« November 28, 2012 | Main | November 30, 2012 »

Thursday, November 29, 2012

Ind. Courts - "Judge rules against county in Madison Courthouse fire damage lawsuit"

Evan Shields of the Madison Courier reports:

A Scott County judge on Monday ruled in favor of the defendants in a lawsuit seeking damages stemming from the 2009 Jefferson County Courthouse fire.

The Jefferson County Board of Commissioners filed the suit for damages against Teton Corp., Innovative Roofing Solution Inc., Gutapfel Roofing Inc. and Daniel L. Gutapfel, whom they alleged were working on the Courthouse when a fire ignited in May 2009, causing extensive damage to the building.

The ruling was made after all members of the lawsuit filed motions for summary judgment, which would allow Scott County Circuit Court Judge Scott Duvall to make a ruling if there is no matter of law involved.

According to the judge's ruling, the commissioners were obligated to provided insurance to cover the remodeling project, but chose not to obtain a separate policy, meaning the Courthouse was covered by the county's general insurance plan at the time of the fire.

Duvall continued, saying that both the commissioners and Teton Corp. waived the right to seek recovery of any loss covered by the insurance policy.

After granting the summary judgment motions for the defendants, Duvall ruled the motion filed by the commissioners to be moot.

See this ILB entry from Aug. 8, 2011 that links to a striking photo of the courthouse cupola engulfed in flames.

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Indiana Courts

Law - More on: History of U.S. Senate's More on: "Long Slide to Gridwalk" along with Efforts to Remedy

Updating this ILB entry from Nov. 25th on efforts to amend the U.S. Senate rules, Jennifer Steinhauer now has this story on the NY Times website, headed "Resistance on Method for Curbing Filibuster." A sample:

For several years, Republicans have repeatedly pulled out a once rarely used weapon from the procedural arsenal — the filibuster — to eat up time on the Senate floor and stall or kill legislation offered by Democrats.

Mr. Reid is not seeking to end the filibuster entirely. Rather, he wants to prevent it from being used to prevent debates on bills, to block conference negotiations between the House and the Senate on legislation, and to force senators who long to filibuster to do it the old-fashioned way: by standing on the floor talking on and on, rather than by voting with colleagues to prevent debate and then skedaddling out of town.

Because Republicans are united in their dislike of the proposed changes, Mr. Reid would never get 67 votes — two-thirds of the Senate — to break a filibuster on the filibuster change. So he could instead avail himself of a controversial option that some proponents believe is available only on the first day of a new Congress and change those rules via majority rule, or 51 votes. Opponents insist that such a move would violate Senate rules.

A majority of Democrats, frustrated by what they say is the consistent and brazen abuse of the filibuster by Republicans, appear to support changes to the rules, and some believe they do not go far enough. But others, deeply aware that a majority party today can be the sad and lonely minority tomorrow, are not keen on playing the “nuclear option” card, with majority rule.

“I don’t like the nuclear option,” said Senator Bill Nelson, Democrat of Florida. “I reserve the right to decide later, but instinctively I don’t like it. It’s avoiding the rules.” Mr. Nelson added that “a body like this runs on comity and common sense,” and he said he worried that going nuclear would do serious damage to that atmosphere.

The divide exists somewhat along electoral generational lines. Newer senators, appalled by the molasseslike movement of bills and the overall dysfunction of the chamber, have been urging Mr. Reid to make the changes. Senator Tom Udall of New Mexico, who took office in 2009, has been especially ardent, though he gets a great deal of support from Senator Tom Harkin of Iowa, who has been laboring against the filibuster for decades.

Mr. Harkin said he was not confident that the Democrats had the votes they needed to jam the changes through. “There are some Democrats who don’t want to change the way we do things around here,” he said. Other Democrats said that while they did not believe the votes were secure, they felt certain that their colleagues would come along if Republicans and Democrats could not come to an accommodation by the end of the year.

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to General Law Related

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

Updating this ILB entry from yesterday, the Indiana Senate Democrats' blog, The Briefing Room, has now posted a comprehensive entry with plenty of links, headed "DCS committee recommends hotline changes and more ."

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Indiana Government

Ind. Gov't. - "Indiana's GOP Leaders Cautious Amid Supermajorities"

NPR's Morning Edition this morning included this nearly 3 and a half minute audio story by Brandon Smith. The intro:

The Indiana GOP now has a stranglehold on state government, with supermajorities in both chambers of its General Assembly and conservative Republican Mike Pence headed to the governor's mansion. But Republican lawmakers are preaching caution and a need for increased bipartisanship as they handle unchecked legislative power for the next two years. Will they be able to resist the urge to shove through their agenda?

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Indiana Government

Ind. Courts - "When drug, alcohol and legal problems converge, Veterans Treatment Court helps vets sort things out"

Mark Wilson has a long feature story this morning in the Evansville Courier & Press on the Vanderburgh County's Veterans Treatment Court. Some quotes:

Veterans Treatment Court is one of four treatment courts in Vanderburgh County. Superior Court Judge David Kiely oversees it, along with the county's Drug Court program. Veterans Treatment Court specifically addresses the issues of former military personnel caught up in substance abuse and mental health problems that have brought them in contact with the legal system.

It does so by working in partnership with the U.S. Department of Veterans Affairs, coordinating local legal resources with broader VA resources.

"Everybody thinks about the young combat veterans coming back and having difficulty adjusting to the civilian world, but it's a broad range of veterans who need help. We have a lot of veterans from different eras," said Dr. Robin Sanabria, behavioral medicine clinic manager at the Evansville VA Health Care Center.

