« December 04, 2012 | Main | December 06, 2012 »

Wednesday, December 05, 2012

Ind. Gov't. - "South Bend Common Council to consider chicken bill"

Continuing the ILB's long list of "chicken underground" entries, FOX28's Matt Gard reported this morning:

The South Bend Common Council will be debating on a unique issue at their meeting on Wednesday night. The Zoning & Annexation and Health & Public Safety commitees will try and decide whether people should be allowed to keep chickens in their backyards.

The practice is actually become more common in urban areas. Some people argue that keeping chickens and producing their own eggs and poultry is a cheaper alternative to buying it from the store. Some even argue that eggs from backyard chickens taste better.

ILB: Not really so "unique" - see this Nov. 30, 2010 ILB entry quoting the South Bend Tribune:
Cities such as Bloomington, Indianapolis and Evansville allow backyard chickens, and some residents are hoping South Bend will be added to the list.

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Indiana Government

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

In US v. Wolfe (ND ind., Lozano), a 26-page opinion, Circuit Judge Bauer writes:

Gregory Wolfe was convicted on one count of bank theft and one count of interstate transportation of stolen goods under 18 U.S.C. §§ 2113(b) and 2314 for his role in a copper theft scheme. The district court sentenced Wolfe to eighty-eight months’ imprisonment on each count, to be served concurrently, followed by concurrent three-year terms of supervised release. The district judge also ordered restitution in the amount of $3,028,011.29. Wolfe appeals, contending that he was deprived of a fair trial because of statements the prosecutor made during closing argument. Wolfe also challenges the sentence he received and the restitution order imposed. Finding that Wolfe’s contentions lack merit, we affirm.

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Re the Name Change of John William Resnover and In Re the Name Change of John Arthur Herron - [ILB: If these names seem familar, it is because federal Judge Barker mentioned them in her Oct. 9th opinion.] Today, in this 18-page, 2-1 opinion, Judge Riley writes:

In this consolidated case, Appellant-Petitioner, William Resnover (Resnover) and Appellant-Petitioner, John Arthur Herron (Herron), appeal the trial court’s denial of their petitions to change their names. We reverse and remand for further proceedings.

ISSUE. Resnover and Herron raise two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind. Code chapter 34-28-2.

FACTS AND PROCEDURAL HISTORY. Both appellants in this consolidated case cannot obtain a valid Indiana driver’s license due to discrepancies between the names commonly used in their everyday lives and the names listed on their birth certificates. * * *

In sum, today we hold that to effect a name change, a petitioner must submit with the petition for a name change the documents requested in I.C. § 34-28-2-2.5—including a driver’s license number or identification card number — if applicable. To be sure, although we have decided that the language of subsection 2.5 does not carry a mandate, but rather a directory intent, the trial court is still obliged to discern the absence of a fraudulent purpose prior to granting a petitioner’s name change. We remand this consolidated case to the trial court for further proceedings in accordance with this holding.4

CONCLUSION. Based on the foregoing, we hold that the trial court trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to Ind. Code chapter 34-28-2.

Reversed and remanded for further proceedings.

BAILEY, J. concurs
CRONE, J. concurs in part and dissents in part with separate opinion [that begins, at p. 16]I concur in the majority’s disposition of Resnover’s appeal. Indiana Code Section 34-28-2-2.5(a)(3) requires only a valid Indiana driver’s license number or Indiana identification card number, the former of which Resnover apparently has and thus may use to petition for a name change.

As for Herron, I respectfully disagree with the majority’s interpretation of “if applicable” in Indiana Code Section 34-28-2-2(a)(1) and therefore disagree with its conclusion that Herron is “relieved from the necessity to produce the documents” specified in Indiana Code Section 34-28-2-2.5. Slip op. at 13. Like the State, I believe that this interpretation “gut[s] the statute and improperly make[s] the requirements of subsection 2.5 merely discretionary.” Amicus Br. at 9.
______
ILB: Don't miss footnote 3 on p. 14.]

In Adoption of K.S., A Minor Child: A.S. and D.S. v. C.Z. , a 9-page opinion, Judge Riley writes:
Appellants-Petitioners, D.S. (Father) and A.S. (Stepmother) (collectively, Appellants), appeal the trial court’s denial of their Verified Petition for Adoption of the minor child, K.S. We reverse and remand for further proceedings.

