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Sunday, December 09, 2012

Ind. Decisions - Tax Court posts one Friday

In Miller Pipeline Corp. v. IDOR, a 13-page NFP opinion, Sr. Judge Fisher writes:

Miller Pipeline Corporation (hereinafter “MPC”) appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of gross retail (sales) and use tax paid between 2005 and 2007. The matter is currently before the Court on the Department’s motion to dismiss, which the Court denies. * * *

In its motion, the Department provides two reasons why this case should be dismissed. First, it asserts that MPC, pursuant to the doctrine of res judicata, is precluded from litigating it. In the alternative, the Department asserts that the affirmative defense of accord and satisfaction defeats any claims made by MPC in the current case. * * *

Because MPC could not have made any argument regarding the propriety of the proposed assessments against it until the Department denied its refund claim on September 27, 2010, it did not have a “full and fair opportunity” to litigate that issue in Miller Pipeline 1. Therefore, issue preclusion does not bar the current action from being litigated. * * *

The Department has failed to demonstrate a meeting of the minds regarding the settlement’s applicability to the issues contained in Miller Pipeline 2, and accord and satisfaction will not bar the current action from being litigated.

Posted by Marcia Oddi on Sunday, December 09, 2012
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "New wrinkle in death records dispute: County health department says it doesn't keep records on causes"

Updating these earlier ILB entries:

Ind. Gov't. - "A Pike County resident and the Evansville Courier & Press are suing the Vanderburgh County Health Department to obtain access to cause of death information contained on death certificates maintained by the health department."

So began a long story by Mark Wilson in the August 15th Evansville Courier Journal. Some quotes:The newspaper and Rita Ward of Winslow, Ind., contend the death certificates are public records, while the health department interprets state law to require...

Posted in The Indiana Law Blog on August 26, 2012 03:17 PM

Ind. Gov't. - Vanderburgh County changes death-record policy

Some quotes from a story in the Evansville Courier & Press, reported by Tim Ethridge:Officially titled "On The Record," it's placed in the Local section and is where, on Sundays, we list our legislators' votes, marriage licenses and divorce declarations, bankruptcies, food...

Posted in The Indiana Law Blog on May 22, 2012 12:47 PM

Mark Wilson of the Evansville Courier & Press reported on Dec. 6th:
EVANSVILLE — While attorneys argued in court Wednesday over whether documents containing causes of death are public records, a Vanderburgh County Health Department official told the judge the agency doesn't keep those records.

Health Department Administrator Gary Heck said the agency does not keep death certificates with the cause of death information for county residents.

The disclosure came during a hearing on a lawsuit by a Pike County resident and the Evansville Courier & Press, who are seeking access to causes of death information.

The newspaper and Rita Ward of Winslow, Ind., contend the death certificates are public records, while the health department interprets state law to require it to restrict access to the information. The Courier & Press had published causes of death on its Sunday public records page from 2002 until May when the health department suddenly stopped including death causes in the information it provided to the newspaper.

At issue is which Indiana law governs its disclosure, whether the information is kept by the state or the county and whether the county is legally required to provide the information to the public.

State law requires local health departments to keep such records and make them available to the public, attorney Pat Shoulders said during Wednesday's hearing. Shoulders represents Ward and the newspaper in the lawsuit.

That law, Indiana Code 16-37-3-3, says, "The person in charge of interment shall file a certificate of death or of stillbirth with the local health officer of the jurisdiction in which the death or stillbirth occurred."

The law also says, "The local health officer shall retain a copy of the certificate of death."

Heck made a similar statement in a written response to a Courier & Press request in August, stating that the health department "must deny your request for copies of such records because it does not have any documents to copy which would be responsive to your request."

The county contends a different law, Indiana Code 16-37-1-10, says access to records with the cause of death information is restricted to only those who can prove they have a direct interest in it, such as a spouse or immediate relative who may need it for legal purposes.

Circuit Court Judge Carl Heldt, who is retiring after this year, said he will retain jurisdiction of the case as a special judge and make a ruling in January. * * *

The health department does provide death certificates to people who can prove they have a direct interest in a death, such as a spouse or immediate relative, but for an $11.75 fee.

