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Monday, November 19, 2012

Ind. Courts - More on: Nominations open for the 1st District attorney member of the Judicial Nominating Commission

Updating this entry from August 3, 2012, the election results are now in for the attorney member who will represent the 1st District on the Commission for the next three years. This is the seat currently held by James O. McDonald of Terre Haute.

The certified results of the District 1 election show that the new commissioner, who will take office January 1st and serve for 3 years, is Stephen L. Williams.

The Roll of Attorneys shows a "Stephen Lee Williams" of the Williams Law Firm, Terre Haute.

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending November 16, 2012

No transfers were considered last week.

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Indiana Transfer Lists

Ind. Courts - More on: Supreme Court to hear oral argument in the school voucher case Wednesday morning [Updated twice]

The ILB post from earlier today has now been updated with the addition of the Supreme Court briefs of the parties.

[More] And now also with the Feb. 6 joint motion to transfer.

I'm hoping also for the brief of the Plaintiff-Appellants ...

[More] Okay, I've now added the Plaintiff-Appellants Brief and Reply Brief.

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Indiana Courts

Ind. Courts - Court of Appeals temporarily stays trial court order compelling newspaper discovery: Court orders hearing at 11 a.m. Tuesday in Supreme Court courtroom

From a news release just received:

INDIANAPOLIS – The Court of Appeals of Indiana has temporarily stayed a trial court’s order compelling the Indianapolis Star to identify an anonymous online commenter pending a hearing at 11 a.m. Tuesday, Nov. 20, in the Indiana Supreme Court courtroom.

The case is Jeffrey M. Miller et al v. Junior Achievement et al, 49A02-1211-PL-898. The hearing will be webcast live and available for archived viewing at www.courts.in.gov.

The court issued the temporary stay late Friday after considering a motion to stay filed by the Indianapolis Star and a motion for emergency telephonic hearing on the motion to stay that was filed by appellees Jeffrey and Cynthia Miller.

According to the order issuing the temporary stay and setting hearing, “In addition to any other issues, the court will expect the parties to address whether the court has jurisdiction to consider the trial court’s discovery order.”

The case was previously before the Court in In re Indiana Newspapers, Inc., 49A02-1103-PL-234.

As background, an anonymous reader posted an online comment to a 2010 Star story about an audit at Junior Achievement of Central Indiana. The commenter, who used the name “DownWithTheColts,” said the newspaper should look to the former Junior Achievement president for the missing money, which the commenter said “can be found in their bank accounts.” Jeffrey Miller, a former president and CEO of Junior Achievement, filed a complaint against Junior Achievement and other parties alleging defamation and other torts. He also sought nonparty discovery of “DownWithTheColts.”

The Star appealed the trial court’s order, which the Court of Appeals reversed and remanded, with instructions, last February. On Oct. 19 of this year, the trial court again ordered the Star to disclose the commenter’s identity, which the Star now appeals.

ILB: For background, start with this ILB entry from Feb. 22, 2012.

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Indiana Courts

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

For publication opinions today (1):

In Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. v. Common Council of the City of Jasper and Jasper Utility Board, a 17-page opinion, Judge Najam writes:

Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. (collectively “HDC”) filed a complaint against the Common Council of the City of Jasper (“the Council”) and the Jasper Utility Board (“the Utility Board”) (collectively “Jasper”) seeking declaratory judgment and injunctive relief for alleged violations of the Indiana Open Door Law. Jasper filed a counterclaim against HDC alleging that its complaint is “frivolous, meritless, groundless, baseless and vexatious” and seeking attorney’s fees. Appellants’ App. at 64. Following a bench trial, the trial court entered judgment in favor of Jasper on HDC’s complaint and denied Jasper’s counterclaim. HDC appeals and presents three dispositive issues for our review, namely, whether the trial court abused its discretion when it denied HDC’s third motion to amend its complaint, motion to continue trial, and second motion to compel discovery.

We reverse and remand for further proceedings. * * *

In sum, HDC has demonstrated that it was diligent in pursuing discovery, but was thwarted for months by Jasper’s refusal to cooperate. Less than two weeks prior to trial, HDC obtained information in the course of depositions that suggested possible Open Door Law violations by the volunteer group. The trial court abused its discretion when it denied HDC’s third motion to amend its complaint, filed only four months after its initial complaint and while discovery was ongoing. Jasper cannot complain about either the timing of the third amended complaint or the motion to continue trial because Jasper refused to schedule depositions until the eleventh hour, less than two weeks prior to trial. The trial court abused its discretion when it denied HDC’s motion to continue the trial. We reverse and remand with instructions that the trial court: (1) grant HDC’s third motion to amend its complaint; (2) grant HDC an additional thirty days to conduct new discovery, including but not limited to depositions; (3) grant HDC’s second motion to compel discovery; and (4) schedule a new trial to be held no less than thirty days after the close of discovery.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of S.B., Minor Child; B.B., Mother, and D.B., Father v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court to hear oral argument in the school voucher case Wednesday morning [Updated 3 times]