ISSUE. Appellants raise two issues on appeal, which we consolidate and restate as: Whether the trial court erred in concluding that the natural mother’s consent to the adoption of her minor child by Stepmother was required. * * *

During the instant proceedings, the parties and the trial court focused on the statutory requirements to waive Mother’s consent to the adoption of K.S. by Step-Mother. Specifically, the trial court noted on the record “the only issue today is consent. [] so, we’ll solve that today and then decide where we go from there.” (Transcript p. 4) The parties did not present any evidence with regard to the impact of the adoption on K.S.’s life and whether the severance of her ties with Mother would be in K.S.’s best interest. Therefore, we remand to the trial court to determine whether the adoption will be in K.S.’s best interest. See I.C. § 31-19-11-1(a).

CONCLUSION. Based on the foregoing, we conclude that Mother’s consent to the adoption of her minor child by Stepmother was not required. However, we remand for further proceedings to determine whether the adoption is in K.S.’s best interest.

In Trenton Teague v. State of Indiana , a 12-page opinion, Judge Mathias writes:
Trenton Teague (“Teague”) was convicted after a jury trial in Wayne Circuit Court of Class A felony burglary and Class C felony battery. Teague was sentenced to thirty-eight years for burglary and six years for battery with four years suspended. Teague appeals and argues that the trial court improperly admitted a 911 recording into evidence and that his executed sentence of forty years is inappropriate. We affirm.
In Bret Lee Sisson v. State of Indiana , a 27-page opinion, Judge Friedlander writes:
Sisson raises the following restated issues for our review:

1. Did fundamental error occur when the State refiled the previously dismissed SVF charge and habitual offender allegation after Sisson’s first trial ended in a mistrial due to jury deadlock?
2. Did the State’s failure to respond to Sisson’s notice of alibi by narrowing the time period during which the offense was alleged to have occurred constitute a violation of the alibi statute?
3. Did the trial court abuse its discretion by denying Sisson’s motion to exclude evidence due to alleged discovery violations by the State?
4. Did the trial court abuse its discretion by admitting evidence that Sisson had threatened a witness for the State?
5. Did the trial court abuse its discretion by excluding evidence of a witness’s prior criminal convictions?
6. Did the trial court err in denying Sisson’s motion for change of judge for sentencing purposes only?

We affirm.

In Mitchell Burton v. State of Indiana , an 11-page opinion, Judge Pyle writes:
Mitchell Burton (“Burton”) appeals his conviction of resisting law enforcement, a class D felony. We reverse and remand.

ISSUE. The following issue is dispositive: whether the trial court abused its discretion in refusing to give Burton’s tendered self-defense and resistance of unlawful force instructions. * * *

In the present case, the jury was not instructed that Burton was justified in protecting himself under circumstances where the DVD showed that the police officers may have used excess force to extract a recently awakened and dazed Burton from the car and to subdue him as he tried to protect himself from an officer who had threatened to kill him for no apparent reason. The jury would have been so apprised if the trial court had given the tendered instructions. Without the instructions, the jurors were permitted to find Burton guilty of resisting law enforcement even if they believed Burton’s claim that he lawfully used reasonable force to protect himself from the threat of great bodily harm. The trial court’s error was not harmless, and the conviction must therefore be vacated. See id.

We reverse and remand with instructions that the trial court vacate the conviction.
_____
ILB: Interesting footnote on p. 11.

NFP civil opinions today (4):

Kamari Hogue, A Minor, By and Through His Parent And Next Friend, Trent Hogue v. Robert Critz, Jr. (NFP)

First Chicago Insurance Company v. Philip Hempel, Farm Bureau Insurance Company of Michigan, and American Transportation on Time, Inc. (NFP)

Susan Edwards v. Deutsche Bank National, Trust Company (NFP)

Term. of the Parent-Child Rel. of: A.T., Minor Child, M.T., Father v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Tarique Henderson v. State of Indiana (NFP)

Agustin Martinez v. State of Indiana (NFP)

Robert D. Rogers, Jr. v. State of Indiana (NFP)

Mahamat Outman v. State of Indiana (NFP)

Kelvin Whitby v. State of Indiana (NFP)

Herman Gehl, II v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Ind. App.Ct. Decisions

Courts - "When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court."

