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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

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

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

Tuesday, November 27, 2012

Courts - "Who’s the Boss? The Supreme Court Hears Argument on the Meaning of the Term 'Supervisor' in Workplace Harassment Law" [Updated]

Supplementing this ILB post from Nov. 26th, about the SCOTUS oral argument Monday in the case of Vance v. Ball State University, Joanna L. Grossman of Hofstra has written a long analysis of the case and its place in employment law, published here, at Verdict.

[Updated 11/28/12] For more, see the Fort Wayne Journal Gazette editorial this morning, commenting on the case and on the oral argument.

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Courts in general

Law - "Legal Events to Watch This Week"

This useful feature is posted every Monday by Joe Palazzolo of the WSJ Law Blog.

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to General Law Related

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

Written by Lyle Denniston, Part I's introduction reads:

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage. At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue. Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law. One petition deals with a similar state law adopted in 2009 in Arizona for state employees. And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state. Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws. Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Courts in general

Ind. Courts - More on: Governor names Tippecanoe Superior Court 3 judge, replacing J. Rush

Updating yesterday's announcement, Chris Morisse Vizza and Justin L. Mack have a long story today in the Lafayette Journal Courier on "Faith Graham, the current juvenile magistrate, [who] will be the new judge of Tippecanoe County Superior Court 3." It continues:

Gov. Mitch Daniels made the announcement Monday afternoon. Graham succeeds Justice Loretta Rush, who was appointed by the governor to the Indiana Supreme Court in September.

“Judge Rush has inspired a lot of people, and I’m one of them,” Graham said.

Now in her seventh year as juvenile magistrate, Graham aspired to become judge of the court from the onset.

“It will be exciting to expand my involvement in the community and develop new programs,” Graham said. “This court is surrounded by a lot of strong, competent people, and with that army around me, we will continue to be dedicated to strengthening families.”

Rush, who received the news via phone from Graham early Monday, also is excited to see the magistrate step into the role and confident her former court is in good hands.

“I was thrilled,” Rush said. “Judge Graham has worked as my magistrate for seven years, and I just watched her in regards to how she handles cases involving family issues. Her legal reasoning, her compassion for the kids ... I was really pleased.”

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Kirstan Haub, d/b/a American Handyman Service v. Jenny Eldridge, a 12-page opinion, Judge Pyle writes:

Haub asserts that the trial court erred in denying his motion for summary judgment. Specifically, Haub argues that the Release is unambiguous in its release of Haub and AHS from any and all claims asserted by Eldridge and that the trial court erred in considering parol evidence to find the existence of an issue of fact. * * *

The plain language of the Release covers all claims Eldridge may have against Haub for faulty or defective work, arising up to and including October 8, 2010, the date Eldridge signed the Release, including, but not limited to, any claim that arose on or about September 29, 2008. Given that the Release makes no reference to the Policy or IFBI’s coverage under the Policy, we cannot say that the language in the Release limits it to only “claims arising from an ‘accident’ or ‘occurrence’ as defined by” the Policy.

The clear and plain language of the Release continues, providing that the terms of the Release “have been completely read and are fully understood by [Eldridge] . . . for the purpose of making a full and final compromise adjustment and settlement of all claims, disputed or otherwise, . . . against [Haub].” (App. 26) (emphasis added). In addition, the Release unambiguously provides that “it is the ENTIRE AGREEMENT between the parties . . . .” (App. 26). There is no contradictory language in the Release regarding its coverage that necessitates a factual determination. Accordingly, we find that the trial court erred in considering parol evidence, where the Release unambiguously releases Haub from any and all claims that Eldridge may have had against him on or before October 8, 2010. [cites omitted]

We therefore find that the trial court erred in denying Haub’s motion for summary judgment and that Eldridge is not entitled to summary judgment. We reverse and remand with instructions that the trial court enter summary judgment in favor of Haub.

NFP civil opinions today (1):

Monica Oevermeyer v. Dennis Steinbis (NFP)

NFP criminal opinions today (2):

Nicole Means v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - "Opponents of Indiana ban on gay marriage cite concerns about impact on 614 laws"

Mike Leonard reports in the Bloomington Herald Times in a $$ story that begins:

Nine months ago, more than 25 students in the Indiana University Maurer School of Law began research into what the legal consequences might be if Indiana writes a ban on same-sex marriage and civil unions into the state constitution.

They came up with 614 laws that could be affected — ranging from laws that govern probate, inheritance and financial matters to personal affairs such as visitation and custody rights to laws governing the ethics of conflicts of interest involving family members.

Students working on the law school’s LGBT Project teamed up with representatives of Indiana Equality Action for news conferences in Bloomington and Indianapolis Monday to announce their findings, detailed in a report, “More Than Just a Couple: 614 Reasons Why Marriage Equality Matters in Indiana.”

While Indiana law already bans same-sex marriage, opponents of same-sex marriage and civil unions passed a proposal to write the ban into the Indiana Constitution in 2011. The proposed amendment is all but assured of being introduced in the next successive Legislature in 2013, and if passed, it will be put to voters in a referendum in 2014, as required by the state constitution. * * *

Maurer student Donald E. Bierer said the measure could affect just about every area of Indiana law, from inheritance tax treatment to dealing with governmental agencies to removing protections guarding against conflict of interest situations involving family members.

Maurer student Cara M. Johnson said the measure illustrates how broadly marriage status permeates the law and how a constitutional ban denying any type of benefits to same-sex partners could affect various types of inheritance and tax law.

Here is the Indiana Equality Action web page and here is the 62-page report, subtitled "A Compendium of the Rights and Responsibilities of Civil Marriage in the Indiana Code." From the introduction:
What is clear from this compendium is the extent to which Indiana law uses civil marriage as a way to classify, grant rights to, and impose responsibilities upon couples and families in 614 ways. We hope that it serves as a resource for examining how legislative action around marriage can affect all Hoosier couples and families.

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending November 21, 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. 21, 2012. It is two page (and 22 cases) long.

One transfer was granted last week.

Posted by Marcia Oddi on Tuesday, November 27, 2012
Posted to Indiana Transfer Lists

Monday, November 26, 2012

Courts - "On average the Stones older than US Supreme Court"

See the AP story.

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Courts in general

Ind. Courts - Use of Notices of Additional Authority

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Notices of Additional Authority: Is there really no deadline?

According to Appellate Rule 48: “When pertinent and significant authorities come to the attention of a party after the party’s brief or Petition has been filed, or after oral argument but before decision, a party may promptly file with the Clerk a notice of those authorities setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, with a parenthetical or a single sentence explaining the authority.”

The rule does not specify a deadline.

Last Wednesday’s Court of Appeals’ oral argument in Brewington v. State began with an not-all-that-uncommon scenario. One of the attorneys (a deputy attorney general) had filed a notice of additional authority one week earlier (November 14) and served opposing counsel by mail, which apparently didn’t arrive until two days before the oral argument. The oral argument began with this exchange:

APPELLANT’S COUNSEL: As a preliminary matter, we have filed a motion objecting to the additional citations filed by the State. We didn’t receive them until Monday. We believe they do not conform to the appellate rules of procedure. We have not had a chance to review them, let alone analyze them. It is my understanding that counsel for the State will rely upon those. So, we are at a disadvantage and we think this is an unfair attempt to circumvent the rules. We would like to have some direction from the Court on that point.

JUDGE BAKER: In that regard, sir, we will have an opportunity to discuss your objection and their submission at a later moment, at which time we will make a declaration. It is the case that we have to be mindful of whatever the status of the law, whomever gives it to us, whether it be you or the Attorney General or one of my colleagues. So--

APPELLANT’S COUNSEL: That’s true, your Honor. But we actually asked for an extended brief and we were denied because there were so many issues raised. And here, he is asking for eleven cases to be cited. They are not new cases. Some of them go back to the 90s. So--

JUDGE BAKER: We are prepared to hear your argument.

JUDGE RILEY: And we haven’t read them probably yet either, because of the late filing.

When is Additional Authority Appropriate?: Bolstering a Claim, not Raising a New Claim

A Notice of Additional Authority simply supplements an argument with an additional case or other authority that supports an argument already briefed. In Chupp v. State, 830 N.E.2d 119, 126 (Ind. Ct. App. 2005), the court of appeals made clear that Rule 48 cannot be used to
allow a party who failed to present an issue in his appellant’s brief to bypass the general rule that un-raised issues may not be presented for the first time in a reply brief by filing a citation to additional authority. Instead, as we read the Rule, where a party has properly presented an issue, he may supplement his brief by providing citations to additional authority to support the argument previously raised.
It’s unclear what was included in the notice in Brewington. The late addition of fourteen new cases, especially some decided well over a decade earlier, makes one wonder why the cases were not included in the party’s brief.

Timing

Rule 48 places no limitation on the timing of additional authority. Common sense, professional courtesy, and effective advocacy do. Ideally, counsel will file additional authority shortly after the new authority is issued by a court or discovered by counsel. Diligent appellate counsel will check the websites of the Indiana Supreme Court and Court of Appeals daily for new published opinions that may be relevant to pending cases.

If a case is set for oral argument, as in Brewington, counsel may discover one or more additional cases while preparing for oral argument. Oral arguments are usually scheduled a month or so in advance, so counsel should be able to file a notice well in advance of the argument. (The order setting the Brewington argument was issued three full months before the argument, on August 21.) As highlighted above, if the notice is not filed until a few days before the argument, opposing counsel and the judges may not have an opportunity to review the cases before the argument.

A notice filed the day before an oral argument or, worse yet, the morning of oral argument may not reach the judges before the argument, and the judges and opposing counsel may be understandably frustrated with the late filing. For example, in a 2009 “Appeals on Wheels” argument, an attorney served opposing counsel with a notice immediately before the argument. The notice had been Rotunda filed the previous evening. A member of that panel chastised the late filing because Indiana courts do not practice law by ambush. Because the Brewington notice was filed a week in advance, it did not provoke the same reaction.

Although the appellate rules generally provide for service by first-class mail or personal delivery, counsel filing a time-sensitive motion is certainly free to send a courtesy copy via email as well.

Content of the Notice

A Notice of Additional Authority cannot drone on and on about the importance of a case or other cited authority. Rather, after citing the authority, Rule 48 specifically limits the notice to “a parenthetical or single sentence explaining the authority.” There are certainly creative ways to use punctuation and other devices to craft a lengthy sentence, but it should still be one sentence.

The notice must also include “a reference either to the page of the brief or to a point argued orally to which the citations pertain.” A brief might be twenty pages or longer. It is important to let the court know precisely where and how the additional authority fits.

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to A teaching moment | Indiana Courts

Ind. Courts - Governor names Tippecanoe Superior Court 3 judge, replacing J. Rush

Just released:

INDIANAPOLIS (November 26, 2012) – Governor Mitch Daniels today announced the appointment of Faith Graham as judge of the Tippecanoe Superior Court 3. She succeeds Justice Loretta Rush who was appointed by the governor to the Indiana Supreme Court in September.

Graham, of West Point, earned her undergraduate degree from Marian College in 1991 and her law degree from Indiana University Robert H. McKinney School of Law in 1996. She is a juvenile magistrate for the Tippecanoe Superior Court 3. Prior to becoming a magistrate, she was a Tippecanoe County deputy public defender and an adjunct faculty instructor in the criminal justice program at Ivy Tech. Graham is a member of the Tippecanoe County Bar Association, the American Judicature Society and the National Council of Juvenile and Family Court Judges.

Her appointment is effective at a date to be determined.

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Indiana Courts

Courts - "SCOTUS Gives Nod to Citizens Who Record Police, Amidst Reports of Multiple Arrests"

See this post by Martha Neil at the ABAJournal Blog.

Read it in conjunction with this ILB post from May 8, 2012, re the 7th Circuit opinion in ACLU v. Alvarez, written by Circuit Judge Sykes, joined by Judge Hamilton, with Judge Posner dissenting. The SCOTUS today rejected the State of Illinois "plea to ban taping of police in Illinois" - see this Chicago Tribune breaking news report.

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Courts in general | Ind. (7th Cir.) Decisions

Courts - Voters throw out two highly capable Ohio Supreme Court justices, replacing them with " two candidates blessed with Irish names"

Brent Larkin of the Cleveland Plain Dealer wrote in a long column on Nov. 24th that begins:

Greater Cleveland voters have a long history of making big mistakes in judicial elections.

But in two contests decided Nov. 6, they outdid themselves.

They did it by ousting two incumbents -- one from each political party -- who were challenged by opponents with credentials so inferior that no rational person could justify the outcome.

But the losses of Cuyahoga County Common Pleas Judge Joan Synenberg and 11th Ohio District Court of Appeals Judge Mary Jane Trapp were only two of a handful of outcomes in judicial races around the state -- including two contests for the Ohio Supreme Court -- that have again intensified calls for changes in the way we select judges.

Leading that charge is none other than the biggest judicial vote-getter in recent state history: Ohio Supreme Court Chief Justice Maureen O'Connor.

To her great credit, O'Connor told me last week that she would begin to seek support for a system under which candidates with superb credentials are appointed to the state's appellate courts and later face retention elections, in which voters would decide whether or not to keep them there. Her merit-selection hybrid proposal would apply only to appellate-level court races, including the Ohio Supreme Court, not to candidates for the Common Pleas or Municipal courts.

O'Connor's idea will face stiff opposition, but critics can fall into one of only two categories: They will either be horribly misinformed or won't really care about the quality of Ohio's judiciary.

The governor, legislature and Ohio State Bar Association should do the right thing and work with the chief justice to implement her idea.

Let's look at the election carnage that led to all this:

For the first time in 40 years, two incumbent Supreme Court justices -- both highly regarded -- lost to less qualified opponents.

Republican Justice Robert Cupp was beaten by a Democrat with a far better ballot name: former appellate Judge William O'Neill. And Justice Yvette McGee Brown, a Democrat, failed to keep her seat as the high court's first black woman, losing to Butler County Common Pleas Judge Sharon Kennedy, a Republican.

Both McGee Brown and Cupp received the state bar association's highest rating of "highly recommended." Kennedy received a "not recommended" and O'Neill a "recommended."

"Both parties lost with kind of their MVPs, most valuable players, good people, good jurists," said O'Connor. "It wasn't a qualifications issue. Democrats respected Bob [Cupp] and Republicans respected Yvette [McGee Brown]. We have to take a long, hard look at how we elect, at the very least, our appellate judges."

Closer to home, what happened was even worse.

In the combined rankings of the four bar associations that rated judicial candidates in Cuyahoga County, Synenberg, a Republican, was one of only two judicial candidates in contested races to score a perfect 4.0. Her opponent, Cassandra Collier-Williams, tallied a lowly 1.75 -- one of the worst ratings of all judicial candidates on the ballot.

Nevertheless, Collier-Williams won by a comfortable margin -- not because she's even half as qualified as Synenberg, but because she has a better ballot name and was endorsed by the local Democratic Party.

Joe Hallett, senior editor at the Columbus Dispatch, has an opinion piece titled "Voters should have more to go on than just names." Some quotes:
[Justices] Cupp and McGee Brown received “highly recommended” ratings from the Ohio State Bar Association. They are members of arguably the best Supreme Court Ohio has had in the past 30 years.

That didn’t matter. On Nov. 6, Ohio voters replaced them with two candidates blessed with Irish names. McGee Brown was defeated by Sharon Kennedy, a Republican domestic-relations judge who was rated “not recommended” by the state bar. Cupp was beaten by Democrat William O’Neill, a former state appellate judge who had been working as an emergency-room nurse.

When the new court is seated in January, it will resemble politicians at a St. Patrick’s Day parade: O’Connor, O’Donnell, O’Neill and Kennedy.

It is unfair to prejudge O’Neill and Kennedy. We can only hope they will be fine justices. But if voters knew anything about McGee Brown and Cupp, they probably would not have replaced them.

And that’s the problem: Voters know virtually nothing about the judges they elect and are left to play the name game. The system limits judges’ ability to campaign, to raise money and even to make statements that might be construed as political. They are not permitted to be identified by party on general election ballots.

In short, we make judges politicians at election time but deny them the crucial opportunities to communicate with voters the way other politicians do.

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

Term. of the Parent-Child Rel. of B.W. and C.W. (Minor Children); J.W. (Mother) B.W. (Father) v. Indiana Dept. of Child Services (NFP)

In Re the Paternity of G.J.C. and C.E.C.; J.T. v. N.R. and R.C. (NFP)

Todd Shireman v. Todd Hensley and Jerry McKay d/b/a H&M Cattle Company (NFP)

Jack Marshall v. Beth Marshall (NFP)

Albert Van Meter and Krissy Van Meter v. United States Steel Corporation (NFP)

NFP criminal opinions today (7):

Kellylee Sexton v. State of Indiana (NFP)

Kendrick Alexander v. State of Indiana (NFP)

N.L. v. State of Indiana (NFP)

Terry Wade v. State of Indiana (NFP)

Jonathan E. Perdew v. State of Indiana (NFP)

J.P. v. State of Indiana (NFP)

Oluwasanmi Animashaun v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - SCOTUS today hears Vance v. Ball State University

The question is, who is a supervisor? Here is how SCOTUSBlog's Lyle Denniston's lengthy argument preview begins:

At 11 a.m. [this] Monday, the Supreme Court will hold one hour of oral argument on a case seeking a clear definition of who is a workplace supervisor, under federal anti-discrimination law. The case is Vance v. Ball State University (docket 11-556). Arguing for kitchen employee Maetta Vance will be Daniel R. Ortiz of Charlottesville, Virginia, a University of Virginia law professor. He will have twenty-five minutes at the lectern. Arguing for Ball State University, and also with twenty-five minutes of time, will be Gregory G. Garre of the Washington, D.C., office of Latham & Watkins. Arguing between them with ten minutes of time will be Deputy U.S. Solicitor General Sri Srinivasan. The government supports Vance’s argument about who is a supervisor, but argues that Vance herself does not qualify to make that argument.
The case link above leads to all the documents.

This morning Nini Totenberg of NPR featured the case in a story titled "Supreme Court To Look At Who Is A 'Supervisor' In Harassment Cases."

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Ind. (7th Cir.) Decisions

Catch-up: What did you miss over the long Thanksgiving weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, November 25, 2012:

From Saturday, November 24, 2012:

From Friday, November 23, 2012:

From Thursday, November 22, 2012:

Posted by Marcia Oddi on Monday, November 26, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next [Corrected]

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

Next week's oral arguments before the Supreme Court (week of (12/3/12):

Friday, December 7th

Webcasts of Supreme Court oral arguments are available here.


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

Monday, November 26th

Tuesday, November 27th Next week's oral arguments before the Court of Appeals (week of 12/3/12):

Monday, December 3rd

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.


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 26, 2012
Posted to Upcoming Oral Arguments

Sunday, November 25, 2012

Law - "Kramer.com vs. Kramer.com"

Fascinating article published Nov. 23rd by Pamela Paul of the NY Times. Some quotes:

MOST divorced couples would probably prefer not to see each other. Ever again. But when you share custody of your children, you have to assume a certain amount of face-to-face time amid the endless back-and-forthing. * * *

Unless, of course, it’s all done remotely. These days, the cool aloofness of technology is helping temper sticky emotional exchanges between former spouses. And for the most part, according to divorce lawyers and joint-custody bearers, handling the details via high tech is a serious upgrade. * * *

“People don’t want to talk to their exes because just the sound of their voice is irritating,” said Randy Kessler, chair of the American Bar Association’s Family Law Section and a matrimonial lawyer in Atlanta. “But they can e-mail. They can share an online calendar. They can use any number of resources on the Internet. There are even divorce apps.”

E-mail and texting alone have practically revolutionized postdivorce family relationships. “E-mail absolutely takes away the in-your-face aggravation and emotional side of joint custody,” said Lubov Stark, a divorce lawyer on the Upper East Side of Manhattan. “You just write, ‘I want to pick up Kimmy at 5, but I’m running late and will be there at 6.’ It’s the best thing ever.” * * *

Former spouses aren’t the only parties to see a benefit in keeping their communiqués limited to the keyboard. Technology has become so commonplace in divorce arrangements that it has become part of the formal legal process, a development divorce lawyers and judges applaud. Many joint custody arrangements will stipulate weekly Skype sessions between parent and child while apart.

“It’s all set out in detail,” said Michael Kelly, a divorce lawyer and partner at Kelly, Fernandez & Karney in Los Angeles. “Your phone has to be available at certain hours, and if you don’t follow the rules, it’s a good way to lose custody.”

Parents are often required to buy a cellphone for their child, and call times are recorded to ensure an adequate amount of time. “That way, Mom can’t say, ‘O.K., you can talk to Daddy for two minutes, but that’s it,’ ” Mr. Kelly said. And with a parent calling children directly on their phone, there’s no possibility of a bitter intermediary exchange between parent and parent.

When relationships deteriorate to the point of renewed legal action, courts are increasingly ordering ex-couples to work out their differences via technology. A new crop of online custody tools has been specifically designed to keep sniping parents at bay.

Sherry Thomas, 56, shares physical custody of her two teenage sons with her ex-husband in Boca Raton, Fla. But since their divorce in 2005, the arrangement has been fraught with disagreement. When Ms. Thomas requested court-mandated parent counseling, the judge ordered the two to use an online tool called Our Family Wizard instead. Now, lawyers supervise e-mail exchanges between her and her ex, ensuring that each party responds to the other in a timely manner. All e-mails are time dated and tracked. Parents can create a shared expense log and receive automated notices and reminders about parental obligations. * * *

Having negotiations set in writing (whether it’s a text, a cellphone log or an online calendar) also creates a permanent record of who did and wrote what. If somebody misbehaves, it can become evidence.

The NYT story is followed by many comments. Several links are mentioned, including this one to Our Family Wizard.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to General Law Related

Courts - "PACER federal court record fees exceed system costs"

From The Bay Citizen ("Your nonprofit source for no-holds-barred reporting about the Bay Area"), this Nov. 20th story by Shane Shifflett and Jennifer Gollan that begins:

The federal government has collected millions from the online Public Access to Court Electronic Records system, or PACER – nearly five times what it cost to run the system.

Between fiscal years 2006 and 2010, the government collected an average of $77 million a year from PACER fees, according to the most recent federal figures available.

Critics have derided PACER, saying the government has increased user fees over the years without making the system easier to use. The fees, some say, act as a deterrent to public access.

The Judiciary Appropriations Act of 1992 limited the use of PACER fees to “reimburse 
expenses
 incurred
 in 
providing these services.” But lawmakers on the House Appropriations Committee have allowed the courts to invest in a wider range of information technology projects using fees collected from PACER. Fees for online access have risen from 7 cents to 10 cents per page.

“Given the lack of oversight for what the fees are being used for, the incentive for the courts is to raise fees,” said Stephen Schultze, associate director of Princeton University’s Center for Information Technology Policy.

[ILB emphasis]

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Courts in general

Courts - "Decisions Open Door to Appeals of Plea Bargains "

John R. Emshwiller and Gary Fields reported Friday in the WSJ that:

The Ninth Circuit's September decision cited two Supreme Court decisions, both issued in March, in which the high court found defendants in two other cases hadn't been adequately represented by their attorneys during the plea-bargain process.

Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote for the majority.

Judges and legal observers view the high court's rulings as a major shift in the standards that govern plea bargaining, a widely used legal strategy in which defendants plead guilty to one or more charges usually in exchange for a lighter punishment than they would receive if they went to trial and lost. Plea bargaining allows criminal cases to be settled more quickly and with less expense than a jury trial.

Federal and state court statistics show over 90% of all convictions come through plea bargains.

As the Supreme Court rulings percolate through the judicial system, there will be many more cases where defendants challenge their plea deals based on inadequate assistance of counsel, said David Carroll, executive director of the Sixth Amendment Center, a Boston-based nonprofit that focuses on legal representation for indigent defendants. The Ninth Circuit decision "is the tip of the iceberg," he said.

Sentencing Law Blog wrote about the piece Saturday in a post headed "One notable case showing impact and import of Lafler and Frye."

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Courts in general

Ind. Decisions - More on: Supreme Court hears oral argument in school voucher challenge

Dan Carpenter's opinion column today in the Indianapolis Star is headed "Questions left off voucher court test." Some quotes:

The question before the Indiana Supreme Court and a packed gallery on Wednesday morning was a technical one: Is the benefit direct or incidental?

If the state persuades the court that the Choice Scholarship plan hinges on parental decisions -- even though the money flows not to them but to the schools they've chosen, without restrictions on how it's spent -- it may beat back a challenge to one of the Daniels administration's signature policy changes.

If that happens, opponents say, disingenuous hair-splitting will have trumped the needs of public school pupils who make up the vast majority of the state's children.

Other questions went unasked by the justices but were much on the minds of many in the crowd. Most pertinent: If vouchers are being sold as a way for low-income kids to escape poor-performing public schools, why is there no performance standard either for the school they leave or the one to which they move? * * *

It was a query from Rucker that may have spoken most resoundingly, in large part because of what he left unsaid.

He asked Assistant Attorney General Thomas Fisher whether parents truly had a choice "if nothing is available but religious schools and the parents have either the underperforming public school or the high-caliber superior religious school?"

Fisher replied that there is a choice to opt out entirely. Mark GiaQuinta would say the justice begged the question.

He's the board president of Fort Wayne Community Schools, which has lost $7 million to vouchers this year. His hardest-hit school was rated A by the state, he said; and the religious school that drew the most away was rated F.

