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Friday, November 30, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In In the Matter of the Adoption of Minor Children: C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., a 22-page opinion including a separate concurring opinion, Judge Bailey writes:

C.A.B.’s (“Birth Mother”) parental rights as to C.B.M. and C.R.M. (“the Children”) were terminated by the Jasper Circuit Court. During the pendency of Birth Mother’s appeal of the termination order, J.D.M. and K.L.M. (“Adoptive Parents”) sought to adopt the Children. The Jasper County Department of Child Services consented to Adoptive Parents’ request, even though Birth Mother’s appeal remained pending. The Jasper Superior Court granted the adoption petition, also while Birth Mother’s appeal remained pending.

This Court reversed the termination order, after which Birth Mother sought to set aside the adoption decree. In the course of these proceedings, Birth Mother raised issues concerning the constitutionality of Indiana’s adoption statutes, and thus the Office of the Attorney General entered an appearance and provided briefing in the matter. The adoption court ultimately denied Birth Mother’s petition to set aside the adoption decree, and she now appeals that decision.

We reverse and remand for further proceedings.

Birth Mother raises several issues for our review, but we find one issue dispositive: whether DCS’s decision to consent to the Children’s adoption without notice to Birth Mother during the pendency of her appeal of the termination order was arbitrary and capricious, and thereby deprived Birth Mother of her due process rights under the Indiana and United States Constitutions. * * *

There is nothing in the record to suggest that DCS informed either Birth Mother or this Court that the adoption was proceeding during the pendency of the appeal. Adoptive Parents and the State now argue that Birth Mother’s present challenge to the adoption is moot because its basis—the invalidity of the termination order upon appeal—was rendered of no effect by the adoption itself. Put another way, the Appellees’ rationale suggests that this Court’s reversal of the termination order has no effect because DCS—that is, a state
administrative agency—took action to preclude our review of the termination order. Although Birth Mother would have no avenue for substantive relief as a practical matter, the State argues that this is an appropriate result.

Yet, whatever power the State may have through DCS, an administrative agency of the executive branch, its power does not encompass arbitrary and capricious acts—especially where its actions cut off the constitutionally guaranteed right to an appeal that may afford relief. See Ind. Const. Art. 7, sec. 6 (providing “in all cases an absolute right to one appeal”). Ironically, the State argues that such an outcome serves the State’s, the Children’s, and the Adoptive Parents’ interests in finality through a quick resolution of the Children’s placement.

We do not agree. * * *

Where, as here, DCS is aware of a pending appeal of the termination of a parent’s rights but consents to the adoption of the children covered by a termination order, it is incumbent upon DCS to provide notice of the adoption proceedings. Holding otherwise would permit an executive branch agency to determine the nature and extent of a parent’s right to meaningful appellate review of a court order disposing of one of the most precious substantive rights afforded to our citizens under the Indiana and United States Constitutions: the right to raise one’s children.

We do not hold, however, that the statutory scheme at issue here is unconstitutional either facially or as applied to Birth Mother in this case. The adoption statutes, taken together with existing constitutional guarantees, place upon DCS the burden of honoring due process rights where it has succeeded in an action to terminate a parent’s rights and the parent seeks review of the termination order. It is incumbent upon DCS to act in a manner that comports with due process rights where its actions affect the substantive and procedural rights of parents—even those whose parental rights have been terminated. This case is no exception to that requirement. * * *

The State’s consent to the adoption of the Children was arbitrary and capricious and in derogation of Birth Mother’s procedural due process right to a meaningful appeal of the termination order. The adoption decree is therefore void. We do not, however, conclude that the statutory scheme for adoption in Indiana is unconstitutional. We therefore reverse the adoption court’s denial of Birth Mother’s petition to set aside the adoption decree and remand this matter for further proceedings. Reversed and remanded.