Tomorrow the Supreme Court hears oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al. (49S00-1203-PL-172)

This case involves constitutional challenges to Indiana’s “Choice Scholarship Program,” signed into law by Governor Daniels on May 5, 2011. The Plaintiffs/Appellants are 12 citizen taxpayers opposed to the Program. After denying Plaintiffs’ motion for preliminary injunction, the Marion Superior Court, Judge Michael D. Keele presiding, entered summary judgment in favor of Defendants on January 13, 2012. The Supreme Court granted transfer pursuant to App. Rule 56(A), thereby assuming jurisdiction over the appeal.

Trial Court Documents. The ILB has posted the earlier, trial court documents in this case:

Here is the 14-page Complaint for Declaratory and Injunctive Relief, filed July 1, 2011. It begins:

1. This is a lawsuit for declaratory and injunctive relief, in which Plaintiffs challenge the constitutionality of Indiana's "Choice Scholarship Program" ("CSP"), which was enacted on May 5, 2011 as part of House Enrolled Act No. 1003, §§ 5-6 & 10, P.L. 92-2011. Taking effect on July 1, 2011, the CSP creates a program under which the State - rather than educating Indiana children through a "general and uniform system of Common Schools," Ind. Const. art. 8, § 1 - would instead use funds raised for public education to pay for a portion of these children to receive their state-funded education in private schools. The vast majority of these CSP schools will be religious institutions, which are extensions of the religious ministries of the churches that sponsor them, and which exist for the purpose of providing their children with an education based on and grounded in religious training and worship. The CSP will be implemented beginning with the 2011-2012 school year.

2. This use of taxpayer funds is contrary to the Indiana Constitution's directive in Article 8, § 1 that the General Assembly provide for the education of Indiana children through "a general and uniform system of Common Schools." And it is also incompatible with the Constitution's provisions, found in Article 1, § § 4 and 6, that safeguard Indiana citizens' freedom of conscience by ensuring that they are not compelled, through the taxes they pay, to support religious institutions, ministries, and places of worship against their consent.

The relief sought:

1. Declare the Choice Scholarship Program unconstitutional under (a) Article 8, § 1, of the Indiana Constitution; (b) Article 1, § 4, of the Indiana Constitution; and (c) Article 1, § 6, of the Indiana Constitution;

2. Preliminarily and permanently enjoin defendants, and all persons and entities acting under their direction or in concert with them, from taking any measures to implement or enforce the Choice Scholarship Program;

3. Award plaintiffs their attorneys' fees, expenses, and costs incurred in prosecuting this lawsuit; and

4. Order such other and further relief as this Court may deem appropriate.

Here is a copy of the 40-page plaintiffs' brief, which accompanied the July 1, 2011 complaint. Here is the State's "Memorandum in Opposition to the Motion for Preliminary Injunction." It is a very large (over 2 MB) file, 50 pp. of memo followed by 16 pp. of exhibits. The State's Table of Contents, pp. 2-4, provides a good outline of the State's argument.

Here is a copy of the 65-page Intervenor Applicants' Brief in Opposition to Plaintiffs' Motion for Temporary Injunction.

Hearing Date. Aug. 11 is the date set for a hearing on the plaintiffs' request for a preliminary injunction.

Here is a copy of Marion Superior Judge Michael D. Keele 10-page, Jan. 13, 2012 ruling in Meredith v. Daniels, which begins:

Plaintiffs have brought this litigation challenging the constitutionality, under several provisions of the Indiana Constitution, of the Choice Scholarship Program (CSP) enacted by the 2011 Indiana General Assembly. The matter is now before the Court on Defendants' Motion to Dismiss, Defendant-Intervenor's' Motion for Judgment on the Pleadings, Plaintiffs' Motion for Summary Judgment and Defendant-Intervenors' Motion for Summary Judgment. Upon consideration of the submissions and arguments of counsel, this Court determines that this case is more appropriately decided on summary judgment, and the Court finds that there is no genuine issue as to any material fact and that Defendants and Defendant-Intervenors are entitled to judgment as a matter of law on all of Plaintiffs' claims for the reasons set forth below.

Supreme Court Documents. On March 16, 2012 the Supreme Court granted transfer pursuant to App. Rule 56(A), thereby assuming jurisdiction over the appeal.

This is direct transfer from the trial court. Here is a copy of the Court's Rule 56(A) Order transferring the appeal to the Supreme Court, and denying the motion to expedite the appeal.

