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Tuesday, October 23, 2012

ind. Decisions - "ACLU of Indiana Wins Appeal in Planned Parenthood Medicaid Case" [Updated]

That is the heading of this just-issued ACLU press release that begins:

Indianapolis - Thousands of Medicaid patients in Indiana had their freedom to choose a medical provider affirmed today when the U.S. Court of Appeals for the Seventh Circuit upheld a preliminary injunction of a law that would have denied Medicaid funding to health care providers.

The American Civil Liberties Union of Indiana prevailed in the class action on behalf of its clients, Planned Parenthood of Indiana and others, including two patients. Without the injunction, HEA 1210 -- the law passed by the Indiana General Assembly in 2011 -- would have prohibited Medicaid funds from going to any entity that offered abortions, even though the Medicaid funds go to necessary reproductive health services and do not support abortion services.

Here is the ILB post from earlier today on the 7th Circuit ruling.

[Updated at 4 PM]

Here is Indiana Attorney General Zoeller’s statement on 7th Circuit’s Medicaid defunding opinion. Some quotes:

Today a federal appeals court ruled in the legal challenge to an Indiana statute that would end Medicaid funding to abortion providers. The U.S. 7th Circuit Court of Appeals in Chicago agreed with the lower court that had blocked enforcement of the Indiana law, House Enrolled Act 1210. The federal appeals court today left in place a preliminary injunction pertaining to Medicaid funding that a federal judge in Indianapolis had issued last year. This means the plaintiff in the lawsuit, Planned Parenthood of Indiana, can continue to draw Medicaid funding from state taxpayers to fund its services.

However, in today’s 2-1 decision, the 7th Circuit panel reversed part of the lower court’s ruling of last year. The appeals court said the State of Indiana was within its authority to discontinue funding from two federal grants Planned Parenthood had received totaling $150,000 from the Disease Intervention Services (DIS) program. The 7th Circuit majority decision said Planned Parenthood had not shown its rights had been violated when the State made a decision about eligibility conditions for disbursing the federal block grant. * * *

Indiana Attorney General Greg Zoeller today issued this statement: “The people’s elected representatives in the Legislature decided they did not want an indirect subsidy of abortion services such as payroll and overhead to be paid with taxpayer’s dollars and so crafted this law. Although the injunction concerning Medicaid funding was not lifted, we note that the 7th Circuit found the State has the legal authority to decide how federal block-grant dollars – which are tax dollars – will be distributed. We will review this opinion more thoroughly with our clients before deciding how best to continue to defend the Indiana law,” Zoeller said.

Here are stories from Charles Wilson of the AP, and Andrew Harris of Bloomberg News.

The WSJ Law Blog puts the ruling in context in a story by Joe Palazzolo, headed "Appeals Court Blocks Indiana Law to De-Fund Abortion Providers."

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

Ind. Decisions - Supreme Court decides one today

In National Wine & Spirits, Inc., National Wine & Spirits Corporation, NWS, Inc., NWS Michigan, Inc., and NWS, LLC v. Ernst & Young, LLP, a 12-page, 4-0 opinion, Justice David writes:

In this case, a company hired an accounting firm to provide auditing services. Their agreement provided that any claim arising from the services would be submitted to arbitration. During the years covered by the agreement, an employee of the company committed fraud and theft, causing significant losses to the company.

The company alleged negligence, breach of contract, and unjust enrichment against the accounting firm and demanded arbitration. The arbitration panel ultimately found the accounting firm negligent and the company comparatively negligent. The company then filed the present suit, claiming the accounting firm committed deception because the documents that the accounting firm produced during the arbitration were misleading and caused the arbitration panel to find the company comparatively at fault.

We hold that, under the facts of this case, the issue underlying the deception claim is the veracity of the documents produced at arbitration, which was an issue necessarily decided by the arbitration panel. Accordingly, issue preclusion bars the company’s deception claim, and we affirm the trial court’s grant of summary judgment in favor of the accounting firm.