Essay by 7th Circuit Judge Diane P. Wood - see more in this How Appealing post.

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Courts in general

Ind. Gov't. - "Key lawmaker says Glenda Ritz should serve full term" and a constitutional sidebar

Per this story yesterday in the Indianapolis Star, reported by Mary Beth Schneider:

A key Republican lawmaker said today he will not support making the superintendent of public instruction an appointed position before the next election.

Sen. Dennis Kruse, the Auburn Republican who is chairman of the Senate Education Committee, said that if a change is made, it should not happen until the four-year term of newly elected Democrat Glenda Ritz expires after the 2016 election.

"They won't get my vote unless they wait," Kruse said. "I would hope that a majority of the legislature would wait until after the term is over. I don't think it's right, at all, to end her term before the end of the four years."

Ritz stunned Republicans by defeating GOP incumbent Tony Bennett in the Nov. 6 general election. That win, driven by grass-roots support from teachers, prompted renewed talk in the Statehouse of letting the governor, rather than voters, pick the top education official in Indiana.

Today, Kruse -- who was to meet today with Ritz -- said he wouldn't be surprised if legislation is introduced for the session that begins in January, but that if it is "definitely it has to not take effect until after Glenda Ritz's term is over, so it would be the next election."

Kruse said he is generally an "election person." * * *

Nate Schnellenberger, president of the Indiana State Teachers Association which had strongly backed Ritz’s election, said ISTA believes the superintendent of public instruction should remain an elected position “so that people are the ultimate voice in what kind of policies are put forth by the department of education.”

If the legislature attempts to change it now to an appointed position — especially if it took effect before Ritz’s four year term is up -- “it’s kind of like, well, they got her in there, how can we get her out? We’ll unelect her.’ ” he said.

ILB: The Superintendent of Public Instruction is a constitutional office. The current language reads:
Art. 8. Education Section 8. There shall be a State Superintendent of Public Instruction, whose method of selection, tenure, duties and compensation shall be prescribed by law.
(History: As Amended November 7, 1972.)
What did the Constitution provide before the 1972 amendment? Here is the language which was in effect from 1851 to 1972:
Section 8. The General Assembly shall provide for the election, by the voters of the State, of a State Superintendent of Public Instruction; who shall hold his office for two years, and whose duties and compensation shall be prescribed by law.
What was the intent of the drafters? Although legislative history is not used in Indiana to determine the intention of the General Assembly in passing a law, the same is not the case with the intention of the drafters of the Indiana Constitution. The Debates and Journals of the Constitutional Convention of 1850 are referenced frequently in decisions of the Indiana Supreme Court.

But what of later amendments to the original document? Often, little history exists. In the case of the changes to Art. 8, Sec. 8, however, the ILB can provide some of that history.

Attached are the relevant pages of the 1969 Constitutional Revision Commission, which I staffed. The Commission recommended that Art. 8, Sec. 8 be amended. Here, beginning on p. 29:

The Need for Amendment

Of the seven state-wide elected officials in the Executive and Administrative branch of government, six are provided for in the Constitution. The seventh, the office of the Attorney General, is statutory.

The present Constitution provides that the Governor and Lieutenant Governor shall be elected for four-year terms. Statute provides that the Attorney General shall serve for four years also.

The Constitution provides that the remaining officials, the Secretary of State, Auditor, Treasurer, and Superintendent of Public Instruction, shall be elected for two year terms. However, the 1967 session of the General Assembly approved a resolution to amend the Constitution to lengthen the terms of the Secretary, Auditor and Treasurer to four years. Should this proposal be· approved by the 1969 session and additionally approved by a referendum of the people, the Superintendent would be the only such state officeholder elected for just two years at a time.

The Commission has endorsed the pending proposal to lengthen the terms of the three above-mentioned offices to four years (see p. 98). The Commission believes that the term of the Superintendent of Public Instruction might well be lengthened also.