On Sept. 19, 2012, oral argument was scheduled for Nov. 21, 2012, and 60 minutes was allotted, equally divided between Appellants and Appellees.

[Updated]

Here is the 30-page brief of Defendant-Intervenor Appellees (Plaintiffs below), filed April 11, 2012

Here is the 62-page brief of the State of Indiana Defendants-Appellees (Defendants below), filed April 11, 2012

A reader notes that Glenda Ritz is listed as one of the plaintiffs and Tony Bennett as one of the defendants.

[Updated again]

The ILB has now received the Joint Motion to Transfer filed Feb. 6 by the Defendant-Appellees and Defendant-Intervenor-Appellees.

[Updated yet again]

Here are Plaintiffs-Appellants’ brief of March 12 and their reply brief of April 30.

Posted by Marcia Oddi on Monday, November 19, 2012
Posted to Indiana Courts

Ind. Courts - Public Admonition to Fremont Town Court Judge Martha C. Hagerty

From a release issued today by the Supreme Court:

The Indiana Commission on Judicial Qualifications has issued a Public Admonition to Fremont Town Court Judge Martha C. Hagerty. The admonition (attached) is the result of a November 2008 traffic infraction case in which Judge Hagerty improperly engaged in multiple ex parte conversations and assumed the role of the prosecutor when she attempted to negotiate a resolution to a defendant’s case.

Judge Hagerty admits her actions violated the Indiana Code of Judicial Conduct. The Commission determined that formal disciplinary charges are warranted against her. However, Supreme Court rules allow for the judicial officer and the Commission to agree to a public admonition, instead of filing charges.

Posted by Marcia Oddi on Monday, November 19, 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, November 18, 2012:

• Ind. Courts - A day, and ultimately, a year, in the life of one Indiana juvenile court
• Ind. Courts - Should a highly respected Indiana trial judge, who was a star athlete for Ball State in the late 1970s, preside over a case involving the school?

From Saturday, November 17, 2012:

• A teaching moment - A look at techniques for keeping emails secrets, and their use [Updated]
• Ind. Decisions - "Appeals court OKs Lebo trial in LaPorte HS volleyball sex case" [Updated]
• Ind. Courts - Monroe County "Courthouse now shinier and more solid after major makeover"

Posted by Marcia Oddi on Monday, November 19, 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 (11/19/12):

Wednesday, November 21st (Note that Justice Loretta Rush will be hearing oral arguments today for the first time.)

• 9:00 AM - Teresa Meredith et al. v. Mitch Daniels, et al. (49S00-1203-PL-172) - This case involves constitutional challenges to Indiana’s “Choice Scholarship Program,” signed into law by Governor Daniels on May 5, 2011. The Plaintiffs/Appellants are 12 citizen taxpayers opposed to the Program. After denying Plaintiffs’ motion for preliminary injunction, the Marion Superior Court, Judge Michael D. Keele presiding, entered summary judgment in favor of Defendants on January 13, 2012. The Supreme Court granted transfer pursuant to App. Rule 56(A), thereby assuming jurisdiction over the appeal.

  ILB: This is the school voucher challenge and is a direct transfer from the trial court. Here is the Jan. 13, 2012 ILB entry which includes a link to the trial court opinion. Note that the Court has set aside one hour for this oral argument.

• 10:05 AM - Mary A. Manley, et al. v. Ryan A. Sherer, M.D. (59S01-1205-PL-249) - A defendant-physician accused of negligence moved for a preliminary determination of law and summary judgment, and the Orange Circuit Court granted the defendant’s motions. The Court of Appeals reversed, concluding that material issues of fact remain regarding whether the doctrine of “continuing wrongs” affects the statute of limitations here and regarding the defendant’s breach of duty and proximate causation of the plaintiff’s injuries. Manley v. Sherer, 960 N.E.2d 815 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  ILB: This is Dec. 30, 2011 COA opinion reversing the trial court’s grant of Sherer's motion for summary judgment.

• 10:50 AM - Gerald A. VanPatten v. State of Indiana (02S03-1205-CR-251) - Gerald VanPatten was convicted of several counts of child molesting in the Allen Superior Court. The Court of Appeals affirmed in a not-for-publication decision, VanPatten v. State, (Ind. Ct. App. Feb. 14, 2012). The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  ILB: This is 2-1 Feb. 14, 2012 NFP COA opinion dealing with the admissibility of evidence in a child molesting case.

Next week's oral arguments before the Supreme Court (week of (11/26/12):

• No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.