"The idea this is providing an opportunity for poor children to leave bad schools is nonsense," he declared before the hearing. "I said to Tony (Bennett), 'If this is truly providing an opportunity to leave a failing school for a successful one, why not make that a criterion? Maybe the other school just needs a quarterback.'"

The blog Advance Indiana has a post on the oral argument that concludes:
On one final note, I couldn't help but wonder whether Justice Massa should have recused himself from participating in this case. He was, after all, chief legal counsel to Gov. Mitch Daniels, whose office worked closely with Supt. Tony Bennett's office to help draft, lobby and steer the Choice Scholarship legislation through the state legislature, prior to him being appointed to the Court by Gov. Daniels. Nobody watching that oral argument could believe that he has an open mind about the legislation, and he certainly made little attempt to hide his views. It's one of the crowning achievement of his former boss. I think the parents' attorney made a mistake in not publicly calling on him to recuse himself, if for no other reason than to put him on notice that he was being watched closely.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to Ind. Trial Ct. Decisions

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

Jonathan Weisman has the long story that begins on the front-page of Sunday's NY Times. A sample:

The Senate — the legislative body that was designed as the saucer to cool the House’s tempestuous teacup — has become a deep freeze, where even once-routine matters have become hopelessly stuck and a supermajority is needed to pass almost anything.

As a result, the first fight of the next Senate, which convenes in January, is not likely to be over a fiscal crisis, immigration, taxes or any issue that animated the elections of 2012. It will instead probably be over how and whether to change a troubled Senate, members and aides say.

With his majority enhanced and a crop of frustrated young Democrats pushing him hard, Senator Harry Reid of Nevada, the Democratic leader, says he will move on the first day of the 113th Congress to diminish the power of Republicans to obstruct legislation. “We need to change the way we do business in the Senate,” said Senator Tom Udall, Democrat of New Mexico. “Right now, we have gridlock. We have delay. We have obstruction, and we don’t have any accountability.”

The pressure leaves Mr. Reid with a weighty decision: whether to ram through a change in the rules with a simple majority that would significantly diminish Republicans’ power to slow or stop legislation.

The changes under consideration may sound arcane, but they would have such a profound impact that they are referred to as the “nuclear option.” In effect, they would remake a Senate that was long run on compromise and gentlemen’s agreements into something more like the House, where the majority rules almost absolutely.

Critics of the idea, who exist in both parties, say such a change would do great damage, causing Washington to career from one set of policies to another, depending on which party held power.

Posted by Marcia Oddi on Sunday, November 25, 2012
Posted to General Law Related

Friday, November 23, 2012

Ind. Courts - More on: 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?

Updating this ILB entry from Nov. 18th, the ILB has learned from Larry Riley, whose column the ILB had quoted, that on Wednesday, Judge Marianne L. Vorhees, Delaware Circuit Court 1, "granted a defense request for change of judge and named three panelists to strike from (all three are Circuit Court colleagues whose terms continue another two years)."

Posted by Marcia Oddi on Friday, November 23, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court hears oral argument in school voucher challenge

On Wednesday morning the Supreme Court heard oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al. This is the school voucher challenge and is a direct transfer from the trial court. Here is some of the coverage.

Eric Bradner of the Evansville Courier & Press reported late on Nov. 21st in a story that begins:

Indiana's Supreme Court justices on Wednesday grilled attorneys on both sides of the state's school voucher program over whether it meets constitutional muster. The law has so far led to more than 9,000 students switching from public to private schools.

Much of the hour of oral arguments focused on whether the vouchers, which pay at least $4,500 worth of tuition bills per student, go to benefit religious institutions directly, as opponents argue, or primarily benefit the children and their families, as supporters say.

A ruling from the five-member panel is expected within a few months.

John West, the attorney representing several of the law's challengers, said the framers of Indiana's 1851 constitution were seeking to stop the state's education dollars from being divvied up "at the expense of the public school system."

Thomas Fisher, the Indiana solicitor general who defended the state's 2011 voucher law, said it belongs in the same category as charter schools, home schooling, allowing students to transfer to another school in their district and more.

"It is part of a larger array of choices," he said. "It is merely an application of an old idea, and that idea is that we're going to fund different educational choices."

West fended off questions about why vouchers in K-12 education should not be allowed, but state-funded scholarships to private universities for college students should be permissible. He said the difference is that vouchers are "a benefit that is incidental to a permissible secular purpose."

"Here, the state is directly paying for the teaching of religion, and that's what the tipping point is," he said.

The voucher law targets low- and middle-income families, offering tiered tuition payments based on income and based on the amount the state pays to the public schools the students would otherwise attend.

Robert William Gall, another pro-voucher attorney, said school choice exists whether the state's voucher program stands or not, but that the question lawmakers sought to answer in approving it in 2011 was, "Do we want to make it available to everyone or only the wealthy?"

From Niki Kelly's story in the Fort Wayne Journal Gazette, headed "Indiana Supreme Court wrestles with vouchers’ fine points":
The Indiana Supreme Court took up the battle over state-paid, private school vouchers Wednesday, parsing over whether the program benefits religious institutions directly or is just an incidental benefit of educational choice.

The justices were active in asking questions about the constitutionality of the program, while also appearing skeptical about overturning the law.

“The purpose of the legislation has primarily to do with education – not fostering religion,” said Chief Justice Brent Dickson.

But opponents argue that 97 percent of the participating schools are religious in nature, and they receive a direct benefit in the form of millions of dollars.

“Here the state is directly paying for the teaching of religion,” said John West, the attorney arguing against vouchers.

Legislators passed the voucher law in 2011. It is the most expansive program in the country because its income guidelines are wide and students from all schools – not just failing schools – are eligible. A family of four, for instance, can make up to $62,000 and still qualify for tuition assistance.

New data released Tuesday showed more than 9,000 students now are going to private school using $38 million worth of state-paid vouchers.

The Indiana State Teachers Association and a host of plaintiffs filed suit against the program a few months after its passage. They claim it will drain resources from public schools and that tax money should not be used to support religious education. * * *

The U.S. Supreme Court ruled in 2002 that state vouchers for parochial students don’t violate the U.S. Constitution. But the ISTA lawsuit is based on the Indiana Constitution, which has different language.

The justices focused quickly on the provision of the Indiana Constitution saying “no money shall be drawn from the treasury, for the benefit of any religious or theological institution.”

Justice Robert Rucker questioned whether the money was benefiting the schools or the kids and parents.

“Any money that winds up in the coffers of a religious institution is only there because of a decision by a parent and student,” said Thomas Fisher, arguing on behalf of the Indiana Attorney General’s Office.

Justice Mark Massa also asked several questions about whether a decision in this case could negatively impact millions of dollars in state money going to college scholarships at private, religious colleges such as the University of Notre Dame.

West seemed to wrestle with explaining the distinction between scholarships used for a voluntary college education and vouchers used for mandatory K-12 education.

The Indianapolis Star story is reported by Chris Sikich. Some quotes:
The Indiana State Teachers Association, which has fought many of the reforms, is among opponents who want the five justices to overturn the voucher law. The association says school vouchers violate the state constitution because they direct taxpayer money to religion-affiliated schools, money that otherwise would have gone to public schools.

The program’s defenders, including the Indiana attorney general’s office, say parents are free to send their children and direct the money to pay tuition at any school they want — public, private or parochial. The law was upheld by a Marion County court in January

There is no timetable for a decision. But Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law, said he’d be surprised if the law was overturned. He attended the hearing and has studied the court.

Schumm said the plaintiffs had a “steep uphill climb” because the Indiana Supreme Court has in the past deferred to policy decisions by the legislature in crafting state statues, and a clear argument must be made to overturn one. Recently, the court has upheld the Indiana Toll Road lease and the voter identification law.

“It’s a very, very slim chance they would find this unconstitutional,” Schumm said. “I didn’t get the sense any of the justices had serious concerns about it.” * * *

Robert W. Gall, a private attorney representing parents in support of vouchers, told the court the money benefits parents for their children’s education. But John West, a Washington lawyer representing voucher opponents, said the money does benefit religious institutions even if it’s filtered through a voucher to parents. And while that cash may be intended for education, he said, it benefits the institution.

Schumm said the justices had tougher questions for the plaintiffs than for the state, indicating the burden was on the law’s opponents. “And I don’t think the plaintiffs gave them any hook they could hang an opinion on this, calling this unconstitutional.”

Justices also wanted to know about the broader implications of funding religious programs. They asked each side whether a ruling overturning the law also would ban state money directed toward religion-affiliated colleges such as Notre Dame and Anderson University. West said he sees a distinction between academic-based college curriculums and religious K-12 schools. State attorneys said they saw little difference.

Schumm said that’s another instance in which the plaintiffs struggled to draw a distinction.

“When the justices asked questions about how this would affect college scholarships,” Schumm said, “the plaintiffs’ lawyer wasn’t able to draw a line that would make it possible to find the voucher law unconstitutional without causing havoc in other areas. I don’t know how they could draft a narrow opinion finding this unconstitutional and not finding problems for other programs.”

ILB: Listen to the oral argument here.

The ILB entry links to the parties' briefs.

[More] Good AP coverage here, via the $$ Bloomington Herald-Times. A quote:

The five justices prodded lawyers for both sides on the vouchers’ consequences as they heard a constitutional challenge to the 2011 law under which more than 9,000 students have switched from public to private schools with help from state funds. The program was pushed by Gov. Mitch Daniels and is considered a model of conservative Republicans’ approach to overhauling education. * * *

The Indiana case is being closely watched because the vouchers are available to middle-class students. Voucher programs in other states are generally limited to low-income students or those in failing schools. Conservative Republicans say the vouchers offer families more choices and will boost education by giving public schools greater incentive to improve. Critics contend the vouchers could cripple public schools by diverting desperately needed funds.

Posted by Marcia Oddi on Friday, November 23, 2012
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions

Wednesday, November 21, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Hagler (ND Ind., Lee), a 17-page opinion, Circuit Judge Kanne writes:

On August 15, 2000, two men unsuccessfully tried to rob a bank in Woodburn, Indiana. They fled before police could arrive, and, for years, they remained at large. Then, in 2008, new DNA tests cracked the case and tied defendant William Hagler to the crime. Hagler was indicted for attempted bank robbery, and a jury found him guilty. Hagler now appeals, arguing that the government waited too long to indict him, that the evidence was insufficient to convict him, and that new DNA testing entitles him to a new trial. We affirm. * * *

A. Statute of Limitations Hagler’s first argument is that he was indicted after the statute of limitations had run. The applicable statute of limitations provides that, “[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 U.S.C. § 3282(a). Here, the aborted robbery took place on August 15, 2000, and the operative indictment against Hagler did not issue until July 28, 2010, nearly ten years later. Thus, Hagler argues, his indictment was untimely, and his conviction cannot stand.

But, as both sides acknowledge, we cannot come to this conclusion so easily. Section 3282(a) specifically allows for exceptions to the general limitations period, and the government argues that one of these exceptions is in play here.

Posted by Marcia Oddi on Wednesday, November 21, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Tyler A. White v. State of Indiana, an 18-page opinion, Judge Najam writes:

Tyler White appeals his conviction for murder following a jury trial. He presents the following issues for our review:

1. Whether the trial court erred when it found that certain testimony was admissible under Evidence Rule 804(b)(5), the “forfeiture by wrongdoing” hearsay exception.
2. Whether Indiana’s feticide enhancement statute, Indiana Code Section 35-50-2-16, is unconstitutional.
3. Whether the trial court erred when it did not judicially supply a mens rea element to the feticide enhancement statute.
4. Whether the trial court abused its discretion when it excluded evidence that the victim had previously had a miscarriage, which White proffered to support his defense to the feticide enhancement.

We affirm. * * *

[Issue One: Evidence Rule 804(b)(5)] White first contends that the trial court “misapplied” Evidence Rule 804(b)(5), the “forfeiture by wrongdoing” hearsay exception. Evidence Rule 804(b) enumerates exceptions to the hearsay rule where a declarant is unavailable as a witness, and Rule 804(b)(5) permits a “statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.” White maintains that the State did not prove by a preponderance of the evidence that his purpose in shooting Amy was to prevent her from testifying. * * *

Because there is no reported Indiana case addressing the rule, the application of the rule to the circumstances in this case is an issue of first impression. * * *

Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence. * * * And we hold that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White.

[Issue Two: Constitutionality of the Feticide Enhancement Statute] * * * Here, the feticide enhancement statute expressly provides that neither a defendant’s knowledge of his victim’s pregnancy nor his intent to kill the fetus is required. Thus, the legislature’s intent on this issue is clear, and the State need not prove a defendant’s mens rea when it seeks a sentencing enhancement for feticide. Indeed, the principle underlying this statute derives from the nature and circumstances of the crime aggravator. * * *

Moreover, the feticide enhancement statute is not an outlier. Indiana Code Section 35-50-2-9(b)(12) provides that a defendant who murders a child less than the age of twelve can be punished by death regardless of the defendant’s knowledge of the victim’s age. * * *

Here, the feticide enhancement statute reflects the legislature’s policies of both increased protection of fetuses and harsher punishment for those who, by murdering a pregnant woman, cause the death of a fetus. White has not satisfied his heavy burden to show that the feticide enhancement statute is unconstitutional for lack of a mens rea requirement.

[Issue Three: Judicially-supplied Mens Rea] * * * We decline to add a mens rea requirement which the legislature has specifically excluded from the statute. * * *

We hold that the trial court properly allowed hearsay testimony regarding statements Amy had made to others prior to her death under Indiana Evidence Rule 804(b)(5). The preponderance of the evidence shows that White killed Amy, at least in part, for the purpose of preventing her testimony at the provisional custody hearing. The feticide enhancement statute, Indiana Code Section 35-50-2-16, is not unconstitutional. Also, because the legislature expressly excluded a mens rea requirement from the feticide enhancement statute, we will not judicially supply such a requirement. Finally, the trial court did not abuse its discretion when it excluded evidence that Amy had previously suffered a miscarriage.

ILB Comment: For background on Indiana Evidence Rule 804(b)(5), see this ILB entry from Sept. 16th, which discusses this case along with the Illinois Drew Peterson case and the so-called "Drew's Law," which, according to the Chicago Tribune, allowed "Peterson's slain ex-wife, Kathleen Savio, to 'testify from beyond the grave.'"

In Robert D. Davis v. State of Indiana , a 9-page opinion, Judge Brown writes:

Robert D. Davis, pro se, appeals the trial court’s denial of his motion to correct erroneous sentence. Davis raises one issue which we revise and restate as whether the trial court erred by denying his motion to correct erroneous sentence. We affirm. * * *

Davis also argues that Ind. Code § 35-50-1-2 was amended in 1994 and that this amendment should have limited the trial court’s consecutive sentencing. * * *

Generally, courts must sentence defendants under the statute in effect at the time the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997). When, however, the legislature enacts an ameliorative amendment without including a specific savings clause, the new statute will apply to all those sentenced after its effective date. Id. When a court sentences a defendant before the effective date of an ameliorative amendment, the new statute does not apply unless the legislature expressly designates that the new statute applies retroactively. Id. If an appellate court remands for a technical correction of a sentence, and not for re-sentencing, the general rule, that the court sentences the defendant under the statute in effect at the time the defendant committed the offense, applies. Id.

Even assuming, without deciding, that the 1994 amendment applied at the time that the court entered its order on January 26, 1995, Davis does not develop a cogent argument with respect to how the 1994 amendment would have affected his sentence.

In Romero Leslie v. State of Indiana, a 16-page opinion, Judge Najam writes:
Romero Leslie appeals his conviction for dealing in cocaine, as a Class B felony, following a jury trial. Leslie presents two issues for our review:
1. Whether the trial court committed fundamental error when it denied Leslie’s request that the court dismiss a juror who, during a recess, had been standing near Leslie and defense counsel while they were discussing trial strategy.
2. Whether the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun. * * *

Leslie has not shown that the trial court committed fundamental error when it denied his request to dismiss Shiflette from the jury. Nor has Leslie shown that the court abused its discretion when it dismissed Brown from jury service after she stated that she could not render a decision based on the evidence. As such, we affirm Leslie’s conviction for dealing in cocaine, as a Class B felony.

In Thomas H. Andrews v. State of Indiana

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of K.S. and K.C. (Minor Children) and Y.C. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

James Henley v. State of Indiana (NFP)

Lanika Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 21, 2012
Posted to Ind. App.Ct. Decisions

Tuesday, November 20, 2012

Ind. Law - More on: Do NCAA lawyers located in Indianapolis need to be licensed to practice law in Indiana?

Updating this ILB entry from earlier this afternoon, the ILB has received this note from "an attorney licensed in Indiana":

Answering your question about whether NCAA lawyers need to be licensed would focus on their duties.

According to the Roll of Attorneys, Abigail Grantstein is "Inactive in good standing." As an assistant director for enforcement, Grantstein's duties would not be legal in nature.

The NCAA Enforcement division is tasked with ensuring "that institutions abiding by NCAA legislation are not disadvantaged by complying with the rules;" essentially she works for the NCAA's internal police force. As has been noted before, the NCAA has no subpoena power and is not considered an arm of the state (NCAA v. Tarkanian, 488 U.S. 179 (1988)).

As someone enforcing internal rules within an organization, I don't see how Grantstein or any other enforcement official would be required to be licensed to practice law here. This is opposed to a lawyer with the NCAA who handles contracts or licensing, which are generally considered the practice of law.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Indiana Law

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

Yesterday the ILB reported that:

[T]he 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.

Mr. Williams is also of Terre Haute. Commissioners are not eligible for successive reelection or reappointment.

A reader has just sent this note to the ILB:

Not sure, but hasn’t this seat been handed back and forth between these two for over 10 years now?
The ILB has checked, via this list it posted in 2010 (yes, it needs updating). Mr. McDonald served from 2010 through 2012, Mr. Williams served from 2007 through 2009. Mr. McDonald from 2004 though 2006. As of Monday's news, Mr. Williams will now serve from 2013 through 2015.

It appears both men may have been a year or two behind me at what was then IU-Indy Law.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Indiana Courts

Courts - Judges' cut-and-paste opinions under scrutiny in Canada

From a long story by Marty Klinkenberg of the Edmonton Journal reported on Nov. 18th:

The Alberta Court of Appeal has tossed out two related findings by an Edmonton judge because he copied large portions from the lawyers’ arguments, failed to provide meaningful analysis and obscured the reasons for his decisions. * * *

According to the ruling issued by justices Jack Watson, Frans Slatter and Patricia Rowbotham, [Justice Donald Lee of Court of Queen’s Bench] cut and pasted paragraphs from briefs filed by the parties and then had them retyped and designated as his “Reasons for Judgment.”

“Every one of the paragraphs in the reasons was extracted essentially verbatim, from the chambers briefs,” the justices wrote. “There is no independent authorship. Even spelling mistakes in the briefs are faithfully carried forward.”

They said that in one decision, Lee incorporated 74 of 84 paragraphs submitted by both sides, and incorporated all 79 paragraphs submitted by the parties in the other. That, and the absence of an explanation for his rulings, threaten the integrity of the proceedings, the panel wrote in its decision, calling it an “extreme” case of inadequate reasoning. * * *

“The compilation of passages from the chambers’ briefs does not disclose how the judge arrived at his decision,” the panel wrote. “Deciding between competing adversarial positions is at the core of judicial function. This fundamental obligation cannot be discharged without the judge conducting an independent analysis, and articulating it in the appropriate form.

“The decision must be reasonably intelligible to the parties, and provide the basis for meaningful appellate review.”

The Edmonton decision follows on the heels of a case argued on Tuesday before the Supreme Court
that asked when and under what circumstances a judge can copy the submissions of a party without attribution. * * *

[A]n appeal court ordered a new trial last year after two out of three judges on a panel ruled that Groves plagiarized 321 out of the 368 paragraphs in his own judgment — copying them almost word for word, without attribution, from the applicant’s written submission.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Courts in general

Ind. Law - More on: Lawyer Overhears Conversation About NCAA Probe of Hoops Star and Reveals Her Concerns

Question: Do NCAA lawyers located in Indianapolis need to be licensed to practice law in Indiana?

This question has come up before in the business world with in-house corporate counsel and as I recall, the answer was yes.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Indiana Law

Ind. Law - Lawyer Overhears Conversation About NCAA Probe of Hoops Star and Reveals Her Concerns

"Ind. Law" because the NCAA is headquartered in Indianapolis.

Debra Cassens Weiss of the ABAJournal has this entry today that links to several national stories. The LA Times story begins:

NEW YORK — The NCAA is investigating a conversation pertaining to UCLA basketball player Shabazz Muhammad that a Memphis, Tenn., attorney said she overheard on an Aug. 7 commuter flight.

The attorney, Florence Johnson Raines, said she heard a man who said he was dating "an NCAA attorney" loudly telling people around him that his girlfriend had said Muhammad would never play college basketball this season because he broke rules.

Raines emailed a letter to Dennis Thomas, then a member of the NCAA infractions committee, saying she was concerned that what should have been a confidential matter was being discussed in such a way.

From the NY Times column:
On Thursday, the day before the appeal ruling was due, a remarkable article appeared in The Los Angeles Times. Florence Johnson Raines, a Memphis lawyer, told a reporter that she had been on an airplane in early August and overheard a man bragging that his girlfriend “Abigail” was going to bring down Muhammad, whose family, he said loudly, was “dirty and they were taking money and she’s going to get them.” This indiscretion came only a week after the N.C.A.A. had asked for documents and three months before the N.C.A.A. declared Muhammad ineligible.

Is it a surprise that, the very next day, the N.C.A.A. restored Muhammad’s eligibility? Not after that revelation. Abigail, of course, was Grantstein [ NCAA assistant director of enforcement, Abigail Grantstein], and she had apparently breached the confidentiality the N.C.A.A. always insists on — indeed that she herself insists upon when she conducts interviews. Far worse, she appeared to have made up her mind about Muhammad’s guilt before conducting her investigation. The boyfriend’s seeming delight in Muhammad’s plight had offended Raines, which is why she spoke to The Los Angeles Times.

The N.C.A.A. now says it is investigating the overheard conversation because it wants to protect “the integrity” of its process. For those of us who never believed that N.C.A.A. investigations were conducted with integrity, however, it was a case of suspicions confirmed.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides two Indiana cases today

In US v. Lincoln Plowman (SD Ind., McKinney), a 15-page opinion, Circuit Judge Manion writes:

Lincoln Plowman was a local government official in Indianapolis, Indiana, when he accepted a bribe from an undercover FBI agent. Prior to trial, the government filed a motion in limine seeking to preclude Plowman from arguing an entrapment defense. The district court granted the motion. A jury then convicted Plowman of federal-funds bribery and attempted extortion under color of official right. Plowman appeals, and argues that the district court erred when it precluded him from arguing entrapment to the jury. We affirm Plowman’s conviction. * * *

The FBI conducted a standard sting operation that did not induce Plowman to accept a bribe. To argue entrapment to a jury, Plowman needed to provide sufficient evidence of both inducement and a lack of predisposition, but he failed to establish the first element. Because the district court did not err in granting the government’s motion in limine on the entrapment defense, we AFFIRM Plowman’s conviction.

In Shane A. Holloway v. Delaware Co. Sheriff (SD Ind., Magnus-Stinson), a 25-page opinion, Circuit Judge Flaum writes:
On September 29, 2009, Shane Holloway was arrested without a warrant and detained in the Delaware County Jail. Although Holloway had a probable cause determination the day after his arrest and an initial appearance in front of a judicial officer within three days of his arrest, he was detained for nine days without having any charges filed against him. During the time he spent in the Delaware County Jail, Holloway received care from the jail’s medical staff. Before his detention, Holloway had been taking prescribed Oxycontin and other medications to treat chronic pain caused by his Klippel-Trenaunay Syndrome. The jail physician did not believe that Oxycontin was necessary to treat Holloway’s chronic pain and he instead prescribed non-narcotic pain medications and other medications to prevent narcotic withdrawal symptoms. After the prosecutor did not file charges against Holloway within the time allowed by the court, Holloway was released from the jail and was admitted to a hospital, during which time he resumed his regimen of Oxycontin. In August 2010, Holloway filed suit under 42 U.S.C. § 1983, alleging that the Delaware County Sheriff (“the Sheriff”) violated his rights by detaining him without charges for nine days and that the jail physician and two of his attending nurses violated his constitutional rights by acting with deliberate indifference as to his serious medical condition. The district court granted summary judgment in defendants’ favor. For the reasons set forth below, we affirm.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In Richard Troy Dunno v. Ronalee Rasmussen, a 9-page opinion, Judge Brown writes:

Dunno argues that the trial court improperly assessed attorney fees against him because Ind. Code § 34-26-5-9 allows for a trial court to order only a respondent to pay attorney fees. Dunno argues that “[a]llowing the trial court to award attorney fees against someone petitioning for a protective order would undoubtedly have a chilling effect and cause some victims of domestic violence to forgo making a legitimate plea for protection.” Appellant’s Brief at 7. Dunno also claims that the record does not support an attorney fee assessment under Ind. Code § 34-52-1-1(b). * * *

While Dunno failed to appear at the hearing and the court found that Rasmussen presented evidence that she was not the individual that caused Dunno to receive stitches, we cannot say that the record supports the conclusion that Dunno’s action was frivolous, unreasonable, or groundless, that Dunno continued to litigate after his claim clearly became frivolous, unreasonable, or groundless, or that he litigated the action in bad faith. Accordingly, we conclude that Dunno has made a prima facie showing that the award of attorney fees was improper. See Dorothy Edwards Realtors, Inc. v. McAdams, 525 N.E.2d 1248, 1253 (Ind. Ct. App. 1988) (concluding that appellant had made a prima facie showing on appeal that the award of attorney fees was inappropriate and should be reversed), reh’g denied.

