custody while the former state trooper waits for a third trial on charges that he murdered his wife and children nearly twelve years ago.
The Supreme Court this afternoon filed a 3-page order dismissing Camm's petition for writ of mandamus. It concludes:
Because the petition seeks an unquestionably inappropriate remedy under the rules and law governing writs of mandamus, this original action is DISMISSED. See Orig. Act. R. 2(D). This dismissal is without prejudice to Relator raising the Sixth Amendment speedy trial issue on appeal if he is convicted on retrial. Petitions for rehearing or motions to reconsider are not allowed. Orig. Act. R. 5(C).

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Ind. Sup.Ct. Decisions

Ind Courts - Still more on: Brief of Charlie White in appeal of his trial court criminal conviction

Updating earlier entries today (here is the most recent), Carrie Richie of the Indianapolis Star has this report, posted at 6:00 PM. The story begins:

Former Indiana Secretary of State Charlie White will have a chance to argue that his lawyer’s incompetence led to his conviction on six felony charges.

The Indiana Court of Appeals has allowed White to delay his appeal until he returns to the trial court to try to convince a judge that his attorney, former Marion County Prosecutor Carl Brizzi, provided such poor service that it hurt White’s case. The main issue, according to court documents, is that Brizzi refused to present a defense on White’s behalf.

If White is successful, the judge could overturn his convictions and order a new trial.

But even if White doesn’t get a new trial, he will be able to take the stand to discuss the case during a post-conviction relief hearing. He also could question Brizzi and witnesses in the case, said Joel Schumm, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Courts

Ind. Decisions - Two major disciplinary orders today from the Supreme Court

In In the Matter of Janice R. Gambill, a 2-page, 5-0 order filed Sept. 7, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning October 19, 2012. From the facts (emphasis is in the original):

In April 2008, a client retained Respondent to file a legal malpractice action against an Illinois attorney who represented the client in a personal injury case in an Illinois state court, which had been dismissed for want of prosecution. Respondent filed a personal injury action for the client in the Northern District of Indiana, which was dismissed as being filed beyond the statute of limitation. Respondent did not respond to the client's requests for information about his legal malpractice action. She then falsely told him a legal malpractice action had been filed in the Northern District of Indiana, that the lawyer had a certain deadline to respond to it, giving him the cause number of the personal injury action that had been dismissed. She canceled two appointments with the client, and then, on July 13, 2010, filed a legal malpractice action against the Illinois attorney in the Northern District of Indiana.
In In the Matter of Deborah S. Davis Julian f/k/a Kubley, a 3-page, 4-1 order filed Sept. 7, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, effective as of the date of this order. From the order:
Stipulated Facts: Respondent admits to six counts of professional misconduct occurring from 2008 through 2011. The misconduct consists of: neglecting clients' cases, failing to do the work for which she was hired, failing to informs clients about the status of their cases and respond to their reasonable requests for information, failing to appear at a pretrial conference and at hearings, failing to inform a client of when a hearing had been set, failing to disclose this fact to the court, failing to take court-mandated steps to prevent dismissal of a client's case, failing to refund unearned fees, and failing to cooperate with the Commission's requests for responses to grievances and a subpoena duces tecum. * * *

All Justices concur, except David, J., who dissents, believing that the discipline is insufficient and that disbarment is appropriate.

[More] Here is an example of a reinstatement. In the Matter of Patrick M. Schrems, filed August 30, 2012. Some quotes:
By order dated March 11, 2010, this Court suspended Petitioner for not less than six months without automatic reinstatement. Petitioner filed a petition for reinstatement on June 7, 2011. On July 18, 2012, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana conditioned on certain terms of probation.
Read the rest of the order and its terms for yourself; it is pretty onerous to get reinstated and takes quite a long time.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Ind. Sup.Ct. Decisions

Ind Courts - More on: Brief of Charlie White in appeal of his trial court criminal conviction

Updating this ILB post from earlier this afternoon, the COA granted a Davis Petition on Friday, so the appeal has been dismissed for further proceedings in the trial court. Here is the Sept. 7th COA Order. In short, the direct appeal has been dismissed without prejudice so White can file a petition for post-conviction relief. Once the trial court rules on the PCR petition, then White can appeal the issues arising from, relating to the PCR and the issues he would have raised in his direct appeal.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Courts

Ind. Decisions - Two interesting non-Indiana opinions today from 7th Circuit

In Buddy Bell v. Chicago Police (ND Ill.), a 35-page opinion, Circuit Judge Flaum writes:

A Chicago ordinance criminalizes an individual’s refusal to leave a scene when so instructed by a police officer when three or more individuals are engaging in disorderly conduct nearby. Buddy Bell was arrested under that ordinance, the enforcement of which he presently seeks to enjoin as facially violative of the First and Fourteenth Amendments. The district court dismissed his claims, ruling that he lacked standing to sue for injunctive relief.

We hold that Buddy Bell may sue to enjoin the ordinance as facially unconstitutional. We also conclude that Chicago Municipal Code § 8-4-010(d) (hereinafter “Subsection D”) substantially inhibits protected speech and is not amenable to clear and uniform enforcement. We partially invalidate the ordinance and reverse.

In Center for Individual Freedom v. Lisa Madigan, AG (NE Ill.), an 80-page opinion, Circuit Judge Hamilton writes:
The Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), is best known for striking down as an unconstitutional restriction of free speech the federal law that bans corporations and labor unions from running campaign-related advertisements in the lead-up to an election. That holding largely overshadowed another part of the decision upholding the same law’s campaign finance disclosure provisions. Those provisions require any outside entity or individual spending significant sums in a federal election to file reports with the Federal Election Commission (FEC) identifying the person or group making the expenditure, its amount, and the names of certain contributors. Describing disclosure requirements as a “less restrictive alternative to more comprehensive regulations of speech,” the Citizens United Court wrote that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. . . . The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Id. at 916. Despite this holding, in the aftermath of Citizens United a number of suits have been filed challenging federal and state disclosure regulations as facially unconstitutional. Of the federal courts of appeals that have decided these cases, every one has upheld the disclosure regulations against the facial attacks.

This case involves another such challenge. Plaintiff-appellant Center for Individual Freedom (the Center) seeks to invalidate Illinois disclosure requirements on the grounds that they are facially vague and overbroad restrictions of speech in violation of the First and Fourteenth Amendments. Illinois’s disclosure law is modeled on the federal one. It requires groups and individuals that accept “contributions,” make “expenditures,” or sponsor “electioneering communications” in excess of $3,000 to make regular financial disclosures to the State Board of Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code drew the key definitions of “contribution,” “expenditure,” and “electioneering communication” from federal law. The only substantive differences are that the Illinois disclosure requirements (1) cover election activity relating to ballot initiatives, which have no federal analog; (2) do not exempt from regulation those groups that lack the “major purpose” of influencing electoral campaigns; and (3) cover campaign-related advertisements that appear on the Internet. The Center argues that these differences, and a few other terms in the Illinois statute, render its disclosure regime unconstitutionally vague and overbroad on its face.

To prevail in such a facial challenge, a plaintiff must cross a high bar. A statute is facially overbroad only when “it prohibits a substantial amount of protected speech,” United States v. Williams, 553 U.S. 285, 292 (2008), and unconstitutionally vague only when its “deterrent effect on legitimate expression is . . . both real and substantial.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (internal quotation marks omitted). The district court granted the state’s motion to dismiss, finding that the Center could not meet these standards. We affirm.

[Circuit Judge Posner writes, beginning on p. 69 of 80 (concurring in part and dissenting in part)] I agree with much in the majority opinion, but several provisions of the Illinois statute seem to me to burden the plaintiff’s freedom of speech unduly; we should invalidate them. * * *

When the five vague statutory provisions that I have been discussing are considered in combination, it becomes apparent that their cumulative effect on advocacy by CIF and similar organizations could be considerable. To avoid the burden of registration, such groups may take measures to curb their advocacy even if those measures may not in fact (that is, in law) be required in order to avoid having to register. That is the vice of vagueness— that it causes an organization or an individual to give a law a wide berth, in this instance by forgoing constitutionally protected speech. We should insist, in the name of the First Amendment, that the Illinois legislature speak with greater clarity.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Ind. (7th Cir.) Decisions

Ind Courts - Brief of Charlie White in appeal of his trial court criminal conviction

Here is the brief of Defendant/Appellant Charles P. White, filed Sept. 4, 2012 with the Court of Appeals. Here is the statement of the issues from p. 6:

Whether the State's election statutes, designed to protect free and equal elections, do not include the singular casting of one ballot, and the submission of one application, in its criminal statutory scheme, where the statute uses only the plural form of the words.

Whether the State and Federal constitutional prohibitions against ex post facto laws prohibit conviction where the statutes under which the defendant was charged, for an act that took place in 2005; namely applying for and obtaining a marriage license, were repealed in 1997.

The sentencing was Feb. 23, 2012. The Supreme Court interim suspension on April 25 gives more details of the offenses.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Courts

Ind. Law - One more thing on: Will this be the year for sentencing reform?

Updating earlier entries today, the most recent of which is here, the ILB has received this cover letter and report on the difference between last year's Council of State Governments (CSG) Justice Center and Indiana’s Justice Reinvestment (JR) Steering Committee report, and the recent Criminal Code Evaluation Commission’s Data Analysis Work Group (DAWG) results, from the director of communications of the Council of State Governments Justice Center. Here is the cover letter:

Comment from the CSG Justice Center on the release of the DAWG report:

In 2010, legislative leaders, the governor, and the state supreme court chief justice commissioned an extensive analysis from CSG Justice Center regarding the state’s growing prison population. Although the legislature ended up not acting on our findings, we we are pleased that state policymakers continue to focus on this issue, exploring ways to curb spending and increase public safety. The most recent analysis by the Data Analysis Work Group (DAWG) reflects that the issues highlighted in CSG Justice Center report remain as pressing today as they did two years ago.

The DAWG report makes two things abundantly clear. The challenges identified by the Justice Center are very real and unfortunately, they may be intensifying. The data collected by DAWG in 2011 suggest that the estimates provided by the Justice Center in 2010 were conservative and may be on the rise in many categories.

The DAWG report focuses on the low number of first-time offenders admitted to prison for low level offenses. In its 2010 report, the Justice Center never suggested that most low level prison admissions were first time offenders or that that they shouldn't be incarcerated. Instead, the Justice Center findings stated that most offenders admitted to prison for Class D felonies were repeat offenders, and to address the rising number, suggested policies that would have provided greater discretion to judges and funding to streamline and strengthen local probation and community corrections systems to reduce recidivism and prevent the reoffending leading so many individuals eventually to prison.

To the extent there appear to be discrepancies between reports issued by the Justice Center in 2010 and the DAWG report recently issued, those differences can be explained in part because in some instances the two authors used different methodologies and data sets. Whatever the differences between the two reports, the key themes and outcomes are consistent, reinforcing the urgency with which state leaders must act if they intend to make the state’s criminal justice system more cost effective and improve public safety.

Here is the 2-page report.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending Sept. 7, 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, Sept. 7, 2012. It is one page (and 13 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Transfer Lists

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

Updating this ILB entry from earlier this morning, here is the "Review of IDOC Admission Cohort of FD and Select FC Offenders: Presentation to Indiana Criminal Code Evaluation Commission, September 6, 2012."

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Law

Courts - "Will acceptance of gays by high court influence rulings?"

Lengthy, fascinating story today by Joan Biskupic of Reuters.

And from Michel Kirkland, UPI Senior Legal Affairs Correspondent, a long Sept. 9th story headed "DOMA challenges fall like snow on high court."

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Courts in general

Ind. Gov't. - More on "DCS call center scrutinized: Workers blast turnover, 'screenouts' as study panel girds for testimony this week."

Updating this ILB entry from Sept. 3rd, and this one from Sept. 5th (with video of the testimony available here), Eric Bradner of the Evansville Couirer & Press posted this long story the evening of the public hearing on the child abuse hotline.

This Sunday's Fort Wayne Journal Gazette ran this editorial that begins and ends:

The sad and frustrating stories shared with a committee studying the performance of Indiana’s child protection agency would be enough for almost any public official to demand drastic and immediate changes. But Hoosiers by now have reason to fear that any changes in protecting Indiana’s most vulnerable residents will be another battle with an administration claiming someone else messed up.

That was the sad reality behind Indiana’s welfare privatization debacle. And it’s playing out the same way for the Department of Child Services’ centralized hotline for reporting suspected abuse and neglect.