Posted by Marcia Oddi on Tuesday, October 23, 2012
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In State Automobile Ins. Co., Meridian Security Ins. Co., and Indiana Farmers Mutual Ins. Co. v. DMY Realty Co., LLP and Commerce Realty, LLC , a 39-page opinion, Judge Brown writes:

State Automobile Insurance Company and Meridian Security Insurance Company (collectively, “State Auto”) appeal the trial court’s order denying State Auto’s motion for summary judgment and granting summary judgment in favor of DMY Realty Company, LLP and Commerce Realty, LLC (collectively, “DMY”). State Auto raises three issues which we revise and restate as: I. Whether the language of certain pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous; II. Whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY; and III. Whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. We affirm and remand. * * *

[I] The first issue is whether the language of the pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous. In examining this issue, however, we note that the Indiana Supreme Court’s recent pronouncements in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind. 2012), reh’g denied, are dispositive. * * * [C]onsequently we conclude that the pollution exclusions and endorsements contained in DMY’s insurance policies with State Auto are ambiguous. Thus State Auto may not deny DMY the coverage it seeks based upon such language.

[II] The next issue is whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY. * * *

To the extent that State Auto challenges Mundell’s expert report’s admissibility based upon the Daubert factors, we observe that the Indiana Supreme Court “has not established a specific test for the scientific admissibility of evidence pursuant to Indiana Evidence Rule 702(b)” and, although the Daubert factors can be helpful in that determination, the Court “has not mandated the application of Daubert and has chosen alternative approaches in the past.” Akey v. Parkview Hosp., 941 N.E.2d 540, 543 (Ind. Ct. App. 2011), trans. denied. * * *

Accordingly, we conclude that the court did not err when it concluded that there was no issue of material fact precluding the granting of summary judgment in favor of DMY.

[III] The final issue is whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. * * *

We also find notable that State Auto in its reply brief does not reject DMY’s contention regarding the nature of the settlement, lending credence, albeit implicitly, to the notion that DMY and Indiana Farmers did in fact settle pursuant to a loan receipt agreement. Accordingly and under the circumstances, we conclude that remand is warranted for the trial court to review any settlement agreement between DMY and Indiana Farmers and consider any valid contribution or credit issues.

For the foregoing reasons, we affirm the court’s order granting summary judgment in favor of DMY and denying summary judgment in favor of State Auto, and we remand for the court to address any valid contribution or credit issue consistent with this opinion.

In David Mathews v. State of Indiana, a 17-page opinion, Judge Brown writes:
David Mathews appeals his convictions for public intoxication as a class B misdemeanor and intimidation as a class D felony and being an habitual offender. Mathews raises two issues which we revise and restate as: I. Whether the trial court abused its discretion by denying Mathews’s request for a mistrial; and II. Whether the evidence is sufficient to sustain his conviction for public intoxication as a class B misdemeanor. We affirm.
In Calvin Merida v. State of Indiana , a 10-page, 2-1 opinion, Judge Bailey writes:
Calvin Merida (“Merida”) pled guilty to and was convicted of two counts of Child Molesting, as Class A felonies. He now appeals his sentence. We reverse and remand with instructions.

Merida raises two issues for our review, which we restate as a single issue: whether his sentence is inappropriate. * * *

We therefore reverse the trial court’s sentencing order and remand with instructions to revise the sentencing order to run his two thirty-year sentences concurrent to one another, for an aggregate thirty-year term of imprisonment.

RILEY, J., concurs.
CRONE, J., concurs in part and dissents in part, with opinion.

I would remand with instructions to revise Merida’s sentence such that eight years of the thirty-year sentence on count 10 would run consecutive to the thirty-year sentence on count 9 and the remainder would run concurrent, for a total executed sentence of thirty-eight years. * * *

I acknowledge that Indiana Code Section 35-50-1-2 does not specifically authorize partially consecutive sentences, but I believe that the statute should be interpreted to provide trial courts with as much flexibility as possible to tailor an appropriate sentence for each defendant based on the facts of each case. See id. at 1224 (“Indiana has never adopted a mechanical approach to sentencing, and we have not identified any inflexible system that did not raise more problems than it solved.”). Any doubts in this regard should be resolved by either our supreme court or our legislature, which is currently reviewing Indiana’s criminal code with an eye toward overhauling both its substantive and sentencing provisions. If it is determined that the statute as currently written does not authorize partially consecutive sentences, it is my hope that the legislature would amend the statute accordingly and give trial courts and appellate courts an important tool for crafting appropriate sentences in cases like this one.