In Cynthia L. Seleme v. JP Morgan Chase Bank, National Association, as successor by merger to Chase Home Finance, a 21-page opinion, Judge Brown writes:
Cynthia Seleme appeals the trial court’s order denying her motion for relief from judgment. Seleme raises one issue which we revise and restate as whether the court abused its discretion in denying her motion for relief from judgment following a complaint filed by Chase Home Finance LLC (“Chase”) to foreclose on her residential mortgage. We affirm.
NFP civil opinions today (8):

Todd Baker and Susan Baker v. Marathon Pipe Line, LLC (NFP)

Paulette Petkovich, et al. v. Prime Contractors Co., Inc. (NFP)

Carmel Lofts LLC and Keystone Construction Corp. v. Elbrecht Investments, LLC (NFP)

In the Matter of the Term. of the Parent-Child Rel. of B.T., C.K. and D.K.; D.K. v. Indiana Dept. of Child Services (NFP)

In the Matter of the Commitment of L.W. v. Wishard Health Services, Midtown Community Mental Health Center (NFP)

In the Matter of the Term. of the Parent-Child Rel. of J.R. and L.R.; and J.E. v. Indiana Dept. of Child Services (NFP)

Gerald E. Smith v. Ronda K. (Smith) Busch (NFP)

Edward Graveline v. Melina (Graveline) Peyovich (NFP)

NFP criminal opinions today (10):

A.M. v. State of Indiana (NFP)

Daniel R. Fuquay, Sr. v. State of Indiana (NFP)

Dennis Vermillion v. State of Indiana

Damian Ray Ramirez v. State of Indiana (NFP)

Jose Gonzalez v. State of Indiana (NFP)

Dequincy Lopez v. State of Indiana (NFP)

Ivan Calderon v. State of Indiana (NFP)

John R. Northern v. State of Indiana (NFP)

Dannie Engram v. State of Indiana (NFP)

Washaun Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Ind. App.Ct. Decisions

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

Updating yesterday's ILB entry, here is the link to the oral argument. It starts at 11.

Posted by Marcia Oddi on Tuesday, November 20, 2012
Posted to Upcoming Oral Arguments

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:

From Saturday, November 17, 2012:

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.)

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

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, November 20th

Wednesday, November 21st

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

Monday, November 26th

Tuesday, November 27th

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.


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

Sunday, November 18, 2012

Ind. Courts - A day, and ultimately, a year, in the life of one Indiana juvenile court

On Dec. 10, 2011 Dave Bangert of the Lafayette Journal Courier had a very long column on a day in the life of a juvenile court. The ILB linked to it at the time, and I'm happy to report that the entire JC story is still available online. It began:

So where do you start in telling about a Wednesday in late November in Tippecanoe Superior Court 3, one that more than a few regulars in the court where juvenile and family matters are heard chalk up as a typical day?
Today Mr. Bangert has an equally lengthy follow-up story, headed "A day in juvenile court: Revisited | Turmoil, kids on the brink and real redemption play out in the course of a year." Today's column begins:
A full day spent in Tippecanoe Superior Court 3, the county’s juvenile court, is enough to ask: Where do you start to tell about the tragic, the sad, the horrific and the dumbfounding stories that unfold, one after another, in that courtroom?

Tracing those cases nearly a year later is enough to ask: Does it ever end?

“These cases are long,” said Judge Loretta Rush, Tippecanoe County’s juvenile judge until Nov. 7, when she was sworn in as an Indiana Supreme Court justice. “You do everything you can to keep them moving. To find answers for these families. To protect those kids. Always to protect those kids.”

Starting with one day’s caseload — in this instance, the ones heard Nov. 30, 2011 — it’s easy to see how bad decisions grow strings that don’t just get longer, but tend to get knotted, tangled and more complicated for everyone involved.

“There are hundreds and hundreds of these cases,” Rush said in her final week in the Tippecanoe County Courthouse. “Once you know this is going on, you can’t ignore it. I can’t.”

Posted by Marcia Oddi on Sunday, November 18, 2012
Posted to Indiana Courts

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?

The question is presented in this fascinating opinion piece in today's Muncie Star Press, by Larry Riley, who teaches English at Ball State University. Here are some quotes:

Last week saw the first official court hearing in Ball State University v. David and Jane Hiatt et al, the et al including directors of a trust and Chris Hiatt, operator of Hiatt Printing.

Hiatt Printing’s main office is on Wheeling north of Centennial, but a satellite office sits just off BSU’s campus on McKinley, exactly where the university envisions a $26 million hotel and immersive learning program for several majors related to travel, hospitality and food services among others.

Hiatt and family have declined to sell their property for $400,000, the last price Ball State offered. * * *

Given no sales agreement, university trustees authorized use of eminent domain condemnation through court, a controversial power government has to take property when needed to fulfill necessary government functions.

The process includes a court appointing a pair of appraisers to come up with a fair-market value for the property, which the government must pay. * * *

In large part, the hearing was for Circuit Court 1 Judge Marianne Vorhees to disclose to both sides — though nothing new to local counsel, such as Ball State’s attorneys Jim Williams and Scott Shockley of Defer-Voran — her connections to the university.

Vorhees said she consulted with Indiana’s Commission on Judicial Qualifications, who agreed that her ties to Ball State are not of the nature or to the degree that would demand she recuse herself and step away from the case.

Still, her connections would “require disclosure,” in her words, to give either party the option of asking for a change of judge.

Voorhees was a softball-playing athlete for Ball State — left fielder, I believe. The daughter of a legendary local coach, Francis Lafferty — McCulloch Park’s baseball field is named for him — she was always involved in sports.

Vorhees was in Ball State’s first class of women student-athletes to receive scholarships at Ball State and twice her teams won college state championships.

She graduated in 1980.

She’s since been heavily involved in the Cardinal Varsity Club, a sports booster group at Ball State, serving once as president and she said she’s currently on the board.

She also served on the search committee that this year recommended the hiring, since done, of current athletic director Bill Scholl, from Notre Dame, where Vorhees went to law school, finishing in 1983. * * *

As plaintiffs, Ball State filed in Vorhee’s court, seemingly happy with her presiding. The defendants told the court they’d like to consider their options for several days.

The judge made plain that she’d certainly like to stay on the case, a case, she said, “with some interesting legal issues. Most attorneys around here,” she said to Hiatt’s Indianapolis lawyers, “will tell you I love interesting legal cases.” * * *

“There is no case law on this,” Defense counsel Phil Severs told me after the hearing. So what gets decided will establish precedent.

One might presume that whoever loses at the trial court level would appeal the decision, and while Ball State wants the case on a fast track, you’d have to think a final resolution will take years.

The issue Hiatt’s side wants to address is “whether the taking is legitimate or not, which is central to the case,” Sever told the court. The defendants feel building and operating a hotel isn’t part of the educational mission of the school.

Ball State disagrees.

Arguments will focus on state law written after a 2005 U.S. Supreme Court ruling allowed governments to take private property from one owner and convey it to another owner if subsequent development benefits the community.

In response, several states, including Indiana, wrote new laws to prevent government confiscation for non-government use. Ball State vs. Hiatt appears to be the first to test exactly what Indiana’s law means.

ILB: Here is the website of the law firm Sever Storey, identified as eminent domain attorneys representing landowners. Mr. Sever is located in Carmel.

The 2005 SCOTUS decision mentioned in the story is of course Kelo v. City of New London (6/23/05) (ILB entry here).

This ILB entry from January 8, 2006 includes a link to the post-Kelo bill that ultimately became law in Indiana.

Here is a full list of the many earlier ILB entries mentioning Kelo.

Finally, ILB readers will recall that Hon. Marianne L. Vorhees, Delaware Circuit Court 1, was a strong contender this fall for the Supreme Court vacancy to which now-Justice Loretta Rush was ultimately named.

Posted by Marcia Oddi on Sunday, November 18, 2012
Posted to Indiana Courts

Saturday, November 17, 2012

A teaching moment - A look at techniques for keeping emails secrets, and their use [Updated]

Nov. 13, 2012 - "David Petraeus, Paula Broadwell’s email secret" from Kevin Robillard of Politico briefly describes their use of "an email technique favored by Al Qaeda."

Nov. 13, 2012 - "Instead of 'Dead Dropping,' Petraeus and Broadwell Should Have Used These Email Security Tricks," is the headline to this article by Ryan Gallagher of Slate, states that:

... if Petraeus and Broadwell had been savvy enough to use encryption and anonymity tools, their affair would probably never have been exposed. If they had taken advantage of PGP encryption, the FBI would have been able to decipher their randy interactions only after deploying Trojan-style spyware onto Broadwell’s computer. Further still, if the lovers had only ever logged into their pseudonymous Gmail accounts using anonymity tools like Tor, their real IP addresses would have been masked and their identities extremely difficult to uncover.

But then it is unlikely that they ever expected to come under FBI surveillance. Their crime was a moral one, not a felony, so there was no real reason to take extra precautions. In any other adulterous relationship a pseudonym and a dead drop would be more than enough to keep it clandestine, as my Slate colleague Farhad Manjoo noted in an email.

Broadwell slipped up when she sent the harassing emails—as that, as far as we know, is what ended up exposing her and Petraeus to surveillance. Whether the harassment was serious enough to merit email monitoring is still to be established, as Emily Bazelon writes on “XX Factor.” It goes without saying, however, that the real error here was ultimately made by Petraeus. If he had stayed faithful to his wife of 38 years in the first place, he’d still be in charge at the CIA—and I wouldn’t be writing about how he could have kept his adultery secret more effectively by using encryption.

Today, Nov. 16, in a long NY Times story titled "Trying to Keep Your E-Mails Secret When the C.I.A. Chief Couldn’t", Nicole Perlroth makes many of the same points and discusses the same techniques/software. For example:
Technically speaking, the undoing of Mr. Petraeus was not the extramarital affair, per se, it was that he misunderstood the threat. He and his mistress/biographer, Paula Broadwell, may have thought the threat was their spouses snooping through their e-mails, not the F.B.I. looking through Google’s e-mail servers.

“Understanding the threat is always the most difficult part of security technology,” said Matthew Blaze, an associate professor of computer and information science at the University of Pennsylvania and a security and cryptography specialist. “If they believed the threat to be a government with the ability to get their login records from a service provider, not just their spouse, they might have acted differently.”

To hide their affair from their spouses, the two reportedly limited their digital communications to a shared Gmail account. They did not send e-mails, but saved messages to the draft folder instead, ostensibly to avoid a digital trail. It is unlikely either of their spouses would have seen it.

But neither took necessary steps to hide their computers’ I.P. addresses. According to published accounts of the affair, Ms. Broadwell exposed the subterfuge when she used the same computer to send harassing e-mails to a woman in Florida, Jill Kelley, who sent them to a friend at the F.B.I.

Authorities matched the digital trail from Ms. Kelley’s e-mails — some had been sent via hotel Wi-Fi networks — to hotel guest lists. In cross-checking lists of hotel guests, they arrived at Ms. Broadwell and her computer, which led them to more e-mail accounts, including the one she shared with Mr. Petraeus.

The long story concludes:
It is hard to pull off one of these steps, let alone all of them all the time. It takes just one mistake — forgetting to use Tor, leaving your encryption keys where someone can find them, connecting to an airport Wi-Fi just once — to ruin you.

“Robust tools for privacy and anonymity exist, but they are not integrated in a way that makes them easy to use,” Mr. Blaze warned. “We’ve all made the mistake of accidentally hitting ‘Reply All.’ Well, if you’re trying to hide your e-mails or account or I.P. address, there are a thousand other mistakes you can make.”

In the end, Mr. Kaminsky noted, if the F.B.I. is after your e-mails, it will find a way to read them. In that case, any attempt to stand in its way may just lull you into a false sense of security.

Some people think that if something is difficult to do, “it has security benefits, but that’s all fake — everything is logged,” said Mr. Kaminsky. “The reality is if you don’t want something to show up on the front page of The New York Times, then don’t say it.”

[More] An ACLU blog has a good Nov. 13th article by Chris Soghoian, headed "Surveillance and Security Lessons From the Petraeus Scandal."

The article is quoted in this Nov. 14th story by Peter Maass in The New Yorker News Desk. A quote:

[T]he Petraeus scandal appears to show just how much surveillance the F.B.I. and other law-enforcement agencies can conduct without a judge or a company telling them, “No, you can’t have that.”

For instance, in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose twenty-six per cent in the latest six-month reporting period, to nearly eight thousand; the company said that it complied with ninety per cent of the requests, either fully or partially. * * *

It’s not just e-mail. In July, Representative Edward Markey, a Democrat from Massachusetts, cajoled major cell-phone carriers into disclosing the number of requests for data that they receive from federal, state, and local law-enforcement agencies: in 2011, there were more than 1.3 million requests. As ProPublica reported at the time, “Police obtain court orders for basic subscriber information so frequently that some mobile phone companies have established websites—here’s one—with forms that police can fill out in minutes. The Obama Administration’s Department of Justice has said mobile phone users have ‘no reasonable expectation of privacy.’”

There’s a particularly cruel irony in all of this: if you contact your cell-phone carrier or Internet service provider or a data broker and ask to be given the information on you that they provide to the government and other companies, most of them will refuse or make you jump through Defcon levels of hops, skips, and clicks. Uncle Sam or Experian can easily access information that shows where you have been, whom you have called, what you have written, and what you have bought—but you do not have the same privileges.

[Updated] Ashby Jones and Joe Palazzolo have this Nov. 16th post in the WSJ Law Blog, headed "Affair Highlights Uncertainty of Email-Privacy Laws."

Posted by Marcia Oddi on Saturday, November 17, 2012
Posted to A teaching moment | General Law Related

Ind. Decisions - "Appeals court OKs Lebo trial in LaPorte HS volleyball sex case" [Updated]

Yesterday's 2-1 opinion in Marybeth Lebo v. State of Indiana (ILB summary here) is the subject of a story today in the NWI Times, reported by Dan Carden:

The Indiana Court of Appeals gave the go-ahead Friday for a trial to determine whether a former LaPorte High School volleyball coach failed to report an illegal sexual relationship between another coach and a student athlete.

MaryBeth Lebo faces two misdemeanor charges of failing to report child abuse or neglect for allegedly not informing the school, police or Department of Child Services that Robert Ashcraft was engaged in a sexual relationship with the 15-year-old girl.

Lebo is also accused of instructing players not to tell anyone about Ashcraft's 2007-08 relationship with the girl, according to court records.

Ashcraft, 48, was convicted last year of four felonies involving sexual misconduct and sentenced to 21 years in prison.

In February, LaPorte Superior Judge Jennifer Koethe denied Lebo's motion to dismiss the failure-to-report charges.

Lebo argued in her appeal the charges were barred by the two-year statute of limitations and were not specific enough to prove she was aware of Ashcraft's illegal acts.

In a 2-1 decision, the appeals court rejected Lebo's statute-of-limitations claim because Lebo allegedly helped conceal Ashcraft's crime. The court also said the failure to report child abuse is a continuing offense under which the duty to report exists so long as a person is aware of the abuse.

In addition, the court said Indiana law does not require actual knowledge of child abuse to prompt a report, just a "reason to believe" abuse is occurring.

The Ashcraft relationship details in the charges against Lebo -- including his leaning on the girl's legs during a movie, putting his arm around her and acting like boyfriend and girlfriend -- met that standard, the appeals court said.

Judge John Baker dissented from that portion of the court's ruling.

He said, in retrospect Ashcraft's actions suggest an inappropriate relationship, but at the time "there is no way that a person in a similar position as Lebo would 'feel certain' that Ashcraft was engaging in illegal sexual acts."

Charles Wilson of the AP reported:
According to court documents, Lebo felt uncomfortable with Ashcraft's physical overtures toward the girl during the 2007-2008 season but instructed her student players not to tell anyone what was going on. Lebo was charged in 2011 with failing to inform police or child protective services.

Lebo claimed the charges didn't prove she was aware of the relationship and that they weren't filed within the two-year statute of limitations.

But the appeals court said the allegations were strong enough to support the charge that Lebo helped to conceal Ashcraft's behavior. The judges ruled that under state law, even a suspicion of sexual abuse must be reported.

The court also said the clock didn't begin running on the statute of limitations until authorities became aware of her actions.

For background, start with this ILB entry from May 26, 2012, and this one from Nov. 30, 2011.

[Updated] Matt Fritz had this story in the Nov. 17th LaPorte Herald Argus.

Posted by Marcia Oddi on Saturday, November 17, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Monroe County "Courthouse now shinier and more solid after major makeover"

Dawn Hewitt reported Nov. 16th in the Bloomington Herald Times ($$) in a story that bgeins:

Monroe County’s iconic, grand old courthouse hasn’t looked this good since it was dedicated in 1907, and it has never been more structurally sound.

Its renovation, restoration and refurbishment were on public display during an open house Thursday night following work that shuttered it for more than a year.

Most of the work wasn’t visible: It’s under the floors, behind the ceiling and walls. A new structural support system will keep the building strong for its second century and beyond.

A year and a half ago, floors sagged — a couple inches out of level in spots. The building appeared to be slowly collapsing in on itself. New steel beams in the ceilings of the basement, first and second floors and in the walls should prevent that from happening again for a very long time.

Open house visitors also didn’t get to see the basement, where a new, energy-efficient boiler and chiller are housed. Replacing them wasn’t part of the original rehab plan, but it made sense to do while the whole building was being overhauled.

And while the ceilings and walls were ripped up, the building was rewired for the Internet age.

The bottom line: $5,015,615.63, not all from taxpayers. The Community Foundation for Bloomington and Monroe County footed the bill for historic preservation work. Cable franchise fees paid for the new lighting sound systems in the Nat U. Hill meeting room, where county council and commissioners meetings are broadcast on CATS TV.

Cassady Electric and Gayle Cook paid for a new lighting system that spotlights the murals just below the dome — murals recently cleaned by experts from the Indiana University Hope School of Fine Arts.

Posted by Marcia Oddi on Saturday, November 17, 2012
Posted to Indiana Courts

Friday, November 16, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Kohl's Indiana, L.P. and Kohl's Dept. Store, Inc. v. Dennis Owens, et al. , a 16-page opinion, Judge Vaidik writes:

Kohl’s Indiana, L.P., and Kohl’s Department Stores, Inc., (collectively “Kohl’s”) appeal the trial court’s grant of summary judgment in favor of the Evansville-Vanderburgh County Area Plan Commission (“Plan Commission”) and the Board of Commissioners of Vanderburgh County (“Board of Commissioners”) on Kohl’s equitable claims for contribution and unjust enrichment for expenses that Kohl’s incurred when its developer failed to complete construction of a new Kohl’s Department Store on the west side of Evansville. We conclude that the trial court properly entered summary judgment in favor of the Plan Commission for both claims because the Commission never accepted a common obligation to complete the project, never entered into any sort of agreement with Kohl’s concerning the project, and there is no evidence that a benefit was conferred upon the Plan Commission at the Commission’s express or implied consent. We also conclude that the trial court properly entered summary judgment in favor of the Board of Commissioners for both claims because Kohl’s and the Board entered into an agreement which required Kohl’s to complete the public-infrastructure improvements at Kohl’s expense, and when the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Finally, we conclude that the Board of Commissioners is not entitled to appellate attorney’s fees. We therefore affirm the trial court.
In The Marling Family Trust v. Allstate Ins. Company , a 9-page opinion, Judge Vaidik writes:
The Marling Family Trust (“the Trust”) appeals the trial court’s grant of summary judgment in favor of Allstate Insurance Company. Upon review of the designated evidence, we conclude that the Trust acquired an equitable lien on insurance proceeds available under Thomas M. Pipes’ Allstate insurance policy. We further conclude that the Trust protected its equitable interest in the policy proceeds by giving Allstate notice of its interest before it distributed any policy proceeds. For this reason, the trial court erred in granting summary judgment for Allstate. We reverse and remand.
In Marybeth Lebo v. State of Indiana, a 19-page, 2-1 opinion, Judge Bradford writes:
Having convicted former LaPorte High School junior varsity volleyball coach Robert Ashcraft of multiple sex crimes against a minor student athlete, the State of Indiana charged Marybeth Lebo, the school’s varsity volleyball coach, with failure to report child abuse or neglect. Lebo appeals the trial court’s denial of her motion to dismiss these charges, arguing they are barred by the statute of limitations and lack sufficient specificity. We conclude that failure to report is a continuing offense to which the statute of limitations does not apply and, alternatively, that Lebo’s alleged instruction that her volleyball players not discuss Ashcraft’s conduct with their parents was sufficient to invoke the concealment exception to the statute of limitations. We also conclude that the charging informations, together with testimony from the probable cause hearing, allege sufficiently specific facts from which Lebo can prepare her defense. Therefore, we affirm. * * *

ROBB, C.J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [which begins, at p. 14 of 19]I agree with the majority’s determination that the statute of limitations had not run with respect to the State’s ability to bring charges against Lebo. More particularly, I believe that Lebo’s concealment, properly alleged in the charging informations, tolled the statute of limitations as it applied to her such that the charges filed against her in September 2011 were not time-barred. I part ways only briefly on this issue to note my belief that the tolling ceased when the State had probable cause to arrest Ashcraft, because at this time the State could have discovered through due diligence whether Lebo, in her role as K.T.’s coach and as Ashcraft’s superior, had failed to make a report required under Indiana Code sections 31-33-5-1 or 31-33-5-2. Under either interpretation of when the tolling stopped, however, the charges against Lebo were brought within the two-year statute of limitations. * * *

Although we may hope that individuals make a report any time child abuse or neglect is suspected, the duty to report has not been imposed by our legislature until one has “reason to believe” that abuse or neglect has occurred. My view is that there was no evidence that such “reason to believe” existed here, and therefore, the trial court should have granted Lebo’s motion to dismiss.

NFP civil opinions today (3):

Mattie A. Tedrow and Mary L. Pierson v. Coyeville Belcher as Personal Rep. of the Estate of Everett D. Belcher, Jr.; and Lynn R. Belcher (NFP)

BCC Products, Inc. and Roger Brunette, Jr. v. Roger Brunette, Sr., and Pauline Brunette (NFP)

Michael Ramos v. Robertson's Apartments (NFP)

NFP criminal opinions today (6):

Sharmain J. Smith v. State of Indiana (NFP)

Roosevelt D. Brooks v. State of Indiana (NFP)

William Emry v. State of Indiana (NFP)

Albert Lindsey v. State of Indiana (NFP)

Bernard Simmons v. State of Indiana (NFP)

Jerry Kaiser, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 16, 2012
Posted to Ind. App.Ct. Decisions

Courts - "State chief justices and court administrators met this week in Washington, D.C., to discuss policy priorities for the upcoming year and beyond"

Terry Carter has this article at ABA Journal.com. A quote from near the end:

In Utah, the civil courts are now paperless and the entire system will be, said panelist Daniel Becker, Utah State Court Administrator. “We’re asking judges to go on the bench without files, (and with) only a computer.”

Panelist Eric Hutchings, a member of the Utah House of Representatives, says the court system became so candid and transparent with all its financial records and spending that it gained the legislature’s trust for when it makes budgetary requests.

“They shook up the courts like I’ve never seen any corporation, public or private organization anywhere shake it up,” said Hutchings, who also is a financial services professional. Court system leaders also discussed detailed guidance in a compendium developed by the National Center for State Courts for helping legislatures understand the unique budgeting problems facing courts. It is titled “Principles for Judicial Administration.”

More on Utah in this article in Governing by Dylan Scott headed "State Courts Go Digital as Budget Pressures Mount." A quote:
Pressed by those fiscal realities, Utah brought its courts into the 21st century. They started by switching to digital audio, instead of professional court recorders, to document all court activity. The civil side of the system has gone completely paperless, with all filings occurring online. Payments are made through online transactions. Warrants are filed through an electronic system. The courts also established an online self-help resource, designed particularly for self-representing litigants, and set specific performance metrics to gauge how they were doing.
[More] WSJ Law Blog reports this morning: "Budget Shortfall Closes 10 Los Angeles Courthouses."

Posted by Marcia Oddi on Friday, November 16, 2012
Posted to Courts in general

Ind. Courts - "Surbeck 1st Hoosier to win Rehnquist award"

Updating this ILB entry from Aug. 14th, Brian Francisco reports today in the Fort Wayne Journal Gazette in a story that begins:

WASHINGTON – Allen County Superior Court Judge John Surbeck received a national award for judicial excellence Thursday for achievements he said were born of frustration.

In a ceremony at the U.S. Supreme Court attended by more than 250 people, Surbeck was presented the William H. Rehnquist Award by the National Center for State Courts.

The award was given to Surbeck by Supreme Court Chief Justice John Roberts. The honor is named for Roberts’ predecessor, who died in 2005.

Surbeck is the 17th recipient of the Rehnquist award and the first from Indiana.