The Commission recommends, therefore, that the General Assembly should have the authority to prescribe, by statute, the term of the office of the Superintendent. The following points may be made in this regard: (1) the General Assembly currently possesses the authority to prescribe the length of the term of office of the Attorney General; (2) the General Assembly, under the present Constitution, already has the power to define the duties and compensation of the Superintendent of Public Instruction; (3) granting constitutional authority to the General Assembly to prescribe the tenure and method of selection of the Superintendent would not affect a current officeholder.

The Commission further recommends that the General Assembly should have the authority to provide by law for the method of selection of the Superintendent of Public Instruction. Presently, he is elected. The office would remain elective under the proposed amendment unless and until the legislature should decide otherwise.

There are several reasons why the General Assembly might wish to provide for a method of selection of the Superintendent of Public Instruction other than by statewide election.

The first of these is that the office involves specialized functions and knowledge and is best filled by a person of experience and ability in the areas of education and administration. A person fitting this definition does not always choose to enter the political arena and may not be widely known, except to persons in the educational field. The argument has been advanced, therefore, that a person of the required special expertise could best be found by, for instance, a state-wide elected board of education. The General Assembly could establish such a board by law, provide for its duties, the method of its election, and provide that it should nominate a person qualified to hold the office of head of the state's educational system.

Another argument is based upon the belief of many persons experienced in state government that the executive and administrative branch should not consist of many separately elected officials, each responsible only to the electorate and occasionally working at cross-purposes. Under this theory, the office of Superintendent of Public Instruction should be a cabinet-type position, filled by an expert appointed by the Governor to serve during the term of the Governor and for whose decisions the Governor himself would be responsible. Such a system, it is argued, would result in a better integration of the many and varied educational systems in the state.

Effect of the Proposed Amendment

The effect of the Commission's proposed amendment to Article 8, section 8, would be to grant to the General Assembly the authority, should it choose to exercise it, to change the term of office and/or the method of selection of the Superintendent of Public Instruction.

Should the General Assembly choose to exercise the authority to change the length of the term of office of the Superintendent, it is most likely that the term would be lengthened to four years. Such a lengthening of term seems most advisable to the members of the Commission.

Should the General Assembly choose to change the method of selection of the Superintendent of Public Instruction, it seems likely that the change would be from state-wide election to appointment, either by an elected state board of education created by the General Assembly, or by the Governor. Such a change would serve to insure that the head of our State's educational system would be a person qualified in the areas of education and administration.

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Indiana Government

Ind. Courts - Upcoming COA oral argument in Duke v. IURC

The Indiana Court of Appeals has issued this news release on the upcoming oral argument:

Duke Energy and IURC to argue rate case before Court of Appeals

At issue: Company’s request for deferred accounting treatment

INDIANAPOLIS - The Court of Appeals of Indiana will hear oral argument in Duke Energy v. Indiana Utility Regulatory Commission at 1:30 p.m., Dec. 10 in the Indiana Supreme Court courtroom. Each side will have 30 minutes to argue. * * *

In this case, Duke appeals an adverse IURC decision involving deferred accounting treatment for operating expenses that Duke incurred after a 2009 ice storm. The case reaches the Court of Appeals after an involved history:

After the storm, Duke sought deferred accounting treatment for its operating expenses, which the IURC approved after an evidentiary hearing before Administrative Law Judge Scott Storms. The Office of Utility Consumer Counselor appealed, contending that Duke’s petition constituted both retroactive and single-issue ratemaking.

While the appeal was pending, Storms accepted a job offer from Duke. When it was later learned that Storms had been negotiating the job while this case and others involving Duke were pending before him, the OUCC asked the Court of Appeals to stay its appeal and remand the case to the IURC.

The court agreed, the IURC reopened the case, and both Duke and the OUCC presented updated testimony.

This time, however, the IURC concluded that Duke’s request did not merit an exception to the general prohibition against retroactive and single-issue ratemaking. Duke now appeals.

The Indiana Energy Association has filed an amicus brief supporting Duke’s position.

On Monday, in its regular feature, Upcoming Oral Arguments, the ILB posted notice of this upcoming oral argument, quoting the somewhat different synopsis included on the Court notice/calendar.

Posted by Marcia Oddi on Wednesday, December 05, 2012
Posted to Indiana Courts