Tuesday, November 13, 2012
Ind. Courts - Judge Theobald was Knox County Superior Court Judge for more than 20 years
The ILB has received this note:
I am sorry to report the death of the Honorable Edward C. Theobald, who passed away on Friday evening, November 9, 2012.
An on-line copy of his obituary may be found on the website of the Vincennes Sun-Commercial.
Visitation is set for Wednesday at 9:00 a.m. at the First Methodist Church in Vincennes. Funeral Services will follow at noon.
Judge Tim Crowley
Ind. Decisions - Transfer list for week ending Nov. 9, 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, Nov. 9, 2012. It is one page (and 17 cases) long.
Two transfers were granted last week:
- Barbara A. Johnson and William T. Johnson, both Individually and as trustees of the Barbara A. Johnson Living Trust dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki (NFP)- This was a 2-1 July 30, 2012 NFP opinion where the maajority concluded:
Based upon the foregoing discussion and authorities, we conclude the evidence was insufficient to show, and the trial court did not find, that the Johnsons had actual knowledge of the defects at the time the sales disclosure form was completed. Therefore, we reverse the trial court’s judgment in favor of the Wysockis on their claim of fraudulent misrepresentation and direct the court to enter judgment in favor of the Johnsons. In addition, we affirm the trial court’s denial of the Wysockis’ request for attorney’s fees and costs pursuant to the Crime Victims Relief Act.The ILB had a lengthy post on this decision on July 31, 2012, including this quote from the dissent:
[T]he relevant question now is whether the seller of covered residential real estate actually knew about the property's defects when filling out the disclosure form. Pursuant to the plain language of Indiana Code § 32-21-5-11, this should be the relevant inquiry in evaluating the sellers' liability in the case before us. A contrary reading of Indiana Code § 32-21-5-11 would contradict the Legislature's intent to protect buyers, in limited circumstances, as they purchase what is typically one's largest and most important asset: a home.
- Michael Kucholick v. State of Indiana (NFP) - the Supreme Court granted transfer and decided this case on Nov. 7th. Here is the ILB summary of the opinion.
When the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed denied, pursuant to App.Rule 58(C).
The ILB: The order with its 2-2 tie on transfer was issued Nov. 5. Nov. 6 was election day. Justice Rush joined the Court on Nov. 7. One might speculate as to why the petition was not held over under the Court had regained its full membership.
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (2):
Ind. Courts - Two opinions today from the Supreme Court, both 5-0
In both the following opinions, while the Court of Appeals had reversed the trial court, the Supreme Court affirms the decision of the trial court. Both opinions are 5-0, including the vote of new Justice Rush.
In D.C. v. J.A.C., an 8-page, 5-0 opinion, Justice David writes:
In this case, a mother sought to relocate out-of-state with her child. The father filed a motion to modify custody and prevent the child’s relocation. After an evidentiary hearing, which was conducted over two days with ten witnesses testifying, the trial court ruled in the father’s favor. The Court of Appeals reversed.
Today, we reiterate that in family law matters, trial courts are afforded considerable deference. Here, the trial court’s judgment was well supported by the findings, and neither the judgment nor the findings were clearly erroneous. * * *
Trial courts are afforded a great deal of deference in family law matters, including relocation and custody disputes. The trial court, in this case, made sufficient and supportable findings to sustain its decision to prevent relocation and modify custody. Applying the highly deferential standard of review, we affirm the trial court.
In John Haegert v. University of Evansville, an employment law case resulting in a rare, 40-page opinion, Justice David writes:
An encounter between a tenured professor at a private university and his department head turned into a formal complaint of harassment against the professor. After extensive internal proceedings, the professor’s tenure was rescinded and he was dismissed from the university’s faculty. He filed suit claiming breach of his employment contract and tenure agreement, and the trial court granted summary judgment in favor of the university. We affirm.
Ind. Courts - Assignments for the Supreme Court justices
The Supreme Court announces this morning:
Much of the Work of the Indiana Supreme Court is accomplished through the efforts of various agencies, boards, committees, commissions, and task forces. Individual Justices provide leadership, coordination, oversight, and communications between the entities and the Court. Pursuant to its inherent authority and Indiana Supreme Court Administrative Rule 4(B), this Court appoints the following representatives effective immediately. As to assignments not identified as Chair, the designated Justice shall serve as the Court’s liaison representative to the respective entity or function.Here is the Order, with its specific assignments.