NFP civil opinions today (0):

NFP criminal opinions today (1):

David A. Young v. Gladys C. Young (NFP)

Posted by Marcia Oddi on Tuesday, October 23, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit rules in Planned Parenthood defunding appeal

In Planned Parenthood of Ind. v. Comm, Indiana Dept. Health (SD Ind., Pratt), a 49-page, 2-1 opinion, Judge Sykes writes:

In 2011 Indiana adopted a law prohibiting state agencies from providing state or federal funds to “any entity that performs abortions or maintains or operates a facility where abortions are performed.” IND. CODE § 5-22-17-5.5(b). The Hyde Amendment already forbids states from using federal funds to pay for most nontherapeutic abortions; Indiana has a similar ban on the use of state funds. The new law goes a step further by prohibiting abortion providers from receiving any state-administered funds, even if the money is earmarked for other services. The point is to eliminate the indirect subsidization of abortion.

Immediately after the defunding law was enacted, Planned Parenthood of Indiana and several individual plaintiffs filed this lawsuit seeking to block its implementation. As an enrolled Medicaid provider, Planned Parenthood provides reimbursable medical services to low-income patients, two of whom are named as plaintiffs. Planned Parenthood claims that the defunding law violates the Medicaid Act’s “free choice of provider” provision, which requires state Medicaid plans to allow patients to choose their own medical provider. See 42 U.S.C. § 1396a(a)(23). The United States, as amicus curiae, supports this claim. Planned Parenthood also contends that the defunding law is preempted by a federal block-grant statute that authorizes the Secretary of Health and Human Services (“HHS”) to make grants to the states for programs related to sexually transmitted diseases. See 42 U.S.C. § 247c(c). Finally, Planned Parenthood claims that the defunding law places an unconstitutional condition on its receipt of state-administered funds because it must choose between providing abortion services and receiving public money.

The district court held that the first two claims were likely to succeed and enjoined Indiana from enforcing the defunding law with respect to Planned Parenthood’s Medicaid and § 247c(c) grant funding. The court did not address the unconstitutional-conditions claim. Indiana appealed.

We affirm in part and reverse in part. A threshold question on the two statutory claims is whether the plaintiffs have a right of action. To create private rights actionable under 42 U.S.C. § 1983, the statutes in question must meet the requirements of Gonzaga University v. Doe, 536 U.S. 273 (2002). The free-choice-of-provider statute does. Under § 1396a(a)(23) state Medicaid plans “must” allow beneficiaries to obtain medical care from “any institution, agency, . . . or person, qualified to perform the service.” This is individual-rights language, stated in mandatory terms, and interpreting the right does not strain judicial competence. See Gonzaga Univ., 536 U.S. at 284.

Planned Parenthood is likely to succeed on this claim. Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason — more particularly, for a reason unrelated to provider qualifications. In this context, “qualified” means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.

The remaining claims are not likely to succeed, however, so the scope of the injunction must be modified. First, the block-grant statute does not create private rights actionable under § 1983, and the district court’s conclusion that the Supremacy Clause supplies a preemption claim of its own force is probably wrong. In any event, the defunding law does not conflict with § 247c(c), which attaches no strings to the federal money other than a general requirement that the recipient state spend it on programs for the surveillance of sexually transmitted diseases. Finally, the unconstitutional-conditions claim does not supply an alternative basis for relief. This doctrine, sometimes murky, requires close attention to the potentially implicated right. Here, Planned Parenthood’s claim is entirely derivative of a woman’s right to obtain an abortion. It is settled law that the government’s refusal to subsidize abortion does not impermissibly burden a woman’s right to obtain an abortion. If a ban on public funding for abortion does not directly violate the abortion right, then Indiana’s ban on other forms of public subsidy for abortion providers cannot be an unconstitutional condition that indirectly violates the right.

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

Courts - "Iowa Justice Who Ruled for Gay Marriage Faces Test That Peers Failed"

The much-watched judicial retention election in Iowa is the subject of two national stories today. In 2009 the Iowa Court voted unanimously that same-sex marriage is legal in Iowa. In 2010 3 of the justices were up for retention and failed. This year another of the justices is up for retention. Have attitudes changed?

In the NY Times, John Eligon reports:

This year looks different.