Changes appear to be inevitable, but the risk to children is too high to wait for DCS to step up with a face-saving plan. Hundreds of local child protection workers, advocates, public safety officers and judicial representatives have the experience, knowledge and ability to make immediate changes.

“Put simply, the power of DCS exceeds its expertise,” said Carole Davis, an Evansville child advocate, in testimony before a legislative study committee Wednesday. “DCS is broken.” * * *

Complaints about the abuse and neglect hotline finally prompted DCS to initiate a pilot project with some improvements in the reporting process, but the call-center operation continues to have too much authority in determining which calls justify a response.

DCS officials are failing to protect Indiana children. It’s time to turn to the local officials who know their communities and won’t allow so many children to be lost in the crack.

Meanwhile, the Indianapolis Star, whose reporters have had a number of stories on problems with DCS and the hotline, ran an editorial yesterday that began:
The long-term mission to better protect children in Indiana from abuse and neglect is in danger of becoming just another political argument that divides Hoosiers along partisan lines.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Government

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

Updating this August 27th entry, the Criminal Code Evaluation Commission met for this first time this year on Thursday, September 6th. The main item on the agenda was a "Presentation by the Data Analysis Work Group, G. Roger Jarjoura and Thomas D. Stucky, concerning low level felony incarceration."

Marueen Hayden of CNHI Statehouse Bureau reported on Sept. 7th in the Logansport Pharos Tribune in a story that begins:

INDIANAPOLIS — A study of low-level offenders in Indiana prisons show most are repeat offenders with multiple past convictions and failed attempts at community-based supervision programs.

The study, released Thursday, shows 4 out of 5 people who are in prison on class D felony convictions had prior criminal records — and most had a history of violating conditions of parole or probation from those earlier crimes. The study also shows that that the longest prison terms for class D offenders went to those who can’t or won’t stay out of trouble: Those with multiple prior convictions and parole and probation violations.

The study’s findings, which will shape the next legislative debate on sentencing reform, upend the notion that Indiana prosecutors and judges are crowding the state prisons with first-time, low-level offenders.

“The results of this are very surprising to me,” said State Sen. Greg Taylor, an Indianapolis Democrat who sits on the legislative Criminal Code Evaluation Commission. “It seems prosecutors don’t want to send people to the DOC (the Department of Correction) as we might assume.”

Findings from the study, conducted by the Center for Criminal Justice Research at Indiana University’s Public Policy Institute, were presented to commission members Thursday. The study and its findings are significant. Prosecutors had been blamed for derailing sentencing reform legislation in 2011 that was aimed at cutting state prison costs. The legislation would have diverted low-level offenders out of the state prisons and back into community-based treatment or supervision programs.

Niki Kelly of the Fort Wayne Journal Gazette reported on Sept. 8th in a story that begins:
INDIANAPOLIS – Officials studying the criminal justice system have learned that the criminal history of certain defendants being sent to prison matters more in sentencing than the charge for which they were convicted.

It was one major conclusion brought to the Criminal Code Evaluation Commission by two IUPUI professors who studied the cases of all convicted D felons – the least serious category – who came to the Indiana Department of Correction during a three-month period in 2011.

Reams of data about the offenders, cases and crimes were placed in a database and analyzed.

About 4,000 D felons are currently in state prisons out of a population of more than 28,000.

The study is part of an effort to overhaul Indiana’s criminal justice system – something started by Gov. Mitch Daniels in 2010 based on troubling prison population trends.

It has stalled in the legislature.

The inference in the debate, at times, has been that prosecutors are sending low-level, nonviolent offenders to prison when their crimes and sentences could be handled more cheaply and more successfully with local programs.

But prosecutors have pointed out just because someone is sentenced for theft or another nonviolent crime doesn’t mean a short-term prison sentence isn’t appropriate. There has also been distrust between the state and local officials about the shifting of state obligations to local resources.

Rep. Ralph Foley, R-Martinsville, said the issue was never about state budget savings.

“We want to put the money where it is most effective, quite candidly,” he said.

The data released Thursday revealed a mix of the intriguing and obvious.

The second meeting of the Criminal Code Evaluation Commission will be held on September 20, 2012.

The study discussed in the stories above has not been posted by the Commission. The ILB posted the first 4 pages of the 25-page report, explaining the methodology, in this Aug. 27th entry. The body of the report is charts and tables. If someone has an unmarked copy, the ILB would be pleased to post it.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Law

Ind. Gov't. - More on "Nonprofit groups urge lawmakers not to kill plates"

Updating this ILB entry from Sept. 6th, Maureen Hayden of CNHI reported Sept. 9th in the New Albany News & Tribune in an informative story that begins:

INDIANAPOLIS — Who would have thought the back of your car could become a free speech battleground?

Probably not the folks in Florida who, in 1987, started the trend of using state-issued specialty license plates to raise money for special causes. Florida thought it was a good idea to honor the astronauts who had died in the 1986 Challenger space shuttle disaster by building a memorial to them. The state created and sold the special Challenger plate to fund it, raising millions of dollars for the project.

That triggered other states, including Indiana, to create a mechanism for state-issued license plates to become sources of revenue for projects beyond the states’ usual scope.

Now, for an extra fee of $40 beyond what it costs to license your vehicle, Hoosiers can pick from more than 100 state-issued specialty license plates to express their support for organizations that range from the National Rifle Association to the University of Notre Dame.

They’re popular: Almost a half-million Hoosiers bought specialty license plates last year, raising millions of dollars for their favorite causes.

The problem, though, arises when someone doesn’t like the cause. Last year, some conservative lawmakers in the Indiana legislature tried to eliminate a specialty plate for a gay youth group. Their push failed, but the Bureau of Motor Vehicles later stripped the plates from the group and two other organizations, saying they wrongly traded low-digit plates for contributions. Those groups contend the practice is common.

The Indiana legislature is likely to take up the issue in the next session but there are no easy answers. Specialty license plates have caused havoc in almost every state that has them.

The story concludes:
A central question in the debate: Are the state-issued specialty license plates government speech or private citizens’ speech?

The First Amendment applies to government efforts to restrict free speech; it doesn’t apply to the state itself. But if the state sanctions license plates for certain private organizations to broadcast their messages, is it the state talking? Or is it just allowing some private citizens to talk while censoring others?

Those are some of the questions that the Indiana General Assembly will have to confront.

The Fort Wayne Journal Gazette had a long editorial Sept. 7th urging that "Indiana lawmakers need to set a consistent and reasonable policy for issuing specialty-group license plates and then ensure the Bureau of Motor Vehicles carries out the policy impartially. ."

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Government

Ind. Law - Indiana ACLU's Ken Falk featured

Maureen Hayden, head of the CNHI Statehouse Bureau, reports in the Anderson Herald Bulletin in a story headed "ACLU lawyer makes case for liberties for all: Falk finds common ground among state residents with cases." From the story:

INDIANAPOLIS — The contents of Ken Falk’s office tell a story about what it’s like to be the state’s leading civil liberties lawyer.

He has a drawer full of hate mail along with thank-you notes of gratitude, a shelf of rocks that were thrown through his window, and a goose-quill pen from the counsel table inside the U.S. Supreme Court in a frame hanging on the wall.

The last item is a reminder of a case he argued in front on the nation’s high court in 2000 and the ruling handed down in his favor: The justices found it was unconstitutional for Indiana police to set up roadblocks and pull over motorists at random to conduct drug searches. The court called the practice a violation of Americans’ right to privacy.

Falk, 58, is the legal director of the American Civil Liberties Union of Indiana. He’s brought many high-profile cases that have infuriated some people along the way. His clients have included the Ku Klux Klan, the NAACP, Planned Parenthood and anti-abortion protesters.

But the 2000 roadblock case is one of his favorite to talk about because it illustrates, he said, how “we tend to take our constitutional rights for granted till we lose them.”

Falk had filed the case as a class-action lawsuit, argued on behalf of all citizens of Indiana. “The interesting thing about that case,” Falk said, “is that I received calls from people who said, ‘I never thought I’d call the ACLU about anything except to yell at you. But nobody is going to stop me in my car.’ * * *

Representing a sex offender who was mistakenly labeled a “violent sexual predator” by the state, Falk convinced a federal appeals court to declare Indiana’s sex offender registry unconstitutional because it violated due process. The same day that decision came down, in late August, Falk was in federal court in Indianapolis representing John Walker Lindh, the so-called American Taliban fighter convicted of aiding terrorists during the 2001 U.S.-led invasion of Afghanistan.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Law

Ind. Gov't. - "Marion County's Past Three Sheriffs All Still On The Payroll "

Interesting post today from Advance Indiana.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Indiana Government

Courts - More on: Indiana Electrical Workers Pension Trust Fund among those suing Wal-Mart

Updating this ILB entry from Sept. 5th, Tony Cook of the Indinapolis Star has a front-page story today headed "Small Indiana pension fund takes on big fight with Wal-Mart: Union pension fund is a lead plaintiff in suit over alleged Wal-Mart bribery scheme." The story begins:

If Wal-Mart shareholders are successful in suing the retail giant over allegations regarding a suspected bribery scheme in Mexico, it will likely be thanks to a relatively small union pension fund in Indiana.

The Indiana Electrical Workers Pension Trust Fund IBEW, which holds a mere $750,000 worth of Wal-Mart Stores' $253 billion in stock, has emerged as a lead plaintiff among investors who believe Wal-Mart's officers and directors breached their fiduciary duty to shareholders by stifling an internal company probe of the alleged bribery operation.

The Indiana pension fund's surprising role in the litigation comes as a result of its methodical approach to the case and a cache of whistleblower documents that were mailed anonymously to its attorneys in Delaware.

Now, the pension fund -- with its 500 retirees and 2,500 active electrical workers -- is in the middle of a fight with the largest retailer in the world.

The litigation began after an April story in The New York Times that said Wal-Mart had found evidence supporting allegations that its Mexican subsidiary, Wal-Mart de Mexico, bribed government officials to facilitate the award of store permits. The Times also reported that the company's corporate headquarters swept an internal investigation under the rug.

Several large investors, including the California State Teachers' Retirement System, which owned $210.6 million in Wal-Mart stock as of June, quickly filed lawsuits against the company, relying primarily on the Times article.

The Indiana pension fund took a different approach and attempted to conduct its own investigation by demanding outside of court that Wal-Mart turn over thousands of internal company documents related to the bribery allegations. In Delaware, where Wal-Mart is incorporated, shareholders are entitled to inspect certain non-confidential books and records.

The judge presiding over the shareholder lawsuits, Leo Stine of Delaware's Court of Chancery, would later cite the Indiana pension fund's attempt to conduct its own document review as the right strategy. He chastised larger investors, including the California teachers' retirement system and a group of New York City pension funds, for relying on the Times' story instead.

The Indiana pension fund received another leg up, too. After requesting the documents from Wal-Mart, the pension fund's Delaware-based attorneys received a package in the mail. Inside was a cache of whistleblower documents that they say substantiated numerous facts about bribes reported in the Times' article, including emails from someone involved with an internal company investigation in 2005 and 2006, according to court records filed by the pension fund.

Stuart Grant, the pension fund's attorney, said his firm was eager to track down the anonymous informant, but the return address on the package was a fake, he said.

There is much more to this interesting story.

For background, here is the first of the NY Times Wal-Mart Mexican bribery stories "Wal-Mart Hushed Up a Vast Mexican Bribery Case", from April 21, 2012.

Posted by Marcia Oddi on Monday, September 10, 2012
Posted to Courts in general

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

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

From Sunday, September 9, 2012:

From Saturday, September 8, 2012:

Posted by Marcia Oddi on Monday, September 10, 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 (9/10/12):

Monday, September 10th

Next week's oral arguments before the Supreme Court (week of (9/17/12):

Tuesday, September 18th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/10/12):

Next week's oral arguments before the Court of Appeals (week of 9/17/12):

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, September 10, 2012
Posted to Upcoming Oral Arguments

Sunday, September 09, 2012

Ind. Law - "A conversation with Jane Henegar," new Ind. ACLU executive director

The Indianapolis Star has the interview today. From the sidebar:

Jane Henegar, who was a deputy mayor of Indianapolis in the Bart Peterson administration, started work last week as executive director of the American Civil Liberties Union of Indiana. Beth Murphy, a member of The Star's Editorial Board, asked Henegar about her vision for the ACLU, her thoughts on civic life in Indiana, and what life is like as half of one of Indy's power couples.