He was saluted for starting the Allen County Re-Entry Court in 2001 and promoting the program since then. The court allows for the early release of prison inmates in exchange for closer court supervision – including random drug tests and ankle bracelets that monitor an offender’s whereabouts – than is typical in traditional parole and probation programs.

An Allen County judge since 1988, Surbeck recalled having grown “very frustrated” by the number of repeat offenders appearing in his court, and he decided his rulings and sentences in criminal cases “didn’t seem to make any difference.”

“Because as a public defender I had represented the first generation of these folks,” he said. As a judge, “I sentenced a second generation. And then 10 or 12 years in, I was sentencing the third generation for the same crimes. It was frustrating, and I didn’t know what to do. I wasn’t accomplishing what I thought I should.”

Posted by Marcia Oddi on Friday, November 16, 2012
Posted to Indiana Courts

Ind. Courts - "Who placed an audio recording of a Marion County Superior Court hearing onto YouTube?"

Amos Brown III asks in the Nov. 15th Indianapolis Recorder:

What I’m hearing in the streets

Who placed an audio recording of a Marion County Superior Court hearing onto YouTube? Speculation focuses on one of the plaintiffs in a hearing Oct. 22 that tried to strike President Obama’s name off the Indiana election ballot.

Dr. Orly Taitz, the noted anti-Obama “birther” activist, was suing the state to get the president’s name off the ballot. A hearing in Judge S.K. Reid’s court was Taitz and her five other plaintiffs’ opportunity to make their case.

They failed. Judge Reid ruled in favor of the state. But audio of the two hour plus hearing was posted onto YouTube Nov. 1. Publicizing audio of Indiana Superior Court proceedings is a violation of judicial rules and Indiana law. Those involved could lose their law licenses or be prosecuted.

Court officials are investigating this serious breach of legal ethics by a group that seemingly doesn’t want to follow any rules of law unless it helps their goal of belittling the elected president of the United States.

On Nov. 14th there was this post on the California-based Defend Our Freedoms Foundation, c/o Dr. Orly Taitz website, headed "Court reporter for Judge Reid legally sold the parties and attorneys the audio tape of the proceedings for $25 for each hearing."
There are some insane rumors going on.

Nobody has done any illegal recordings in Judge Reid courtroom.

The only thing that was told by Judge Reid during the hearing that she does not allow video recording and she does not allow cameras in the courtroom. There was no video recording and no cameras in the courtroom.

After each hearing the clerk for Judge Reid legally sold to the parties and attorneys the audio tape of the hearing for $25 and she gave a receipt.

I am intending to file an appeal of judge Reid’s decision to vacate trial and to dismiss the case after witnesses testified to forgery in Obama’s birth certificate and there was no rebuttal from the Attorney General.

I forwarded an audio tape of witness testimony in Reid trial to other judges, including Judge Wingate in Mississippi. Other judges should hear what transpired there.

Nobody ever violated any orders by Judge Reid. The only order she gave, was no video and no cameras.

Somebody, a third party, uploaded on you tube an audio tape, which was legally recorded by the court itself and was legally sold by the court itself, by the court reporter Julie, to a number of people.

A reader sent the ILB both of the above ...

Posted by Marcia Oddi on Friday, November 16, 2012
Posted to Indiana Courts

Thursday, November 15, 2012

Ind. Decisions - "Compensation Fund May not Dispute Liability in Med Mal Case"

The Supreme Court's Oct. 31st opinion in Stephen W. Robertson, Indiana Comm. of Insurance, as Admin. of Indiana Patient's Compensation Fund and The Indiana Patient's Compensation Fund v. B.O., A Minor, Lisa A. Ort and Kevin C. Ort (ILB summary here) is the subject of a story by Stephanie K. Jones in the Insurance Journal. It begins:

Indiana’s high court has ruled that the state’s fund established to cover excess damages in medical malpractice cases may not dispute the existence or cause of a plaintiff’s injury in a case in which the medical providers previously settled the claim, admitting liability.

The Indiana Supreme Court acknowledged that previously in some types of cases it has allowed the Indiana Patient’s Compensation Fund (PCF) to present evidence to dispute the existence or cause of injury.

In a case on appeal from the Marion Superior Court (No. 49D14-0706-CT-23482), however, the Court disagreed with the PCF’s arguments that “the final sentence of Indiana Code Section 34-18-15-3(5), which requires the trial court to ‘consider the liability of the health care provider as admitted and established,’” is inapplicable.

That inapplicability, according to PCF, would allow it to present evidence disputing the existence or cause of the patient’s injury.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Cracking down on public corruption by local government officials

The ILB had this post on Nov. 13th, including this quote from a WRTV6 news story:

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.
What about Illinois? The NY Times had this long story today by Steven Yaccino, headed "Former Official Pleads Guilty to Defrauding Illinois Town of $53 Million." It begins:
ROCKFORD, Ill. — Hundreds of horses. Multiple houses. A $2.1 million luxury motor home. In hindsight, they all pointed to the unfathomable: Rita A. Crundwell, while comptroller of a small town two hours west of Chicago, had raided public coffers for decades to pay for a lavish life and a horse-breeding business.

Ms. Crundwell, 59, pleaded guilty in federal court here on Wednesday to one count of wire fraud, after bilking $53 million from her hometown, Dixon, Ill. By then, Dixon was known by outsiders not only as the proud boyhood home of President Ronald Reagan, but also as home to what one federal official called “one of most significant abuses of public trust ever seen in Illinois.”

That is quite a distinction considering the state’s reputation for corrupt officials, including governors. Still, officials said, the continuing tale in Dixon comes as a harsh reminder about the potential for large crimes in small city governments, where oversight can sometimes be an afterthought.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

For publication opinions today (3):

In Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America , an 8-page opinion, Judge Vaidik writes:

Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underinsured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.
In In the Matter of the Term. of the Parent-Child Rel. of A.P. & Au.P.; M.H. & T.P. v. The Indiana Dept. of Child Services , a 15-page opinion, Judge Pyle writes:
M.H. (“Mother”) and T.P. (“Father”) appeal the termination of their parental rights as to their minor children, A.P. and Au.P. (collectively, “the children”).
We affirm.
In Derek Clanton v. State of Indiana , a 25-page, 2-1 opinion, Judge Baker writes:
Derek Clanton was found in possession of cocaine after he was stopped and searched by an off-duty police officer who was working part-time as a security officer for an apartment complex in a high crime area of Indianapolis. The cocaine was in a small plastic bag stuffed into a pen cap, and it was discovered after the officer removed the pen cap from Clanton’s pocket during a patdown of Clanton for weapons.

Claiming the cocaine was found during an unreasonable search and seizure in violation of the United States and Indiana Constitutions, Clanton filed a motion to suppress. The trial court denied the motion, and following a bench trial, Clanton was subsequently convicted of Possession of Cocaine, a class D felony.

We conclude that the trial court erred when it admitted the cocaine into evidence because the arresting officer was not entitled to further search the contents of the pen cap after determining that the pen cap was not a weapon. Because we find this issue to be dispositive, we do not specifically address whether the initial stop and patdown were proper under the circumstances presented here. In reaching this decision, however, we also conclude that the Fourth Amendment does not categorically fail to apply to off-duty police officers working as security officers on private property.

Accordingly, we reverse the judgment of the trial court. * * *

ROBB, C.J., concurs.
BRADFORD, J., concurs in part and dissents in part with opinion. [which begins, at p. 15 of 25] I agree with the majority that the stop conducted by Officer Smith implicated the constitutional protections provided by the Fourth Amendment and Article I, Section 11. However, I do not believe that either the stop or the subsequent search violated those constitutional protections. As such, I concur in part and respectfully dissent in part.

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: B.T. (Minor Child), and B.J.T. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Kurt E. Hinkle v. State of Indiana (NFP)

Jeffery Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. App.Ct. Decisions

Courts - "Pennsylvania Judges Sue over Mandatory Retirement Provision"

Joe Palazzolo of the WSJ Law Blog reported yesterday that begins:

Six Pennsylvania judges are suing to invalidate a state constitutional provision that requires them to retire at age 70.

Standing in their way is a 1990 decision by the U.S. Supreme Court, Gregory v. Ashcroft, that upheld a similar mandatory retirement requirement in Missouri. But the judges and their lawyers are hoping that advances in medicine, new research on aging and evolving law on the 14th Amendment’s Equal Protection Clause will help them sustain their challenge.

The challenge could have national implications. Thirty-three states and the District of Columbia enforce age limits for at least some of their judges, according to the National Center for State Courts.

What about Indiana? The Indiana General Assembly abolished all remaining mandatory age caps for trial court judges in 2011.

With respect to Supreme Court justices and Court of Appeals judges, Article 7, section 11 of the Indiana Constitution includes this provision:

Every such justice or judge shall retire at the age specified by statute in effect at the commencement of his current term.
The age currently specified by statute (IC 33-38-13-8) is seventy-five:
(a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.
For ILB background entries, start here.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Courts in general

Ind. Decisions - 7th Circuit: "For damages, child porn victims must show cause"

US v. Laraneta (ILB entry here), an Indiana case decided yesterday by the 7th Circuit, is the subject of this Thomson Reuters article by Terry Baynes headed "For damages, child porn victims must show cause, court says." The article begins:

Nov 14 (Reuters) - Two women who are seeking restitution from a man who viewed pornographic images taken of them when they were children must show that the defendant helped circulate the images, a federal appeals court ruled on Wednesday.

The 7th U.S. Circuit Court of Appeals, in Chicago, said the two victims must prove a causal link between their losses and a defendant's crime of possessing the images.

The issue, which has divided federal courts, could determine the extent to which victims of child pornography can recover money for medical costs, therapy and lost income from the people convicted of viewing their images.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Table of Title 35 definitions repealed and reenacted under a new citation

Prof. Schumm received this note yesterday:

I’ve run across something that I think is a potentially big problem that I’d like to run by you.

The legislature has recently moved some criminal statutes. I’ve already run into this problem twice, so I don’t think it was an insignificant number. Case in point is Obstruction of Justice, formerly IC 35-44-3-4, now IC 35-44.1-2-2. Two words in the page long statute were changed – “himself” was changed to “person” in two places.

Pulling the new statute in Westlaw gives you 0 notes of decisions. I’ve spoken to the Westlaw people, and they say they are powerless to include the annotations in the new home of the statute because LSA has classified this as a “repeal” rather than a “recodification.” That frankly makes no sense to me. There may be a good reason for doing that but it eludes me.

The result now, for the unaware or inexperienced researcher, is that there are apparently no decisions interpreting the statute. I think this is pretty hazardous.

Prof. Schumm responded:
The General Assembly moved scores of definitions, which I agree will cause a lot of problems. I just checked the Lexis annotations to the new statutory cite, which do include the old cases for the predecessor statute.

Here's a table of the new and old statutory cites and an explanation tracing how this situation occurred, from the ILB.

Unless you have the annotated statute books from 2011, I'm not sure how you will find cases relying on the predecessor statutes. You could run a Westlaw case search with the old statutory cite, but that will probably give you more chaff than wheat.

ILB: The ILB posted this Table on Sept. 1st. In a 2012 bill rearranging the criminal law statutes, the General Assembly repealed a large number of criminal definitions, and then reenacted them in another Indiana Code location. The Table I created allows you to match the earlier citation to a "new" definition. Then, as Prof. Schumm points out, you can go to an old, 2011 volume of West and review the annotation.

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Law

Ind. courts - Applications to replace Judge Moberly open until Nov. 30th

Supplementing this ILB entry from Oct. 24, the Governor's judicial appointments webpage announces:

Marion Superior Court Judicial Vacancy

The Governor’s Office is now accepting applications for Judge of the Marion Superior Court, due to the recent appointment of Judge Robyn L. Moberly. All applications must be completed and returned to the Governor’s Office by the close of business on Friday, November 30th, 2012. The Governor’s Office is also accepting recommendation letters for this vacancy during this time period

Posted by Marcia Oddi on Thursday, November 15, 2012
Posted to Indiana Courts

Wednesday, November 14, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Laraneta (ND Ind., Lozano), a 21-page opinion, Circuit Judge Posner writes:

The defendant pleaded guilty to seven counts of violation of federal child pornography laws, 18 U.S.C. §§ 2251(d)(1), 2252(a)(1), (a)(2), (a)(4), and was sentenced to 30 years’ imprisonment, to be followed by supervised release for the rest of his life, and also to pay restitution to two women, referred to pseudonymously as Amy and Vicky, in the amount of $3,367,854.00 and $965,827.64; pornographic images of them, as girls, were found in the defendant’s possession. The amount awarded Amy is identical to the amount she has requested, and usually been awarded, in literally hundreds of other criminal cases involving pornographic images of her. But the amount the judge ordered the defendant to pay Vicky subtracts the restitution that she has collected from other defendants. The appeal challenges the length of the defendant’s sentence and the amount of restitution that the judge ordered him to pay. The government defends the sentence but not the restitution award, and also challenges our allowing Amy and Vicky to intervene in this appellate proceeding; and let’s start there. * * *

To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Critics boiling over at cost of Purdue's growing administration"

John Hechinger of Bloomberg News reported this long story posted this morning on the IndyStar website. It begins:

J. Paul Robinson, chairman of Purdue Universitys faculty senate, strode through the halls of a 10-story concrete-and-glass administrative tower.

"I have no idea what these people do," said Robinson, waving his hand across a row of offices, his voice rising.

The 59-year-old professor of biomedical engineering is leading a faculty revolt against bureaucratic bloat at the public university in Indiana. In the past decade, the number of administrative employees jumped 54 percent, almost eight times the growth of tenured and tenure-track faculty.

Purdue has a $313,000-a-year acting provost and six vice and associate vice provosts, including a $198,000 chief diversity officer. It employs 16 deans and 11 vice presidents, among them a $253,000 marketing officer and a $433,000 business school chief.

Administrative costs on college campuses are soaring, crowding out instruction at a time of skyrocketing tuition and $1 trillion in outstanding student loans. At Purdue and other U.S. college campuses, bureaucratic growth is pitting professors against administrators and sparking complaints that tight budgets could be spent more efficiently.

"We're a public university," Robinson said. "We're here to deliver a high-quality education at as low a price as possible. Why is it that we can't find any money for more faculty, but there seems to be an almost unlimited budget for administrators?"

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to Indiana Government

Law - "Which Law & Order Characters Did Their Jobs Best?"

David Haglund, Katie Kilkenny, and Holly Allen have the answer in this article, complete with 5 graphs. It begins:

Two and a half years ago, Matthew Belinkie at Overthinking It announced a plan to “crowdsource a list of how all 456 episodes of Law & Order ended.” This morning, he produced the wonderful results: a big public database which lists the verdicts in every case tried by the hardworking district attorneys, detectives, et al, across 20 seasons of the beloved procedural. He also created several charts that help visualize the data, and encouraged others to mine the numbers as well.

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

For publication opinions today (2):

In John Fox v. Nichter Construction Co., Inc., a 20-page, 2-1 opinion, in a case involving the Wage Payment Statute and the Wage Claims Statute, Judge Kirsch writes:

John Fox (“Fox”), the employee-claimant, appeals from the trial court’s denial of his motion to correct error from an order of dismissal with prejudice, contending that the trial court erred in dismissing his wage claim for lack of subject matter jurisdiction. * * *

The trial court erred by dismissing Fox’s claim with prejudice for lack of subject matter jurisdiction. We reverse the trial court’s order and remand this matter to the trial court with instructions to enter an order that Fox’s claim is dismissed without prejudice under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Thus, Fox may proceed to refile his claim setting forth the reassignment by the DOL. “A dismissal without prejudice is not a determination of the merits of a complaint and does not bar a later trial of the issues.” Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d 1168, 1170 (Ind. Ct. App. 1982).

Affirmed in part, reversed in part, and remanded.

NAJAM, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 19] I believe dismissal of Fox’s wage claim action was correct, and I therefore respectfully dissent. Fox’s case is not factually or legally distinguishable from Quimby v. Becovic Mgmt Group, Inc., 946 N.E.2d 30, 33-34 (Ind. Ct. App. 2011), reh’g denied, trans. denied, and thus Quimby controls. * * *

The amici’s explanation of the DOL’s intent is informative, and its recent changes are a helpful step toward clarifying the procedures by which a voluntarily-separated employee may pursue wage claims. But I do not think Quimby may be distinguished on those grounds.

In Clinton Couch v. State of Indiana, a 10-page opinion, Judge Bradford writes:

Couch ultimately pled guilty to five counts of Class A felony child molesting, Class C felony child exploitation, and Class D felony possession of child pornography, and the trial court sentenced him to an aggregate sentence of ninety-one years of incarceration. Couch contends that his sentence is inappropriately harsh and that the trial court abused its discretion in admitting, at sentencing, the testimony of two other alleged victims. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "Purdue, IU pulling for Texas; affirmative action ruling could mean big changes"

That is the headline to Eric Weddle's long story today in the Lafayette Journal Courier. Some quotes:

Purdue and Indiana universities are asking the U.S. Supreme Court to tread lightly in how it reviews affirmative action on college campuses.

The court is deliberating whether race should continue as a factor in college admissions or be struck down, a change that could alter the makeup of colleges across the country, higher education experts said.

A decision in Fisher v. University of Texas at Austin is not expected until spring, but if the court reverses a 2003 landmark case that endorsed the use of race as a factor at a Michigan college, it could affect the demographics of future freshman classes, said Ada Meloy, general counsel for the American Council of Education.

“If the Supreme Court would declare that the Michigan case was wrong, that would make most institutions, like IU and Purdue, forbidden to use race as one of the facts they consider in the holistic review of many factors for admissions,” she said. * * *

Officials at Purdue and Indiana universities would say little or nothing this week about the case and how it could alter admission policy. However, the two universities, as well as seven other research universities, signed on to an amicus brief that was submitted in support of the University of Texas. Dozens of other schools have filed their own briefs.

ILB: Here is the SCOTUSblog webpage on Fisher v. University of Texas at Austin. Oral argument was held in this case on Oct. 10, 2012. Here is the 98-page transcript.

Here is the Brief amici curiae of Leading Public Research Universities, filed Aug. 13, 2012.

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court "upheld the University of Evansville's decision to fire a tenured professor accused of violating its sexual harassment policy"

Yesterday's Supreme Court decision in John Haegert v. University of Evansville (ILB summary here) is the subject of a story today by Colleen Flaherty in Inside Higher Ed.

Posted by Marcia Oddi on Wednesday, November 14, 2012
Posted to Ind. Sup.Ct. Decisions

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:

Greetings:

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.

Thanks.

Judge Tim Crowley
Vincennes

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Indiana Courts

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:

In a third case, Odonis D. Parker v. State of Indiana (a March 15, 2012 COA opinion which was originally NFP, until Appellee's motion to publish was granted), the then-four justices' votes split: "David and Massa, JJ., vote to deny Transfer. Dickson, C.J., and Rucker, J., vote to grant Transfer."

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.

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Robin R. Gordon v. Benny B. Gordon (NFP)

NFP criminal opinions today (2):

Kevin Perry v. State of Indiana (NFP)

Joseph Ridge v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Ind. App.Ct. Decisions

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.

Here is the March 30, 2012 COA in D.C. v. J.A.C. Here is the 2-1, Sept. 11, 2011 COA opinion in Haegert v. Univ. of Evansville.

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Ind. Sup.Ct. Decisions

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.

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Indiana Courts

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.

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.

Here, from the sidebar, are the judicial candidates:
Six people have applied to fill the remaining four years and one month of Loretta Rush’s term:
• 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.
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.

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Tuesday, November 13, 2012
Posted to Indiana Government

Monday, November 12, 2012

Ind. Law - "Consider legalities when renegotiating farmland leases"

From a long article by Jennifer Stewart of Purdue University, published at Drovers Cattle Network:

As the end of grain harvest draws near, many landlords and tenants will be renegotiating or terminating farmland lease agreements - a process full of legal requirements, a Purdue University Extension agricultural economist warns.

First and foremost, lease agreements and terminations should be in writing. While oral farmland lease agreements are as legal as written leases in Indiana, Gerry Harrison said some details of the oral agreement might be disputed.

“Oral leases should be avoided,” he said. “There are many problems with oral leases, including what is or was the actual agreement.”

Earlier this year, the Indiana Court of Appeals ruled that a lease termination is required to be in writing, which protects both landlord and tenant.

“It could be very risky to rely on an oral notice to terminate a lease,” Harrison said. “Further, if a new leasing arrangement is needed with the existing tenant and a lease agreement does not come, the tenant, without a proper notice to quit, likely has the land for the coming year at the same rent or arrangement as the current year.”

Indiana law also requires that a notice to quit, or terminate, a lease needs to be delivered by a landlord or tenant in a timely manner. For a lease of at least a year, law requires notice to be delivered three months before the end of the lease year.

If a lease doesn’t specify the lease-year end, Harrison said it’s customary in Indiana to consider the end of February of the coming crop year as the lease-year end.

“Farming is a continuous process. If there is to be a new tenant, the current tenant needs to plan for the transition, and the new tenant would likely want to start preparations for the coming crop year during the late summer or the fall of a current crop year,” he said.

For landlords and tenants who are renegotiating lease agreements, Harrison said it’s important for both parties to have an understanding about the rental value of the farmland.

“Landlords must recognize the difference in the rental value of varying farmland parcels as to size in acres and quality of the land,” he said. “While crop farming has been quite profitable in recent years, an oddly shaped 30 acres is not likely to be as desirable to a tenant as a very fertile 300-acre parcel.”

Some lease renegotiations might require professional help to draft an appropriate rental agreement.

The story links to a useful, useful 12-page article by Gerald A. Harrison, Purdue Extension Economist, titled "Legal Aspects of Indiana Farmland Leases and Federal Tax Considerations."

ILB: The COA case mentioned is The Guardianship of Harold G. Gardner, Scott A. Gardner, Guardian v. Carl Prochno, a March 13, 2012 opinion summarized here in the ILB. A quote:

The designated evidence in this case shows that Prochno did not receive written notice to terminate his year-to-year tenancy to 240 acres of farm ground owned by Harold within three months of March 1, the generally accepted start date for farm leases. Because we conclude that Indiana Code chapter 32-31-1 requires written notice to terminate a year-to-year tenancy “not less than three (3) months before the expiration of the year,” we affirm the trial court’s grant of summary judgment in favor of Prochno.
See also a South Bend Tribune story about the trial court opinion in the same case, quoted here in a May 31, 2011 ILB entry.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Indiana Law

Law - "Arson and the Science of Fire"

Ken Strutin has assembled a "collection of selected research publications, web resources and case studies as well as scholarly legal articles and scientific reports on arson investigation and fire science." Access it here at LLRX.com/.

Readers will recall the Indiana appeal earlier this year involving Kristine Bunch, an "Indiana woman convicted of setting a 1995 fire that killed her 3-year-old son." The COA reversed the conviction, citing advances in fire science. The Supreme Court denied the AG's petition to transfer and Bunch is currently free on bond, awaiting possible retrial.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to General Law Related

Environment - "Sandy Stirs Toxic-Site Worry"

Free today on the WSJ site, this story by Rob Barry, Dionne Searcey and John Carreyrou that begins:

Hurricane Sandy's environmental impact is still being assessed, but the worries for residents of New York and New Jersey are crystallized by one fact: Of the two states' 198 Superfund toxic-waste sites, 45 are within a half-mile of coastal areas vulnerable to storm surge.

The Environmental Protection Agency, which oversees cleanup of those sites, was unable to say how many of them flooded on the night of Oct. 29. But the agency said its initial appraisals show that several "were impacted by the storm," including a site contaminated by lead near Sayreville, N.J., and the Gowanus Canal and Newtown Creek sites in New York City.

The 45 Superfund sites vulnerable to coastal flooding were identified by The Wall Street Journal using data from the EPA and the U.S. Army Corps of Engineers. Many of the sites are concentrated in northern New Jersey in a blighted industrial zone west of Manhattan, 11 flank the Delaware River and a half-dozen are scattered across New York's Long Island.

The story ncludes a map locating the sites.

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Environment

Ind. Gov't. - More on: Center Twp. small claims court's mandate action now fully briefed and transmitted to Supreme Court

Note: The ILB has now received all the documents, so is reproducing last week's entry, as updated with the newly acquired documents.

The ILB's most recent entry on this lawsuit, where the Center Twp. Trustee is attempting to move the location of the Center Township of Marion County small claims court, against the wishes of Judge Michelle Smith Scott, who cites security concerns among her objections, was Oct. 4, 2012. This is Case Number: 49 S 00 - 1207 - MF - 00420, IN RE: CENTER TOWNSHIP OF MARION COUNTY SMALL CLAIMS COURT.