Justice Wiggins is the only justice up for retention who took part in the marriage ruling, and a robust coalition has formed around him, urging Iowans to vote to keep him on the court. * * *

The bigger threat to same-sex marriage in Iowa next month may be the battle for control of the State Senate, where Democrats hold a one-seat advantage. Republicans have suggested that they would try to get a state constitutional amendment banning same-sex marriage on the ballot if they seized the majority. Supporters of same-sex marriage argue that the matter is one of equality and best decided by the courts; schools may have remained segregated and interracial marriages illegal if those issues had been left to popular votes, they say. * * *

Justice Wiggins has declined to campaign for his seat, other than writing in The Des Moines Register that he hoped Iowans would vote to keep him but that he would not politicize the courts.

David Baker, one of the justices ousted in 2010, said they might not have made it clear enough that their ruling dealt with the civil marriage contract and did not prevent churches from choosing how to define marriage.

Advocates on both sides of the debate are looking toward this vote as a measure of Iowans’ attitudes toward same-sex marriage. Some polls suggest there has been a marked shift.

Ryan J. Foley of the AP has a long story headed "Supporters of Iowa Supreme Court justice focus on equality: Observers say result could be much closer than 2010 vote that ousted three justices." Some quotes:
Supporters of Supreme Court Justice David Wiggins are hoping that a low-key campaign stressing Iowa’s history of equality will convince voters to reject a conservative effort to oust him for approving same-sex marriage.

Wiggins’ critics are asking voters to remove him Nov. 6, claiming he and his colleagues abused their power when they struck down Iowa’s ban on gay marriage in a 7-0 ruling in 2009. They are hoping for a repeat of 2010 — when voters took the unprecedented step of firing three of the justices — but acknowledge the state’s legal establishment and liberal groups are mounting a stronger campaign for Wiggins this year. * * *

[Backers of Wiggins] said the decision is in line with Iowa’s history of being ahead of the nation in equal rights. The justices ruled that Iowa’s ban on same-sex marriage violated the state constitution’s equal protection clause. More than 4,500 gay and lesbian couples have since wed in Iowa, one of six states where the practice is legal. * * *

Wiggins’ backers note that the Iowa Supreme Court ruled in 1839 that that “no man in this territory can be reduced to slavery” in concluding that a Missouri slave who had moved to Iowa, a free state, was not a fugitive.

In 1868, the court ruled that public schools that were segregated on the basis of race were inherently unequal, 86 years before the U.S. Supreme Court ruled similarly. The next year, the court allowed the first female lawyer in the nation, ruling that women cannot be denied the right to practice.

Wiggins has not directly campaigned, saying he’s following the long-standing tradition in which Iowa justices do not raise money. But in appearances at civic groups, schools and churches that he bills as educational, he has mentioned those rulings to argue that what the court did in 2009 was not a stretch.

“He was amazing,” said Rev. Patti Aurand of First Congregational United Church of Christ in Mason City, which invited Wiggins to speak on a recent Sunday. “I learned more about the Iowa state constitution than I had any idea that was out there. To find out our role of equality! Iowa has been a forerunner in those issues since the 1800s, which is pretty incredible.”

Posted by Marcia Oddi on Tuesday, October 23, 2012
Posted to Courts in general

Ind. Courts - "Atheist Group Argues In Court For Right To Perform Weddings"

Brandon Smith, ICPM, reported yesterday:

A secular organization, the Center for Inquiry, argued in federal court Monday that Indiana’s marriage statute is unconstitutional because it does not allow non-religious organizations to marry people.

Under Indiana statute, marriage is essentially a two-step process. The state issues a marriage license and then it is solemnized. The state’s marriage statute spells out who can solemnize, including religious organizations and some elected officials.

Solicitor General Thomas Fisher says the purpose of the statute is for the state to regulate marriage while accommodating religious groups and providing alternatives for non-religious organizations. * * *

The American Civil Liberties Union’s Indiana branch is handling the case for the Center for Inquiry. ACLU legal director Ken Falk says there is a neutral principle that other courts have regularly used.

“There’s a difference between chess club and atheism,” he says. “There’s a difference between a life philosophy that fulfills the function of what a religion does for a religious person and something that doesn’t.”

While questioning the attorneys, federal judge Sarah Evans Barker said she believed the statute was generic enough that it could include the CFI under a broad definition of religious organization. But CFI asserts it is not a religious group because it has no belief in a higher power or supreme being. Barker did not set a specific timetable for her ruling.

Here is the 10-page complaint, filed May 9, 2012.

Posted by Marcia Oddi on Tuesday, October 23, 2012
Posted to Indiana Courts