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Wednesday, November 28, 2012

Ind. Gov't. - Governor-Elect Pence appoints general counsel

From a press release:

Carmel, IN - Governor-elect Mike Pence announced today that Mark Ahearn will join the Governor's office as General Counsel.

Ahearn currently serves as Chief Legal Counsel and Deputy Commissioner at the Indiana Department of Transportation, a position he has held for the past eight years. At INDOT Ahearn has led the legal, contract administration, economic opportunity, and internal audit and investigations departments, a staff of approximately 80 employees, through the implementation of Governor Daniels' Major Moves Program.

Gov.-elect Pence said, "I have relied on Mark's counsel in the past, and I'm pleased to have him join our senior staff. His legal expertise and institutional knowledge of state government will be significant assets as we move forward."

In addition to working in the private sector, Ahearn previously served as Legislative Director and General Counsel in Pence's Congressional office. He worked for Sen. Dan Coats as both a district director and a state director and was the assistant state director for Sen. Dan Quayle.

Ahearn is a graduate of Indiana University and earned his law degree at the Indiana University School of Law at Indianapolis.

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Indiana Government

Courts - SCOTUSblog 2nd of a 4-day series on "the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage"

Written by Lyle Denniston, Part II's title is "The arguments for".

Also today, Marcia Coyle of the Daily Report has a long story headed "U.S. Supreme Court faces array of petitions on same-sex marriage: 10 petitions challenge U.S. Defense of Marriage Act, California's Prop. 8 ban and an Arizona law on benefits."

You can see many of the petitions, by case, here at SCOTUSblog.

Of particular local interest is the pending petition in Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill, where the State of Indiana filed an amicus brief. The ILB wrote about this amicus brief at length in this August 23, 2012 ILB entry, headed "Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?."

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Courts in general

Ind. Courts - " Judge stalls on decision in Anderson church bankruptcy case: ‘Life Legacy’ financing plan at center of dispute "

Great story today by Maureen Hayden of CNHI, here in the Anderson Herald Bulletin. The long story begins:

INDIANAPOLIS — Members of an Anderson church who’ve been praying for relief from a complicated bankruptcy case that threatens both the church and its affiliated school will have to wait awhile longer.

After hearing hours of testimony in the case Tuesday, U.S. Bankruptcy Judge Frank Otte delayed making a decision on how to resolve the legal dispute between Lindberg Road Church of Christ, 2625 Lindberg Road, and the bank it blames for its failed finances.

In a moment of candor from the bench, Otte told church members who crowded his courtroom that he didn’t know if he had the power to prevent the Fort Wayne-based Star Financial Bank from shutting down their church through foreclosure.

“I haven’t decided,” Otte said. “But it’s a tough one.”

The 75-year-old judge’s comments came late in the day, hours after he decided to deny Star Financial Bank’s request to toss out evidence that the church’s attorney described as “very damning.”

That evidence included confidential emails, culled from more than 17,000 documents that the bank was compelled to turn over, that showed some senior bank officials had serious doubts about a financing plan it promoted to the church as a way to cover a major construction and renovation project in 2006.

That financing plan required church leaders to take out life insurance policies on some of their older church members and then use the death benefits, or the sale of the policies on a secondary market, to pay off a $2.5 million loan.

“I have a very unusual case in front of me,” Otte told the bank’s attorney, Tom Scherer, after denying his request to block the emails. “And a story that needs to be told and it’s going to be told.”

What that story was varied dramatically, depending on who told it.

If you've read this far, you will want to read the rest of the story ...

[More] See also Cory Schouten's just posted IBJ story. His long story concludes:

The church is not alone in facing financial troubles stemming from a reliance on life-insurance proceeds. The pattern is typical of life-insurance-finance programs that were promoted and sold to charities and churches across the country in recent years, usually with bad results for buyers, insurance experts told IBJ for a story in October.

The key to the plan was the insurance, which was supposed to pay off either in death benefits or through a sale of the policies on the secondary market. Neither avenue materialized, as too few church members died, and the secondary market dried up during the recession.

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Richard Thomas v. Indiana Bureau of Motor Vehicles, a 9-page opinion, Judge Bradford writes:

Approximately three and one-half years after receiving his third qualifying driving conviction within a ten-year period, Richard Thomas received notice from the Indiana Bureau of Motor Vehicles that, pursuant to Indiana Code section 9-30-10-4(b), he qualified as a habitual traffic violator, and, as a result, that his driving privileges would be suspended for a period of ten years. Thomas requested relief on administrative review. This request was denied. Thomas subsequently filed a petition for judicial review of the Bureau’s determination claiming that the Bureau did not notify him of its determination regarding his status as a habitual traffic violator in a timely fashion. The trial court found against Thomas, concluding that the relevant statutory provisions did not set forth an applicable statute of limitation for imposing habitual traffic violator status, and that it did not have the power to impose any such statute of limitation.