The ILB has been able to obtain the briefs of the parties:

Updating the Clerk's Docket subsequent to these filings:
DATE TEXT
O.A. NONE ENTERED ON 10/22/12 AB
10/22/12 TRANSMITTED SUPREME ***********10/22/12***********
ENTERED ON 10/22/12 AB
10/23/12 VERIFIED MOTION TO FILE VERIFIED STATEMENT IN RESPONSE TO
FOOTNOTE 11 IN THE BRIEF OF APPELLEE (6) CERTIFICATE OF SERVICE
(6) BY MAIL 10/23/12 **ROTUNDA** ENTERED ON 10/24/12 AS
10/23/12 ****RECEIVED 10/24/12: VERIFIED STATEMENT IN RESPONSE TO
FOOTNOTE 11 IN THE BRIEF OF APPELLEE. HOLD FOR RULING ON MOTION
TO FILE. **ROTUNDA** ENTERED ON 10/24/12 AS
11/08/12 ISSUED THE ENCLOSED ORDER:
11/08/12 BEING DULY ADVISED, THE MOTION IS GRANTED.
THE CLERK'S OFFICE IS DIRECTED TO FILE, AS OF THE DATE OF THIS
ORDER, THE "VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE 11 IN
THE BRIEF OF APPELLEE."
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 11/08/12 AT 1:45 P.M.) ENTERED ON 11/08/12 KJ
11/08/12 ****** ABOVE ENTRY MAILED ******
11/08/12 VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE IN THE BRIEF OF
APPELLEE (6) CERTIFICATE OF SERVICE (6) BY MAIL 10/23/12
ENTERED ON 11/08/12 AS

Posted by Marcia Oddi on Monday, November 12, 2012
Posted to Indiana Government

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 11, 2012:

From Saturday, November 10, 2012:

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

Next 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.)

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, November 13th

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

Tuesday, November 20th

Wednesday, November 21st

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.


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 12, 2012
Posted to Upcoming Oral Arguments

Sunday, November 11, 2012

Ind. Gov't. - "Social issues face GOP-controlled Indiana legislature"

Two stories this weekend:

Some quotes from Kevin Rader's WTHR 13 story, "Social issues face GOP-controlled Indiana legislature":

When Governor-elect Mike Pence takes the oath of office in January, he will have a Republican super majority in both houses of the Indiana legislature.

That has some people questioning what will happen with social issues like gay marriage and a woman's right to choose. * * *

House Speaker Brian Bosma (R-Indianapolis) says the issues will be presented when the 118th session of the Indiana General Assembly gavels in on January 4.

"There is no doubt. This will be my 14th General Assembly and they have been presented in every one of those sessions. They will be presented, I am sure, again," Bosma said.

A constitutional amendment outlawing gay marriage has already passed out of one General Assembly and now must be passed by another in either 2013 or 2014 before it can be presented to Indiana voters on the ballot.

New Minority Leader Scott Pelath (D-Michigan City) acknowledges Pence's conservative bent, but he hopes the Governor-elect will temper that and concentrate on kitchen table issues like jobs, the economy and education.

"It's all a matter of whether they want to pursue the things that divide people or do they want to pursue the things that bring us all together. I hope they do the former," Pelath said.

With super majorities in both the House and the Senate, Republicans may have to learn the most difficult lesson in politics - how to discipline themselves.

A lengthy column today in the Lafayette Journal-Courier, by David Bangert, is headed "The evolution of Gov. Pence starts here; another creation science bill looms: An old fight over science will get a new look in 2013." A sample:
Indiana will have another discussion in the 2013 General Assembly session about how evolution is taught in the state’s science classrooms.
Same issue, new approach

“We’re going to try something a little different this time,” state Sen. Dennis Kruse, R-Auburn, said this week.

Kruse was behind last session’s Senate Bill 89. In its original form, the bill offered to give local school boards the option to “require the teaching of various theories concerning the origin of life, including creation science.”

Though not all prone to focus on the merits of sticking with the scientific method in science classrooms, senators were moved to water down the bill largely because of the presumed price tag. Creation science — even offered as a school board choice rather than a state mandate — adds up to a losing church-and-state proposition in the high courts. Rulings have been clear, not to mention expensive: Teaching creation science and intelligent design in public schools amounts to pushing religion, not science. And that crosses the Establishment Clause of the First Amendment.

A compromised SB89 that made it through the state Senate allowed schools to add courses that looked at the origin of life, provided they included theories from multiple religions. Considering that school districts already could do that with their non-science elective courses, the Indiana House took a pass.

This year, Kruse said, he’ll carry a bill designed by the Discovery Institute, a Seattle-based public policy think tank. According to its website, the Discovery Institute “seeks to counter the materialistic interpretation of science by demonstrating that life and the universe are the products of intelligent design and by challenging the materialistic conception of a self-existent, self-organizing universe and the Darwinian view that life developed through a blind and purposeless process.”

More from the story:
Louisiana has had a similar law since 2008. Tennessee followed suit in 2012. Tennessee Gov. Bill Haslam declined to sign it, saying it would bring confusion instead of clarity, according to the Tennesseean news­paper in Nashville. Civil libertarians, the Tennessee Science Teachers Association and members of the National Academy of Sciences warned about what came to be called the “monkey bill,” named for the 1925 Scopes Monkey Trial that went after a Tennessee teacher who dared to teach evolution against state laws at the time.

Eugenie Scott, director of the National Center for Science Education, told Nature magazine that the law was simply a “permission slip for teachers to bring creationism, climate-change denial and other non-science into science classrooms.”

The law took effect in April without the governor’s signature.

Posted by Marcia Oddi on Sunday, November 11, 2012
Posted to Indiana Government | Indiana Law

Environment - "Couple drop bid for hog farm"

Aubrey Woods reported Nov. 9th in TribTown.com (Seymour/Jackson Co.) in a story that begins:

Steadfast opposition from some nearby property owners led a rural Seymour couple to withdraw their request to operate a 4,000-head confined animal feeding operation in Hamilton Township.

Jackson County Board of Zoning Appeals was scheduled to consider a request for a special exception for the hog barn from Nathan and Gwendolyn Newkirk during its meeting at 7:30 p.m. Tuesday.

Instead, the Newkirks will appear to withdraw the request, Jo Forister, secretary of the Jackson County Department of Planning and Zoning, said Wednesday.

Opposition from neighboring property owners led to that decision, Nathan Newkirk said Thursday. Public reaction to a similar request this summer concerning a proposed hog farm near Brownstown likely hurt his plans, he added.

More of the story can be found here at WISHTV.

The ILB had a story earlier this year headed "Hog farm expansion fought in Southern Indiana" about a similar expansion effort in Harrison County.

Posted by Marcia Oddi on Sunday, November 11, 2012
Posted to Environment

Ind. Gov't. - "Around the state, sympathy for Monroe County clerk — but much quicker election results"

The Bloomington Herald-Times ($$$) has a good process story today, reported by Laura Lane, on absentee ballot counting in not only Monroe County, but Tippecanoe County and Delaware County, homes respectively of Indiana, Purdue, and Ball State universities. Brown and Greene counties are also discussed. A few quotes from the long story:

The tedious process of hand counting hundreds and thousands of absentee ballots can hold up final election results.

Beth Mulry and Susan Fowler sympathize with fellow county clerk Linda Robbins, who on Wednesday afternoon still faced boxes and boxes containing 10,000 absentee ballots that had not yet been counted.

Final Monroe County vote totals remained a mystery. Counting and cross-checking continued into Friday evening.

Mulry, the clerk of Brown County, said election workers there started counting 2,159 absentee ballots at noon Election Day and finished just as the polls closed at 6 p.m. In Greene County, where Fowler is the clerk, workers processed about 1,200 absentee ballots between 11 a.m. and 4:30 p.m. the day of the election.

Mulry got Brown County’s election wrapped up by 10:15 p.m. “We’d still be counting if we had as many absentees as Monroe County,” she said. “I cannot fathom the number of people it would take to get it done on time.”

Brown County has used paper ballots and scanners since the early 1990s, although there is an electronic machine at each polling site for voters who want to use it.

Fowler and Greene County election workers were finished counting votes at 8 o’clock and would have been done 30 minutes earlier if not for a delay in Beech Creek Township. “I was in bed by 9:30 Election Night,” Fowler said. The county has used MicroVote electronic machines since 2004.

Since absentee ballots cannot be counted until after the mail arrives on Election Day, their volume can contribute to how quickly election results are compiled. The purpose of waiting until Election Day to tabulate them is to weed out any early ballots submitted by people who voted but died before the official election was held.

When Mulry gets notification of a death from the health department or if a family member brings in a death certificate for someone who voted early, she reports that to the local election board for permission to pull the ballot. There were none this year.

Fowler, in Greene County, also waits for death notifications from the health department. But in a rural county where she knows a lot of people, confirmation of a death might come from actually attending a voter’s wake or funeral. “If I know for sure that someone died and that they already voted, I would go ahead and take that ballot out,” she said.

[More] An editorial today in the Herald-Times, titled "We should all agree: Election process broken," concludes:
So can’t we all just agree, calmly, that we have a significant problem? Let’s admit that and take the next 18 months before the 2014 primary to restore order and confidence.

County officials first must itemize the issues that led the the latest delays. It’s likely they will come up with a long list, which they should work through one item at a time beginning as soon in 2013 as possible.

Here are three issues for starters.

The equipment apparently had significant limitations. Is different equipment needed? If so, what equipment would allow us to get an accurate count earlier? And are the paper ballots really necessary?

The state law on dead voters was cited as one of the problems. Should the law be changed? If that would help, current Monroe County commissioner and soon to be State Sen. Mark Stoops could take up the issue in the Legislature.

Is it the best idea to have more than 21,000 early and absentee voters? If so, and we believe it is, how can counting those votes start earlier — so the counting can end earlier?

We truly hope Democrats and Republicans alike recognize the last two general elections have produced unacceptable delays in counting votes, and that they join together to develop solutions while there’s plenty of time to avoid a third straight meltdown of our election process.

Posted by Marcia Oddi on Sunday, November 11, 2012
Posted to Indiana Government

Saturday, November 10, 2012

Ind. Gov't. - "Judge, family law professor offer solutions for state's $2.3 billion child support problem"

Following up on her earlier story, "Child support $2.3 billion problem in Indiana," Kara Kenney of WRTV 6 reported yesterday in a story that begins:

A child support judge and an IU McKinney School of Law family law professor are offering solutions in light of a Call 6 Investigation that exposed the state's child support problem.

Posted by Marcia Oddi on Saturday, November 10, 2012
Posted to Indiana Government

Courts - Delaware Supreme Court rebukes chief judge of the Delaware Court of Chancery for opinion containing nearly a dozen pages of dictum

Peter Lattman reports today in the NY Times in a long story that begins:

As the chief judge of the Delaware Court of Chancery — the country’s most influential court overseeing business cases — Leo E. Strine Jr. has been called an activist. He has also been called an iconoclast, a genius and a humorist.

But this week, Delaware’s highest court called him out of bounds.

The Delaware Supreme Court issued a stinging rebuke of Judge Strine on Wednesday, criticizing him for what it said was an improper digression in an opinion. Judge Strine’s decision related to a contractual dispute but went off on an 11-page tangent about an obscure issue related to limited liability companies.

“The court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion,” the Supreme Court wrote, adding, “We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented.”

Here is the Delaware Supreme Court opinion, Gatz Properties v. Auriga Capital (Nov. 7, 2012). The slap-down begins on. p. 24 with "For the reasons next discussed, that court’s statutory pronouncements must be regarded as dictum without any precedential value." It concludes:
Fifth, and finally, the court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion. “Delaware law requires that a justiciable controversy exist before a court can adjudicate properly a dispute brought before it.” We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented. A judge’s duty is to resolve the issues that the parties present in a clear and concise manner. To the extent Delaware judges wish to stray beyond those issues and, without making any definitive pronouncements, ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations, and keynote speeches.

Posted by Marcia Oddi on Saturday, November 10, 2012
Posted to Courts in general

Friday, November 09, 2012

Ind. Decisions - "COA: Some out-of-state sex offenders don't have to register"

The Court of Appeals decision yesterday in Jerome Michael Burton v. State of Indiana is the subject of a story today by Dan Carden in the NWI Times:

A Hammond man convicted in 1987 of a sex crime in Illinois is not required to register as a sex offender in Indiana, because his Illinois conviction came before Indiana enacted its sex offender registration law in 1994, the state Court of Appeals ruled Thursday.

Jerome Burton, 46, is awaiting trial in Lake County on two felony counts of failure to register as a sex offender. Burton asked the appeals court to dismiss those charges as unconstitutionally retroactive, also known as ex post facto.

In 1987, Burton was convicted of aggravated criminal sexual assault and sentenced to six years in prison. A 1996 Illinois law required certain sex offenders, including Burton, to register for 10 years.

According to court records, Burton was convicted in Illinois for failing to register in 2003 and 2007, and the 10-year registration requirement was reset.

Indiana prosecutors argued that extension means Burton was required to register in Indiana upon moving to Hammond, under a 2006 law that mandates sex offenders living in Indiana that are required to register in any other state also must register in Indiana.

But in a 3-0 decision, the appeals court ruled Burton cannot be required to register in Indiana because his original 1987 conviction predates Indiana's 1994 sex offender registration law, and the Indiana Supreme Court has ruled that requiring pre-1994 Hoosier sex offenders to register is constitutionally prohibited.

The appeals court said Indiana owes no deference to Illinois' registration extensions, and so long as Burton lives in Indiana his rights are protected by the Indiana Constitution's prohibition on retroactive punishment.

"The underlying purpose of the ex post facto clause is to give effect to the fundamental principle that persons have a right to fair warning of the type of conduct that will give rise to criminal penalties," said Senior Judge John Sharpnack.

The appeals court ordered Burton's pending failure to register charges be dismissed, though that decision can still be appealed to the Indiana Supreme Court.

Posted by Marcia Oddi on Friday, November 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Amerisafe Risk Services, Inc., and Leerae Riggs v. The Estate of Hazel D. Wadsack, deceased, by Ronald J. Wadsack as Personal Rep., and Ronald J. Wadsack, individually, an 8-page opinion, Chief Judge Robb writes:

Amerisafe Risk Services, Inc. and its case worker Leerae Riggs (collectively “Amerisafe”) appeal the trial court’s denial of their motion to dismiss for lack of subject matter jurisdiction. Amerisafe raises one issue for our review, which we restate as whether the trial court erred in denying Amerisafe’s motion to dismiss. Concluding that the trial court did not have subject matter jurisdiction, and thus that it erred in denying the motion to dismiss, we reverse. * * *

The Wadsacks argue that the Worker’s Compensation Board (the “Board”) does not have jurisdiction because their claims are not on behalf of Matthew, or based directly on his injuries, but instead are based on the handling of Matthew’s claims. We disagree. The exclusivity provision of the Worker’s Compensation Act, which grants employees rights and remedies under the worker’s compensation system and excludes all other remedies, specifically extends to personal representatives and next of kin. Ind. Code § 22-3-2-6. Further, the exclusivity provision encompasses a bad faith provision of the statute that grants the Board exclusive jurisdiction to determine whether an insurance carrier has acted in bad faith or has committed an independent tort in settling claims. Ind. Code § 22-3-4-12.1(a). Thus, the Board’s jurisdiction to hear claims of bad faith extends not only to the injured employee, but to his personal representatives and next of kin. * * *

Concluding that the trial court did not have subject matter jurisdiction over this case and that the Wadsacks must take their complaint to the Board, we reverse.

NFP civil opinions today (2):

In Re the Term. of Parent-Child Rel. of D.T.: S.T. v. The Indiana Dept. of Child Services (NFP)

In the Matter of the Term. of the Parent-Child Rel. of I.C., J.C, and P.C.: E.C. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Kelly Millard v. State of Indiana (NFP)

Travis Reagle v. State of Indiana (NFP)

Timothy Allison v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Center Twp. small claims court's mandate action now fully briefed and transmitted to Supreme Court

The ILB's most recent entry on this lawsuit, where the Center Twp. Trustee is attempting to move the location of the Center Township of Marion County small claims court, against the wishes of Judge Michelle Smith Scott, who cites security concerns among her objections, was Oct. 4, 2012. This is Case Number: 49 S 00 - 1207 - MF - 00420, IN RE: CENTER TOWNSHIP OF MARION COUNTY SMALL CLAIMS COURT.

The ILB has been able to obtain [several of] the briefs of the parties:

Updating the Clerk's Docket subsequent to these filings:
DATE TEXT
O.A. NONE ENTERED ON 10/22/12 AB
10/22/12 TRANSMITTED SUPREME ***********10/22/12***********
ENTERED ON 10/22/12 AB
10/23/12 VERIFIED MOTION TO FILE VERIFIED STATEMENT IN RESPONSE TO
FOOTNOTE 11 IN THE BRIEF OF APPELLEE (6) CERTIFICATE OF SERVICE
(6) BY MAIL 10/23/12 **ROTUNDA** ENTERED ON 10/24/12 AS
10/23/12 ****RECEIVED 10/24/12: VERIFIED STATEMENT IN RESPONSE TO
FOOTNOTE 11 IN THE BRIEF OF APPELLEE. HOLD FOR RULING ON MOTION
TO FILE. **ROTUNDA** ENTERED ON 10/24/12 AS
11/08/12 ISSUED THE ENCLOSED ORDER:
11/08/12 BEING DULY ADVISED, THE MOTION IS GRANTED.
THE CLERK'S OFFICE IS DIRECTED TO FILE, AS OF THE DATE OF THIS
ORDER, THE "VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE 11 IN
THE BRIEF OF APPELLEE."
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 11/08/12 AT 1:45 P.M.) ENTERED ON 11/08/12 KJ
11/08/12 ****** ABOVE ENTRY MAILED ******
11/08/12 VERIFIED STATEMENT IN RESPONSE TO FOOTNOTE IN THE BRIEF OF
APPELLEE (6) CERTIFICATE OF SERVICE (6) BY MAIL 10/23/12
ENTERED ON 11/08/12 AS

Posted by Marcia Oddi on Friday, November 09, 2012
Posted to Indiana Government

Ind. Gov't. - "Child support $2.3 billion problem in Indiana"

Kara Kenney of WRTV 6 has posted a long report, with video, that begins:

INDIANAPOLIS - The Call 6 Investigators have uncovered a $2.3 billion problem in Indiana that is using precious local and state resources and draining consumers' wallet.

Hoosier parents owe more than $2.3 billion in child support, according to the Indiana Department of Child Services and Child Support Bureau, which handles 350,000 cases.

Ninety-five percent of cases involve males and 5 percent involve females accused of nonpayment of child support.

State and local agencies spend $83.2 million in state fiscal year 2012 on the child support problem, including finding noncustodial parents, prosecuting cases, establishing child support orders and processing payments.

The Call 6 Investigators found agencies strapped for manpower and others finding it hard to make a dent in the pervasive issue.

Later in the story, under the heading "Court system strains to keep up with cases":
Where Indiana struggles most is establishing child support orders, which is when a judge determines how much a noncustodial parent should pay. In that category, Indiana dropped to 41st in 2010.

Prosecutors said getting both parents into court can be difficult.

"If someone doesn't want to be found, it can be impossible to find them," said Marion County Chief Deputy Prosecutor John Owens.

Indiana courts are bursting with child support cases, so lag time is a concern.

"We are incredibly understaffed," Owens said.

Marion County handles more than 71,000 cases with 82 full-time employees, working out to

865 cases per employee.

The Call 6 Investigators also checked with surrounding counties and found all are handling hundreds of child support cases per worker.

"Child support is a huge problem," Owens said. "It impacts not only folks who have kids, but it does impact folks who don't."

Deadbeat parents owe more than $607 million in child support in Marion County alone. Parents line up every morning beginning at 7 a.m., waiting for a walk-in appointment with a prosecutor.

Posted by Marcia Oddi on Friday, November 09, 2012
Posted to Indiana Government

Thursday, November 08, 2012

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

For publication opinions today (1):

In Jerome Michael Burton v. State of Indiana, a 10-page opinion, Sr. Judge Sharpnack writes:

In this interlocutory appeal, Jerome Michael Burton challenges the trial court’s denial of his motion to dismiss the charge of failure to register as a sex offender. We reverse and remand.

The issue is whether it is a violation of the ex post facto provision of the Indiana Constitution to require Burton to register under the Indiana Sex Offender Registration Act (“SORA”) as one who is required to register in another state, Illinois, when the statutes requiring him to register in Illinois and in Indiana were enacted after he had been convicted of the qualifying offense in Illinois. * * *

We conclude that the analysis and holding in Wallace apply to this case. We are deciding whether the ex post facto provision of the Indiana Constitution prevents the application of Indiana’s SORA to require Burton, a resident of Indiana, to register as a sex offender on the ground that he is required to register in Illinois as a consequence of having been convicted in Illinois of a sex offense prior to the enactment of both the statutes of Illinois and Indiana that required registration. Had the qualifying offense and the enactment of the registration requirement occurred in Indiana, Wallace would dictate dismissal of the charges. We hold that Burton has the protection of our constitution as to the application of our SORA, without regard to the fact that he was convicted of the qualifying sex offense in Illinois. It is for us, not Illinois, to determine who is required to register under our SORA. * * *

For the reasons stated, we reverse the trial court and remand with instructions to grant Burton’s motion to dismiss.

NFP civil opinions today (5):

Jeff Clade v. Hunt Construction Group, Inc. (NFP)

T.B. v. Review Board of the Indiana Dept. of Workforce Development and A.R. (NFP)

F.M., Mother v. N.B., Father (NFP)

Jason Bond, David Lear and Leslie Bridges, et al. v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC and The City of Indianapolis, Dept. of Waterworks (NFP)

The City of Shelbyville, Indiana and Shelbyville Board of Works and Safety v. Frank P. and Shirlene Sundvall (NFP)

NFP criminal opinions today (4):

Clay R. Firestone v. State of Indiana (NFP)

Troy Phillips v. State of Indiana (NFP)

Brian E. Graves v. State of Indiana (NFP)

Zachary A. Sebastian v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 08, 2012
Posted to Ind. App.Ct. Decisions

Law - The inside strategies behind the gay rights victories Tuesday

This short article yesterday by David Weigel in Slate lists the successful gay marriage votes Tuesday.

U. of Minn. Law Prof. Dale Carpenter had this long post yesterday in The Volokh Conspiracy that began:

Most of the post-election attention on the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal. But equally important in the long-term is what happened in Minnesota on Tuesday. Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.”
The remainder of the long post explains how opponents of the constitutional amendment:
... built a political movement from the ground up. Under the banner of Minnesotans United For All Families, and led by an incomparable tactician and campaign manager in Richard Carlbom and a ferociously smart board chair in Cristine Almeida, we organized a campaign that was unprecedented in size and scope for a ballot fight in the state. We put together a coalition of more than 700 faith groups and churches, political allies across the spectrum (including prominent conservative and libertarian Republicans), labor groups, people of color, and businesses.

I was told we’d never raise a million dollars in Minnesota and that national donors would stay out because of our poor track record around the country and because the Midwest was a lost cause. Some national donors did stay out. But we still raised $12 million. And while hundreds of thousands of dollars were donated by national groups like the Human Rights Campaign and Freedom to Marry, and more by some wealthy individual donors, the vast majority of the money was raised from some 65,000 individual donors in the state.

In addition, Slate had this article yesterday, by Nathaniel Frank, headed "How Gay Marriage Finally Won at the Polls: The inside strategy behind victory in Maryland and Maine."

[More] Adam Liptak of the NY Times speculates today on how Tuesday's votes may impact the SCOTUS in its consideration of "what the Constitution has to say about same-sex marriage." A quote:

But it is not clear which side benefited more from those developments at the Supreme Court.

Supporters of traditional marriage, even as they registered disappointment, said the results showed that the question could be resolved democratically.

“It bolsters our case,” said Brian S. Brown, the president of the National Organization for Marriage. “It’s very difficult to say you need a federal resolution of this question if states are resolving it for themselves.”

Adam Umhoefer, the executive director of the American Foundation for Equal Rights, the group behind a California case seeking to establish a constitutional right to same-sex marriage, expressed mixed feelings about the developments. They were, he said, the right outcomes in the wrong forums.

“Fundamental constitutional rights like marriage,” he said, “should never be subjected to a popular vote.”

Posted by Marcia Oddi on Thursday, November 08, 2012
Posted to General Law Related

Courts - The history behind Michigan’s judicial selection system

Prof. Larry Solum at Legal Theory Blog highlights a new paper titled "The Politics of Judicial Selection: The Case of the Michigan Supreme Court" and quotes the abstract:

As the debate rages between those who argue that judicial elections are bad for legal justice vis-a-vis those who argue that they are good for democracy, there remains the singularly unique system of judicial selection in Michigan. For its Supreme Court justices, Michigan employs a hybrid electoral system, where candidates are first nominated at political party conventions, after which those candidates run in non-partisan general elections. Moreover, vacancies are filled by interim appointments made by the governor with no outside input or oversight. How did Michigan come to utilize this system which is different from all other states in the country? In this study we discuss the history behind Michigan’s judicial selection system. We show how Michigan transformed from an appointive system to one that employed partisan elections, and finally to the current hybrid system. The accounts behind the manner in which Michigan selects its Supreme Court justices provide a glimpse into the political forces among political and legal elites, interest groups, and the electorate that have shaped judicial politics within the state. We thus illustrate how the form of judicial selection that is unique to Michigan evolved and has been sustained over time.

Posted by Marcia Oddi on Thursday, November 08, 2012
Posted to Courts in general

Wednesday, November 07, 2012

Ind. Courts - Election results for county judicial races

These are from the Secretary of State, and are not officially final. Right now the ones I'm looking at are current as of 3:39 PM.

The Superior Court list includes Marion County. Although none of the Marion County candidates had opposition, there is an interesting variation between the number of votes each candidate received. Right now, for instance, Brown, Linda E. (Democratic) is on top with 194,417 votes; Joven, James A. (Republican) is lowest with 111,288 votes.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts

Ind. Courts - When will Justice Rush be on the ballot for retention?