Posted by Marcia Oddi on Sunday, September 09, 2012
Posted to Indiana Law

Stage Collapse - "Spotlight on Safety for Shows Outdoors"

That is the headline to this long story today by James C. McKinley Jr. in the Sunday NY Times. Some quotes:

The disaster at the Sugarland concert threw a spotlight on the lack of uniform standards for outdoor events. An independent investigation by an engineering firm found the overhead stage rigging that collapsed was shoddily built and did not meet the standards recommended by Plasa, an association representing stage manufacturers and dealers. A second consultant’s report found the accident was exacerbated by a lack of emergency planning: communications broke down and it was unclear who was in charge during the critical minutes before the storm hit.

For decades outdoor-concert promoters have been largely self-policed, and regulations for temporary stages vary widely from state to state and city to city, promoters say. Some cities, like Chicago and New York, have stringent engineering requirements and inspections by local buildings officials. Even in states with strong regulations enforcement can be spotty, especially at fairs and events put on by small-time promoters.

The Event Safety Alliance grew out of discussions Mr. Digby had with promoters, stage companies and tour managers after last year’s accidents. Besides recommending safety clauses in show contracts, the alliance is drafting standards and practices for outdoor concerts to be put in place by early next year. They are based on the British standards, known as the “purple guide.” Those 200 pages of standards by the Health and Safety Executive are not law, but during the past two decades they have become the de facto template for negotiations between local authorities and promoters over concert permits.

Posted by Marcia Oddi on Sunday, September 09, 2012
Posted to Stage Collapse

Ind. Gov't. - More on: New IU general counsel pulls Kinsey Institute app

Updating this ILB entry from Sept. 6th, the AP reports today, in a long story headed "IU researcher says no problems with pulled sex research app," that:

BLOOMINGTON, IND. — An Indiana University researcher is defending efforts to use smartphone technology to study sexual behaviors around the globe after university attorneys pulled the plug on the project amid privacy concerns.

Filippo Menczer, a professor of informatics and computer science, said the app developed for the Kinsey Institute for Research in Sex, Gender and Reproduction was approved by a review board and vetted by technology and security advisers before it was launched in mid-August.

“The fact that it has been pulled should not be interpreted to mean that there was anything wrong with it,” he said.

IU pulled the app, which lets people worldwide anonymously report details about their sex lives, on Wednesday after general counsel Jackie Simmons voiced concerns about potential privacy issues, spokesman Mark Land told The Indianapolis Star.

Land said IU researchers and technology experts studied privacy issues, but Simmons hadn’t seen the app and wanted to make sure IU “is comfortable from a legal perspective.”

Posted by Marcia Oddi on Sunday, September 09, 2012
Posted to Indiana Government

Ind. Courts - More on "Indiana legislators ask federal judge to allow them to defend state's immigration law"

Updating this ILB entry from Sept. 5th, and this Sept. 6th entry with the filings from the 3 state senators, here is a story from Niki Kelly of the Fort Wayne Journal Gazette, which appeared in Friday's paper, headed "Zoeller defends actions." Some quotes:

Indiana Attorney General Greg Zoeller came out swinging today in defense of his decision to back away from an Indiana immigration law he believes is unconstitutional.

Zoeller in July said he would recommend that U.S. District Judge Sarah Evans Barker strike down most of the portions of the Indiana law passed in 2011, which enables police to make warrantless arrests based on certain common immigration documents.

The attorney general believes a U.S. Supreme Court ruling rendered those sections of the Indiana law invalid when it ruled on a a similar Arizona statute.

But not everyone has accepted his judgment, and he has been a target on some blogs.

"Some people questioned whether this decision violates my obligation to my state clients. Some have even questioned my professional ethics as an attorney," Zoeller said in an editorial piece he released to newspapers around the state Thursday. "As state government's lawyer, the AG's Office represents multiple 'clients' who all hold different views on important legal issues. For all of us in state government, our first responsibility is to the Constitution and the people.

"I have had the unenviable task of explaining this fact to government officials who disagreed with my decisions. I respect their views; but the oath I took as AG means I must acknowledge that at times the law is not what we might want it to be, and must shepherd state legal resources in a responsible manner."

Here is the entire Zoeller letter, as it appeared in the Indianapolis Star on Sept. 8th.

The blog Ogden on Politics today has a long entry headed "Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client," it is worth reading. Ogden's entry highlights this part of the AG's letter, which also caught my attention:

Sometimes my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact that responsibility rests not with the client but solely with the attorney general. Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so that we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our system of justice and the people of Indiana, rather than individuals who hold government positions.
Some ILB observations:

(1) Here are a couple past examples where the AG did not appeal court decisions voiding state statutes. July 27, 2008 - "AG Carter will not appeal either of two recent district court rulings voiding 2008 legislation." Sept. 13, 2006 - "State won't appeal decision tossing school petitions."

(2) Re "the AG makes all legal decisions about a case." Often "legal" and policy intertwine. Where to draw the line? One recent dispute involved the Attorney General and the Indiana Gaming Commission - see this June 29, 2009 ILB entry. See also the note at the end of this entry, re Sendak v. Marion C. Sup. Ct.

(3) The AG is a separately elected state official. His office is statutory, it is not in the constitution. It appears not to be a part of any of the three branches of state government - "The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial" - Art. 3, Sec. 1.

(4) The current office of AG was created by statute in the early 1940s. There have been times when the governor and elected attorney general of Indiana were of different parties. And the office has not always been elective -- under earlier statutes, the attorney general was appointed by the Indiana governor. See this March 30, 2010 ILB entry, which began:

Is the attorney general of a state and his or her office a part of the executive branch, representing the state at the behest of his client, the head of the executive, the governor?

Or is the attorney governor of a state independent of the three branches of governor, making legal, and hence policy decisions, on her own -- decisions such as when to appeal a case, when to challenge a law, when to file or join an amicus brief with the SCOTUS?

Does it matter if the attorney general is separately elected, as opposed to appointed by the governor. Does it matter if his office is created by statutes, or by the constitution of the state?

(5) In recent years, the General Assembly has, generally at the behest of the AG, enacted legislation to expand the powers of the office in nearly every session. See, for example, this ILB entry from March 3, 2010.

(6) "Attorney General Greg Zoeller is arguably Indiana’s second most-powerful elected figure." That was the headline to this Sept. 11, 2011 entry quoting from a Fort Wayne Journal Gazette story.

(7) "Who should decide Indiana's position on national legal issues? Who should know?" That was the heading to this ILB entry from August 23, 2012, re the AG authoring, or joining, numerous amicus briefs on behalf of the State of Indiana in high profile SCOTUS or Circuit Court cases. In doing so, the AG is not "defending a lawsuit," to quote a phrase from Sendak, discussed in the note below.
_____________________

Note: IC 4-3-1-2, which was part of the Acts of 1852 and remains in force today, provides that the Governor:

... may employ counsel to protect the interest of the state in any matter of litigation where the same is involved; and the expenses incurred under this section, and recapturing fugitives from justice, may be allowed by him and paid out of any money appropriated for that purpose.
However, in 1978 out Supreme Court, in Sendak v. Marion Co. Sup. Ct., wrote:
Respondents also contend that the enforcement of the consent requirement here violates IC 4-3-1-2, which gives the Governor the power to employ counsel in litigation where the State has an interest. The relator contends that the 1941 Act re-creating the Attorney General as an elected officer superseded this statute.

When two statutes are in conflict the earlier statute will be impliedly repealed and the latter enactment will control. Houtchens v. Lane(1965), 246 Ind. 540, 206 N.E.2d 131. In 1852, the legislature passed what is now IC 4-3-1-2, at a time when there was no Attorney General in this State. The office of the Attorney General was created by a series of later statutes, beginning in 1889. These statutes as a whole, and particularly IC 4-6-2-11.5 and IC 4-6-5-3, must be construed as giving the Attorney General the sole responsibility for the legal representation of the State. There clearly is an irreconcilable conflict between the statute giving the Governor the power to employ counsel in litigation and the statute setting forth the duties of the Attorney General and hence the latter enactments must prevail. Therefore, to the extent that IC 4-3-1-2 is inconsistent with the Attorney General's duties as prescribed by law, it must be disregarded.

Finally, respondents contend that the consent requirement is unconstitutional because it conflicts with the Governor's constitutional responsibility to exercise executive power. We recognize that the executive power of the government is vested not in the various departments and agencies, but in the Governor alone. Tucker v. State, (1941) 218 Ind. 614, 35 N.E.2d 270. However we see no relationship between the execution of executive power and the legal defense of a lawsuit against the State. In defending a lawsuit the Attorney General is not dictating policy or directing the State, but is merely defending the State. Furthermore, the legislature has chosen to vest the responsibility for the legal representation of the State in the Attorney General. This Court cannot disregard so clear an expression of that body.

We therefore hold that the statute is constitutional and does not infringe upon the executive power vested in the Governor. [emphasis by ILB]

I remember when this case was decided and it amazed me then, and continues to do so today. I read it to mean that the General Assembly is free to create separately elected state offices and distribute various powers of the Governor amongst them. But this is the very type of action that Tucker forbad.

The issue came up again in 2009 in the dispute referred to earlier (#2) between the AG and the Indiana Gaming Commission re The Foundations of East Chicago dispute.

Posted by Marcia Oddi on Sunday, September 09, 2012
Posted to Indiana Courts

Friday, September 07, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP) [Update: See note at end of entries]

For publication opinions today (2):

In Kenneth W. Smith and Deb-Anne Smith v. Dermatology Associates of Fort Wayne, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C., a 10-page opinion, Judge Kirsch restates the issue as: "Whether the trial court erred by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur." J. Kirsch concludes:

We cannot say that the evidence leads unerringly to a conclusion that is different than that reached by the trial court.

We further conclude that the Smiths’ substantial rights were not adversely affected as a result of the trial court’s refusal to apply the doctrine of res ipsa loquitur. The inference was not applied because there was contrary evidence on each of the elements of the doctrine. The trial court, as trier of fact, was left to resolve the conflicts in the evidence and to determine which testimony was more credible. Although the Smiths’ sole theory of recovery was res ipsa loquitur, they did not meet their burden of persuasion, and have failed to establish on their appeal from a negative judgment that the evidence leads unerringly to a conclusion that is different from that reached by the trial court.

In In Re Adoption of M.L.; J.H. v. J.L. and C.L., a 16-page opinion, Judge Crone writes:
In 2008, J.L. and C.L. (collectively, “the Adoptive Parents”) became concerned that their grandson, M.L., and his half-brother, L.H., were not being properly supervised. The Adoptive Parents obtained a guardianship over M.L. and L.H. L.H.’s father, J.H. (“Father”), consented to the guardianship due to his inability to take care of his son at that time. Since then, L.H. and M.L. have remained in the Adoptive Parents’ care.

In October 2010, the Adoptive Parents filed a petition to adopt L.H., which Father contested. The Adoptive Parents argued that Father’s consent was not necessary because he had failed to communicate significantly with L.H. for a period of one year, had failed to support L.H. for a period of one year when he was able to do so, and was unfit to be a parent. After an evidentiary hearing, the trial court found that the Adoptive Parents had established all three grounds for dispensing with Father’s consent. The trial court found that adoption was in L.H.’s best interests and granted the Adoptive Parents’ petition.

Father appeals, arguing that the evidence is insufficient to prove that his consent was not required and that adoption was in L.H.’s best interests. Given Father’s history of substance abuse, his history of depression, his reluctance to follow treatment recommendations, his lack of insight, and his instability in housing and employment, we conclude that there is sufficient evidence that Father is unfit to parent; therefore, we need not address the alternate grounds for dispensing with his consent. In addition, the evidence favorable to the judgment indicates that L.H. lacks a bond with Father, but is bonded with the Adoptive Parents and M.L.; that the Adoptive Parents have provided a stable home, which L.H. views as his home; and that the Adoptive Parents have been successfully addressing L.H.’s developmental issues. This evidence is sufficient to show that adoption is in L.H.’s best interests. Therefore, we affirm.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Timothy A. Bolin v. State of Indiana (NFP)

*Dwayne Rhoiney v. State of Indiana (NFP)

Damionne M. Nichols v. State of Indiana (NFP)

Janella Datcher v. State of Indiana (NFP)

Terrance Mitchem v. State of Indiana (NFP)

*Lance Scott Boutte v. State of Indiana (NFP)

*Curtis B. Lay v. State of Indiana (NFP)

*T.A.B. v. State of Indiana (NFP)
______
* Four of the NFPs today were written by Judge Rudolph R. Pyle III, who took the oath on August 27th.