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This week's oral arguments before the Court of Appeals (week of 11/19/12):

Tuesday, November 20th

• 11:00 AM - Granite City Insurance v. Robert Lodholtz and Pulliam Enterprises, Inc. (71A04-1111-CT-635) - Appellant Granite State Insurance Company appeals from the trial court’s denial of its motion to intervene and vacate the default judgment previously entered in the tort suit between Appellee-Plaintiff Robert Lodholtz and Appellee-Defendant Pulliam Enterprises, Inc. Granite State, Pulliam’s commercial carrier, argues that it has a direct interest in the litigation sufficient to warrant intervention or, in the alternative, that authority to the effect that it does not should not be followed. Granite State also argues that Lodholtz’s tort claim against Pulliam should be dismissed because it involves an employee injury and is therefore governed by Indiana’s worker’s compensation system. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

• 1:30 PM - Alva Electric, Inc., et al v. Evansville Vanderburgh School Corporation (82A01-1201-PL-2) - Alva Electric, Inc., Arc Construction Company, Inc., Danco Construction, Inc., Deig Brothers Lumber & Construction Co., Empire Contractors, Inc., Peyronnin Construction Company, Inc., Weddle Brothers Construction Company, Inc., and Wink Construction Inc. (collectively, “the Contractors”), on behalf of themselves and all similarly situated taxpayers within the district of the Evansville Vanderburgh School Corporation (“the School Corporation”), appeal the Vanderburgh Circuit Court’s denial of their motion for summary judgment and grant of a cross-motion for summary judgment in favor of the School Corporation and its related Foundation, on the Contractors’ claims under Indiana’s Public Lawsuit Statute (Ind. Code §§ 34-13-5-1 to -12) and Antitrust Act (Ind. Code § 24-1-2-3). The Contractors challenge the propriety of the grant of summary judgment as the sole issue on appeal. Specifically, they argue that the trial court erred in concluding that the contested building renovation project was not subject to competitive bidding procedures. The Scheduled Panel Members are: Judges Friedlander, Kirsch and Pyle. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Wednesday, November 21st

• 11:00 AM - Daniel Brewington vs. State of Indiana (15A01-1110-CR-550) - Brewington appeals his convictions for two counts of class A misdemeanor intimidation, one count of class D felony intimidation, class D felony attempt to commit obstruction of justice, and class D felony perjury. Brewington asserts that the trial court abused its discretion in instructing the jury; the evidence is insufficient to sustain his convictions for intimidation, attempted obstruction of justice, and perjury; his convictions constitute double jeopardy; the trial court abused its discretion in admitting evidence; and that the trial court abused its discretion in empanelling an anonymous jury. The Scheduled Panel Members are: Judges Friedlander, Brown and Sr. Judge Darden. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 11/26/12):

Monday, November 26th

• 1:30 PM - State of Indiana v. Gregory Lagrone ( 49A05-1203-CR-135) - Indianapolis Metropolitan Police Officers received an open parcel containing marijuana from a private parcel delivery company. The officers repackaged the marijuana with a GPS tracking device and parcel wire, affixed the original label addressed to “Michael Davis,” and then conducted a controlled delivery to the address on the shipping label, a hotel. Gregory Lagrone retrieved the parcel from the hotel, and surveillance officers followed him by car to his home. A short time later, the parcel wire activated a monitor with surveillance officers, indicating that the parcel had been opened. The officers then knocked and announced themselves. When no one answered, they entered the home without a warrant due to the risk of destruction of the marijuana. In the subsequent prosecution of Lagrone, the trial court granted his motion to suppress evidence obtained from the warrantless entry of the home. The State appeals. We ordered oral argument to ask the parties to address, in part, the relevance to this case of United States v. Jones, 132 S. Ct. 945 (2012), regarding the constitutionality of attaching a warrantless GPS tracking device to a person’s effects. The Scheduled Panel Members are: Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Tuesday, November 27th

• 11:00 AM - Secrena D. Erwin v. HSBC Mortgage Services, Inc., et al (32A01-1202-CT-80) - Appellant, Erwin, brought a civil suit against Appellee, HSBC Mortgage Services, (and others) due to the death of her 5 year old daughter in the backyard pool of a foreclosed home owned by Appellee. Appellee was allegedly on notice regarding the condition of the pool and the associated conditions. The trial court granted summary judgment on behalf of all named Appellees. This appeal ensued. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

• 1:00 PM - David S. Delegrange v. State of Indiana (49A04-1203-CR-144) - David Delagrange appeals his convictions for four counts of Class C felony attempted child exploitation, contending he did not have the intent to create a digitized image of an incident of sexual conduct by a person under eighteen when he, using a camera mounted on his shoe, recorded video of the area beneath the skirt of multiple individuals under the age of eighteen. The Scheduled Panel Members are: Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

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.

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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, November 19, 2012
Posted to Upcoming Oral Arguments