The Indiana Constitution provides in part at Art. 7, Sec. 11:

Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals.

A justice of the Supreme Court or Judge of the Court of Appeals shall serve until the next general election following the expiration of two years from the date of appointment, and subject to approval or rejection by the electorate, shall continue to serve for terms of ten years, so long as he retains his office.

Here is the sequence:Or is the "date of appointment" the date she was named to the Court by the Governor? See Art. 7, Section 10:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

The ILB is asking because of this note received this morning from a reader, which assumes the former, and writes:
A question.

Justice Rush joins the court in a private ceremony today, Nov. 7. She is then up for retention at the first election two years after her taking her seat. Does the date someone chose to seat her automatically give her a four year term before standing for her first retention vote? The 2014 election date will be Nov. 4. The 2016 election day is Nov. 8.

Nice timing and calendar reading by someone at the Supremes.

[More] From Wikipedia:
Election Day in the United States is the day set by law for the general elections of public officials. It occurs on the Tuesday after the first Monday in November. The earliest possible date is November 2 and the latest possible date is November 8.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts

Courts - "Efforts to Oust State Supreme Court Justices Fail"

Supplementing this ILB post from earlier today on Iowa, Ashby Jones of the WSJ Law Blog surveys all the major judicial elections. The article begins:

Voting not to retain state Supreme Court justices might someday become a common way that voters showcase their disagreement with justices’ decisions.

But Tuesday’s election results indicate that that day has yet to arrive.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Dennis Larson, Rose Real Estate, Inc., and Diversified Commercial Real Estate v. Peter N. Karagan, a 13-page opinion, Judge May writes:

Peter Karagan sued Dennis Larson, Rose Real Estate, and Diversified Commercial Real Estate (collectively, “Larson”) for breach of contract and conversion. Karagan moved for summary judgment and, after Larson did not respond to the motion, the court granted summary judgment for Karagan. On appeal, Larson argues genuine issues of fact precluded summary judgment and Karagan was not entitled to treble damages. On cross-appeal, Karagan argues he was entitled to prejudgment interest. We affirm in part, reverse in part, and remand. * * *

While a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant’s submissions, such failure to respond does not preclude argument of the relevant law on appeal. Murphy, 930 N.E.2d at 1234.

We must therefore determine whether Karagan’s own designated evidence gives rise to a genuine issue of material fact that precludes summary judgment. It does not. * * *

Larson did not respond and the requests were deemed admitted. In light of those admissions we cannot find error to the extent the trial court determined there was no genuine issue of fact as to the interpretation of the parties’ oral agreement. Summary judgment for Karagan was not error. * * *

As Karagan demonstrated Larson was aware of a high probability its control over Karagan’s property was unauthorized, we cannot say the trial court erred in determining Karagan was entitled to treble damages. * * *

In the case before us the evidence, including Larson’s admissions, established what Karagan’s commission agreement was, the transactions for which he was entitled to commissions, and the amount of the commissions. The trial court therefore should have awarded Karagan prejudgment interest, see, e.g., Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140-41 (Ind. Ct. App. 2002) * * * We remand for it to do so.

In Fred C. Feitler, Mary Anna Feitler, and the Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, JM Woodworking Co., an 18-page opinion, Judge Bradford writes:
At some point in mid-2010, Fred and Mary Anna Feitler, who were the sole beneficiaries of a land trust that owned real estate in DeKalb County, contracted with Cedar Creek Homes (“CCH”) to build a house on the property. Among other things, the Feitlers and CCH agreed that no mechanic’s lien could attach to the property in the event of nonpayment. CCH engaged several subcontractors, including Springfield Enterprises, J. Laurie Commercial Floors, LLC, and JM Woodworking Company, to work on the house. In February of 2011, before the house was completed, CCH informed all concerned that it was ceasing operations and would not be completing the house. When the dust settled, it appears that all subcontractors except Springfield, J. Laurie, and JM were paid off, and all three ultimately became involved in litigation against the Feitlers and the land trust. J. Laurie and JM argued that they should be able to hold mechanic’s liens against the property in question, while all three former subcontractors contended that they should be able to secure money judgments against the Feitlers. The trial court agreed with all of these arguments and entered summary judgment in favor of all three subcontractors on each of these claims.

On appeal, the Feitlers and the land trust contend that neither J. Laurie nor JM should be able to hold a mechanic’s lien against the real estate and also that the trial court erred in entering summary judgment in favor of the subcontractors on the question of personal liability. We agree that neither J. Laurie nor JM can hold a mechanic’s lien against the real estate and also conclude that the question of the Feitlers’ personal liability to the subcontractors should go to trial. * * *

We conclude that the trial court erred in concluding that JM and J. Laurie could hold mechanic’s liens against the property. In JM’s case, JM failed to issue the mandatory pre-lien notice, and in J. Laurie’s case, J. Laurie is bound by the Agreement. Consequently, we remand with instructions to enter summary judgment in favor of Appellants on these points. We further conclude that the trial court erred in entering summary judgment in favor of all three Appellees on the question of personal liability pursuant to the PLN statute. Concluding that there exists a genuine issue of material fact on whether the Feitlers satisfied the construction contract with CCH before Appellees sent notices of personal liability, we remand for trial on this question.

NFP civil opinions today (5):

In the Matter of C.C., (Minor Child), a Child in Need of Services; M.W., Mother v. Indiana Dept. of Child Services, Child Advocates, Inc. (NFP)

In the Matter of the Parent-Child Rel. of: K.E.G.-H. and D.G. v. The Indiana Dept. of Child Services (NFP)

Cherie Solms v. Michael Solms (NFP)

Brian Gale Waters v. Indiana Real Estate Commission, et al. (NFP)

Thomas Dudley and Barbara Dudley v. The Estate of Earl Studtmann (NFP)

NFP criminal opinions today (8):

Cornelius Hooten v. State of Indiana (NFP)

Cameron Williams v. State of Indiana (NFP)

John Salter v. State of Indiana (NFP)

LaQuinton Leonard v. State of Indiana (NFP)

Brandon Price v. State of Indiana (NFP)

Vincent O. Dates v. State of Indiana (NFP)

James S. Shidler v. State of Indiana (NFP)

Adrian Lotaki v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Michael Kucholick v. State of Indiana, a 3-page, 3-1, per curiam opinion which is best read in full for the ratioanle, the Court writes:

After David Lawler obtained a $2,500 civil judgment against Michael Kucholick’s girlfriend for unpaid rent, Kucholick drove by Lawler’s rural home and fired two shots into the home.

Kucholick was charged with one count of criminal recklessness (a Class C felony), Ind. Code § 35-42-2-2, and one count of criminal mischief (a Class B misdemeanor), id. § 35-43-1-2. A jury found Kucholick guilty as charged, and the trial court sentenced Kucholick to an enhanced term of seven years for criminal recklessness (consisting of four years executed in the Department of Correction and three years suspended to probation) and six months for criminal mischief, to be served concurrently. * * *

{T]he Court of Appeals concluded that Kucholick had met his burden of establishing that his sentence was inappropriate. The majority held that Kucholick’s sentence should be revised to an aggregate sentence of four years, consisting of two years executed in a community corrections program and two years suspended to probation. * * *

We grant transfer of jurisdiction and direct revision of Kucholick’s aggregate sentence to an advisory term of four years, all executed. The decision of the Court of Appeals is summarily affirmed in all other respects. See Ind. Appellate Rule 58(A).

Rucker, David and Massa, JJ., concur.
Dickson, C.J., dissents, believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - A Grant of Transfer is Nine Times More Likely from A Published Court of Appeals’ Opinion

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

One of the Court’s most important functions is deciding which of the approximately 900 Court of Appeals’ cases that come before it each year are worthy of further review. As Justice Rush joins the Court today, its third new member in two years, it is worth considering whether the changing Court membership could include a change in approach to transfer petitions.

As noted in this July 9, 2012 post, the conventional wisdom among Indiana appellate practitioners has long been that it is very unlikely the Indiana Supreme Court will grant transfer in a not-for-publication opinion from the Court of Appeals. Appellate Rule 65(D) makes clear that NFP opinions cannot be cited as precedent in any court, so there is little reason for the Supreme Court to find a compelling reason of state-wide significance worthy of a grant of transfer. See generally App. R. 57(H). The new membership of the Court may mean a shift in that view. During the first three months following the departure of Chief Justice Shepard and appointment of Justice Massa, the Court granted transfer in 21.1% of FP civil cases, 14% of FP criminal cases, 2.4% of NFP civil cases, and 6.2% of NFP criminal cases.

The table below updates that information with data from the beginning of July to November 1, 2012

Indiana Supreme Court Transfer Grants:
July 1-November 1 2012*
  FP Cases NFP Cases FP & NFP
CIVIL 20.7% (12/58) 3.1% (1/32) 14.4% (13/90)
CRIMINAL 10.8% (4/37) 1.5% (2/131) 3.6% (6/168)
ALL CASES 16.8% (16/95) 1.8% (3/163) 7.4% (19/258)

The overall 7.4% grant rate was lower than the 9.6% rate from the previous three months and the three-year average. The disparity between FP and NFP opinions was especially stark. A grant of transfer was nine times more likely from a FP opinion than an NFP opinion.

Within the categories, odds were especially long for NFP criminal cases at 1.5%, which is four times lower than the 6.2% rate from the previous three months. The State sought transfer in one of those cases. The other was a post-conviction case in which the defendant sought transfer. The sole civil NFP transfer case involved grandparent visitation rights.
_________________
*Transfer dispositions from Court of Appeals’ cases in which an appeal was dismissed or otherwise resolved by order have been omitted from this analysis. Tax Court cases were also been omitted. This published case was erroneously listed on the transfer list as NFP. Although initially issued as NFP, a motion to publish was granted before transfer proceedings.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Courts - "Voters retain Iowa Justice David Wiggins" [Updated]

From the DesMoines Register, Jeff Eckhoff reports:

Voters retained Justice David Wiggins on the Iowa Supreme Court, following a heated campaign to remove him from the bench.

Wiggins, 61, needed a simple majority of votes to stay on high court. With 83 percent of Iowa’s 1,689 precincts reported, Wiggins had 54 percent. * * *

A narrow victory for Wiggins immediately raises questions about what will happen in four years when the final three participants in a landmark 2009 court case will face voters. Chief Justice Mark Cady and Justices Daryl Hecht and Brent Appel are up for retention votes in 2016.

Wiggins’ supporters had hoped for a decisive victory that would end political challenges to Iowa judges.

Wiggins was the fourth Iowa Supreme Court justice to stand for a retention vote since seven justices unanimously ruled to legalize same-sex marriage in 2009.

The three former justices — Marsha Ternus, David Baker and Michael Streit — were ousted in 2010 after socially conservative Iowans, backed by cash from out-of-state conservative groups, successfully convinced voters that the same-sex marriage decision was grounds for dismissal. It was the first time since 1962, when Iowa adopted the merit-selection process, that a justice was not retained.

ILB observation: The clue to the answer to "what will happen in four years when the final three participants in a landmark 2009 court case will face voters" may perhaps be found in these Huffington Post interactive results from four states where gay marriage was on the ballot yesterday. They include another midwest state, Minnesota, where voters failed to enact a constitutional amendment to deny same-sex couples the right to marry. By 2016 perhaps this attitudinal change will have reached even Indiana.

[Updated at 10:45 AM] See also this long WSJ article by Geoffrey A. Fowler this morning headed "Gay Marriage Gets First Ballot Wins." A few quotes:

Americans for the first time approved gay marriage at the ballot box on Tuesday, pointing to changing attitudes on the divisive issue.

In Maine and Maryland, voters approved ballot initiatives to begin allowing same-sex unions. Those wins mark a first for a cause that had previously been rejected by voters in more than 30 states, including as recently as 2009 in Maine.

And in Minnesota, where gay marriage is already not allowed, voters declined to back an initiative that would enshrine in the state's constitution a definition of marriage permitting only a union between a man and woman.

In Washington state, where voters also weighed an initiative to legalize gay marriage, the vote count was expected to stretch on for days. With half of the vote counted as of 3 a.m. Eastern time, nearly 52% supported the idea.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Loretta Rush to join Supreme Court today [Updated]

From the AP:

Tippecanoe County Judge Loretta Rush is scheduled to take the oath of office Wednesday during a private ceremony administered by Chief Justice Brent Dickson. She'll become Indiana's first female Supreme Court justice since Myra Selby stepped down in 1999 after five years on the court. Selby was Indiana's first woman justice.
[Updated] "Outgoing Tippecanoe judge to be sworn in today as Indiana Supreme Court justice," was the headline to this story by Sophia Voravong this morning in the Lafayette Journal Courier.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Supreme Court decided a second case late on Monday, Nov. 5th

In Elmer J. Bailey v. State of Indiana, an 18-page, 4-0 opinion, Justice Massa writes:

When a husband shoves his wife and pokes her in the forehead repeatedly, causing her pain, is that pain alone sufficient evidence to prove the “bodily injury” element of the husband’s conviction for domestic battery? One panel of the Indiana Court of Appeals thought not, but we disagree. * * *

At his bench trial, the only evidence put forth by the State in support of either charge was Farrenquai’s testimony. Elmer denied putting his hands on Farrenquai in any way and specifically denied poking her in the forehead and shoving her. The judge found Elmer guilty of domestic battery and sentenced him to two years in prison.

Elmer appealed, and the Court of Appeals reversed in an unpublished decision. Bailey v. State (Ind. Ct. App. Feb. 3, 2012). The court first held that, in order for Farrenquai to have suffered “bodily injury” sufficient to justify Elmer’s conviction, her pain “must be sufficient to rise to a level of ‘impairment of physical condition.’” Id. at 7 (quoting Ind. Code § 35-41-1-4 (2008) (recodified at § 35-31.5-2-29) (2012)).Id. It then found that Farrenquai’s testimony was insufficient evidence of this requirement. Id. at 9.5

Six days later, a different panel of the Court of Appeals presented a different view of what level of pain constitutes “bodily injury” under Indiana’s criminal provisions, this time in a published decision. Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012). Because “bodily injury” is a concept that arises in a number of ways throughout Indiana’s criminal code, we granted transfer in Bailey to clarify its meaning, thereby vacating the unpublished decision of the Court of Appeals. * * *

Our holding today settles a question of statutory interpretation about which reasonable minds can differ. We choose this approach, in part, because we believe the alternative—requiring physical pain to rise to a particular level of severity before it constitutes an impairment of physical condition—could bring uncertainty to our relatively straightforward statutory structure. Indeed, the holding below does not define the level of pain needed to support the enhancement; instead, it surveys other Indiana cases where the pain was more obviously severe and finds Farrenquai’s lacking in comparison. Bailey, slip op. at 8–9. We think engaging in a case-by-case comparison to determine whether a victim’s pain is sufficiently significant creates unnecessary challenges not required by the statute. * * *

We do acknowledge that our approach—that a defendant commits a battery at his peril; that any degree of physical pain may constitute a bodily injury and thus enhance punishment—may raise the specter of witness coaching, whereby a victim is encouraged to say “it hurt” when, in actuality, it did not. Or that a victim may simply claim pain to enhance a charge against a defendant—a particular danger in the arena of domestic violence, where there often can only be two witnesses (the accused and the accuser), the disputes are emotionally charged and deeply personal, and trials can thus literally boil down to a heated “he said/she said.” But those are challenges of witness credibility, not statutory construction, and they are not new to criminal litigation. They are largely addressed through zealous advocacy and effective cross-examination.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Unofficial results of Supreme and Appellate retention votes

Here are the results from the SOS site, last updated November 7, 2012 (02:31 AM).

District Question Yes No
Statewide Shall Justice Steven H. David be retained in office? 1019186   459691  
Shall Justice Robert D. Rucker be retained in office? 1044525   418296  

Total vote for J. David - 1,478,877. % YES = 68.9%

Total vote for J. Rucker - 1,462,821. % YES = 71.4%

Compare these with this Table of Indiana Supreme Court Retention Votes from prior years. J. Rucker's 71.4% is topped only by J. Sullivan's 72.6% in 2006. J. David's 68.9% bests CJ Shepard's 68.2% in 2008.

In the Court of Appeals table that follows, remember that the 5th District encompasses the entire state.

District Question Yes No
First District Shall Judge John G. Baker be retained in office? 371245   143814  
Third District Shall Judge Michael P. Barnes be retained in office? 311698   114582  
Shall Judge Paul D. Mathias be retained in office? 312352   112576  
Fifth District Shall Judge Nancy H. Vaidik be retained in office? 1082600   386626  

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts

Tuesday, November 06, 2012

Ind. Courts - South Bend Tribune editorial endorses Appeals Court Judges Michael P. Barnes, Paul D. Mathias and Nancy H. Vaidik

From the editorial, which was published Nov. 3rd:

Barnes, who was prosecutor for more than 20 years in St. Joseph County, is well-respected for his service here, including development of the CASIE Center for child victims of physical and/or sexual abuse and a domestic and family violence unit.

He, Mathias and Vaidik all met with the Editorial Board earlier this month and our members were impressed by the commitment all three have made to deal with their large caseload effectively and transparently. In addition, Vaidik is respected for her teaching, including an adjunct professorship at Indiana University's Maurer School of Law. Mathias focuses on improving court technology.

The 2012 Judicial Retention Poll of Indiana State Bar Association members overwhelmingly supports retaining each of the state judges up for a vote this year. This valuable evaluation is made by attorneys who work with the judges year in and year out.

See also this post from Oct. 16th, explaining that:
Judge Vaidik is the only COA judge up for retention whose district is statewide. Two 3rd District judges are up for retention, Judges Barnes and Mathias, but only the voters of that district get to vote on them. One 1st District judge is up, and again, those of us in the 2nd and 3rd Districts will not see Judge John Baker's name on our ballots.
The 3rd district is basically the top third of the state, the 2nd district is the middle, and the 1st district is a generous southern third. See map here.

Posted by Marcia Oddi on Tuesday, November 06, 2012
Posted to Indiana Courts

Ind. Courts - "Something’s fishy about how we pick Marion County judges"

This letter appears in the IndyStar "Letters to the Editor" today:

Thank you to the ACLU of Indiana and Common Cause for challenging our current system for selecting judges. The system allows the Republican and Democratic parties to hand-pick our judges. As troubling as this behavior should be, The Star article failed to expose the practice by the parties of requiring candidates to pay as much as $13,000 to be slated, essentially allowing the parties to sell judicial seats as a fundraiser. Those unwilling to pay this fee have little chance of election in the primary.

If this system truly selected the best candidates, it might be defensible on pragmatic grounds even if it is patently undemocratic. Unfortunately, this system also allows Ed Treacy, the Marion County Democratic Party chair, to “appoint” his wife, Becky Pierson Treacy, as judge despite her low approval rating of 30.7 percent by the Indianapolis Bar Association.

Perhaps this is why the ACLU is finally challenging this broken system. Marion County has some very good judges — Republican Robert Altice and Democrat Mark Stoner to name the highest rated by the Bar — but this happens despite this system rather than because of it.

Jim Mulholland
Indianapolis

Posted by Marcia Oddi on Tuesday, November 06, 2012
Posted to Indiana Courts

Ind. Decisions - "Indiana BMV reinstates 4,000 drivers in proof-of-insurance case"

Updating yesterday's ILB entry, Kristine Guerra reports today in the Indianapolis Star in a long story that begins:

For eight long months, King McGraw did not have a driver’s license.

The BMV suspended the 27-year-old Indianapolis man’s license because he did not have proof of insurance. But McGraw was baffled. He didn’t need insurance, he said, because he has never owned a car.

“You’re not going to be paying insurance for a vehicle you don’t own,” McGraw said. “That’s just crazy.”

On Monday, McGraw and thousands of other Hoosiers got their driving rights back after the Bureau of Motor Vehicles agreed to stop using a state-mandated database to suspend the licenses of drivers without insurance.

The action came as the result of a lawsuit filed by the American Civil Liberties Union of Indiana, but the matter remains unsettled.

The BMV agreed to a stay in the lawsuit and may seek changes to the 2010 law that created the Previously Uninsured Motorist Registry.

The statewide database tracks down drivers who have had their licenses suspended at least once for driving without auto insurance. The law authorizes the BMV to randomly select people from the database and check if they had gained insurance. Not being able to show proof of insurance results in the suspension of their licenses.

But, according to the ACLU, the BMV should not demand proof of insurance from people who were not required to have insurance in the first place. It is against state law to drive without auto insurance, but providing proof of insurance is not required to obtain a driver’s license.

“If you’re not required to have insurance” to get a driver’s license, ACLU of Indiana Legal Director Ken Falk said, “you shouldn’t get your license suspended for not having insurance.”

In a lawsuit filed in June on behalf of Lourrinne White, another Indianapolis resident who lost her license, the ACLU alleges that the BMV did not issue rules to enforce the statute and that the agency violated state law and due process rights guaranteed by the Fourth Amendment.

ILB: Note that this is a separate case from the one referenced in this July 20, 2012 ILB entry.

Posted by Marcia Oddi on Tuesday, November 06, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Tax Court posts two yesterday

Both are rulings by Sr. Judge Fisher.

Shelbyville MHPI, LLC v. Anne Thurston, in her official capacity as Assessor, Shelby County

Shelbyville MHPI, LLC (MHPI) appeals the final determination of the Indiana Board of Tax Review upholding the assessment of its real property for the 2006 tax year. The issue for the Court to decide is whether the Indiana Board erred in upholding the assessment. The Court affirms. * * *

The final determination in this case reveals that the Indiana Board, as an impartial adjudicator, accepted the parties’ evidentiary presentations, considered and weighed their quality, and ultimately concluded that the Assessor’s evidentiary presentation corroborated the assessment, which best reflected the market value-in-use of MHPI’s mobile home park. The Court finds no basis for reversing the Indiana Board’s conclusion and, therefore, its final determination is AFFIRMED.

Millennium Real Estate Investment, LLC v. Assessor, Benton County, Indiana
Millennium Real Estate Investment, LLC appeals the final determination of the Indiana Board of Tax Review upholding the assessments of its real property for the 2008 tax year. The Court affirms. * * *

Millennium’s sales comparison and income approach arguments merely invite this Court to reweigh the evidence; that task, however, is not within this Court’s prerogative on appeal absent an abuse of discretion. * * *

The Indiana Board’s final determination was neither arbitrary nor capricious; rather, it was supported by substantial and reliable evidence. Accordingly, the final determination of the Indiana Board is AFFIRMED.

Posted by Marcia Oddi on Tuesday, November 06, 2012
Posted to Ind. Tax Ct. Decisions

Monday, November 05, 2012

Ind. Decisions - Supreme Court decides one late this afternoon

In State v. Holtsclaw, a 5-page, 4-0 opinion, Justice Massa writes:

This case presents a single question: does Appellate Rule 9, which tolls the thirty-day deadline for filing a notice of appeal when a party files a motion to correct error, apply to the State in a criminal case? We hold that it does. * * *

As this issue was not (and could not have been) raised in the trial court, and we have vacated the opinion of the Court of Appeals, App. R. 58(A), we address the issue de novo. * * *

In support of his argument that the State’s appeal is impermissible, Holtsclaw cites Indiana Code § 35-38-4-2, which states that in criminal cases the state may appeal only certain rulings, including “an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution” or “an order granting a motion to correct errors.” Ind. Code § 35-38-4-2 (2008) (emphasis added). Holtsclaw argued that the State could not appeal under either of these provisions because it failed to appeal within thirty days of the order suppressing the evidence and had no statutory right to appeal the denial of its motion to correct error. In response, the State cited Appellate Rule 9, which provides that the thirty-day deadline to file a notice of appeal is tolled “if any party files a timely motion to correct error.” Ind. Appellate Rule 9(A)(1). The State contended that Appellate Rule 9 took precedence over Indiana Code § 35-38-4-2, and thus its appeal was timely. We agree. * * *

We remand this case to the Court of Appeals for consideration of the merits of the State’s appeal.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Striking a Balance: Lawyer and Bar Association Commentary on Incumbent Judges and Elections

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

In the absence of any sort of controversy, appellate judges had been retained by comfortable margins in Indiana for four decades. Around this time two years ago, few people had any idea that five judges were up for a retention vote. A rare media story focused on the absence of any sort of campaign.

What a difference one election cycle can make. This year the retention election, especially regarding Justice David, has received a great deal of press, and the public, lawyers, and bar associations are engaging in a sometimes uncomfortable discussions about retention elections and judicial performance.

Retention standard and considerations

Until a few weeks ago, the standard or considerations for when to vote "yes" or "no" in retention elections were seldom discussed by citizens, lawyers, or bar associations.

A recent National Journal article co-authored by retired Chief Justice Shepard suggests that retention elections were adopted “to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.”

However, in Indiana a retention election is not necessary to remove an “unfit” judge from office; Article 7, Section 11 gives the Court the responsibility to discipline and remove judges at any point during their term of office.

The ad hoc standard applied in other states, which is understandingly troubling to many, has sometimes been a single decision, as this Iowa 2010 video ad makes clear. A 1986 effort in California was grounded in rulings against the death penalty. Hot button issues like same-sex marriage or the death penalty are far more likely to garner public attention and campaign contributions than an effort based on incompetence, which sadly would probably not be well-known outside the bar.

Lawyer commentary on retention

I expressed my support of Justice David and the other five judges on the ballot this year in an op-ed posted in the ISBA’s website and later printed in the Indianapolis Star. Some lawyers have since questioned not only whether Justice David should be retained but the propriety of an individual lawyer taking a stand at all.