On appeal, Thomas contends that the trial court erred by concluding that the Bureau’s notice regarding his status as a habitual traffic violator was timely. Thomas alternatively claims that even if the notice was timely, the suspension of his driving privileges should be barred by the doctrine of laches. Concluding that the Bureau timely notified Thomas that he qualified as a habitual traffic violator and that the doctrine of laches is inapplicable to the instant matter, we affirm.

In The Board of Commissioners of Delaware County a/k/a Delaware County Commissioners v. Beverly J. Evans, a 13-page, 2-1 opinion, Judge Bradford writes:
Appellant-Defendant Board of Commissioners of Delaware County (the “Board”) appeals the trial court’s denial of its motion to dismiss the complaint for breach of employment contract filed by Appellee-Plaintiff Beverly Evans. We reverse and remand with instructions. * * *

The Board argues that Evans’s employment contract violates “the very essence of elected government.” By binding the Board to its predecessor members’ choice for H.R. Director, Evans’s contract prevents the Board’s successor members from implementing the policies desired by the majority of the public who elected them. (See Figuly v. City of Douglas, 853 F. Supp. 381, 381 (D. Wyo. 1994) (discussing this “critical facet of democracy”). We agree. * * *

[W]e conclude that the Board’s predecessor members delegated to the H.R. Director the Board’s statutory duties to “establish the procedures to be followed by all county departments, offices, and agencies,” Ind. Code. § 36-2-3.5-4 (b)(4), and to “supervise county administrative offices….” Ind. Code. § 36-2-3.5-4(b)(11). Were it to be held valid, Evans’s contract would inhibit the Board, as newly constituted, from exercising the discretionary powers entrusted to it by the electorate. Evans’s contract is therefore void as against public policy, and her complaint fails to state an actionable claim. * * *

The judgment of the trial court is reversed and remanded with instructions to dismiss Evans’s complaint for failure to state a claim upon which relief can be granted.

BAKER, J., concurs.
ROBB, C.J., dissents with opinion. [that concludes] Evans is still subject to the authority of the County Commissioners, and the policies she is charged with “developing, interpreting and applying” are not her own, they are the County’s. The major decision-making authority remains with the Commissioners. I would therefore conclude Evans’s contract does not limit the discretionary authority of the new Commissioners and Evans’s complaint for breach of her employment contract should not be dismissed.

NFP civil opinions today (1):

In Re the Paternity of C.W.R.; C.W. v. F.R. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Panel floats emergency DCS changes: Legislators seek more oversight, localization of troubled agency" [Updated]

Tom LoBianco of the AP has a long report today on the results on the meeting yesterday of the Department of Child Services Interim Study Committee. The story begins:

INDIANAPOLIS – Indiana lawmakers reviewing the embattled Department of Child Services voted Tuesday to localize more decisions on when to investigate cases of child abuse and neglect and set up a permanent oversight committee at the Statehouse.

Members of a study committee reviewing DCS operations asked the state to draft emergency regulations that would give county field workers a voice in the handling of abuse and neglect calls to a central hotline. The panel also proposed creating a permanent legislative committee to oversee the agency and recommended expanding and adding child fatality review teams.

Tuesday’s action came after months of emotional hearings on troubles at the agency following news media investigations into dozens of child deaths across the state. Lawmakers and children’s advocates blamed the state’s centralized abuse reporting hotline in large part for “screening out” calls that should have been investigated.

DCS officials said Tuesday’s decision would maintain a centralized reporting system they have called a national model, while decentralizing decisions on which calls are investigated.

[Updated] Virginia Black of the South Bend Tribune reports today in a lengthy story that begins:
Members of a study committee appointed earlier this year to investigate growing concerns over Indiana's Department of Child Services wrapped up their work Tuesday, generally calling for more oversight of abuse and neglect reports and of the agency itself.

The policies and costs associated with the panel's final recommendations -- which from here will be written into bills for both the state House and Senate -- will have to be approved by the General Assembly as it begins its work in January.

But the tone of Tuesday's meeting in Indianapolis generally carried a much more cooperative note than contentious portions of the committee's earlier meetings.

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Indiana Government

Courts - "Judge in Rilya Wilson trial denies mistrial based on prosecutor’s standing with Florida Bar"

That is the headline to this story yesterday in the Miami Herald. The subhead: "The judge refused to grant a mistrial, despite the fact that one of the prosecutors technically was not a practicing attorney when the trial began."

A somewhat similar case from Indiana involved the Newton County prosecutor, who had practiced for years while on inactive status. For details, start with this ILB entry from July 7, 2012.

In a NFP challenge, Daher v. State (7/6/12), brought by a pro se appellant, the panel concluded:

The trial court correctly denied Daher’s motion [for relief from judgment], and we find that Barce’s actions as an unlicensed de facto prosecutor did not harm or prejudice Daher in any manner. We affirm.

Posted by Marcia Oddi on Wednesday, November 28, 2012
Posted to Courts in general