The court's 11 former and current participants range in age from 20 to 69 and include veterans of the Vietnam, Persian Gulf, Afghanistan and Iraq wars. Some, such as Castillas who served in the Panama Canal Zone, are not combat veterans. Many were unaware of the help available through the VA, said Jennifer Frye, a local case manager for the VA's Veterans Justice Outreach initiative.

"It's a really nice partnership between the legal system and the VA. It helps us make those services available to people who might not have known about them," Sanabria said.

The initiative involves collaborations by VA medical centers with local law enforcement and treatment service providers for the needs of veterans, striving to avoid unnecessary incarcerations of veterans with mental health or substance abuse problems and divert them into treatment, said Richard Kulich, Veterans Justice Outreach coordinator for the Marion, Ill., VA Medical Center. Working with local courts is an important part of that, he said, and Vanderburgh County is the only county with a Veterans Treatment Court among the 53 Tri-State counties covered by the Marion center.

"What we have done is basically network and coordinate resources already there and making sure they get help from the resources that are there for their benefit," Kiely said. "They are getting the best of both worlds, a county (drug court) case worker and a VA case worker."

Unlike the other drug court programs, Kiely said, the veterans court is open to people charged with misdemeanor as well as felony offenses. He said the court also tends to be more specific with the court-ordered treatment plans for the veterans because their individual needs can differ greatly.

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Terry and Laura Wagler, Larry and Jennifer Wagler, Norman Wagler, and Janet and Nathan Wagler v. West Boggs Sewer District Inc., a 37-page opinion, Judge Brown writes:

This is a consolidated appeal from various proceedings in which the West Boggs Sewer District brought complaints against Terry and Laura Wagler, Larry and Jennifer Wagle, and Norman Wagler, as well as Janet and Nathan Wagler, pursuant to Ind. Code § 8-1-2-125(d) (2004), to compel Appellants to connect to its sewer system. The Waglers appeal from the denial of their respective Rule 60(B) motions to set aside judgment, and Janet & Nathan appeal from the trial court’s entry and judgment following a bench trial. The Appellants present multiple issues which we revise and restate as:
I. Whether the court abused its discretion by denying the Waglers’ motions for relief from judgment pursuant to Ind. Trial Rule 60(B); and
II. Whether the court erred in directing Janet & Nathan to connect to the Sewer System.
Additionally, West Boggs appeals the trial court’s denial of its requests for an award of attorney fees and costs against each party that filed an Ind. Trial Rule 60(B) motion, and it requests that we award it appellate attorney fees against each of the Appellants. We affirm.
NFP civil opinions today (4):

Miles Ogea d/b/a Mo Auger Investments and Mo's Tavern v. Karamesines Credit Shelter Trust (NFP)

H. Wayne Burnett, M.D. v. Pamela A. Burnett, M.D. (NFP)

Term. of the Parent-Child Rel.of: M.M. (Minor Child), and S.H. (Mother) v. The Indiana Dept. of Child Services (NFP)

Vickie Fenoglio, as Personal Representative of the Estate of Paul Fenoglio, Deceased v. Gregory Brock, D.O. (NFP)

NFP criminal opinions today (5):

Richard A. Childress, Jr. v. State of Indiana (NFP)

Corbin Bardonner v. State of Indiana (NFP)

Jamey Taskey v. State of Indiana (NFP)

David S. Healey v. State of Indiana (NFP)

Timothy J. Gilbert v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS Muses on Unicorns in Debating Sentencing"

Adam Liptak of the NY Times has an amusing article today (except for the attorney involved) on the oral argument yesterday in Henderson v. U.S., where the issue was:

Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.
From Liptak's article (but worth reading in full):
WASHINGTON — The Supreme Court heard an unfocused argument on Wednesday from a Louisiana lawyer whose fumble at her client’s sentencing hearing was at issue in the case. The lawyer’s halting presentation put the justices in a collaborative and lighthearted mood, as they tried to puzzle out for themselves whether the sentence must stand. Unicorns figured in their analysis. * * *

In 2010, a trial judge gave Mr. Henderson, who had pleaded guilty to a gun charge, a five-year sentence instead of the roughly three-year sentence ordinarily called for so that he would be eligible for a drug-treatment program while in prison.

In 2011, the Supreme Court unanimously ruled in Tapia v. United States that extending sentences for that reason is unlawful in light of the relevant federal law, which told judges that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”

It was also clear in Mr. Henderson’s case that his lawyer, Patricia A. Gilley, had not objected on this ground at his sentencing. In response to a question from Justice Ruth Bader Ginsburg, Ms. Gilley explained why she had failed to speak up. “I was not aware of that statute,” she said. * * *

Chief Justice John G. Roberts Jr. asked Ms. Gilley for her position, and she responded with a discussion of an opinion by “Justice Rehnquist.”

Chief Justice Roberts corrected her reference to his predecessor, Chief Justice William H. Rehnquist. “He was the chief justice, by the way,” Chief Justice Roberts said. “It matters to one of us.”

Ms. Gilley apologized for her error and for a similar one in one of her briefs, in which she had mistakenly referred to Justice Tom C. Clark as chief justice. “I’m not perfect,” she said and then referred to “Justice Rehnquist” again.

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Courts in general

Courts - SCOTUSblog 3rd 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 III's title is "The arguments against."

Tomorrow: Part IV, the final article, on the options the Supreme Court faces.

It is at tomorrow's conference that the Court is scheduled to consider petitions seeking review of issues such as the constitutionality of the Defense of Marriage Act and California’s Proposition 8. See also, yesterday's ILB entry, and this one from Tuesday.

Posted by Marcia Oddi on Thursday, November 29, 2012
Posted to Courts in general