A post on a criminal defense listserv asked “what in the world moved you to author such a pandering piece” (the Star op-ed) and questioned many of the specifics in the article. This was followed by a response from another lawyer that included:

I have an approach that doesn’t require much thought. Just as a matter of prophylaxis, vote "no" for everyone. . . . The folks to come will be quite independent, if they know they only have a two-year sabbatical from real life on an appellate court. . . .

Why would anyone vote "yes" for any of these people? Because some of them hold our licenses? (How about a constitutional amendment to change that?) No one could possibly support any of these people publicly because of the job their doing.

Vote "no"; and tell everyone you know to do the same.

Yet another lawyer agreed with the just-say-no post and added:
I don't think any judges need lawyers to be their cheerleaders to the public audience, let alone criminal defense lawyers or the collective “bar.”
Every citizen, including lawyers, should be free to express a view for or against retention. I don’t think anyone’s law license is in jeopardy, although the difficulty in taking a public stand against a judge before whom a lawyer will likely appear for many years to come is understandable.

Bar association efforts

Individual lawyers expressing their views is different from a bar association doing so. On Friday, the Indiana State Bar Association sent the following email to all members from President Dan Vinovich entitled, “Vote YES to retain our justices & judges”:

Our system of justice is under attack this election. As officers of the court we are obligated to protect the integrity of the judicial system. I encourage each of you to copy & paste the message below and send it to your email contact list, post it on your social media pages (Facebook, LinkedIn, Twitter, etc.) and communicate in any way you are able to educate your friends and family on this most important issue.

This election day please vote YES for all six judges up for retention. Each of the judges earned overwhelming approval in a recent survey by the Indiana State Bar Association. Over the course of a career, a judge may dispose of thousands of cases. One decision alone is not an accurate barometer of a judicial career. Judges are sworn to follow the law and not be swayed by special interest groups. Voting not to retain a judge because of one ruling politicizes the judiciary and threatens its independence as well as our form of government. Support the rule of law. Vote YES for all judges.

Part of this email restates information about the ISBA poll results and comments on the general role of a judge, which is certainly useful to consider in deciding how to vote and perhaps what to say to non-lawyers who seek our advice before the election. However, I’ve heard from some lawyers who found other parts of the email inappropriate, if not a bit offensive:Ideally bar associations strike an appropriate balance by providing useful information and commentary on judges without being seen as constant cheerleaders. Conducting and publicizing polls of lawyers familiar with a judge’s work is eminently reasonable and valuable, as is educating the public on the role and duties of judges. Going beyond those parameters, though, may not only rankle some members but could be used in future efforts to diminish the role of lawyers in selecting judges.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Courts

Ind. Decisions - Resolution: "Indiana BMV reinstates 4,000 drivers in proof-of-insurance case"

Updating this ILB entry from August 10th, the Indiana ACLU has issued a statement this morning that reads in part:

ACLU of Indiana Wins Reinstatement Of Thousands of Drivers Licenses: BMV halts enforcement of motorist registry

Indianapolis -Thousands of Hoosiers whose driver's licenses are currently suspended had their licenses reinstated today when the Indiana Bureau of Motor Vehicles agreed - in ongoing litigation by the American Civil Liberties Union of Indiana and private counsel Scott DeVries - to stop demanding proof of auto insurance from people who weren't required to have it.

The "Previously Uninsured Motorist Registry" unlawfully suspended the driver's licenses of people who had not violated any laws. The state legislature in 2010 established the registry, but the BMV did not issue rules to enforce it. Nevertheless, the BMV began that year to randomly select individuals for suspension of their driver's licenses.

In August, Marion County Judge Theodore Sosin granted a preliminary injunction to Lourrinne M. White, a working mother of six who faced financial disaster and ruin because her driver's license had been suspended. In 2010, the BMV sent White a notice that her driver's license would be suspended for a year because she did not carry auto insurance. Yet, White did not own a car and was not legally required to have insurance at the time of the BMV's punishment. The BMV's actions violated Indiana law and due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution.

ACLU of Indiana Legal Director Ken Falk said the lawsuit is on file and is "stayed," meaning no more licenses can be suspended until the stay is lifted. "I am hopeful that the BMV will go back to the General Assembly in 2013 to change this law so that Hoosiers are not again subject to unlawful and unconstitutional suspensions of their driving privileges," said Falk. "We recommend that before driving people check their driving status with the Indiana Bureau of Motor Vehicles, which they can do by phone or online if they have computer access."

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: R.P., Minor Child, B.H., Mother v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (3):

Steven E. Miles, a/k/a Robert Dutcher v. State of Indiana (NFP)

Patrick Fluker v. State of Indiana (NFP)

Maurice Higgins v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Charlie White disciplinary proceedings stayed

The Supreme Court has issued, Nov. 1st, this "Order staying disciplinary proceedings pending criminal appeal."

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending Nov. 2, 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. 2, 2012. It is two pages (and 21 cases) long.

One transfer was granted last week:

In addition, as reported in this Oct. 31st ILB entry, the Court vacated transfer and reinstated the COA opinion in the case of Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - Updates on status of Criminal Law and Sentencing Committee and Criminal Code Evaluation Commission

Criminal Law and Sentencing Policy Study Committee

On Oct. 25 the ILB wrote:

Today the Criminal Law and Sentencing Policy Study Committee met and agreed upon a draft of a bill to revise the Indiana Sex Offender statute. A copy of that draft is not yet posted on the study committee's website.
A check of the website today shows no draft has been added. Neither the draft nor the revisions to it made during the Oct. 25th Committee meeting appear to be available.

In addition, the Committee met 5 times this fall, but only the minutes of the first meeting are available. On the good side, it appears that videocasts of all 5 meetings have been posted (although I haven't tried the links yet). The Committee has no final report.

Criminal Code Evaluation Commission

This Commission met a number of times this fall, its minutes and a review/report are available. Preliminary Draft 3425, discussed at the final meeting, is not online. Videocasts of four of its meetings, but not the final meeting, appear to be available.

Maureen Hayden of CNHI reported Nov. 1. Some quotes:

The effort to overhaul major portions of Indiana’s criminal code to make punishment more proportionate to the crime moved another step forward Wednesday.

The state’s Criminal Code Evaluation Commission approved much of a 382-page draft of proposed legislation that contains sweeping changes to the code, including more levels of felonies, lower penalties for some drug and theft crimes and potentially more prison time for the worst sex and violent offenders.

The 16-member commission, which is made up lawmakers, judges, and representatives from the state’s prosecutors, public defenders, and state prisons, failed to reach agreement on some key areas. Among them: the sentencing ranges for the six new felony levels that the commission thinks should replace the current four felony levels.

The commission also pulled back some language that dealt with the credit time that offenders can earn toward early release while in prison, and also pulled some of the proposed changes on how habitual offenders are sentenced. Those issues will have to be left for legislators to hammer out in the next legislative session, which begins in January.

But the commission pushed forward on some other critical areas: recommending that Indiana do away with its punitive “drug-free” zones that ratchet up prison terms and reducing a low-level theft from a felony to a misdemeanor. * * *

The 2010 sentencing reform effort was dashed in part by opposition from the state’s prosecutors, who were critical of proposed legislation that would have shifted more low-level offenders out of the state prisons and into county jails and community-based programs without much more resources. In the draft of the proposed legislation approved by the commission Wednesday, there are provisions to provide more state dollars to local communities, including more money for community-based corrections and more money to counties for probation services. * * *

The only “nay” vote came from commission member David Powell, the executive director of the Indiana Prosecuting Attorneys Council. Powell said county prosecutors agreed with much of the recommended changes to the state’s criminal code.

But there were some sticking points: prosecutors opposed the penalty reductions for some of the drug and theft crimes. The commission’s recommendations are noteworthy, as several members noted, because they were reached through a lengthy process, bipartisan agreement, and significant consensus among people who hold varying views on criminal justice. But it’s also just the beginning: Now it has to be transformed into some massive legislation that both the state House and state Senate will approve and the next governor will sign.

From a Nov. 3rd WTHR 13 story:
INDIANAPOLIS - Indiana lawmakers say they are moving forward with plans that would keep convicted criminals behind bars longer.

That comes after 13 Investigates revealed concerns that thousands of violent criminals have been released too soon from prisons.

Indiana's Criminal Code is what determines how much time a convicted criminal will spend behind bars. It's been 35 years since that code has had a major overhaul it appears that is about to change.

Every year, thousands of convicted criminals are set free after serving just a fraction of their sentence. 13 Investigates showed inmates have been able to stack good time credits with education credits, vocational credits, rehabilitation credits, and other credits to slash years - even decades - off their sentences.

Many of the lawmakers, judges and attorneys that make up the state's criminal code evaluation commission say it's time to change that. This week, they finished a major review of the Criminal Code and the result is a proposed bill that's nearly 400 pages long.

Following our investigation, the commission is recommending cutting the amount of credit time inmates can earn. Program credits and education credits could be combined for up to two years off an inmate's sentence instead of the current four years.

Some members of the commission also want the Department of Correction to take a harder stand on good time credit. 13 Investigates showed how violent criminals who commit more offenses behind bars still get their good time credit anyway.

Those restrictions are not currently included in the proposed bill, but lawmakers say they will be once the bill is introduced to the full legislature.

"I believe the committee, and most people believe, if you misbehave and lost your good time credit, it should be lost," said Rep. Greg Steuerwald (R-Danville).

The Department of Correction does not agree with all the changes. The department says letting inmates out early saves a lot of money and requiring inmates to serve more of their sentences will cost taxpayers millions of dollars and could force the state to build more prisons.

Lawmakers will continue to meet with the DOC and with prosecutors and public defenders to craft the final bill that will be introduced in January.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Government

Ind. Courts - Still more on "ACLU of Indiana Challenges Marion County Judicial Election System"

Updating this ILB entry from Nov. 2nd, here are several more items of interest:

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Courts

Ind. Courts - New juvenile court magistrate in Lake County

The NWI Times today has this story by Susan Brown that begins:

CROWN POINT | The loss to the Lake County CASA program was the judiciary's win, Lake Juvenile Court Judge Mary Beth Bonventura says.

The commitment and experience of the program's longtime director, Elizabeth Gail Tegarden, made her the judge's "only" consideration when it came to replacing another juvenile court veteran, John Sedia.

Tegarden did not seek the position. Rather, Bonaventura sought her.

"We deal with underdogs in this court, children with no real voice," Bonaventura said. "Often Gail is the voice for these children. How can I not want her to sit in judgment and help people navigate through this maze we call the criminal justice system? We all turn to her."

Tegarden, 58, of Gary, says she has been in and out of juvenile court since obtaining her law degree 31 years ago, first by representing indigent clients in cases involving Children in Need of Services.

A graduate of Boston University and Valparaiso University School of Law, Tegarden also served as a public defender in juvenile court before accepting the CASA directorship in 1998.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Courts

Ind. Gov't. - "On Thursday morning, legislators tasked with recommending solutions to issues plaguing Indiana's Department of Child Services will and begin their work of balancing politics with policy."

From Virginia Black's story in the Sunday South Bend Tribune:

On Thursday morning, legislators tasked with recommending solutions to issues plaguing Indiana's Department of Child Services will sit down in a government conference room and begin their work of balancing politics with policy.

Perhaps some of them won't recognize the irony of what's slated to happen in a small courtroom in South Bend on the same day: Dellia Castile will be sentenced to up to 50 years in prison for not protecting her grandson, 10-year-old Tramelle Sturgis, from his father, who beat and tortured the boy to death a year ago.

The General Assembly's study committee on DCS has taken testimony since August from DCS officials and members of the public, but Thursday, they begin their deliberations among themselves.

"There are issues involved with DCS, there's no question about that," said state Sen. John Broden, D-South Bend and a member of the study committee. "Clearly Tramelle's death was a galvanizing force for what became a strong bipartisan effort, that we needed to take a good, hard look at everything regarding the Department of Child Services, especially starting with the intake process."

In response to media reports and concerns from law enforcement, schools and even emergency rooms, DCS has already made some changes to its centralized call center for abuse and neglect reports.

But some -- such as St. Joseph County Prosecutor Michael Dvorak, St. Joseph Probate Judge Peter Nemeth, and state Rep. Gail Riecken, D-Evansville -- advocate for a return to local centers where relationships among professionals can be tapped.

Here is the home page of the Department of Child Services Interim Study Committee. Two meetings are scheduled, for Nov. 8th and Nov. 27th.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Government

Law - "The country is now dominated by solidly Democratic states on the coasts and solidly Republican ones in the interior and in much of the South"

The reason? "The recent tendency of like-minded people to live near one another."

That comes from Adam Liptak's article in the Sunday NY Times on the electoral college. It begins:

IN the razor-thin 1960 presidential election, John F. Kennedy campaigned in 49 states. Richard M. Nixon visited all 50.

The current contest is just as close and intense, but the candidates have campaigned in only 10 states since the political conventions. There are towns in Ohio that have received more attention than the entire West Coast.

The shrinking electoral battleground has altered the nature of American self-governance. There is evidence that the current system is depressing turnout, distorting policy, weakening accountability and effectively disenfranchising the vast majority of Americans.

“It’s a new way to run a country,” says Bill Bishop, co-author of “The Big Sort,” a 2008 book that examined the most important cause of the trend: the recent tendency of like-minded people to live near one another.

That demographic shift means the country is now dominated by solidly Democratic states on the coasts and solidly Republican ones in the interior and in much of the South. In a close election, all of those states are completely out of reach for one candidate or the other.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to General Law Related

Ind. Law - Wedding of daughter of Indianapolis attorneys featured in NYT

The Weddings/Celebrations section of Sunday New York Times features each week, in addition to several pages of marriage announcements, a one-half to full-page feature called "Vows," focusing on the story of one couple. The couple this week was Sarah Hoover and Tom Sachs. The celebration took place at Oldfields-Lilly House and Gardens on October 20th.

Ms. Hoover is the daughter of Indianapolis attorney John David Hoover and former prosecutor Martha Hoover, who moved on to found Patachou and many other successful restaurants. The groom, Tom Sachs, "is a contemporary artist who lives and works in New York City," according to Wikipedia.

Posted by Marcia Oddi on Monday, November 05, 2012
Posted to Indiana Law

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 4, 2012:

From Saturday, November 3, 2012:

Posted by Marcia Oddi on Monday, November 05, 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 (11/5/12):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/5/12):

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

Tuesday, November 13th

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.


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 05, 2012
Posted to Upcoming Oral Arguments

Sunday, November 04, 2012

Ind. Gov't. - More on "PAC finds no public access violation by South Bend school board"

Updating this ILB entry from yesterday, a reader has called my attention to this ILB post from Oct. 24, 2007 headed "Ind. Gov't. - Indianapolis Public School Board met illegally Monday night."

Andy Gammill, who was at the time a reporter for the Indianapolis Star, writes:

It was interesting because the PAC's ruling went counter to what Heather Neal told me a few years ago when the same thing came up in IPS and what a host of other experts agreed with her on. I've attached the story in case it is of interest to you.
Heather Neal, then PAC, is now chief of staff at the Indiana Department of Education

Posted by Marcia Oddi on Sunday, November 04, 2012
Posted to Indiana Government

Saturday, November 03, 2012

Ind. Gov't. - "PAC finds no public access violation by South Bend school board"

Kim Kilbride filed this long South Bend Tribune story Nov. 1st, reporting:

SOUTH BEND — Indiana’s Public Access Counselor has ruled the Sept. 19 executive session of South Bend’s school board did not violate the state’s Open Door Law, so long as the discussion that took place was all related to the consent decree, a desegregation order from 1980.

The Tribune filed a formal complaint with the PAC after school board Vice President Bill Sniadecki said he was uncomfortable during the executive session because he felt some of the topics brought up should not legally have been discussed behind closed doors.

In his amended advisory opinion issued Thursday afternoon, Public Access Counselor Joseph Hoage, wrote, “if the discussions that occurred during the September 19, 2012 executive session were limited to what was provided in the notice, it is my opinion that the school did not violate the” Open Door Law.

Hoage wrote “emphasis added” on the “if”.

He went on to say the public access counselor is not a finder of fact.

“Advisory opinions are based upon the facts presented,” he wrote. “If the facts are in dispute, the public access counselor opines based on both potential outcomes.”

Indiana law allows public boards to discuss only specific things in executive sessions, meetings that are closed to the public.

The notice the school corporation sent out prior to the Sept. 19 meeting said its purpose was to discuss the initiation of litigation or litigation that was either pending or had been threatened specifically in writing.

The district has undergone an extensive facilities study and Superintendent Carole Schmidt had publicly said one or more buildings would close by the beginning of next school year to save money, though she has since said that likely won’t happen.

The district is actually looking at opening new schools now.

Hoage initially told The Tribune he questioned whether the consent decree from 1980 would be considered “pending” litigation.

In his ruling Thursday, though, he clarified that the consent decree has indeed been pending since 1980 since the obligations of it continue until the school corporation attains “unitary status.”

That happens, he wrote, when a district has been desegregated and a court determines it has “eliminated the vestiges of past discrimination.”

The issues Sniadecki claimed were inappropriately discussed during the session include what would happen to school buildings that would close.

Specifically, Sniadecki said, it was discussed that state law allows charter school operators to purchase former school buildings for $1 if they sit vacant for a year or more.

He said there was also discussion about Perley Fine Arts Academy and potential interest in the purchase of the property it sits on by a certain neighboring organization.

On Thursday, Sniadecki said it was also discussed that “if we have any challenges as far as closing any of the buildings, we won’t be saving any money because legal fees would overwhelm any savings of closing any buildings.”

The story links to the Nov. 1, 2012 opinion issued by the Public Access Counselor in response to "Formal Complaint 12-FC-287(a); Alleged Violation of the Open Door Law by the South Bend Community School Corporation."

Posted by Marcia Oddi on Saturday, November 03, 2012
Posted to Indiana Government

Ind. Law - More on "EACS sues to clear up confusion on sale law: Charters get 1st buy chance"

Updating this ILB entry from August 14th, Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a lengthy story that begins:

The Indiana Public Charter Schools Association told an Allen Superior Court judge Friday morning it would support changes to the state law it feels requires school buildings to sit unused for up to four years.

But when pressed by Superior Court Judge Nancy Boyer on whether the association would be willing to go ahead and let East Allen County Schools sell the former Monroeville Elementary School to the Roman Catholic Diocese of Fort Wayne-South Bend for $189,000, the association said no.

Boyer posed the question to the association’s attorney Paul Ogden about halfway through the 90-minute hearing in two cases involving shuttered elementary schools in both the East Allen County Schools and Fort Wayne Community Schools districts.

In the case involving FWCS, the charter schools sued to stop the sale of the Pleasant Center Elementary School building to the Fort Wayne-Allen County Airport Authority. It was an agreement reached before the changes to the law went into effect but was about to be made official by an airport board vote the day the association filed its lawsuit. The association said the Timothy L. Johnson Academy expressed a desire in the building, but FWCS attorneys said Friday the school has since decided on another property and merely wanted to look at the building to gauge its usefulness.

In the EACS case, the district sued the charter schools association to get a judge to weigh in on whether the district should be allowed to sell the Monroeville building to the diocese, which wanted to use it for educational purposes. Since the diocese has offered to buy the building, no existing charter school has expressed any interest in its use.

At issue is whether amendments to the Indiana law governing the sale of abandoned school buildings mean that vacant classroom buildings have to sit on a waiting list for four years providing charter schools the opportunity to claim them for $1, or whether the districts can sell the buildings under long-held state laws if no existing charter school is asking for them at the time of the sale.

Passed as part of a sweeping charter schools bill in 2011, the legislation says, “charter schools shall have access to unused school facilities owned by school corporations.”

Posted by Marcia Oddi on Saturday, November 03, 2012
Posted to Indiana Law

Friday, November 02, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Joshua A. Bostic v. State of Indiana, an 11-page opinion, Judge Pyle writes:

[Bostic] raises only procedural issues relating to: (1) his right to discharge due to the scheduling of his jury trial more than one year after the date he was charged and arrested; and (2) the rules for appointing a special judge to preside over his jury trial. We affirm and remand. * * *

We need not calculate the number of days chargeable to each party, because here, at no point during his proceedings, did Bostic file a motion for discharge under Criminal Rule 4(C) or object to the trial court’s setting of any of his trial dates. Accordingly, he has waived his claim that Criminal Rule 4(C) was violated. * * * Since Bostic did not object or file a motion for discharge, his Criminal Rule 4(C) claim is waived. * * *

Here, Bostic did not object—either at the jury trial or the sentencing hearing—to Senior Judge Milligan presiding as special judge in his cause. Accordingly, Bostic has waived review of any challenge to the appointment of Senior Judge Milligan as special judge.

NFP civil opinions today (2):

In Re The Visitation of M.J. and J.J.: C.M. v. J.J. and I.J. (NFP)

NFP criminal opinions today (3):

Curtis M. Howard v. State of Indiana (NFP)

Dennis Leer v. State of Indiana (NFP)

Kirk Lynch v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Justice Rush to assume duties November 7th

As the ILB reported in this entry on Oct. 26th, a news release this morning from the Supreme Court announces:

Loretta Rush, a Superior Court judge in Tippecanoe County, will take the oath of office as Indiana’s 108th Supreme Court Justice on November 7th. The private oath will be administered by Chief Justice Brent E. Dickson. A public, formal swearing-in ceremony will take place December 28th.

Chief Justice Dickson explained, “My colleagues on the bench and the court staff send our warmest welcome to Justice Rush. She is widely respected for her wisdom, sound judgment, and dedication as a jurist and for being an effective and innovative administrator.”

Case work and administrative matters have been handled by a four- member Court since Justice Frank Sullivan, Jr. left the bench in August 2012. Since her appointment, Judge Rush has continued hearing and completing juvenile cases in Tippecanoe County and Hon. Loretta Rush had a full docket this week. She has continued her work on numerous pilot programs that involve her court, worked on a transition plan and finished the court’s 2013 budget. She is transitioning her court to the leadership of Judge Pro Tempore Thomas Milligan, who was appointed by the Supreme Court to temporarily serve as judge of Tippecanoe Superior Court #3. The Governor will appoint Judge Rush’s permanent successor. Justice Rush will begin working with the Supreme Court immediately upon taking the oath next week. Her first oral arguments are scheduled for November 21st.

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Ind. Decisions - Tax Court posts one yesterday, a NFP

In Carolyn Gibson v. Indiana Dept. of State Revenue (NFP), a 5-page opinion by Judge Fisher in a case involving a pro se petitioner, Sr. Judge Fisher writes:

Carolyn Gibson has appealed the Indiana Department of State Revenue’s denial of her income tax refund claim for the 2007 tax year. The matter is currently before the Court on the Department’s Motion for Summary Judgment. * * *

The Department asserts that it is entitled to judgment as a matter of law because the undisputed material facts show that Ms. Gibson’s 2007 refund claim was untimely filed pursuant to Indiana Code § 6-8.1-9-1.3. Ms. Gibson, however, argues that principles of equity rather than the strict letter of the law should guide the Court in resolving this matter. Specifically, Ms. Gibson explains that she simply made an honest mistake in attempting to comply with Indiana’s ever-evolving tax laws and that she should not be penalized for that mistake. * * *

Ms. Gibson’s situation reflects some of the challenges Indiana citizens have in understanding the changes to, and complexities of, our tax system. While the Court is sympathetic to Ms. Gibson’s plight, it must apply the laws as they are written. See Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1144 (Ind. Tax Ct. 2010) (stating that the Court will not read provisions into statutes where they do not exist) (citation omitted). Furthermore, it is a well-established principle that courts of equity aid the vigilant, not those who have slept upon their rights. See SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005), cert. denied. Therefore, the Court must affirm the Department’s denial of Ms. Gibson’s 2007 refund claim because Ms. Gibson has not shown that the refund claim was timely filed or that her delayed filing was excusable.

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Ind. Tax Ct. Decisions

Ind. courts - Indianapolis Star endorses Justice David

Today's Indianapolis Star editorial section contains an editorial endorsing the retention of Supreme Court Justice Steven David, along with two letters that are not so enthusiastic. From the editorial:

Retention votes for Indiana appellate jurists have been ho-hum affairs over the four decades of their existence, with rare controversy and always a majority of "yes" votes.

This Tuesday may be an exception, at least in terms of the heat level.

Some residents are pushing for the ouster of Supreme Court Justice Steven David on the basis of a single act: his authorship of a 2011 ruling in which the court said, by a 3-2 vote, that there is no right to forcibly resist police who illegally enter one's home.

Seen by many as an attempt to subvert the Fourth Amendment to the U.S. Constitution, the decision sparked demonstrations, death threats against justices, a plea for reconsideration from the state attorney general and passage of a sweeping new law that some fear has put police in danger.

The anti-retention campaign, whose extent is difficult to measure, continues that fallout.

Is it justified? By no means.

First, the court clarified the ruling to the satisfaction of Attorney General Greg Zoeller, emphasizing it meant not to abridge rights but rather to define reasonable ways of redressing their violation.

Second, it's one case. As leaders in the Indiana State Bar Association point out, David has taken part in scores of cases during his two years as a justice and has been highly active in community outreach. A survey of attorneys by the association found more than 80 percent supporting his retention, a similar figure to those enjoyed by the others on the ballot, Justice Robert Rucker and four Court of Appeals judges.