"It's the health department's opinion that they don't feel they can give a death certificate to anybody who comes in off the street," Vanderburgh County Attorney Joseph Harrison Jr. said in court.

When Ward was denied access to the information in June, she filed a complaint with the Indiana Public Access Counselor, who gave a nonbinding opinion in her favor.

Public Access Counselor Joseph Hoage said the requirements that people must show a direct interest in the information applied to the state's death registration system and were changes the state Legislature made beginning in January 2011. However, he said, Indiana law still requires local health departments to maintain records of the death certificates filed by physicians and make them available to the public.

Posted by Marcia Oddi on Sunday, December 09, 2012
Posted to Indiana Government

Ind. Decisions - "Is prison time cut too often for child molesters?"

The Court of Appeals Oct. 23, 2012, 2-1 opinion in Calvin Merida v. State was the subject of a Dec. 7th story in the Indianapolis Star reported by Vic Ryckaert. (See the ILB summary here - 3rd case, from Oct. 23rd.) Some quotes from the lengthy story:

Calvin Merida committed a terrible crime, molesting a young girl repeatedly over a period of about six years.

Merida pleaded guilty, and Ripley Circuit Court Judge Carl H. Taul handed him two 30-year prison terms to be served consecutively, for 60 years behind bars.

The case, however, was not closed.

In October, the Indiana Court of Appeals cut Merida's sentence in half because it thought the sentence was too harsh. Advocates say sentence reductions for child molesters, such as Merida, happen too often in Indiana.

"We have drug offenders who are serving more time," said Anita Carpenter, chief executive officer of the Indiana Coalition Against Sexual Assault. "These are child molesters, and we're reducing sentences."

According to Carpenter, molesters get a break because they are not typical predators. They hold jobs. They don't commit other crimes. They pay taxes. Some even go to church. They coerce victims with threats, not guns.

Often, prosecutors and police go to court with one victim who has suffered repeated abuse.

A single victim, no prior crimes, no weapons. In justice system mathematics, Carpenter said those facts give appellate judges grounds to cut molesters some undeserved slack. * * *

One judge is proposing a solution. Appellate Judge Terry Crone offered a middle-ground option in his dissenting opinion in the Merida decision -- he called it "partially consecutive sentences."

Crone explained that the idea, if applied in the Merida case, would have let the judge impose two 30-year sentences while ordering just eight years of the second sentence to run consecutively for 38 total years.

"Additional criminal activity directed to the same victim should not be free of consequences," Crone wrote. "It is my hope that the legislature would amend the statute accordingly and give trial courts and appellate courts an important tool for crafting appropriate sentences in cases like this one."

Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law, said the appeals courts are known to reduce long sentences of molesters convicted of crimes against a single victim.

Sentence reductions are handed to two or three child molesters each year in Indiana, he said.

The courts, Schumm said, are trying to level out the county-to-county sentencing disparities.

"You end up with a wide disparity in child molesting cases," Schumm said. "Some people get 30 years, and some people get 150 years for basically the same horrible conduct."

Crone's idea offers a new way to impose consecutive sentences and deserves consideration, Schumm said.

"Latitude and flexibility are almost always good things for judges to have," he said. "Instead of saying it has to be 30 or it has to be 60 years, a judge should have an option to do something in between."

Not everyone's convinced judges need more flexibility.

"There's too much unguided discretion there," said Larry Landis, executive director of the Indiana Public Defender Council.

ILB: Thanks to Prof. Schumm, here is an informative 3-page chart of all Supreme Court sentence revisions since 2008. There are many more COA revisions than shown, but many if not all of them are NFP cases.

Posted by Marcia Oddi on Sunday, December 09, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - Prof. Joel Schumm receives prestigious Indiana University distinguished service award

Indiana University has selected Joel Schumm of the Robert H. McKinney School of Law as the recipient of the 2012 W. George Pinnell Award for Distinguished Service!

IU’s semi-annual George W. Pinnell Award recognizes faculty members and librarians who have shown exceptional breadth of involvement in service to the university, to their profession, or to the public. President McRobbie made the announcement.

Posted by Marcia Oddi on Sunday, December 09, 2012
Posted to Indiana Law