Some assignments for the newest justices: Justice Massa will be the new technology czar, a position previously held by Justice Sullivan. Justice Rush will oversee most juvenile and child programs, as well as problem-solving courts and the board of law examiners. Justice David's focus will include the disciplinary commission and the judicial conference strategic planning committee.
Ind. Courts - "What’s in store for the next judge of Tippecanoe Superior Court 3?"
Sophia Voravong of the Lafayette Journal Courier has a long story today looking at the potential successors for now-Justice Loretta Rush's former seat on the Tippecanoe County juvenile court. The story reports that:
For now, Tippecanoe County Senior Judge Thomas Milligan — he retired in 2010 after 36 years behind the bench in Montgomery Circuit Court — is serving as pro tem.Here, from the sidebar, are the judicial candidates:
But Gov. Mitch Daniels is expected to soon choose one of six applicants as Rush’s replacement. That person will fulfill the remaining one month and four years of Rush’s third, elected term.
Six people have applied to fill the remaining four years and one month of Loretta Rush’s term:The remainder of the story looks in detail at "the issues that Rush has repeatedly cited as her top concerns." They include Child in Need of Services (CHINS) cases, children and drugs, and teen pregnancy.
• Tom Brooks Jr., a Lafayette-based attorney. He was counsel for Tippecanoe County’s Court Appointed Special Advocates program for 10 years.
• Cindy Garwood, Lafayette general practice attorney. She previously was the part-time magistrate of Tippecanoe County’s IV-D court, which handles child support and paternity matters.
• Faith Graham, who has been Tippecanoe County’s only juvenile magistrate since January 2006, when the full-time position was created to alleviate the court’s caseload.
• Chuck Hagen, a Tippecanoe County deputy prosecutor. He’s been assigned to juvenile court matters since 2000.
• Rebecca Trent, a Brookston-based general practice attorney. She previously ran for elected trial court judge seats and, most recently, applied for an Indiana appellate court vacancy.
• Laura Zeman, a Clinton County deputy prosecutor assigned to crimes against children. She previously handled child- and sex-crime cases in Tippecanoe County, served one term as Tippecanoe Superior Court 5 judge and was Tippecanoe County’s first magistrate.
Ind. Gov't. - "Call 6 Investigation: Two-thirds of public officials accused of misusing tax dollars not prosecuted"
Kara Kenney of WRTV6 had this long special report in the 11 PM news last night. A few quotes:
INDIANAPOLIS - A three-month Call 6 investigation revealed public officials accused of misusing and even downright stealing tax dollars often escape criminal charges and prison time.
The results come despite a statewide effort by law enforcement, the State Board of Accounts, the Attorney General's Office and other agencies to crack down on public corruption.
Public employees, such as clerk treasurers, trustees and board members, have misappropriated more than $5 million statewide over the past three years, according to the Attorney General's Office.
The Call 6 Investigators spent months digging into public corruption cases and court records and found that just a third of public employees ever faced criminal charges in missing money cases. * * *
The Call 6 Investigators examined more than 200 public corruption investigations, most from the past three years, and found local prosecutors criminally charged a third of public servants. Of those, only a few served time in prison.
"It’s definitely frustrating," said Deputy State Examiner Paul Joyce, of the State Board of Accounts. "I hear that from our examiners all the time. 'Why did that not go anywhere?’ You know, I really can't answer that question."
Many financial public corruption cases start with the State Board of Accounts, which regularly audits state and local agencies and points out when tax dollars are misappropriated.
"We work hard for our money," Joyce said.
The State Board of Accounts forwards cases to local prosecutors, who have discretion over whether to file criminal charges, and to the Attorney General's Office, which can decide whether to file a civil suit, send demand letters or take other action.
"Not every case is a criminal case," said Johnson County Prosecutor Brad Cooper. "Mismanaging things is not a crime. If we can prove the case, we'll file the case and prosecute it."
Cooper's office did not file criminal charges in any of seven Johnson County public corruption cases examined by the Call 6 Investigators, including a former animal shelter warden who admitted to state auditors she took thousands of dollars.
"The statute of limitations had run out on the case," Cooper said.