Posted by Marcia Oddi on Friday, September 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Two local 'legal celebrities' honored at reception"

A brief story, with video (after long ad), today by Brittany Tyler of WLFI 18:

LAFAYETTE, Ind. - Two local "legal celebrities" were honored by the Tippecanoe County Bar Association.

It was a night to "Hail to Our Chiefs." A reception was held for Indiana Appeals Court Chief Justice Margret Robb and Indiana Supreme Court Chief Justice Brent Dickson.

Both are Purdue grads who, before being appointed to the bench, were long-time practicing attorneys in Tippecanoe County.

"It is wonderful warm fuzzies just driving into Lafayette. It's a delight. These were great friends when I practiced law here for 17 years and we've maintained relationships since that time," said Dickson.

"It's special. I practiced here in Tippecanoe County, I still live here in Tippecanoe County, I try to continue to participate in the Tippecanoe County Bar Association," said Robb.

Posted by Marcia Oddi on Friday, September 07, 2012
Posted to Indiana Courts

Ind. Decisions - Tax Court issues opinion today, re inheritance tax

In Indiana Dept. of State Revenue, Inheritance Tax Division v. The Supervised Estate of John A. Schoenenberger, Deceased, a 9-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue, Inheritance Tax Division appeals the Lake Circuit Court’s (probate court) determination that the Estate of John A. Schoenenberger was entitled to interest on its refund claim computed according to the 1980 version of IC 6-4.1-10-1 and judgment interest. In challenging the probate court’s ruling, the Department claims that interest is to be calculated according to the 2007 version of IC 6-4.1-10-1. Accordingly, the resolution of this appeal depends on whether the 1980 or the 2007 version of IC 6-4.1-10-1 applies for purposes of computing interest on the Estate’s claim for refund of inheritance tax. The Court reverses and remands.

On February 23, 2003, John A. Schoenenberger died testate. On November 21, 2003, his Estate remitted an estimated inheritance tax payment, in the amount of $1.8 million, to the Lake County Treasurer.1 The Estate and the Department subsequently agreed that the Estate would file its Indiana inheritance tax return when the Internal Revenue Service completed its audit of the Estate. * * *

IC 6-4.1-10-1 governs all claims for the refund of Indiana inheritance tax. Prior to 1980, this statute did not provide for the payment of interest on refund claims whatsoever. In 1980, however, the General Assembly amended the statute to expressly authorize, among other things, the payment of interest * * *

The 1980 version of the statute was in effect when Schoenenberger died, when the Estate remitted its estimated payment of inheritance tax on November 21, 2003, and when it sent its return and letter to the Department on April 6, 2007.

Effective July 1, 2007, the General Assembly amended Indiana Code § 6-4.1-10-1 * * *

The 2007 version of the statute was in effect when the probate court determined the Estate’s inheritance tax liability on April 8, 2008, and when the Estate filed its Form IH-5 refund claim with the Department on April 14, 2008. * * *

The parties disagree about whether the 1980 version or the 2007 version of the inheritance tax refund statute applies. The Department maintains that the probate court should have applied the 2007 version of the statute because that version was in effect on April 14, 2008 when the Estate filed its Form IH-5 refund claim. The Estate, on the other hand, maintains that the probate court properly applied the 1980 version for the two alternative reasons discussed below. * * *

Both the 1980 and 2007 versions of the refund statute contain the same statute of limitations with respect to the filing of a refund claim: “the person must file the claim within three (3) years after the tax is paid or within one (1) year after the tax is finally determined, whichever is later.” * * * In this case, the Estate’s inheritance tax liability was finally determined on April 8, 2008, the day the probate court determined the amount of inheritance tax due. * * * Consequently, the Estate’s April 6, 2007 filing of its return and letter with the Department was not a valid refund claim because the probate court had not yet determined the amount of inheritance tax due as of that date.

The Estate, however, did file a valid refund claim on April 14, 2008, six days after the probate court determined its inheritance tax liability and more than nine months after the 2007 version took effect. Thus, the 2007 version of Indiana Code § 6-4.1-10-1 governed any right the Estate had to interest on its refund claim. * * *

For the above-stated reasons, the Court REVERSES the probate court’s determination. Accordingly, the Court REMANDS this matter to the probate court for action consistent with this opinion.

Posted by Marcia Oddi on Friday, September 07, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme court denies State Farm's motion to direct clerk to file appellant's petition to transfer

The Supreme Court on Sept. 5 issued a published order in State Farm v. Radcliff. Here are some quotes from the 2-page order, 5-0 order by CJ Dickson:

Appellant, State Farm Fire & Casualty Company, by counsel, has filed a Motion to Direct Clerk to File Appellant’s Petition to Transfer (“Motion To Direct”) and has tendered its transfer petition. The Appellees have filed their response asking this Court to deny Appellant’s Motion to Direct. * * *

Appellant argues it has a right to petition for transfer of the Court of Appeals’ order denying Appellant’s motion to remand. Appellant relies on language in [Logal v. Cruse, 267 Ind. 83, 368 N.E.2d 235 (1977).]that provided a procedure for requesting a remand and stated, “If the appellate court denies the application for remand, that ruling may be assigned as grounds for rehearing and, where appropriate, transfer.” 267 Ind. at 87, 368 N.E.2d at 237.

When Logal was decided thirty-five years ago, our transfer rule referred to transfer being sought from a “decision” of the Court of Appeals. See Ind. Appellate Rule 11 (1977). Since then, the transfer rule has been amended several times. These amendments have narrowed the type of decision that may be the subject of a transfer petition. * * *

Thus, notwithstanding the language in Logal, the current transfer rule, Appellate Rule 57(B), precludes Appellant from filing its transfer petition because the Court of Appeals has not issued an “adverse decision” in one of the four enumerated forms listed in that rule.

Accordingly, the Court DENIES Appellant’s Motion to Direct and instructs the Clerk of this Court to return the transfer petition and all copies of it to Appellant’s counsel.

Posted by Marcia Oddi on Friday, September 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Certain interim committees' videocasts have been archived

Here is the archive page.

Unfortunately few interim committee hearings have been archived, so citizens who work will not be not able to watch the videos at more convenient times.

Two interim committees that the ILB has been following, however, have archived their videocasts, at least for now.

Department of Child Services Interim Study Committee - you can watch the Sept. 5th public hearing on the child abuse hotline.

Criminal Law and Sentencing Policy Study Committee - you can watch the August 23rd meeting on criminal histories and the sex offender registry.

Posted by Marcia Oddi on Friday, September 07, 2012
Posted to Indiana Government

Thursday, September 06, 2012

Stage Collapse - "Committee targets outdoor stage safety improvements "

The Briefing Room reports today on yesterday's meeting of the General Assembly's Outdoor Stage Equipment Safety Committee.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Stage Collapse

Ind. Gov't. - "Nonprofit groups urge lawmakers not to kill plates"

Updating a long list of earlier ILB entries on specialty license plates and the Indiana Youth Group, an Interim Study Committee on Special Group Recognition License Plates met yesterday. Here is a story by Charles Wilson of the AP.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Government

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

In Home Federal Savings Bank v. Ticor Title Ins. (SD Ind., Magnus-Stinson), a 23-page opinion, Circuit Judge Hamilton writes:

This case concerns a title insurance policy covering a construction project. The plaintiff is the insured party, Home Federal Savings Bank, which agreed to lend up to $95.5 million to finance the construction of a new ethanol production plant. When the developer of the plant ran into serious trouble finishing the project, the bank did not disburse the final $8 million of the loan amount. The developer defaulted on the debt to the bank and fired its general contractor, which then filed a mechanic’s lien on the property to recover $6 million allegedly owed it. When the bank sought to foreclose on its mortgage, the general contractor counterclaimed, asserting that its lien had priority over, or at least parity with, the bank’s mortgage. The plaintiff bank tendered its defense to the defendant title insurer under a policy that required the insurer to defend the bank against a “claim . . . alleging a defect, lien or encumbrance or other matter insured against by this policy.” The policy contained an exclusion from coverage for claims “created, suffered, assumed, or agreed to” by the insured. On cross-motions for summary judgment, the district court ruled in favor of the title insurer. We reverse and remand. The undisputed facts show that the title insurer breached its duty to defend the bank on the contractor’s claim that its mechanic’s lien had priority over or parity with the mortgage. * * *

The judgment of the district court is REVERSED and REMANDED with instructions (a) to enter summary judgment for plaintiff Home Federal on the issue of liability on its claim that defendant Ticor breached its duty to defend under the policy and on defendant’s counterclaim for a declaratory judgment, and (b) to conduct further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Troy Wilson v. State of Indiana , a 9-page opinion, the issue as rephrased by Judge Bailey is: "whether the trial court abused its discretion when it did not permit Wilson to elicit testimony concerning the reliability of toxicology test results from the Indiana Department of Toxicology (“the Department”), as reflected in an audit of testing performed by the Department from 2007 to 2009." J. Bailey writes:

Wilson’s appeal challenges the trial court’s rulings that precluded him from eliciting testimony from Dr. Kriger concerning the results of audits conducted at the Indiana State Department of Toxicology Laboratory. * * *

Wilson’s contention on appeal is that the trial court violated his confrontation rights under the Constitutions of the United States and the State of Indiana when it precluded him from eliciting Dr. Kriger’s testimony concerning results of the audit of the Department’s laboratory. * * *

Here, Wilson’s blood sample was taken on December 6, 2009 and analyzed by Dawn
Golden (“Golden”), an analyst with the Department’s laboratory, in May and June 2011. Wilson cross-examined Golden concerning her work in the analysis of his blood sample. Wilson also cross-examined Dr. Kriger, who was the Director of the Department at the time Golden performed the analysis on Wilson’s blood sample in May and June 2011. * * * From this, we conclude that Wilson was afforded the opportunity to cross-examine the analyst responsible for the test results showing the alcohol content of his blood, and thus there was no denial of his right to confrontation. * * *

The discontinuation of the audit on blood-alcohol samples and the period of time covered by the audits generally may bear upon the credibility of the Department’s testing results from 2007 to 2009. But it is not clear that these questions bear upon the credibility of the Department’s analysis here, where different procedures were executed by different analysts serving under a different Director more than 1½ years beyond the chronological scope of the audits. Thus, we cannot conclude that the trial court abused its discretion when it determined that the testimony Wilson sought to introduce was not relevant to the question of the reliability of Golden’s testing and excluded that testimony from evidence.

Conclusion. Because Wilson’s confrontation rights were not violated and the exclusion of irrelevant testimony by Dr. Kriger regarding the Department’s audit results was not error, we affirm Wilson’s convictions.

In Patrick Nichols v. State of Indiana, an 11-page opinion, Judge Crone writes:
Patrick Nichols appeals his convictions for class C felony burglary, class D felony theft, and class A misdemeanor criminal mischief, contending that in closing argument, the prosecutor violated his Fifth Amendment privilege against self-incrimination by improperly commenting upon his decision not to testify and that the resulting error is fundamental. We agree and therefore reverse his convictions and remand for a new trial. * * *

The State appears to concede that the prosecutor's remarks were improper but argues that the impropriety does not result in fundamental error, citing Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010), trans. denied (2011). * * *

Based on the forgoing, we conclude that the prosecutor‟s improper comments violated Nichols‟s Fifth Amendment rights and resulted in fundamental error. We therefore reverse Nichols‟s convictions and remand for a new trial.

NFP civil opinions today (1):

Maury Dusendschon v. Review Board of the Indiana Dept. of Workforce Development and TALX UC Express (NFP)

NFP criminal opinions today (5):

Deon Liggans v. State of Indiana (NFP)

Arlandas A. Anderson v. State of Indiana (NFP)

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

Reginold Knox v. State of Indiana (NFP)

Tami L. Duvall v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Indiana legislators ask federal judge to allow them to defend state's immigration law"

Updating this ILB entry from yesterday, here are the documents filed in the USDC for the SD Indiana.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Courts

Ind. Courts - "14-year-old killer tried as adult to receive hearing that could send case back to juvenile courts"

Updating this ILB entry from Feb. 19, 2012 on "What life is like for a 14-year-old killer tried as an adult in Indiana," along with earlier linked stories, Robert King of the Indianapolis Star reports today:

A boy believed to be the youngest person in Indiana sentenced to prison as an adult will receive a hearing next month that could send his case back to juvenile courts and potentially shorten his stay in jail.