In a public letter praising David as a "veritable workhorse" and a "fierce defender of the rule of law," outgoing Bar Association President C. Erik Chickedantz wrote: "Punishing a judge over a single decision . . . as opposed to looking at the whole picture of a judge's service lowers the status of the judicial process and can send a chilling message to other justices and judges. Hoosiers deserve better."

He's right. Hoosiers deserve the opportunity to hold judges accountable at the polls, but they have the obligation to know the history behind the names and the complexities of provocative decisions. In this instance, a retention vote is interesting for the wrong reasons. David merits a "yes" -- as does Justice Rucker.

The letters:
Vote to retain Rucker, but not David (link)

In addition to selecting politicos, the upcoming 2012 election allows Hoosiers to decide on the retention or dismissal of two of Indiana’s Supreme Court justices. This is our chance to vote our displeasure over the controversial Indiana Supreme Court ruling in Barnes v. State of Indiana.

The first decision is to retain or dismiss Justice Steven David. David wrote the majority opinion in the case, which said Hoosiers could not physically resist warrantless searches instigated by law enforcement. Citizens were instructed not to resist the police intrusion but to seek legal recourse after the fact. This decision rewrites the Fourth Amendment to the U.S. Constitution, as well as common law dating back to the Magna Carta in 1215. I suggest we dismiss David and his way of thinking.

The second decision is to retain or dismiss Justice Robert Rucker. Rucker wrote the minority opinion that opposed unwarranted searches based on our guarantees of the Fourth Amendment and common law. I suggest we retain Justice Robert Rucker because he understands the significance of search warrants and the U.S. Bill of Rights.

T. Kim Greeman
Indianapolis

Few lawyers responded, so results are dubious (link)

Joel Schumm’s Oct. 30 My View, “Don’t base judicial vote on a single case,” began by saying it was remarkable that 80 percent of the lawyers responding to the State Bar survey supported retention. In closing, he called this the vast majority of State Bar members.

Only 15 percent of the members responded to the survey after four attempts, representing less than 8 percent of the active lawyers in the state. About 6 percent (1,100) voted yes. One or two cheerleaders broadcasting emails might have generated that, or much of it, for a given judge.

Gordon Dempsey
Attorney at law, Indianapolis

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Indiana Courts

Ind. Gov't. - "Measure to prevent fraud at polls worries Elkhart voters"

Angelle Barbazon and Tim Vandenack report today in the Elkhart Truth:

The Elkhart County Clerk’s Office has received several complaints in the past couple of weeks about a new step poll workers are taking to avoid voter fraud before Election Day.

Eunice Worden, who lives in the Dunlap area, was taken aback last week at an early voting site in Elkhart when a poll worker asked for the last four digits of her social security number, adding that providing the information was optional.

“It caught me off guard because there has been so much on the news about voter suppression,” Worden said, adding that her daughter had a similar experience.

A change in legislation now requires poll workers to ask for social security number information, an extra measure county clerk Wendy Hudson said the government is taking to prevent voter fraud.

“We have to ask for it and tell voters it’s optional to answer, but the voters do not have to provide the information,” Hudson explained.

Still, Worden said the new rule does not make sense.

“My question is, if it didn’t make any difference whether you gave them your social security four-digit number or not, why ask,” Worden wonders.

At the polls, voters must present an identification card issued by the state of Indiana or the U.S. government that includes their name and photo. The card must be current or expired after Nov. 2, 2010. Other common forms of identification accepted at voting sites include military IDs, state school IDs and passports as long as they meet the four standards regarding identification cards.

ILB: But you will also need identification to receive a "identification card" at the BMV. According to the BMV, the most common documents that you can use to prove your identity include an original or certified copy of your birth certificate, or a U.S. passport.

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Indiana Government

Ind. Courts - More on "ACLU of Indiana Challenges Marion County Judicial Election System"

Updating yesterday afternoon's entry, a front-page Indianapolis Star story this morning, reported by Michael Boren, mostly defends the current system:

You will see 20 candidates on the ballot for Marion County judges when you vote Tuesday, but it won’t matter who you vote for — all the candidates will win.

State law allows political parties, not voters, to determine who is selected as a Superior Court judge in Marion County before the general election occurs.

Now, that law is being challenged. * * *

The ACLU argues the law leaves most voters out of the election process.

To some legal experts and political party members, however, the law helps maintain bipartisanship and prevents voters from having to choose from 20 candidates they know little about.

The law, passed in 2006, gives Marion County a unique system for electing Superior Court judges, who hear the majority of the county’s criminal and civil cases.

During a primary election, according to the law, the Democratic and Republican parties nominate the same number of Superior Court judicial candidates (in this case, 10 each). These two groups add together to match the total number of judicial seats available in the general election (in this case, 20). In other words, because the number of candidates does not exceed the number of available seats, a candidate who wins in May can't lose in November, unless a third-party candidate runs and wins.

This essentially makes voting on Election Day irrelevant, unlike during the primary when individual votes help determine a winner.

The law is the only one of its kind in Indiana, and possibly the nation, said Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law who teaches seminars each spring on how judges are appointed. The ACLU lawsuit raises serious questions, he said.

“Definitely, the lawsuit makes a valid point,” he said. “And it’s certainly a flawed process.”

But, Schumm added, the process in Marion County also works for several reasons. Very few voters know the judges in a county as big as Marion, as opposed to a small town where residents may know judges personally or have appeared before them. This, Schumm said, makes residents in a general election more likely to vote based on political party affiliations.

If the Democratic Party is doing well nationally, voters often are more likely to vote for Democratic judges. What it means, Schumm said, is good judges sometimes get kicked out of office, not for their performance but because voters don’t know anything about the judge and are just voting based on political party affiliations.

That’s why changing the current system could create problems, Schumm said.

“As flawed as this process may be,” he said, “there’s a possibility the cure may be worse than the disease.”

Local political party officials say the law prevents confusion among voters.

“It’s difficult for the general public to go through there and to differentiate if you have 20 candidates,” said Ed Treacy, chairman of the Marion County Democratic Party. The law also exists to limit partisanship in the court system, so judges aren’t “playing politics” with each other, Treacy said.

Judges and officials like Treacy declined to comment specifically about the lawsuit. But they admit there are pros and cons with every system.

Tim Oakes, a judge in the civil division of the Marion Superior Court, said that changing an election system always brings potential issues for one side. “One guy’s way,” he said, “is another guy’s problem.”

But by and large, he said, the current system has been successful. He said he wasn’t sure how voters could be more involved, given that they can already vote in the primary election.

“It has worked, and it’s worked very well,” Oakes said. “And probably as well as any other system.”

The story continues:
Another method of appointing judges involves having an independent commission, of lawyers and others, interview candidates and nominate them to a governor. The governor then determines whom he or she wants. This is how judges in the Indiana Court of Appeals are appointed.
ILB: That is also how Supreme Court Justices are appointed.

Two Indiana counties, St. Joseph and Lake, have similar systems involving judicial nominating commissions for selection of their Superior Court judges. See IC 33-33-71-29 et seq. and IC 33-33-45-28 et seq.

[More] WSJ Law Blog has a story today about the law suit, unfortunately referencing what must be a 93rd Indiana county: "Merion."

Posted by Marcia Oddi on Friday, November 02, 2012
Posted to Indiana Courts

Thursday, November 01, 2012

Ind. Courts - "ACLU of Indiana Challenges Marion County Judicial Election System" [Link to complaint repaired]

From a just-issued news release:

Indianapolis - Marion County voters have less influence than they may think about which judges are chosen for the Marion Superior Court. Today the ACLU of Indiana, on behalf of Common Cause Indiana, filed a lawsuit challenging state law governing that process to ensure voters of every political stripe can cast meaningful votes for all judgeships to be filled in Marion County.

"The system for electing judges in Marion County is unique in Indiana, and possibly the nation," said ACLU of Indiana Legal Director Ken Falk. "It is imperative that we ensure that when the State opts to fill positions through the ballot box, it does so in a manner that allows Hoosiers' votes to matter."

Under Indiana law, each of the major political parties conducts a primary election at which it selects exactly half of the seats to be filled, which renders the general election a mere formality. Voters in Marion County who do not cast a ballot in the primary election, therefore, have absolutely no say in electing judges to the Marion Superior Court. This process means that even people who do vote in the primary election have a say in only half of the judgeships to be filled.

The U.S. Supreme Court has long held that the right of suffrage is a fundamental matter in a free and democratic society, and that exercising voting rights in an unimpaired manner is preservative of other basic civil and political rights, such as those guaranteed by the First Amendment.

ACLU of Indiana Executive Director Jane Henegar said, "We are especially mindful this close to the General Election that the right to vote is precious. Our democracy is premised on the right of each citizen to have a meaningful vote. Americans should never be forced to muffle their voices in our government for anyone's convenience, least of all for political parties."

Julia Vaughn, policy director for Common Cause Indiana, said change is needed, and her organization hopes that today's action will make that happen: "For too long the party bosses have controlled the judicial selection process in Marion County and denied voters any meaningful role in it. Marion County voters deserve the same opportunities as voters in other counties to elect judges of their choice. The judicial branch, as arbiters of the law, must be above reproach." Common Cause Indiana is the statewide affiliate of a national nonprofit organization dedicated to promoting good government and voting rights.

The case, Common Cause Indiana v. Indiana Secretary of State, was entered in the U.S. District Court for the Southern District of Indiana in Indianapolis under cause number 1:12-cv-01603-RLY-DML.

ILB: Here is my communicaton recently with neighbors who wanted input on the judges on their ballot:
Question: Do you have advice about how to answer the "should __________ be retained" questions on the ballot? Or about the long list of judges to vote for?

Answer: I am voting yes to retain both Supreme Court justices who are up, David and Rucker.

One Court of Appeals judge is on our ballot, Nancy Vaidik, and she is excellent.

There is a long list of Marion Co. Superior Court judges on our ballot, half R and half D. Our votes don't matter. The two parties have agreed in advance (through slating conventions) to these names, and the number of names on the ballot is equal to the number of seats up for election! So it is a done deal.

Yes, many of us have been trying to get this changed for years ... Marion is the only county with this arrangement.

Here is a copy of today's 7-page complaint.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Law - $25 for 6 legal ethics CLE on Nov. 27th

Sponsored by the Indiana Inspector General, details here.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Law

Ind. Decisions - A news story on "Driving For Miles With Blinker On is Not a Crime"

Scott Smith, Staff Writer, Kokomo Tribune, has pointed the ILB to his story reported in the Oct. 24th Kokomo Tribune. Smith is putting together a followup. The current story (see also the reader comments) begins:

The Indiana Court of Appeals has thrown out a Kokomo man’s marijuana conviction, ruling police had no reason to search his car.

Rodney Killebrew II was arrested March 3, 2011, after Kokomo Police Officer Chad VanCamp pulled Killebrew over on North Apperson Way.

According to court documents, VanCamp said Killebrew drove straight through an intersection without turning, despite the fact Killebrew’s turn signal was flashing.

VanCamp claimed Killebrew’s failure to turn created a suspicion of impairment, which in turn justified pulling over Killebrew’s vehicle.

In a 14-page ruling, the appeals court disagreed, saying driving around with an activated turn signal is “equally common” among unimpaired drivers.

During a February bench trial, VanCamp testified it was common for people who aren’t impaired to go through intersections with their turn signals activated.

“Common for old people too, have you seen them?” Killebrew’s attorney asked during the trial.

“Absolutely, I’ve stopped them for it too,” VanCamp responded.

Stopping drivers for that reason “would be ripe for abuse and would not strike a reasonable balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy,” the ruling states.

The three-judge panel unanimously agreed it isn’t illegal, under Indiana law, for a driver to fail to turn, even if they have a turn signal flashing.

They also ruled those circumstances weren’t enough to create a reasonable suspicion of impairment.

With no legal reason to pull Killebrew over, VanCamp’s subsequent search violated Killebrew’s constitutional right against illegal search and seizure.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "2012 WOMAN OF INFLUENCE: Judge Margret G. Robb"

Very nice article by Marc and Matha Allen in the Indianapolis Business Journal. A sample:

As the first woman judge to be elected as chief judge of the Indiana Court of Appeals, Margret Robb is aware of its significance, but is not caught up in it.

“I would like to think that my colleagues voted for me because they thought I would do a good job,” said Robb. * * *

“I’m enormously proud to be a woman on the court, to be a woman as chief; someone had to be the first.”

It’s also important that someday a second and third woman be appointed to head the court, until it’s no longer a big deal, she said.

That may take a while, however, as just eight women have served on the appellate court in its 112-year history, and five of those are serving now.

The chief judge is elected by the 15 judges who serve on the appellate court. “It’s really the face of the court,” Robb said of her position, which is for a three-year term and began in 2011. “When someone needs to speak, I address the issues that the court has made decisions on.” * * *

There is more to being a judge than hearing cases, of course.

“Mentoring is one of the reasons that I hire a new law clerk every year,” said Robb, who studied law at the Indiana University Robert H. McKinney School of Law in Indianapolis. “I think part of my obligation is to mentor new lawyers.” She and other judges on the court also host “externs,” law students who volunteer in their chambers for school credit—and learn what appellate court is like.

“I was mentored by both men and women, and I think that’s what makes a really good bar.”

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

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

For publication opinions today (1):

In Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks, a 17-page opinion, Judge Bradford writes:

After Veolia Water twice turned her water off for non-payment, appellant Leslie Bridges filed a class action seeking return of her $25 reconnection fee and other unspecified damages and attorney’s fees. The trial court dismissed, concluding that Bridges had failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. We conclude that the trial court was correct to hold that Bridges was obliged to seek those remedies before seeking judicial relief. * * *

In arguing that the trial court abused its discretion by denying her motion to correct error, Bridges claims that the IURC did not have exclusive jurisdiction over her claim. Alternatively, Bridges claims that even if the IURC did have exclusive jurisdiction over her claim, her failure to exhaust the available administrative remedies should be excused because the exhaustion of said remedies would have been futile. For their part, the Appellees argue that the IURC did have exclusive jurisdiction over Bridges’s claim. Appellees further argue that exhaustion of the available administrative remedies would not have been futile, and, as such, Bridges’s failure to exhaust said remedies should not be excused. * * *

Having concluded that the IURC has exclusive jurisdiction over Bridges’s claim against the Appellees, we must next consider whether Bridges’s failure to exhaust the available administrative remedies should be excused. Again, Bridges argues that even if the IURC did have exclusive jurisdiction over her claim against the Appellees, she should be excused from exhausting the available administrative remedies because the exhaustion of the available administrative remedies would have been futile. Appellees, for their part, argue that exhaustion of the available administrative remedies would not have been futile. * * *

In the instant matter, Bridges sought damages, attorneys’ fees, costs, and an injunction prohibiting the Appellees from continuing to disconnect residential water service without following the terms of the Tariff. The request for the injunction is moot, however, because the Department sold the waterworks assets in 2011 and Veolia is no longer involved in the administration of waterworks assets. The damages sought by Bridges appear to be merely the recovery of the $25 re-connect fee that she incurred after one instance when she claims he residential water service was disconnected in violation of the terms of the Tariff. * * *

Thus, because the IURC would have the authority to order the Appellees to refund the damages allegedly suffered by Bridges, it would not have been futile for Bridges to exhaust the administrative remedies available to her.

Furthermore, even if Bridges were to be unsuccessful in an administrative challenge, resort to the IURC may produce a reasoned explanation of the lawfulness of the Appellees’ actions, and that, in and of itself, could be of value before resorting to the courts to resolve such an issue. * * *

In sum, having concluded that Bridges’s claim falls within the exclusive jurisdiction of the IURC and that exhaustion of the available administrative remedies would not have been futile, we conclude that the trial court acted within its discretion in denying Bridges’s motion to correct error because the trial court did not have subject matter jurisdiction over Bridges’s claim.

NFP civil opinions today (3):

Bryan Jann v. Review Board of the Indiana Dept. of Workforce Development and C&B Custom Modular, Inc. (NFP)

Kenneth Hawkins v. Debra Hawkins (NFP)

David J. Bogolia and Nikki Schafer v. John Danielson, M.D. (NFP)

NFP criminal opinions today (6):

Joshua Shipley v. State of Indiana (NFP)

Jeffrey S. Heironimus v. State of Indiana (NFP)

Angela R. Elliott v. State of Indiana (NFP)

Brian S. Fleming v. State of Indiana (NFP)

Stephen L. Reed v. State of Indiana (NFP)

Darrius Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Yet more on "Driving For Miles With Blinker On is Not a Crime"

Updating this ILB entry from Oct. 29th, the “attorney who works with law enforcement” has sent this note in response:

Thanks for your thoughts on my comments regarding the Killibrew decision. I would respond in the following way, obviously leaving to you the decision whether to post my response or not.

I read the two statutes, IC 9-21-7-11 and IC 9-21-8-25, in conjunction with each other. A person is allowed to activate a turn signal (a flashing light) for the purpose of indicating a left or right turn under 9-21-7-11, and must do so at the minimum distances required in 9-21-8-25 before actually making the turn. Certainly, there is some room for differing judgments in individual cases. A person who is in the right lane of a city street and signals a right turn 400 feet away, when only 200 feet are required, is not likely to violate the flashing light statute--the officer is going to have a hard time articulating his "belief in good faith" (the standard necessary to make a traffic stop, see IC 34-28-5-3) that the person wasn't attempting to indicate an intention to turn with the short distance observed.

However, I think the State would likely meet its burden in a case where a person drove his vehicle for a substantial distance (say a quarter of a mile) with a turn signal on while passing several intersections, or if a person had his left turn signal on for a substantial distance where there were no location to actually turn left, such as on an interstate highway. I think in these examples, a law enforcement officer would have a "belief in good faith" that the signal is not being used to indicate an intention to turn right or left, and therefore the statute would be violated.

I realize that this is not a black and white rule, but the traffic code is full of examples where discretion is left to the officer to decide whether a violation is occurring based on the circumstances he observes. See, for example, the "following too closely" statute, which simply says, "A person who drives a motor vehicle may not follow another vehicle more closely than is reasonable and prudent ..."

The ILB also received this response:
I think I'd prefer if I be cited as an "attorney working with law enforcement" on this topic as well.

In XXX County, we prosecute OWIs at a per capita rate as high or higher than anywhere in the State. I'm one of the point people for that effort.

From my professional chair, Killebrew beautifully illustrates bad facts making bad law.

The fact pattern is poor for a couple reasons - first, the arresting officer's testimony clearly shows a mistaken belief that signalling without turning was a traffic infraction. Second, the officer testified that based on that conduct he suspected Killebrew of impaired driving.

The deputy prosecutor in the trial court should have elicited testimony from his/her officer that "Signal inconsistent with action" is listed by the Nat'l Highway Traffic Safety Administration as a sign of impairment in their OWI SFST training manual(s) and has been listed as such for over twenty years. In this, both the trial and appellate levels have missed the boat. More to the point though - our office and I personally have always implored our local LEOs to always make traffic stops on more than just one piece of impairment.

Even if the State prevails at the suppression level on such a thin set of facts, our juries have been singularly underwhelmed by those same facts. They probably should be.

Further, because there is only one driving behavior the Appellate Court was offered -- the opportunity to make a finding that this driving behavior as a matter of law is not a sign of impairment. They failed to resist the opportunity, and got it wrong in the result.

All of that said, on a personal note I'm pleased with this result - that one sign of impairment listed by NHTSA is one of twenty-three different signs of impairment included by NHTSA in their manuals.

LEOs will continue to have absolutely no problem pulling over motorists when they feel the need.

I don't know if this will reassure you or alarm you, but I'm convinced 90% of Hoosier drivers (myself included) can't drive their vehicles more than 5 miles in our city and not merit a traffic stop based on some infraction or violation.

Thanks for all your hard work. Your law blog rocks.

The ILB thanks both writers for their responses!

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A troubling effort to politicize courts"

That is the headline to an article by Ruth V. McGregor, retired chief justice of the Arizona Supreme Court, and Randall T. Shepard, retired chief justice of the Indiana Supreme Court, published Oct. 22nd in The National Law Journal. Some quotes:

In states as dissimilar as Florida and Iowa, interest groups are seeking to oust judges because they disagree with a few rulings in controversial cases. By focusing on retention elections — a historically low-key vote focusing on judges' professional qualifications — these groups have threatened to puncture a protective shield that keeps politics outside the courthouse.

In recent months, political party leaders have joined the assault in these states, breaking with local tradition and calling for removal of state supreme court justices. These party leaders, with their partisan declarations in a nonpartisan realm, threaten to utterly destroy the protective shield.

As lifetime jurists and former chief justices of the supreme courts of Arizona and Indiana, we believe citizens should be concerned. If judges cannot make hard calls based on the law, without looking over their shoulder for threats of retaliation, it will become harder for our justice system to fulfill its traditional responsibility to uphold the Constitution and protect Americans' rights.

In retention elections, only the incumbent judge appears on the ballot, and voters choose "yes" or "no" to decide whether to grant the judge another term. This model, used at least some of the time for 20 state supreme courts, is based upon the principle that we should give voters a check on professional wrongdoing, while keeping politics and campaign spending to a minimum.

Unfortunately, that ideal is gravely at risk. When national political stars barnstorm Iowa to pillory a judge, and when political leaders in two presidential swing states publicly endorse the removal of qualified justices for partisan ends, they have crossed the line.

The threat is growing. Two years ago, five states saw retention-election challenges of a scope rarely seen before and in Iowa, three supreme court justices were denied retention over a single ruling. This year, political partisans have escalated the attacks by publicly joining the fight, with out-of-state funders at their side.

To ensure that strategies to politicize our courts don't become the wave of the future, we must stand up to halt them now. * * *

Voters in Iowa and Florida adopted retention elections to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.

But the new tactics in retention elections undermine those goals. The tactics of the special-interest groups and partisan leaders are aimed at intimidating judges over decisions made on the bench. If they succeed, this country's proud history of a fair and independent judiciary is placed at risk.

We were initially appointed by Republican governors to our respective supreme courts. Voters granted us retention multiple times. We have no political agenda in speaking out. Rather, we fear that our courts are under fire for doing their job — and that political attacks today threaten to interfere with judges fairly and impartially following the rule of law tomorrow.

Transforming judicial elections into referenda on a few rulings in controversial cases threatens this impartiality. It creates a profound risk that Americans seeking a fair day in court will instead get caught up in the nation's political wars.

ILB: The article argues that the citizen's vote should not be based on "a few rulings in controversial cases." It asserts instead that:
Voters in Iowa and Florida adopted retention elections to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.
In Indiana, however, it appears that Art. 7, Sec. 11 of the Constitution gives this responsibility for getting rid of unfit judges to the Court itself. It provides in part:
"On recommendation of the commission on judicial qualifications the Supreme Court may (1) retire such justice or judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and (2) censure or remove such justice or judge, for action occurring not more than six years prior to the commencement of his current term, when such action constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute."

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Courts - "State court judges may be least known candidates on the ballot "

That is the heading of an Oct. 31st story by CNHI Statehouse Bureau chief Maureen Hayden that begins:

INDIANAPOLIS — Most voters may not know a state Supreme Court justice up for retention election next Tuesday wrote the opinion in a landmark ruling that cleared the way for the maker of some “copycat” toy machine guns to be criminally prosecuted.

That ruling – along with more than 600 votes cast or opinions written by Justice Robert D. Rucker since he was appointed to the bench in 1999 – is on an easy-to-access public website created to give voters more information about candidates they may know the least about: the judges who sit on the state’s appellate courts.

For most voters, visiting the website, courts.IN.gov/retention, may be one of the only ways to learn about the two state Supreme Court justices and four state Court of Appeals judges who are on the November ballot.

One of them, Supreme Court Justice Steven David, has his own website, prompted by critics who want to oust him for a decision he wrote that said citizens don’t have a right to forcibly resist police. But that’s a rarity: In Indiana, appellate judges up for retention typically may not campaign unless they face active, organized opposition. It’s been that way since 1970, when Indiana voters amended the constitution to do away with direct election of the state’s appellate court judges and into place a “merit selection” process intended to keep partisanship and political pressures at bay.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Courts - Column argues in favor of the federal (lifetime) model for appointment of Indiana appellate judges

SPEA professor Sheila Kennedy's blog post this morning is headed: "THIS is Why Judges Shouldn’t be Elected." It begins by noting that because of Justice David's opinion in Barnes, "the Tea Partiers are out for his blood." From the conclusion:

When the states established their own courts, however, they didn’t always follow the federal model.

When judges are on the ballot, bad things happen. They have to raise money to run for office, and that money often comes from people who have business before the courts. * * * They have to be wary of interest groups that may mobilize to defeat them if they rule in ways inimical to the desires of those groups.

Even in “semi” elections like Indiana’s, where all that appears on the ballot is a retention question, asking voters to say yea or nay to the continued service of a judge makes members of the judiciary vulnerable to small but passionate interest groups like the Tea Party that’s gunning for Judge David. (No pun intended.)

Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions. Because that’s the case, small numbers of zealots can mount successful campaigns to defeat a judge they dislike. Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require.

That isn’t the system the Founders established, and it isn’t a system capable of upholding the rule of law against the passions of the mob.

See also yesterday's ILB post, headed "Indianapolis Tea Party takes to air with anti-Justice David ad."

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts