The Indiana Law Blog: December 03, 2012 Archives

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Monday, December 03, 2012

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

In US v. Moreland, et al (SD ind., Magnus-Stinson), a 26-page opinion, Circuit Judge Posner writes:

The nine defendants were charged with conspiracy to distribute large quantities of methamphetamine and marijuana (two of them were charged in addition with being felons in possession of firearms). All were convicted by a jury and given long prison sentences: Moreland 110 months, Smith 151, Bailey 216, Pitts 420, and the others life. Only one defendant, Shelton, was charged with a substantive drug offense; this is a further illustration, if any is needed, that conspiracy is indeed the prosecutors’ darling. We listed the reasons in United States v. Nunez, 673 F.3d 661, 662-64 (7th Cir. 2012) [other cites omitted] —though we add that a prosecutor’s putting all his eggs in the conspiracy basket can be a risky tactic, as we’ll see.
[Issues raised include the government’s use of wiretap evidence, "the judge’s having in advance of voir dire excused several potential jurors", expert testimony, etc.]
The judgments are AFFIRMED.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. courts - More on: Applications to replace Judge Moberly open until Nov. 30th [Updated]

Updating this ILB entry from Nov. 15th, applications closed Friday and the ILB is attempting to obtain the list of applicants ...

[Updated at 2:38 PM] Here is the list:

Gary L. Miller

Steven J. Rubick

Paul K. Ogden

Curtis J. Foulks

Jeffrey M. Gill

Patrick J. Dietrick

Maura J. Hoff

Stanley E. Kroh

Tiffany U. Vivo

Gary W. Bippus

Carol J. Orbison

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Indiana Courts

Ind. Decisions - "Judge Rejects Atheist Bid for Right to Perform Marriages"

Eric Berman of WIBC is reporting:

A federal judge has rejected an Indianapolis atheist group's bid for the right to perform marriages.

Judge Sarah Evans Barker says granting clergy the right to perform marriages is the kind of accommodation of religion the First Amendment protects, not a denial of rights to the nonreligious.

See earlier ILB entry, plus complaint, here in an Oct. 23rd ILB post.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Couple charged with neglect after police found kids in box truck out of jail, thanks to Texas couple"

Tanya Spencer reports at noon for WRTV6 in a story that begins:

A Texas couple came to the aid of a couple charged with neglect after police in Henry County found five of their children in the back of a moving truck.

David Detjen, 41, and his 40-year-old wife Rebecca each pleaded not guilty to a single count of felony neglect Friday, but even before they appeared in court, Julie and David Boenker, of Fort Worth, Texas, offered to post their $10,000 bond.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Indiana Courts

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

For publication opinions today (1):

In State of Indiana v. Terry J. Hough, a 12-page opinion, Judge Mathias writes:

Terry Hough (“Hough”) filed a petition in Porter Superior Court requesting that his name be removed from Indiana’s sex offender registry. Specifically, Hough, who was convicted of rape in Pennsylvania in 1993, argued that his name should be removed from the registry pursuant to our supreme court’s decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). The trial court granted Hough’s petition and the State appeals. Specifically, the State argues that Hough should not be removed from the sex offender registry because he would still be required to register under Pennsylvania’s registry law, and he has an independent duty to register as a sex offender under the federal Sex Offender Registration and Notification Act. We affirm. * * *
Our court recently considered circumstances similar to those presented in this case in Burton v. State, No. 45A03-1201-CR-6 (Nov. 8, 2012 Ind. Ct. App. 2012). * * *
We reach the same conclusion in this case. As a resident of Indiana since 1998, Hough is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under Pennsylvania’s laws, Indiana’s law controls. Because he was convicted of a sex offense before Indiana enacted INSORA, requiring Hough to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws. See Wallace, 905 N.E.2d at 384. * * *
Finally, the State argues that Hough has a separate registration requirement under the federal Sex Offender Registration and Notification Act (“USSORNA”). We recently considered this argument in Andrews v. State, No. 29A02-1112-MI-1166 (Nov. 21, 2012 Ind. Ct. App. 2012). Like the circumstances presented in this case, Andrews was convicted of a sex offense in another state before Indiana enacted INSORA. * * *
Likewise, in the case before us, Indiana is the only state that currently requires Hough to register as a sex offender, and he has resided in our state since 1998. Pursuant to our supreme court’s decision in Wallace, to continue to require that Hough register as a sex offender for a conviction pre-dating the enactment of INSORA would violate Indiana’s constitutional prohibition against ex post facto laws. See Ind. Const. Art. 1, § 24; 905 N.E.2d at 384. For all of these reasons, we affirm the trial court’s order granting Hough’s petition to remove his name from the Indiana sex offender registry.