Paul Henry Gingerich was 12 years old when in 2010 he was sentenced as an adult to 25 years in prison for conspiracy to commit murder. His attorney, Monica Foster, says Gingerich wasn’t competent to stand trial as an adult because of his young age. She also contends that the four days his attorneys were given to prepare arguments that the case should stay in the juvenile courts was inadequate.

The Indiana Court of Appeals announced Tuesday that it would listen to oral arguments from the case on Oct. 30.

The Star story includes a link to reporter King's well-worth-reading earlier story, originally published Sunday, February 26, 2012.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Courts

Ind. courts - "David Camm's attorneys ask Indiana Supreme Court to free him while he awaits third trial"; and a word from the ILB

Updating this ILB entry from yesterday, which includes a link to the Petition for Writ of Mandamus, Harold J Adams of the Louisville Courier-Journal writes today:

Attorneys for David Camm have asked the Indiana Supreme Court to order him released from custody while the former state trooper waits for a third trial on charges that he murdered his wife and children nearly twelve years ago.

If granted, the writ of mandamus filed Tuesday would reverse a ruling by a trial court judge who in July denied Camm’s request for pretrial release.

The petition claims that Camm has been held for an unreasonable amount of time without going to trial — in violation of state trial rules and the Sixth Amendment to the U.S. Constitution. The most recent conviction of Camm for the September 2000 murders of Kimberly Camm and the couple’s children Bradley and Jill was overturned by the state high court in 2009.

Defense attorney Stacy Uliana noted that both convictions of Camm in the September 2000 killings near Georgetown have been overturned because of improper evidence and arguments by prosecutors.

“Twelve years is a long time to be imprisoned without a fair trial,” Uliana said. “Dave hasn’t been convicted of anything. And at some point he should be allowed to be out of prison and to help his attorneys prepare for trial.” * * *

The Camm petition cites a state rule requiring that a defendant be released from custody if not brought to trial within six months of an arrest, as well as Camm’s constitutional right to a speedy trial.

Uliana said both have been violated by the more than 2½ years of delays so far leading up to a third trial. The trial is not scheduled to take place until next summer. She says most of the delay was caused by Henderson fighting Camm’s petition to remove him in favor of a special prosecutor.

Dartt sided with Henderson on that petition, ruling that the prosecutor’s efforts to write a book about the Camm case, while it was still under appeal, did not present the conflict of interest claimed by the defense.

The Indiana Court of Appeals reversed Dartt in 2011 and ordered Henderson off the case. Camm now asks the Supreme Court to similarly reject Dartt’s ruling on pretrial release and order the judge “to release him upon his own recognizance or with reasonable liberty restrictions.”

Important ILB Notice: The LCJ informs me that this is my last article and that I must subscribe today for full access. So this may be the last LCJ story referenced and linked to by the ILB. The same goes for the Lafayette Journal-Courier, the Indianapolis Star, and a number of other Indiana papers. The ILB cannot afford to subscribe to all these papers. We seem to be reverting to little localized islands of news ...

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Courts

Ind. Gov't. - New IU general counsel pulls Kinsey Institute app

Barb Berggoetzof the Indianapolis Star reported yesterday afternoon:

Indiana University officials decided this afternoon to pull a mobile app the Kinsey Institute announced earlier today that allows people around the world to anonymously report data about their sexual activity, birth control use, public displays of affection and other intimate behaviors.

IU President Michael McRobbie made the decision to pull the app for further study after General Counsel Jackie Simmons voiced potential concerns about privacy issues and data protection, Mark Land, university spokesman, said late this afternoon.

“The decision was made late in the day to withdraw it until our concerns can be alleviated,” said Land.

The pilot project, called the Kinsey Reporter, would allow citizen observers to use free applications available for Apple and Android mobile platforms to report on sexual behavior and experiences and to share, explore and visualize the accumulated data online.

Although privacy issues were studied by IU’s research and technology experts, Land said Simmons had not seen the application and wanted to review it further to “make sure (IU) is comfortable from a legal perspective.” * * *

The IU release, which was later retracted, said reports are transmitted to Kinsey Reporter using a secure, encrypted protocol and only data collected are a timestamp, the approximate geo-location selected by the user and the tags the user chooses in response to various survey questions. * * *

The Kinsey Reporter is a joint project with IU’s Center for Complex Networks and Systems Research. Its director, Filippo Menczer, said in the release that the new platform allows the institute to explore issues that had been difficult to study until now. Among those issues are unreported sexual violence in different parts of the world or the link between sexual practices like condom use and cultural, political or health contexts in certain areas.

ILB: Hmmm, what would Herman Wells have done?

There is no current story on the app that I could locate in the Bloomington Herald-times.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Government

Vacancy #2 on Supreme Court 2012 - Three finalists at law school today

The Indiana University Robert H. McKinney School of Law is sponsoring a "get to meet the three Supreme Court finalists" this afternoon at the law school, for students and faculty:

The Office of Professional Development will host “Meet your next Indiana Supreme Court Justice” this Thursday at 4:30. This program will afford students the opportunity to receive valuable advice about practicing law while providing them a chance to network with the three finalists for the vacant Indiana Supreme Court justice position. * * *

Description: Meet the candidates for the Indiana Supreme Court justice position. We will discuss the challenges of transitioning from law school to practice along with tips for developing a professional and rewarding career. This is a unique opportunity to speak with a future Indiana Supreme Court Justice!

Panelists:

  • Honorable Loretta Rush, Tippecanoe Superior Court

  • Honorable Steven Nation, Hamilton Superior Court

  • Geoffrey Slaughter, Taft Stettinius & Hollister LLP
The ILB understands that the Governor and his staff have interviewed all three candidates now, so all that remains is the decision and announcement. Ahthough the Governor has until October 15th to announce his decision, the Supreme Court has concluded its summer break and the four current justices are hearing three oral arguments today and three next week.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Justices decline to grant transfer in Grund case

The August 31st transfer list, at the bottom of page 1, declines to grant transfer in the case of Susan Grund v. State of Indiana, all justices concurring.

Today Scott Smith of the Pharos-Tribune, reports the background of the case. Some quotes:

James Grund was found dead of a single gunshot wound in August 1992, and a jury convicted Susan Grund of murder on March 16, 1994.

She has maintained she didn’t kill her husband, however, and was featured in a 2010 prison interview for the Investigation Discovery channel, where she sat down with former FBI agent Candice DeLong.

After the interview, DeLong, who became famous as the basis of the character Clarice Starling in the book and movie “The Silence of the Lambs,” pronounced Susan Grund a delusional narcissist and expressed deep skepticism about Grund’s recollection of events.

In the appeal, Grund’s attorneys argued former Miami County Prosecutor Wilbur Siders had improper contact with jury members from Grund’s first trial, which ended in a mistrial after jurors were unable to reach a verdict.

Siders acknowledged meeting with jury members from the first trial before the second trial, but first the trial court and then the appeals court found nothing improper in the contact. The Supreme Court’s decision not to grant a hearing means the earlier decisions will stand.

According to prosecutors, Susan Grund was arrested in November 1992 after her sister, Darlene Worden, told detectives Susan Grund had confessed to shooting James Grund.

According to family members, the confession was confirmed when Susan Grund’s mother later found that a large copper kettle, which she kept in her attic, had been filled with concrete.

According to court records, the mother took the kettle to police in Peru, who broke open the concrete and found the murder weapon.

The gun had been reported stolen about a month before the murder.

Posted by Marcia Oddi on Thursday, September 06, 2012
Posted to Indiana Transfer Lists

Wednesday, September 05, 2012

Ind. Courts - "Indiana legislators ask federal judge to allow them to defend state's immigration law"

Charles Wilson of the AP reports late this afternoon in a story that begins:

INDIANAPOLIS — Three state senators say Indiana's attorney general effectively nullified their votes when he opted not to defend sections of a state immigration law he said were rendered invalid when the U.S. Supreme Court struck down similar sections of an Arizona law.

Republican Senators Mike Delph, Brent Steele and Phil Boots submitted documents Wednesday in U.S. District Court asking Judge Sarah Evans Barker to allow them to defend the parts of the law the attorney general wouldn't.

The attorney general's office said in July it would recommend that Barker strike down most of the portions of the Indiana law that enable police to make warrantless arrests based on certain common immigration documents. It said the high court ruling in June rendered those sections of the Indiana law invalid. Barker already had issued a decision barring the 2011 law from taking effect until she could decide its constitutionality.

The attorney general's office said it would still seek to keep the power to arrest immigrants for whom a 48-hour detention order has been issued.

The senators, who are represented by lawyers from the Immigration Reform Law Institute in Washington, argue in the 16-page motion that the warrantless arrest provisions in the two states' laws are "vastly different." The document claims the Indiana law allows such arrests only in three specific situations that require input from the federal government, unlike the broader powers granted police by the Arizona law. They argue that Indiana's law is consistent with the Supreme Court's Arizona decision.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Can Digital Recordings Save Money for Courts? "

Maggie Clark, Stateline, explores that question in a long Sept. 4th article in Government Technology. Some quotes:

While there surely are non-fiscal benefits to digital systems, like speeding up the time it takes to certify the record, a desire to save money is the primary reason courts move away from in-person court reporters.

In 2009, Utah shifted all transcription to private transcribers and created a Web-based system where reporters could access all the audio and video files of the court proceedings online. “The impetus for this change,” wrote Utah State Court Administrator Daniel Becker in an article about Utah’s re-engineering, “was … a result of budget reductions.” Since the transition, Utah has saved more than $1.3 million, eliminated nearly 50 full-time positions and cut the time from transcript request to delivery from an average of 138 days to 12 days for cases not on appeal.

Similarly, in California, the state Legislative Analyst's Office recommended in a 2011-2012 policy brief that the state courts could save $113 million if every court used electronic court reporting. San Francisco Superior Court installed audio recording equipment to replace court reporters in misdemeanor and traffic trials earlier this year and expects to save $1.5 million in ongoing salary savings following the layoffs of 29 court reporters, said Ann Donlan, communications director for the court. * * *

Looking to follow in Kentucky’s footsteps, three courts in Indiana are participating in a yearlong pilot project to make audio tape recordings the official court record. The Indiana courts aren’t looking to cut costs, said David Remondini, chief deputy executive director of Indiana’s division of state court administration. Instead, they want to shorten the time it takes to get a transcript for an appeal, down from the current allotted time of 90 days to nearly no time at all, since the tape recording of the trial is the official record and no transcription is needed.

Remondini stresses that the pilot isn’t designed to put publicly employed court reporters out of work — quite the opposite, actually. “Since courts are under such a tight budget crunch and they’re getting more work with no more staff,” Remondini said, “even if a court reporter never typed another transcript they’d have plenty of work to do.”

Less than one month into the pilot, it’s already producing some unexpected results: in one instance, an attorney used some of the audio from parts of a trial and played it back to the jury as part of his closing arguments.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Indiana Courts

Ind. Courts - Attorneys for former State Trooper David Camm file a writ of mandamus with the Indiana Supreme Court asking that he be released from custody while awaiting trial.

Here is the 9-page Petition for Writ of Mandamus, filed September 4th.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Indiana Courts

Ind. Courts - More on: Ex post facto application of sex offender requirements for offenses committed outside Indiana and the applicability of the federal law, SORNA, to Indiana cases is at issue before the COA

Updating this ILB entry from September 4th, the much-anticipated oral argument did take place at 1:00 PM today at the law school. I'm told it was "a lively argument" and that counsel did very well. But I've also learned no one thought to make the promised video. Channels 6 and 8 were there, so maybe we will get to watch one or two minutes ...

[More] Here is brief coverage from Eric Berman of WIBC.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Cody B. Honeycutt v. State of Indiana , a 10-page opinion, Judge Vaidik writes:

Cody B. Honeycutt was arrested and a few days later pled guilty, without counsel, to Class A misdemeanor possession of marijuana and a traffic infraction and was sentenced to one year with all but eight days suspended. When the results of Honeycutt’s blood draw came back positive for marijuana a few days later, the State added two more charges under the same cause number: Class A misdemeanor operating while intoxicated and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance in his body. Honeycutt, now represented by counsel, filed a motion to dismiss these charges on grounds that they were barred by the Successive Prosecution Statute because all four charges were connected by a single scheme or plan and therefore should have been charged together. The trial court denied his motion, and Honeycutt was found guilty in a bench trial. Concluding that the trial court abused its discretion in denying Honeycutt’s motion to dismiss, we reverse the trial court. * * *

Even if we assume that a defendant can waive this issue when he knows that a second set of charges may be on the horizon, there was no valid waiver here because Honeycutt was neither aware of the rights he was waiving under the Successive Prosecution Statute nor was he represented by an attorney. We therefore cannot say that Honeycutt waived his challenge under the Successive Prosecution Statute.