BAKER, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [that begins, at p. 19 of 22] I agree with the majority that Birth Mother’s due-process rights were violated, she should have received notice of the adoption proceedings, and the adoption decree must be set aside. I also agree with the majority’s conclusion that the adoption statutes at issue are constitutional. My reasoning, however, is different. I conclude that the adoption statutes require notice of adoption proceedings to birth parents whose rights have been terminated but who have not exhausted their appeals.

In Peabody Energy Corp., Peabody Coal Co., LLC, and Black Beauty Coal Co. v. Richard F. Roark and Beelman Truck Co., and North American Capacity Ins. Co. , a 4-page opinion on a petition for rehearing, Judge Barnes writes:
We grant NAC’s petition for rehearing; however, we affirm our opinion in all regards. * * *

It is well settled that any question not argued on appeal cannot be raised for the first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008), opinion on reh’g, trans. denied. Accordingly, NAC may not argue for the first time in its petition for rehearing that it only has a duty to defend Peabody or that it is premature to determine whether it owes a duty to indemnify Peabody. We affirm our opinion in all regards.

NFP civil opinions today (2):

In Re: 2009 Marion County Tax Sale Parcel No. 1019054; Darryl W. Finkton, Sr. v. Auditor of Marion County, Treasurer of Marion County, and Indy-East Asset Development Corp. (NFP)

Siraj Khaja Ahmed v. Asma Saman Ahmed (NFP)

NFP criminal opinions today (5):

Steven Hook, Jr. v. State of Indiana (NFP)

Erich Wilhelmi v. State of Indiana (NFP)

Danny G. Young v. State of Indiana (NFP)

Jose Carlos Arce v. State of Indiana (NFP)

Alberto R. Melendez Cruz v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 30, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In State of Indiana Ex Rel., Indiana Supreme Court Disciplinary Commission v. Derek A. Farmer, a 10-page, per curiam opinion, the Court writes:

The Indiana Supreme Court Disciplinary Commission (“Commission”) brings this original action in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24. The Commission alleges that Respondent Derek A. Farmer (“Farmer”) engaged in the unauthorized practice of law in Indiana, and it seeks an order from this Court enjoining him from practicing law here. This Court has original jurisdiction over matters involving the unauthorized practice of law. See IND. CONST. art. 7, § 4. * * *

The Commission has failed to meet its burden of demonstrating that an injunction should issue against Farmer. Accordingly, the Court denies the Commission’s verified petition.6 The costs and expenses incurred by the hearing in this matter shall be borne by the Commission. See Admis. Disc. R. 24.

Dickson, C.J., and Rucker, Massa, and Rush, JJ., concur.
David, J., concurs in result without separate opinion.

Posted by Marcia Oddi on Friday, November 30, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Jim Rogers out at Duke Energy, but not until the end of 2013

"Rogers exit ends high-flying run at Duke" was the headline of the story by Darius Dixon posted last evening at Politico. It began:

The once-sparkling political star of Duke Energy CEO Jim Rogers got a lot dimmer Thursday after a proposed settlement with a state regulator cemented his ouster from the company’s top spot by the end of 2013.

Rogers, who had led Duke since 2006, co-chaired the Democratic National Convention this summer, lobbied to have it take place in Charlotte, N.C., and helped keep the endeavor afloat despite a lag in private fundraising.

The Duke chief’s name has also been heavily circulated on a shortlist of possible replacements for Energy Secretary Steven Chu, who many expect will not stick around for President Barack Obama’s second term. Rogers’s championing of the president’s energy policies has come while other utility companies have decried EPA clean air regulations under Obama, so the CEO is seen as a bridge for the administration to improve its relations with the private sector.

Duke’s tax practices and positions, however, have also rubbed liberal groups the wrong way.

The proposed settlement between the North Carolina Utilities Commission and Duke will close the regulator's investigation into whether the company misled them ahead of approving its merger with Progress Energy, which was completed in July.

Not long after the merger was completed — with the understanding that Progress Energy CEO Bill Johnson would take over the new company — Rogers was quickly put back in charge, extending his tenure a year beyond his scheduled retirement. Although Rogers will now leave at the same time as expected, Thursday's action means his departure is among a list of requirements to seal the merger’s success.

From the Indianapolis Star, this story written by "Star and news service report" - some quotes:
Duke Energy CEO Jim Rogers, who built his career through a series of mergers that began in Indiana, will step down as head of the largest U.S. electric utility by the end of 2013.

The move is part of a settlement with the North Carolina utilities regulator that ends an investigation into the company’s takeover of Carolina rival Progress Energy.

The North Carolina Utilities Commission and Duke Energy said Thursday the deal concludes the regulator’s probe into whether the company misled the regulator ahead of approving the merger. The commission had the power to reverse or alter its approval of the merger. * * *

Rogers’ retirement comes at a critical time for Duke Energy’s Indiana operations. The company is awaiting a decision by the Indiana Utility Regulatory Commission over how much it will have to pay for the massive cost overruns at its controversial Edwardsport power plant, and how much of the cost will be shouldered by ratepayers.

Under the proposed settlement, ratepayers are on the hook for $2.595 billion of the total cost of the $3.55 billion plant.

The settlement was reached after nearly a year of public fighting between the company and its largest customers and several consumer groups.

Rogers spent years dealing with an ethics scandal at the company that threatened to derail the Edwardsport project. Three Duke officials, including the company’s second-highest-paid executive, were fired or resigned in connection with the scandal.

The move also spells the end of Rogers’ leadership of a company he built one merger at a time, starting 25 years ago as the new chief executive of a small, nearly insolvent Indiana utility, PSI Energy.

When he took over that utility in 1988, it was almost bankrupt, having bet big on a new nuclear power plant in Marble Hill, Ind. The company later abandoned it because of rising costs and safety fears in the wake of the Three Mile Island nuclear accident.

Posted by Marcia Oddi on Friday, November 30, 2012
Posted to Indiana Government

Ind. Gov't. - "Espich to advise on issues, process: Retired lawmaker added to Pence team"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

INDIANAPOLIS – Jeff Espich wasn’t out of state government long before landing a new gig as Gov.-elect Mike Pence’s senior adviser for legislative affairs.

Espich served 40 years in the Indiana House but decided not to seek re-election this year.

He represented Hoosiers in Allen, Wells and Grant counties.

His term officially ended last week when newly elected legislators were sworn in. * * *

“Jeff Espich has a record of accomplishment and integrity from his years of leadership in the Indiana General Assembly,” Pence said.

“His knowledge of the budget and the legislative process will make him an invaluable addition to our legislative team. We are humbled to have a man of his caliber join our administration.”

Espich said the job is a bit undefined as Pence doesn’t take office until Jan. 14.

“Generally I will be helping advise the governor on working with the legislature on issues and working with the legislature directly to build relationships,” he said.

The ethics behind the job are a bit murky considering a one-year ban passed in 2010 prevents legislators from lobbying for a period of time after their departure.

Criticism then focused on a number of lawmakers leaving the General Assembly and immediately using the established relationships with their colleagues to lobby on a variety of issues.

The law specifically says former lawmakers cannot be registered as a lobbyist or be “employed as a legislative liaison” for one year after their departure.

Pence spokeswoman Christy Denault said there is no intent for Espich to be lobbying, saying he will be advising Pence on strategy.

She also said Pence will hire a specifically designated legislative liaison per the statutory definition.

Espich said he doesn’t believe the rule applies to him because he is a government employee, not a lobbyist in the traditional sense working for special interests.

Posted by Marcia Oddi on Friday, November 30, 2012
Posted to Indiana Government

Courts - SCOTUSblog: Last 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 IV's title is "The Court’s options."

Tom Goldstein writes an essay today in SCOTUSblog that begins:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

Also today in SCOTUSblog, a "plain English" summary of the same-sex marriage cases whose petitions the Court will review today.

Posted by Marcia Oddi on Friday, November 30, 2012
Posted to Courts in general