NFP civil opinions today (1):

Monica Leigh Fortner v. Paul Leon Fortner, III (NFP)

NFP criminal opinions today (1):

Mark Graber v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Nov. 30, 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. 30, 2012. It is one page (and 17 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Indiana Transfer Lists

Ind. Law - "Timing essential in Ind. gay marriage battle"

Here is Tom LoBianco's AP story, as published yesterday in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS (AP) — Timing is everything when it comes to the battle over whether to amend Indiana's constitution to ban same-sex marriages. And key lawmakers are playing their cards close to the vest heading into the 2013 legislative session with a new governor and a list of big priorities.

Republican House Speaker Brian Bosma told reporters before the election that the measure could move swiftly through his chamber, but he did not include it in a package of ideas House Republicans said they would push in 2013.

Rep. Eric Turner, R-Cicero, led the fight for the measure's passage last year but has yet to say if or when he will introduce the measure, which needs a second vetting by the General Assembly before it can be placed on the 2014 ballot.

"I don't know yet. Our leadership team, including (Rep.) Tim (Brown) and others, will get together and identify all the things we want to try to accomplish this session and next," Turner said. "We'll look at a lot of factors."

Some supporters of the ban argue now is the time to push the measure through. But there are more variables than usual for lawmakers to consider heading into 2013.

They will have to write their next biennial budget, get acclimated to a new governor for the first time in eight years and measure the possibility that the U.S. Supreme Court will take up the issue and make the whole argument moot. * * *

When lawmakers do debate the issue, it could be without a hand from Governor-elect Mike Pence. [Rick Sutton, executive director of Indiana Equality Action] said he met with Pence's transition team last week and was told the new administration would stay out of the fight.

"I think everyone knows where Mike Pence has been on this issue in the past. But ... they have big things to do and this is not on their priority list to jump in to something where they have no role anyway," he said.

"It is my opinion they have bigger fish to fry."

Pence spokeswoman Christy Denault did not say how Pence would handle the issue, only stating "Gov.-elect Pence is focused on building an administration and advancing his jobs and education initiatives."

ILB: Constitutional amendments are in the form of joint resolutions, which do not go to the Governor for his action, as bills do.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Indiana Law

Ind. Gov't. - "Indiana appointments raise ethical issues that Brian Bosma, Mike Pence may want to avoid"

Lesley Weidenbener had this story this weekend in the Louisville Courier Journal. It begins:

INDIANAPOLIS — The legislative session hasn’t even started and House Speaker Brian Bosma and Gov.-elect Mike Pence have already made some controversial moves that raise ethical questions — or at least create the appearance of ethical issues.

Bosma, R-Indianapolis, has hired lobbyist Matt Whetstone to serve as his parliamentarian, a post that will put the former GOP lawmaker literally at Bosma’s right hand for every battle over rules in the chamber.

And Pence has named former House Ways and Means Chairman Jeff Espich — who opted this year not to run for re-election — to be his senior adviser for legislative affairs.

Neither of these moves may seem terribly surprising or — at first glance — controversial. Whetstone, after all, is a former member of the House who served as his party’s rules expert. He was the guy who would use the rules either to keep GOP legislation moving or to try to block Democratic proposals. * * *

Espich, meanwhile, is a 40-year veteran of the House and former chairman of the budget-writing Ways and Means Committee. He’s had his fingerprints on most of the major tax and budget proposals that moved through the General Assembly over the past 15 years. * * *

But there are legitimate questions about both appointments.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Indiana Government

Ind. Gov't. - Where are the new "Environmental Rules Board" members?

The 2012 General Assembly passed a law, HEA 1002, that repealed the Air Pollution, Water Pollution, and Solid Waste Boards, effective December 31st, 2012. See HEA 1002, SEC 72, p. 47. Replacing these three boards, according to the new law, is the Environmental Rules Board. The law creating the new board went into effect on July 1st, 2012. (Here is a Jan. 21, 2012 ILB entry on the changes.)

The ILB looked this weekend on the IDEM website, and on the Governor's website, and found nothing about this new board.

In this Nov. 20, 2012 news release, Governor Daniels announced a multitude of appointments and reappointments to various boards and commissions. Mary Beth Schneider of the Indianapolis Star wrote in a Star blog that day:

Gov. Mitch Daniels, who is in his final weeks as Indiana’s top officeholder, made 21 new appointments today to boards and commissions while also reappointing 39 other people.

It is a marked departure from 2005, when Daniels as the new governor, demanded that all those on boards and commissions offer their resignations so that he could reshape the boards and commissions with his own appointees.

A spokeswoman for Gov.-elect Mike Pence, the Republican who is succeeding Daniels, indicated Pence is fine with the appointments. * * *

In January 2005, before taking office, Daniels asked the outgoing governor, Democrat Joe Kernan, to see mass resignations from 11 state boards and commissions. Kernan refused, but Daniels, once he was governor, sent a letter to the members of 17 state boards and commissions, including those that oversee the public employee retirement funds, asking them to resign.

Fewer than a third of the 120 asked to resign did so. Others noted that they had been appointed to a set term in office, established by the legislature, and that that had not expired.

However, no appointments have been made to the successor to the three soon-to-be-repealed environmental rulemaking boards.

There was talk back in July that these appointments would need to be made promptly, as it takes some time to orient and prepare new board members, environmental rulemaking is very complex. It will be three times more so for these people, who will have to know about three media rather than one, and presumably will have to meet much more frequently than the boards that specialized in a single media did.

Some people unfamiliar with environmental rulemaking may think this lack of action is a good thing and will result in fewer "onerous" rules, but the absence of a knowledgeable environmental rulemaking body, one that can hit the ground running, will in fact seriously handcuff the State.

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Environment | Indiana Government

Courts - SCOTUS to hear cases on water runoff this week

"High Court to decide how logging roads regulated " is the headline to this long AP story by Jeff Barnard that begins:

GRANTS PASS, Ore. (AP) -- The U.S. Supreme Court will decide whether to switch gears on more than 30 years of regulating the muddy water running off logging roads into rivers.

At issue: Should the U.S. Environmental Protection Agency keep considering it the same as water running off a farm field, or start looking at it like a pipe coming out of a factory?

The case being heard Monday in Washington, D.C., was originated by a small environmental group in Portland, the Northwest Environmental Defense Center.

It sued the Oregon Department of Forestry over roads on the Tillamook State Forest that drain into salmon streams. The lawsuit argued that the Clean Water Act specifically says water running through the kinds of ditches and culverts built to handle storm water runoff from logging roads is a point source of pollution when it flows directly into a river, and requires the same sort of permit that a factory needs.

"Supreme Court wading into L.A. County storm water case: The Supreme Court may use an L.A. case to decide for the first time who can be held responsible for storm water runoff pollution" is the headline to this story yesterday by David G. Savage of the LA Times. It begins:

WASHINGTON — The Supreme Court will hear a case from Los Angeles on Tuesday to decide for the first time who can be held responsible for polluted storm water that runs off city streets and into rivers and bays.

The case arises from a long-running dispute between Southern California environmental groups and the Los Angeles County Flood Control District over the billions of gallons of polluted water that flow into the Los Angeles and San Gabriel rivers after heavy rainfalls.

Congress expanded the Clean Water Act in 1987 to include storm water runoff, and since 1990 the sprawling Los Angeles district has operated under a permit.

The Natural Resources Defense Council and the environmental group Los Angeles Waterkeeper sued the flood control district in 2008, contending it was violating its permit. The district's monitoring stations in the two rivers regularly showed unacceptably high levels of pollutants flowing in the rivers and into the ocean, the suit said.

Here are the Monday, Dec. 3 consolidated cases, with links to SCOTUSblog.

Here is Tuesday's case:

Los Angeles County Flood Control District v. Natural Resources Defense Council

Posted by Marcia Oddi on Monday, December 03, 2012
Posted to Courts in general | Environment

Ind. Gov't. - "UNITED STATES OF SUBSIDIES: A series examining business incentives and their impact on jobs and local economies"

The NY Times on Sunday began a massive three-part series on tax breaks and other incentives for local jobs. Louise Story is the reporter.

Part 1 is titled "As Companies Seek Tax Deals, Governments Pay High Price."

Part 2, published today, is headed "Winners and Losers in Texas." Tuesday's Part 3 is titled "When Hollywood Comes to Town."

Here is the data. The NYT writes that "it spent 10 months investigating business incentives awarded by hundreds of cities, counties and states. Since there is no nationwide accounting of these incentives, The Times put together a database." It includes much data on Indiana.

Posted by Marcia Oddi on Monday, December 03, 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, December 2, 2012:

From Saturday, December 1, 2012:

Nothing.

Posted by Marcia Oddi on Monday, December 03, 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 (12/3/12):

Friday, December 7th

9:00 AM - In Re: Visitation of M.L.B.; K.J.R. v. M.A.B. (41S01-1209-MI-556) - One day before granting Stepfather’s petition to adopt Child, the trial court issued an order granting Paternal Grandfather visitation rights as to Child. On Mother’s appeal of the grandparent visitation order, the Court of Appeals affirmed.Matter of Visitation of M.L.B., No. 41A01-1107-MI-285, slip op. (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 14, 2012 NFP COA opinion about which the ILB wrote at the time: "This is a 2-1 NFP grandparent visitation rights opinion that might have been classified as 'For Publication' (IMHO).
9:45 AM - Brian Scott Hartman v. State of Indiana (68A01-1106-CR-264) - Hartman made incriminating statements while in jail about his involvement with his father’s death. The Randolph Circuit denied Harman’s motion to suppress the statements. The Court of Appeals affirmed in an interlocutory appeal. Hartman v. State, 962 N.E.2d 1273 (Ind. Ct. App. 2012), trans. pending. Hartman has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: See this Oct. 17, 2012 ILB post about the Hartman case, which has not yet been granted transfer. Here is the March 2, 2012 COA opinion.
10:30 AM - Commissioner of Labor ex rel. Stephen R. Shofstall, et al. v. International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91 (49S02-1205-PL-269) - When three former union employees made claims seeking payment for accrued but unused vacation days, the Marion Superior Court granted the union-employer’s motion for summary judgment. The Court of Appeals reversed. Comm’r of Labor ex rel. Shofstall v. Int’l Union of Painters and Allied Trades, AFL-CIO, CLC Dist. Council 91, 962 N.E.2d 124 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1, Dec. 20, 2011 COA opinion reversing the trial court. "[From the dissent] I believe the trial court was correct in all respects and therefore respectfully dissent. I will not undertake a detailed summary of what I perceive to be the fallacies in the Majority’s analysis. It suffices to say that, other than on matters of boilerplate law, my views diverge significantly from those of the Majority on virtually all of the positions adopted in route to its conclusions, up to and including the conclusions themselves."

Next week's oral arguments before the Supreme Court (week of (12/10/12):

Thursday, December 13th

9:00 AM - State of Indiana v. John Doe (49S00-1201-CT-14) - After a jury awarded the plaintiff in a personal injury action $150,000 in punitive damages, the Marion Superior Court declared that the limitations on punitive damage awards set out in IC 34-51-3-4 and 5 violate Article 3, Section 1 and Article 1, Section 20 of the Indiana Constitution. The State of Indiana intervened and initiated this direct civil appeal.
ILB: This is a Feb. 27, 2009 order by Marion Superior Court Judge David J. Dreyer. This ILB has a copy, access it here. For background, see this lengthy March 3, 2009 ILB entry.
9:45 AM - Michael D. Perkinson, Jr. v. Kay Char Perkinson (36S05-1206-DR-371) - A Father who signed an agreement giving up his parenting time rights when child was an infant filed a petition for parenting time. The Jackson Superior Court denied Father's petition. The Court of Appeals reversed and remanded in an unpublished memorandum decision, concluding that there was insufficient evidence for a total denial of parenting time. Perkinson v. Perkinson, No. 36A05-1106-DR-322, slip op. (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a NFP 1/25/12 COA opinion, where the COA reversed the trial court: "While Father’s prior actions do not put his parenting skills and decision making in the best light, we cannot conclude that there was sufficient evidence that his conduct was so egregious as to warrant total elimination of his parenting time under section 31-17-4-2, particularly where Father’s most worrying conduct occurred more than five years prior to the trial court’s decision in this case."
10:30 AM - Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group (54S01-1207-CT-430) - The defendants moved to strike the plaintiff’s expert witness and dismiss her medical malpractice complaint due to the plaintiff’s failure to comply with discovery deadlines, and the Montgomery Superior Court granted the defendants’ motions. The Court of Appeals reversed, holding that the trial court abused its discretion by striking the plaintiff’s expert witness and dismissing her complaint. Wright v. Miller, 965 N.E.2d 135 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an April 5, 2012 COA opinion holding: "We therefore hold that the trial court abused its discretion in striking Wright’s expert witness under Trial Rule 37(B)."

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 12/3/12):

Monday, December 3rd

1:30 PM - Roche Diagnostics Operations, Inc. v. Marsh Supermarkets, LLC. (29A02-1201-PL-4) -Appellant-Defendant, Roche Diagnostics Operations, Inc. (Roche), appeals the trial court’s denial of its cross-motion for summary judgment and its judgment in favor of Marsh Supermarkets, LLC (Marsh), awarding damages for Roche’s breach of its sublease with Marsh. Roche presents this court with three issues: (1) Whether the trial court erred by denying Roche’s cross-motion for summary judgment by a) declining to find as a matter of law that the language of the sublease granted Roche the right to terminate the sublease if it did not receive a subordination, non-disturbance and attornment agreement (SDNA) by a certain date; or, b) by determining that genuine issues of material fact regarding the parties’ cooperation in obtaining the SNDA precluded summary judgment. (2) Whether the trial court erred in granting judgment to Marsh by determining that Roche’s right to terminate the sublease required reasonable prior notice; 2) that Marsh’s delivery of the SNDA to Roche was effective; 3) that Roche had not fulfilled its obligation to cooperate regarding the SNDA; and 4) that Roche had defaulted under the terms of the sublease. (3) Whether the trial court erred in awarding Marsh damages based upon sublease payments under the entire eighteen year term of the sublease rather than awarding damages in light of Roche’s right of early termination upon the fifth anniversary of the sublease. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 12/10/12):

Monday, December 10th

1:30 PM - Duke Energy v. Indiana Utility Regulation Commission (93A02-1111-EX-1042) - On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (IURC) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges, Scott R. Storms, had been communicating with Duke Energy Indiana regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (OUCC) recommended denying Duke relief, but the IURC found in favor of Duke. The IURC conducted an audit and eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented. After another evidentiary hearing before a new ALJ and the full Commission, the IURC found against Duke. Duke now appeals, mainly arguing that the IURC did not have the authority to reverse its original decision. The IURC and the OUCC ask us to affirm. The Indiana Energy Association appears as amicus curiae. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where: Indiana Supreme Court Courtroom (WEBCAST)]

Wednesday, December 12th

10:30 AM - Nathan Carl Gilbert v. State of Indiana (10A05-1204-CR-220) - Nathan Carl Gilbert appeals his convictions of and sentence for four (4) counts of Class B felony burglary, arguing the trial court’s entry of his convictions violated the Interstate Agreement on Detainers and the manner in which the trial court conducted his sentencing hearing violated both his right to due process under the Fourteenth Amendment and his right to counsel under the Sixth Amendment. The Scheduled Panel Members are: Judges Baker, Najam and May. [Where: Ivy Tech Community College, 3204 Highway 311, Sellersburg, Indiana ]

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, December 03, 2012
Posted to Upcoming Oral Arguments

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