The trial court abused its discretion in denying Honeycutt’s motion to dismiss the charges of Class A misdemeanor operating while intoxicated and Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance in his body. Reversed.

In Napoleon Gracia, Sr. v. State of Indiana , a 10-page opinion, Judge Vaidik writes:
Napoleon Gracia, Sr. was convicted of one felony and two misdemeanor counts stemming from a physical altercation with police officers. On appeal, Gracia contends that the State engaged in impermissible forum shopping when it filed charges against him in Howard Superior Court I. Gracia also argues that the trial court erred in refusing to give a jury instruction on excessive use of force by police and that his sentence is inappropriate. We conclude that while the filing of charges in Howard Superior Court I was error, Gracia did not object to the filing and must therefore show fundamental error. We find that he has failed to do so. We also conclude that Gracia was not entitled to the jury instruction at issue and that Gracia’s sentence is not inappropriate. We affirm.
NFP civil opinions today (3):

Estate of Lewis G. Mark, Deceased, and Evelyn J. Mark v. 1st Source Bank (NFP)

In the Matter of Term. of the Parent-Child Rel. of: D.H., C.H., & A.H.; and D.M. v. The Indiana Dept. of Child Services (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: Z.B., G.B., K.B., & S.B.; and T.S. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

William LaShun Caples v. State of Indiana (NFP)

Charles Blakemore v. State of Indiana (NFP)

Najee S. Blackman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Ind. App.Ct. Decisions

Courts - More on Kentucky courts' budget crunch

Tom Loftus reports today in the Louisville Courier Journal in a long story headed "Costly courtrooms: Construction boom is questioned as budget cuts cause furloughs." It begins:

FRANKFORT, KY. — Justice went dark Tuesday across Kentucky, as state courthouses shut down and thousands of court workers went on furlough for a day because of state budget cuts.

Yet even as Kentucky’s judicial system struggles to pay for its day-to-day operations, state spending on courthouse buildings is soaring.

A courthouse building boom between 1998 and 2008 has resulted in Kentucky spending $122 million this fiscal year on debt service and related costs for buildings — double the $61 million in 2007, state budgets show.

Chief Justice John Minton Jr. and his predecessor, Joseph Lambert, who presided over the branch during the building boom, say the exploding cost for paying off the new courthouses is not the reason for the furloughs and other cuts Minton has ordered to balance his operating budget. * * *

“It’s misguided to attribute furloughs to the courthouses,” Lambert said in an interview last week. “Facilities and court operations are different units in the courts budget.”

But while legislators generally agree the two are budgeted separately, they say there is an indirect link that is sapping the state’s resources.

“Anytime you create a fixed cost in the spending base, which all of the courthouse construction has done, there’s simply less money available for anything else,” said Sen. Bob Leeper, the Paducah independent who heads the Senate budget committee.

David Smith, president of the Kentucky Association of State Employees, blames the legislature and the courts for creating a budget with reversed priorities.

“We’re building so many courthouses and furloughing workers at the same time,” Smith said. “That’s like buying a new car when you don’t have enough money for food.”

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Courts in general

Ind. Courts - "Changes In Store For Marion County Small Claims Courts"

Norman Cox of WRTV 6 reported last evening in a story and video:

Circuit Court Judge Louis Rosenberg has proposed a series of countywide rules, including:
  • Standardized hours, 8:30 a.m. to 4:30 p.m., Monday through Friday.

  • Full or partial waiving of court fees for low-income people.

  • A requirement that all litigants be notified of their rights.

  • A free interpreter for people with hearing deficiencies or limited English.

  • Creation of easy-to-understand, standardized forms that would be available at all courts and on the Internet.
Rosenberg said the new forms will especially help people without lawyers.

"It should make it much easier for a defendant, an unrepresented defendant, to navigate their way," said Rosenberg. "They'll be able to get a motion for continuance, for example. They'll be able to get a motion, or a demand, for jury trial."

The new rules don't address venue shopping, in which attorneys for creditors try to stack all their cases in one court, hoping to gain more favorable rulings and often forcing defendants to travel long distances.

"Some debt collectors concentrate their filings in a particular township court," said Rosenberg. "And that can result in too close of a relationship, so to speak, with the township court."

However, Rosenberg has returned that issue to the Supreme Court, which he believes can better handle it.

Carrie Ritchie has a report in the Indianapolis Star. Some quotes:
The [Marion County Small Claims Task Force] suggested that the state legislature consider making the small claims courts part of the Marion Superior Court system, or at least making the judges full-time so they won’t be able to serve as attorneys on the side.

The new rules, which don’t require legislative changes, could alleviate some of the committee’s concerns.

The public can send written feedback to Marion Circuit Judge Louis Rosenberg at 200 E. Washington St., Indianapolis, 46204. Comments can be sent via email to Rosenberg’s clerk, Aida Ramirez, at aida.ramirez@indy.gov.

ILB: Here is the Marion County Circuit Court page on the Task Force. It includes a link to the proposed new local rules.

Earlier ILB coverage of the small claims court issues is here.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Indiana Courts

Courts - Indiana Electrical Workers Pension Trust Fund among those suing Wal-Mart

Jef Feeley of Bloomberg News reports today that:

Pension funds from New York, California and Indiana have agreed to serve as co-lead plaintiffs in cases accusing Wal- Mart’s directors of bribing Mexican officials to help fuel the company’s growth in the country, lawyers for the funds and Wal- Mart said in a Delaware Chancery Court filing.

“The moving parties have conferred and agree, subject to this court’s approval, that the actions should be consolidated for all purposes into a single consolidated action,” according to the Sept. 3 filing. * * *

The funds, which include the California State Teachers’ Retirement System, the New York City Employees’ Retirement System and the Indiana Electrical Workers Pension Trust Fund, contend that Wal-Mart officials may have violated the U.S. Foreign Corrupt Practices Act of 1977 and other anti-bribery statutes in connection with the alleged payments to Mexican officials.

The Indiana fund has sued to force Wal-Mart to hand over records about internal probes of the bribery allegations and contends that the company had been “woefully deficient” in producing documents.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Courts in general

Ind. Law - Much going on today at 1:00 PM

A lot to choose from today at 1:00 PM.

Posted by Marcia Oddi on Wednesday, September 05, 2012
Posted to Indiana Law

Tuesday, September 04, 2012

Ind. Law - Your opportunity to participate as an Oral Argument Judge and/or Brief Grader for the 2012 Honorable Robert H. Staton Intramural Moot Court Competition

As an alumna of IU-Indy Law, the ILB is posting this worthy request:

Greetings from the Indiana University Robert H. McKinney School of Law Moot Court Society!

The Moot Court Society would like to invite you to participate as an Oral Argument Judge and/or Brief Grader for the 2012 Honorable Robert H. Staton Intramural Moot Court Competition. The competition will begin on Monday, September 24, 2012 and end with the final argument before the Indiana Supreme Court on November 7, 2012.

As an Oral Argument Judge, you will serve on a panel in a moot appellate proceeding during which you will question the competitors and evaluate their performances. All rounds except the championship will be held at the law school on Monday through Thursday evenings. As a Brief Grader, you will be required to grade briefs of five student advocates, though you are welcome to grade more than five if you wish.

The Moot Court Society, in compliance with the Commission for Continuing Legal Education, is proud to announce that two free CLE credits are eligible to be awarded through participation in the Staton Intramural Competition. In order to earn this free CLE credit, judges or brief graders must attend one of two Judge Training Sessions. The first is on September 20 and the second is October 11.

If you would like to sign up for the Staton Intramural Competition, please fill out the Judge Response Form.

If you have any other questions, please visit our website with information about the Staton Intramural Competition, or e-mail the Moot Court Society at iumootcourt@gmail.com.

Sincerely,

Kevin Beltz
Assistant Chief Justice, Staton Intramural Competition
Indiana University Robert H. McKinney School of Law

Here is a photo and info about the 2012-13 Staton Intramural Competition Board.

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending August 31, 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 31, 2012. It is 3 pages (and 31 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case today, vacating and remanding

In Victtor George v. Junior Achievemment of Central Indiana (SD Ind., Magnus-Stinson), an 11-page opinion, Chief Judge Easterbrook writes:

An employer’s failure to deposit money withheld from an employee’s paycheck into that employee’s retirement account is a breach of the employer’s duties as a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA). See 29 U.S.C. §1104(a). George protested his employer’s violation of that duty and maintains that the protests led to his firing. Section 510 of ERISA prohibits retaliation “against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act]”. 29 U.S.C. §1140. Junior Achievement argues that the language does not cover George’s complaints, and the district court agreed. It granted Junior Achievement’s motion for summary judgment on the ERISA claim and dismissed George’s state-law claims without prejudice. 2011 U.S. Dist. LEXIS 111846 (S.D. Ind. Sept. 28, 2011). * * *

George notified Junior Achievement of the potential breach of its fiduciary duties and asked (repeatedly) what would be done to remedy the situation. Those conversations involved an “inquiry,” as we understand that word, because Junior Achievement responded to them rather than ignoring them. (If it had ignored them, they could not have caused the discharge.) The district court must decide whether there is some other ground on which this case may be resolved short of trial, or whether a trial on causation is necessary. The judgment of the district court is vacated, and the case is remanded for proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 (now 4) today (and 8 NFP)

For publication opinions today (4):

Hood's Gardens, Inc. v. Jason Young, Craig Meade d/b/a Discount Tree Excavation a/k/a D & E Tree Extraction

In Tommi Emerson Winn v. State of Indiana , a 9-page opinion, Sr. Judge Darden writes:

Tommi Emerson Winn appeals the trial court’s denial of his motion for bail bond reduction. We reverse and remand. * * *

In effect, by denying Winn the option of depositing cash or securities in an amount not less than ten percent of the bail, “the trial court condemned [him] to jail pending trial without explicitly ordering [him] to be held or articulating any reason for doing so.” While the severity of the thirteen charges arguably supports the setting of bail in the amount of $25,000, “the absence of any other factors suggesting [Winn] was a flight risk leads us to conclude the trial court should have granted” Winn’s request to deposit an amount not less than 10 percent of bail under Indiana Code section 35-33-8-3.2(a).

We reverse and remand with instructions that the trial court grant Winn’s motion.

FRIEDLADNER, J., concurs.
BROWN, J., concurs in part with separate opinion. [which reads] I concur in part with the majority and write separately to state that IC 35-33-8-3.2 cited in the opinion allows the trial court options in addition to granting Winn’s request to deposit an amount with the clerk of not less than 10 percent of the amount of bail. Specifically, IC 35-33-8-3.2(a)(1)(A) provides for execution of a bail bond with sufficient solvent sureties. Other parts of subsection (a)(1) allow for execution of a bond secured by real estate in the county, posting a real estate bond, or performing any combination of the four requirements described in that subsection. On remand I would not require that the trial court grant Winn’s motion but would allow the court the discretion afforded by IC 35-33-8-3.2.

In Heather N. Kesling v. Hubler Nissan, Inc. , a 17-page, 2-1 opinion, Sr. Judge Sharpnack writes:
Heather Kesling appeals the trial court’s order granting summary judgment to Hubler Nissan, Inc., on her Indiana Deceptive Consumer Sales Act, Indiana Crime Victims Relief Act, and fraud claims. We reverse and remand. * * *

Kesling now argues that the trial court erred because there are genuine issues of material fact as to whether: (1) Hubler made a representation that the Eclipse had the performance, characteristics, uses, or benefits (2) it did not have, (3) which Hubler knew or should reasonably have known it did not have.

As to the representation, the designated evidence shows that Hubler advertised the Eclipse for $2981 and described it as a “Sporty Car at a Great Value Price.” Kesling claims that a trier of fact could reasonably infer from this evidence that Hubler was representing that the vehicle was safe to operate.

Hubler responds that the advertisement is not actionable under the Act because it never stated that the vehicle was safe to operate. * * *

This evidence establishes a genuine issue of material fact as to whether Hubler knew or should reasonably have known that the Eclipse was unsafe to drive at the time Kesling purchased it.

We thus conclude that there are genuine issues of material fact as to whether Hubler made a representation that the Eclipse had the performance, characteristics, uses, or benefits it did not have, which Hubler knew or should reasonably have known that it did not have. The trial court therefore erred by granting summary judgment to Hubler on this claim. * * *

For the reasons stated, we reverse the trial court’s grant of summary judgment to Hubler on these claims and remand for further proceedings. Reversed and remanded.

DARDEN, Sr.J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins, at p. 16] I believe the advertisement in question does not run afoul of the Indiana Deceptive Consumer Sales Act and therefore respectfully disagree that a question of fact remains that renders Kesling’s cause of action on that basis viable. * * *

Unlike the Majority, I cannot agree that “Sporty Car at a Great Value Price” says anything at all about the car’s drivability – much less that it warrants that the vehicle is in a condition such that it may be safely operated.

In Nathan S. Berkman v. State of Indiana, a 20-page opinion, Judge Bradford writes:
Appellant-Defendant Nathan Berkman appeals from his conviction of and sentence for Felony Murder. Berkman raises five issues, which we restate as follows:
I. Whether the trial court abused its discretion in denying Berkman’s motion to dismiss, which was made on the basis that the instant charge was barred by prohibitions against double jeopardy;
II. Whether the trial court abused its discretion in denying Berkman’s mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from a previous trial;
III. Whether the trial court abused its discretion in admitting certain deposition testimony; and
IV. Whether Berkman’s sixty-year executed sentence is inappropriately harsh.
We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (8):

Dennis J. Rodenberg v. State of Indiana (NFP)

Damon T. Payne, Sr. v. State of Indiana (NFP)

Charles B. Dietzen v. State of Indiana (NFP)

Victoria Yates v. State of Indiana (NFP)

Olympia Shellman v. State of Indiana (NFP)

James W. Manhart v. State of Indiana (NFP)

Artrece D. Patterson v. State of Indiana (NFP)

Noble Potter v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on 7th Circuit decision last week on Indiana sex offender registry

Updating this ILB entry from August 28th, and this one from later that same day, here is some additional coverage:

Here are the ILB's notes from the August 23rd legislative committee meeting.

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Ex post facto application of sex offender requirements for offenses committed outside Indiana and the applicability of the federal law, SORNA, to Indiana cases is at issue before the COA tomorrow

In this week's list of upcoming oral arguments, the one this Wednesday before the Court of Appeals is very timely. Here is the description prepared by the Court:

Wednesday, September 5th

1:00 PM - Thomas H. Andrews v. State of Indiana ( 29A02-1112-MI-1166)

Case Synopsis for the Andrews v. State Oral Argument

In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-1075. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14, 1989.

Andrews married thereafter, and moved to Indiana to be closer to his wife’s family. In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997 and currently resides in Noblesville, Indiana. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address and travels to locations in and out of the state in the operation of his company.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he is required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal from the registry, arguing that pursuant to our supreme court’s 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), he is not required to register as a sex offender. The State opposed Andrews’s petition and, because the facts are not in dispute, the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews’s circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as “SORNA”). On November 30, 2011, the trial court granted the State’s motion for summary judgment and denied Andrews’s motion without explaining the reason(s) for its decisions.

Andrews has appealed the trial court’s judgment and argues that pursuant to Wallace, the requirement that he register as a sex offender violates the Indiana Constitutional prohibition against ex post facto laws. In response, the State argues that Wallace does not apply because Andrews was convicted in Massachusetts and he would be required to register as a sex offender in Massachusetts. The State also argues that Andrews has an independent duty to register as a sex offender SORNA. SORNA provides that a sex offender must register in any jurisdiction where the offender resides, is an employee or a student. And pursuant to 18 U.S.C. § 2250, it is a federal criminal offense for any person, who is required to register under SORNA, to travel in interstate commerce and knowingly fail to register or update a registration.

The Scheduled Panel Members are:
Judges Vaidik, Mathias and Barnes.

[Where: Indiana University Robert H. McKinney School of Law, 530 West New York Street, Room 100, Indianapolis (Webcast to be available later)]

Unless you go over to the law school tomorrow, you won't be able to see the oral argument right away, but I'm told a video is being made and will be posted later.

The ILB has obtained the briefs in the case:

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Upcoming Oral Arguments

Ind. Gov't. - Marking your utilities for excavating, a Catch 22?

Okay, here is a problem. Say you have a backed-up sewer line in your backyard that is 8 feet down. You need to call 811 first to get your utilities marked before anyone can dig. You need this repaired ASAP.

So to save time, you, the homeowner, call 811 to arrange for the marking, as it takes them two days. But they tell you they won't come out without the name of the contractor, "for liability reasons." You say you haven't yet selected the contractor, you are talking to several. Not good enough say the 811 people, you need the name of your contractor. Meanwhile, the contractors tell you they can't give you a firm bid without knowing where the utilities are...

Posted by Marcia Oddi on Tuesday, September 04, 2012
Posted to Indiana Government

Monday, September 03, 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 Monday, September 3, 2012:

From Sunday, September 2, 2012:

From Saturday, September 1, 2012:

From late Friday afternoon, August 31, 2012:

Posted by Marcia Oddi on Monday, September 03, 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 9/3/12):

Thursday, September 6th

Next week's oral arguments before the Supreme Court (week of (9/10/12):

Monday, September 10th

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, September 5th

Thursday, September 6th

Next week's oral arguments before the Court of Appeals (week of 9/10/12):

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, September 03, 2012
Posted to Upcoming Oral Arguments

Vacancy #2 on Supreme Court 2012 - "Daniels has third chance to appoint woman to Supreme Court "

That is the headline to this story by Dan Carden in the NWI Times, but the bulk of the story is about one of the three candidates: "Indianapolis attorney Geoffrey Slaughter, 49, [who] was born in Gary, grew up in Crown Point and lived in Lake County until 2002." More from the story:

INDIANAPOLIS | Will the third time be the charm?

The Indiana Judicial Nominating Commission last month formally sent Gov. Mitch Daniels its three recommended candidates to fill a vacancy on the Indiana Supreme Court.

They include a Crown Point native and a woman, Judge Loretta Rush of Lafayette. * * *

Daniels said regardless of demands from prominent lawyers and newspaper editorials that he select a woman, he is focused on appointing the best possible justice regardless of gender.

"I won't sacrifice merit, integrity, temperament," Daniels said. "In short, I won't sacrifice quality for that or any other demographic reason." * * *

Daniels said he's happy to use gender "to break a tie," but in his previous appointments, Steven David and Mark Massa were clearly the best candidates for the court, he said.

The governor has until October 15 to select the new justice. * * *

[Slaughter] was covaledictorian of Crown Point High School in 1981 and attended Indiana University in Bloomington where he earned a bachelor's degree in economics, an MBA and his law degree.

He clerked for Lake Superior Judge James Letsinger for a summer before spending two years clerking for a federal judge in South Bend.

Slaughter, a Republican, was an associate at the Chicago law firm of Kirkland and Ellis for five years before working as special counsel in the Indiana attorney general's office under three Democratic attorneys general, including Gary Mayor Karen Freeman-Wilson.

Freeman-Wilson said Slaughter would be "an awesome justice."

"He's very thoughtful and deliberative in addition to really knowing the law and being very diligent and hard-working," Freeman-Wilson said. "He has a great demeanor that would lend itself well to the judiciary."

Slaughter is a partner at the Indianapolis law firm of Taft, Stettinius and Hollister where he recently helped invalidate a portion of a Hammond ordinance charging higher rental registration fees to landlords who live outside the city.

During his Aug. 8 interview with the nominating commission, Slaughter said the Supreme Court's duty is to ensure it is "getting the law right."

"A judge's most solemn responsibility is to do his or her best to apply the law as those who wrote the law -- whether it's a constitutional provision, a statutory provision or a regulation or rule -- drafted it," he said.

Posted by Marcia Oddi on Monday, September 03, 2012
Posted to Vacancy #2 on Supreme Court 2012

Law - "Bill Gates Sends Ex-Con to Law School After Supreme Court Win"

Thanks to How Appealing for the link to this story by Craig Seligman in Bloomberg News that begins:

Shon Hopwood robbed five banks, went to jail, learned law, wrote a petition that made it to the Supreme Court, served his time, got out, got married, had kids and is now in law school at the University of Washington on a scholarship from the Bill and Melinda Gates Foundation.

Posted by Marcia Oddi on Monday, September 03, 2012
Posted to General Law Related

Ind. Gov't. - "DCS call center scrutinized: Workers blast turnover, 'screenouts' as study panel girds for testimony this week."

The Department of Child Services Interim Study Committee will meet this coming Wednesday, Sept. 5th at 1 PM. The agenda has been revised, it was originally to be devoted to hearing testimony on the hotline. Now it reads:

(1) Call to order.
(2) Receive and review status reports from the DCS Ombudsman.
-Susan Hoppe, Director of DCS Ombudsman Bureau.
(3) Public testimony regarding DCS child abuse and neglect hotline.
(4) Other business.
The agenda also now notes that the hearing will be videocast.

The heading to this ILB entry is from Virginia Black's long Sunday story in the South Bend Tribune. It begins:

Two former Department of Child Services hotline workers say management policies have led to the call center's 50 percent turnover rate and a system that effectively discourages the investigation of child abuse and neglect reports.

Meanwhile, as the General Assembly's study committee on DCS prepares to turn its attention this week specifically to the hotline, DCS officials have told the panel they are trying some pilot programs on how reports are made and that they are willing to discuss other possibilities in how the call center operates.

Since The Tribune in February published growing concerns about the hotline, parents, teachers, doctors, judges and law enforcement officials around the state began to report their dissatisfaction with how many fewer reports were being investigated.

Before 2010, when DCS began to roll out its single call center in Indianapolis, each county operated its own hotline. DCS Director James Payne has said the former system was inconsistent in how it took and reacted to reports and that the potential for bias was greater.

"Mandatory reporters" in child protection, such as teachers, police and doctors, have complained about long waits to talk with a hotline worker, unreturned calls, and that trust and ties with local DCS employees was lost. They complained that too many of their reports were being "screened out" rather than assigned for investigation.

DCS Chief of Staff John Ryan told the study committee during its first hearing Aug. 22 of "very legitimate concerns about the hotline."

In response, he said hotline calls from law enforcement officials -- police, judges and prosecutors -- are now automatically sent to local offices for investigation. They're debating whether to include in that policy calls from other professionals, such as school officials who report abuse.

This is a long, "must read" story.

Today the Evansville Courier & Press published a long "special" from Gov. Daniels. Here is the beginning and end:

For years, our administration has sat silently through frequent criticism of our initial attempt to repair and reform Indiana's welfare system. Much of the criticism was sincere and accurate, much was simply crude politics. But even when it crossed the line into inaccuracy, we endured it without protest; I told my co-workers in state government to make no reply until we could show with hard facts that the original problem had been addressed successfully. That time has arrived. * * *

The criticisms leveled at our welfare modernization efforts have been, for the most part, sincere and fair. I am disappointed that it took two tries, but gratified at the success of the second try.

Now that the facts are so dramatically transformed, I trust those who have been so critical will demonstrate their sincerity by modernizing their obsolete talking points. Then we can work together making the best-performing welfare system Indiana has had much better yet.

Also of note this weekend, Rebecca s. Green's very long story in the Fort Wayne Journal Gazette, headed "DCS statute irks prosecutors: Some say review teams usurp counties in child-death cases."

Posted by Marcia Oddi on Monday, September 03, 2012
Posted to Indiana Government

Ind. Gov't. - "Time to reconsider gasification deal"

That is the headline to this editorial in the Sunday Evansville Courier & Press. Some quotes:

Unfortunately, neither Indiana gubernatorial candidate appears willing, if elected, to re-evaluate Indiana's 30-year deal to buy and resell synthetic natural gas produced at the Rockport's coal-gasification plant. And that's too bad.

The Courier & Press reported last week that Republican gubernatorial candidate Mike Pence would be open to re-evaluating Indiana's 30-year deal to buy and resell synthetic natural gas produced at a Rockport coal-gasification plant. However, on Thursday Pence said that was not accurate. He said while he has an open mind, he has no intention of revisiting the contract as an administrative matter. He said Indiana has a binding contract to buy gas from the Rockport plan, and he would honor it.

That's too bad for if ever a deal needed to be revisited, this is it.

Gov. Mitch Daniels had already reached agreement committing Indiana's residential and commercial ratepayers to see 17 percent of their gas bills come from the Rockport synthetic fuel. And that deal would be in place for three decades. * * *

Already, the open market is demonstrating the riskiness of the arrangement. Vectren points out that the new accessibility of shale gas has caused natural gas prices to fall to levels much below the Rockport fuel. According to a report by Courier & Press staff writer Eric Bradner, utilities can now lock in a decade-long natural gas contract for less than $3 per million BTU. Meanwhile, he wrote, the Indiana Finance Authority deal with the Rockport plant would have the state buy the fuel and then resell it at a fixed rate estimated at about $6.60 per million BTU.

Pence's opponent, Democrat John Gregg, said he would wait to see what lawmakers send to the governor. He said, "Obviously the Daniels administration has entered into this agreement and the agreement cannot be unilaterally changed by the next administration."

Here is the lengthy, earlier C&P story by Eric Bradner, headed "Pence says he's open to re-evaluating Rockport gasification plant contract if elected."

Here is a long list of earlier ILB entries in the Rockport coal gasification plant.

Posted by Marcia Oddi on Monday, September 03, 2012
Posted to Indiana Government

Ind. Law - "No rights for rapists" Editorial calls for new law

From an editorial published August 28th in the Fort Wayne Journal Gazette:

Most Hoosiers were as shocked as legislators earlier this year when they learned that in Indiana, rapists retain parental rights over children conceived by their violent crime. State lawmakers are finding it nearly impossible to right this blatant wrong. But it can be done. At least one other state shows what at a minimum is possible.

In Indiana, if a rape victim who became pregnant because of sexual assault chooses to give birth, she can find herself being victimized by her rapist a second time when he seeks parental visitation rights or even custody. It’s revolting, but rapists retain their rights in at least 27 states, including Indiana.

In January, Sen. Ed Charbonneau, R-Valparaiso, sponsored Senate Bill 190 that would deny parental rights to rapists “if a court finds by clear and convincing evidence that the person perpetrated the rape.” He proposed the legislation after a constituent told him her rapist was seeking custody of her child.

Despite making an exception if the rapist was married to his victim, the legislation failed. Because lawmakers from both parties had many questions, they sent the issue to an interim study committee. And on Wednesday the committee voted 7-1 to do nothing.

It happened to Shauna Prewitt, a Chicago lawyer and a native of Missouri. She wrote a book about how her attacker was able to use the legal system to victimize her a second time by seeking child visitation rights. Her book is called “Giving Birth to a Rapist’s Child: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape.” * * *

At least Missouri allows the court to intervene to terminate rapists’ parental rights, something Indiana should do as well and do in the coming legislative session.

“If there’s a conviction, there ought to be a step the victim can take to protect themselves and the child,” said Sen. Sue Glick, R-LaGrange, who cast the only dissenting vote on the interim study committee.

Glick, an attorney with experience in family law, also served two terms as LaGrange County prosecutor. “The judge in a criminal case is not allowed to step in and terminate parental rights,” she said. “There is no specific language that allows that.”

The majority of members on the committee concluded that existing laws concerning paternity, protection orders and child support provide enough tools to deny contact between a rapist and a child conceived during the crime.

“My argument was that a victim should not have to spend the next 18 or 19 years looking over their shoulder,” Glick said. “I wasn’t very persuasive, obviously.”

The committee wanted to avoid creating special legislation that would be applicable in only a few instances.

It’s unlikely that state lawmakers could draft legislation that would fit perfectly every case. But they should not allow the perfect to be the enemy of the good when it comes to better protection of rape victims. Indiana needs a law that at least gives judges the authority to terminate the parental rights of rapists.

Posted by Marcia Oddi on Monday, September 03, 2012
Posted to Indiana Law

Saturday, September 01, 2012

Ind. Law - Table of Title 35 definitions repealed and reenacted under a new citation

In 2012 the General Assembly enacted SEA 26. The digest to the 129-page bill says simply:

Title 35 definitions. Organizes definitions in Title 35. Makes technical corrections. (The introduced version of this bill was prepared by the criminal code evaluation commission.)
Looking at the archives for the Commission, the ILB found Preliminary Draft (PD) 3255, "Title 35 definitions." It was on the agenda for the Nov. 2, 2011 meeting. The only discussion in the minutes of the meeting was:
Review of PD 3255 (Exhibit F) -This PD reorganizes definitions in Title 35 and makes technical corrections. The Commission voted 12 -0 to recommend introduction of this bill in the 2012 General Assembly.
Looking back to the previous meeting, the preliminary draft of 3255 is found in the attachments to the Oct. 19, 2011 minutes, at pp. 33-139. The discussion:
K.C. Norwalk, Senior Staff Attorney, Legislative Services Agency, presented to the Commission members PO 3255, which consolidates criminal law definitions in Title 35. (Exhibit C) Senator Bray told the Commission members that this draft will be reviewed at the next meeting.
Prof. Schumm wrote me last week to say:
It looks like the General Assembly repealed and moved all the definitions from Title 35 to 35-31.5-2. At least as of today, Westlaw and Lexis have not moved the annotations from the earlier cites, at least for "deadly weapon," which is what I just pulled up.
Right now if you look in the Ind. Code for "deadly weapon" under IC 35-41-1-8, this is what you get:
IC 35-41-1-8
Repealed
(Repealed by P.L.114-2012, SEC.96.)
With no clue as to where to look next. So I wrote to Legislative Services Agency (LSA):
I've been hearing from people having trouble with the changes to Title 35 definitions (SEA 26). Looked online and didn't see a derivation/disposition table. Is there one?
The response from LSA:
We do not have a derivation/disposition table for the definition changes in Title 35. Typically, we prepare those tables when we do a recodification of the title and SEA 26 was not a recodification. As you know, in SEA 26, all provisions that set forth a definition relating to a penal offense were relocated to one place, that being IC 35-31.5-2. They are listed there in alphabetical order. I probably will not be able to commit our staff to constructing such a table at this time given the volume of work currently assigned to our attorneys in the criminal law area.
So the ILB has made a table. Here is what I sent today to Prof. Schumm:
Okay, if I understand this correctly, attached is a table I have created of the IC 35 definitions repealed and replaced with renumbered definitions.

There are 56 of them, by my count. The rest of the definitions were not repealed, instead the new definitions chapter (IC 35-31.5-2) mentions them without repealing the original. For example:

IC 35-31.5-2
Chapter 2. Definitions

IC 35-31.5-2-1
"Abandon"

Sec. 1. "Abandon", for purposes of IC 35-46-3, has the meaning set forth in IC 35-46-3-0.5(1).
As added by P.L.114-2012, SEC.67.

IC 35-31.5-2-2
"Access"

Sec. 2. "Access", for purposes of IC 35-43-2-3, has the meaning set forth in IC 35-43-2-3(a).
As added by P.L.114-2012, SEC.67.

Prof. Schumm responded:
Wow, this is even odder/more confusing than I originally thought. I assumed all definitions were repealed and moved. I guess those definitions with a meaning limited to a specific article/section of Title 35 remain in the later section (and were added to 35-31.5), while those with a global meaning to all of Title 35 appear only in 35-31.5.
It seems so.

Here is the ILB Table of the approximately 56 definitions that were repealed and then reenacted under new citations.

The change certainly offers a future positive benefit for those who practice criminal law: anyone looking for a definition simply needs to take a quick look at the comprehensive, alphabetized list in IC 35-31.5. Although this will provide the current statutory definition, the annotated code on Westlaw or Lexis -- or a term search with the new statutory cite -- currently will yield no cases, even though many cases have probably interpreted the term over many years.

But with the help of this new ILB Table, cases can be found by looking in the 2011 annotated code under the previous citation (if you are one of the few people who has access to the 2011 books) or by running a search under the earlier statutory citation.

One more thing. Don't forget to look at IC 1-1-4-5, amended in 2012, which has a list of 30 definitions that "apply to the construction of all Indiana statutes, unless the construction is plainly repugnant to the intent of the general assembly or of the context of the statute." This includes terms such as "(24) Under legal disabilities." It also includes:

(8) "Infant" or "minor" means a person less than eighteen (18) years of age.
And this:
(30) The definitions in IC 35-31.5 apply to all statutes relating to penal offenses.

Posted by Marcia Oddi on Saturday, September 01, 2012
Posted to Indiana Law

Courts - Do Judicial Plates Violate Code of Judicial Conduct?

Joel Stashenko reported in the New York Law Journal on August 27th. The long story begins:

Judges whose license plates identify the office they hold may, in effect, be trading on their positions to avoid the consequences of being stopped for traffic infractions, the state Commission on Judicial Conduct has suggested.

Prompted by a recent disciplinary decision, the commission is seeking input for a public report to address the issue of whether the special vehicle plates violate the code of judicial conduct. * * *

The commission initially disclosed in Matter of Schilling that it planned to conduct the study. * * *

According to a footnote in the Schilling determination, "the commission has repeatedly evaluated cases of judges attempting to use their judicial office to influence the disposition of traffic violations."

Schilling "represents a stark example of this problem and raises a systemic issue of how judicial license plates distort the normal process of enforcing traffic laws and the delicate position faced by law enforcement officers when they stop a vehicle with judicial plates," the commission added.

The commission said it would issue a public report examining whether the code of judicial ethics is being violated "in the context of judges, in effect, using their judicial office to avoid the consequences of being stopped for offenses under the Vehicle and Traffic Law."

Posted by Marcia Oddi on Saturday, September 01, 2012
Posted to Courts in general

Ind. Decisions - 7th Circuit " revives the First Amendment retaliation lawsuit of an Illinois teacher who contends he was fired after raising public concerns about an alleged student threat against him"

See the coverage at the School Law Blog.

Here is the August 31st opinion, by Judge Posner, in Gschwind v. Heiden.

Thanks to Michelle Olsen ‏@AppellateDaily for the pointer.

Posted by Marcia Oddi on Saturday, September 01, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Fishers company loses court battle over Marilyn Monroe's estate"

Updating two earlier ILB entries on Marilyn Monroe and the rights of publicity, Carrie Ritchie reports today in the Indianapolis Star:

A Fishers company that represented Marilyn Monroe’s estate has lost a court battle over the use of the dead celebrity’s image.

A federal appellate court in California upheld a district court ruling Thursday that CMG Worldwide and Monroe’s estate cannot use California’s laws regarding “posthumous right of publicity” to sue people it thinks have used Monroe’s image inappropriately.

CMG represented Monroe’s estate until 2010.

The decision centered on whether Monroe lived in New York or California when she died of a drug overdose in 1962 and which state’s laws should apply to her estate.

For decades after she died, her estate claimed that she lived in a New York City apartment, allegedly to avoid higher taxes, according to the appellate court’s decision.

However, New York doesn’t have California’s strict laws that protect dead celebrities.

CMG and Monroe’s estate have sued several people, including photographers and heirs in Monroe’s will, for what it thinks are improper uses of Monroe’s image and celebrity. They claim she technically lived in a Brentwood home at the time of her death, so California’s laws should apply.

Federal appellate judge Kim McLane Wardlaw, who authored the decision, accused Monroe’s estate of changing its residency claims whenever it was beneficial for the estate. * * *

“Monroe’s representatives took one position on Monroe’s domicile at death for 40 years and then changed their position when it was to their great financial advantage, an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died,” Wardlaw wrote.

She went on to quote Monroe: “If you’re going to be two-faced, at least make one of them pretty.”

Here is a long story from The Hollywood Reporter.

Here is the 29-page, August 30, 2012, 9th Circuit opinion in Milton H. Greene Archives v. Marilyn Monroe LLC and CMG Worldwide. It begins, and ends:

An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death. At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her Last Will and Testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity. The issue of appellants’ rights turns on whether Monroe was domiciled in California or New York at the time of her death. We conclude that because Monroe’s executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California’s posthumous right of publicity. We therefore affirm the district court’s order so holding. * * *

Because Monroe died domiciled in New York, New York law applies to the question of whether Monroe LLC has the right to enforce Monroe’s posthumous right of publicity. Because no such right exists under New York law, Monroe LLC did not inherit it through the residual clause of Monroe’s will, and cannot enforce it against Milton Greene or others similarly situated. We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”

Posted by Marcia Oddi on Saturday, September 01, 2012
Posted to Courts in general