Monday, December 10, 2012
Ind. Decisions - "Indiana Supreme Court won't hear challenge to ruling allowing use of David Bisard blood test results" [Updated]
The Indiana Supreme Court today declined to hear a challenge to a Court of Appeals ruling that allows prosecutors to use contested blood test results in the trial of suspended Indianapolis police officer David Bisard.Here is a list of all the "Bisard" entries.
The court of appeals in September reversed a Marion County court ruling that the blood test results could not be used in Bisard’s trial.
“The ruling of the Indiana Supreme Court today makes final the Court of Appeals opinion establishing that the blood draw performed on Officer David Bisard on August 6, 2010 was appropriate for the purposes of both the operating a vehicle while intoxicated and the criminal recklessness charges,” Marion County Prosecutor Terry Curry said inb a statement issued by his office.
[Updated] Here is the vote in the Supreme Court's denial today of transfer:
ALL JUSTICES CONCUR, EXCEPT FOR DICKSON, C.J., WHO VOTES TO GRANT THE PETITION TO TRANSFER, AND MASSA, J., WHO DID NOT PARTICIPATE IN THE DECISION OF THIS MATTER.See also Prof. Schumm's contribution to the ILB on Sept. 12th.
Ind. Courts - More on: Upcoming COA oral argument in Duke v. IURC
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
Edward Gilliland v. State of Indiana is a 29-page, 2-1 opinion in an interlocutory appeal. From Judge Crone's opinion:
A male high school girls volleyball coach gave foot rubs to and rubbed lotion on the backs of some of his players. The players’ parents reported these and other activities to the school corporation’s athletic director, Edward Gilliland, who documented them as “inappropriate behavior” in the coach’s personnel file. The coach continued to engage in such behavior and was forced to resign in October 2008. Local law enforcement authorities conducted an investigation and eventually charged the coach with committing unspecified “sex offenses” against one of his former players, who had joined the team in August 2007. When questioned by police on November 21, 2008, Gilliland denied knowing about any “alleged misconduct” between the coach and the player. * * *ILB: The ILB has had several earlier related entries, see the last 3 entries on this list.
Gilliland filed a motion to dismiss, asserting that the prosecution was barred by the statute of limitations, that he had not engaged in concealment, and that the State had failed to exercise due diligence. * * *
On appeal, Gilliland renews the arguments that he made below and suggests that he had no duty to report child abuse or neglect because he had no reason to believe that the coach and the player engaged in sexual activity. We conclude that Gilliland concealed his offenses from the very beginning, thereby tolling the statute of limitations, and that the State could not have discovered sufficient evidence by exercise of due diligence to charge him prior to October 2010. Thus, we agree with the trial court that the charges were timely filed, but we conclude that any offense committed prior to October 5, 2007, would not be outside the statute of limitations and therefore the State does not have to amend the charging information in that respect.
We also conclude that the charging information and the testimony from the probable cause hearing, when taken together and accepted as true, contain facts sufficient to constitute the charged offenses because child abuse or neglect need not involve sexual activity under Indiana law. We further conclude that those facts are sufficient to apprise Gilliland of the charges against him and allow him to prepare a defense. Therefore, we affirm in part and reverse in part and remand for further proceedings. * * *
RILEY, J., concurs.
BAILEY, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 25 of 29] I concur in part and dissent in part. In concluding that Gilliland was timely prosecuted, the majority describes Gilliland’s “positive act of concealment calculated to prevent discovery of the fact that a crime had been committed” as “remaining silent when he had a legal duty to speak.” I believe that, if Gilliland lied to officers on November 21, 2008, he committed a positive act, concealing Ashcraft’s crime and thus his own offense of failure to report.16 However, I disagree with the majority opinion to the extent that it suggests concealment might arise from remaining silent about one’s own crime, without more.
The majority reasoning effectively converts the legislatively-enacted two-year statute of limitations applicable to misdemeanor offenses into a non-existent provision where the misdemeanor offense is one of silence. It is not possible to discern the silence constituting the underlying offense from the silence covering the offense.
In David Vance v. Francisco Lozano, et al. , a 7-page opinion, Judge Vaidik writes:
David Vance hired Rock Solid Concrete Inc. and Francisco Lozano1 to do some concrete work at his Fort Wayne home. Over a year later, his driveway had some pitting. The parties disagreed over what caused the pitting and brought in a third party, who concluded that the pitting was caused by road salt—not bad concrete. Nevertheless, negotiations continued and Rock Solid agreed to replace the driveway at no cost to Vance. When Rock Solid did not timely follow through with its promise, Vance sued in small-claims court. The small-claims court found that Rock Solid made a good-will gesture that was not an enforceable contract, and Vance now appeals. Concluding that the settlement of a doubtful claim is sufficient consideration for a compromise if the claim is made fairly and in good faith, even if it is possibly meritless, we reverse.In Guardianship of L.R.T. and A.J.B.; R.L. and P.L. (Guardians) v. A.B. and R.B. (Parents), a 13-page, 2-1 opinion, Judge Bailey writes:
R.L. and P.L. (“Guardians”) appeal an order terminating their guardianship of L.T. and A.J.B. (“the Children”) upon the motion of A.B. (“Mother”). Guardians present the sole consolidated issue of whether the order is clearly erroneous. We affirm. * * *NFP civil opinions today (2):
The parties agree that the reason for the Children’s placement with Guardians was Mother’s and Father’s lack of stable housing and employment. After hearing evidence of current conditions, the trial court found that Father was employed in a factory making $16.63 per hour and Mother was employed at Subway, they had decided to buy a house that would provide suitable family accommodations, and Mother had made inquiries to address A.J.B.’s special educational needs. The trial court found that both Children could be expected to make the necessary adjustments. Guardians’ strenuous argument that Mother and Father have shown instability in the past and likely cannot adequately address A.J.B.’s special needs in the present is an invitation to reweigh the evidence. This Court is prohibited from reweighing the evidence. In re B.H., 770 N.E.2d at 288. Accordingly, we decline to do so. Affirmed.
CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 8 of 13]: I respectfully disagree with the majority’s decision to affirm the trial court’s Order, terminating the guardianship over the minor children and ordering an immediate return to their parents. In affirming the termination of the existing guardianship held by a third party, the majority relies on our supreme court’s legal framework instituted in K.I. ex rel J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009). Discussing K.I., the majority reaches the overarching and simplistic conclusion that “in a custody dispute between a parent and a third party, even where the parent seeks to re-obtain custody, the burden of proof is always on the third party.” Slip op. p. 6 (emphasis added). I disagree with the majority’s reading of K.I. * * *
The long acquiescence of the children in their Guardians’ custody—to the point that the Guardians are the only parents A.J.B. remembers—has cultivated a strong bond, a deep mutual affection, and a safe and stable environment to mature. Uprooting the children without any notice and dropping them in the unstable and insecure lives of parents they barely know and an environment they are unfamiliar with, would seriously mar and endanger their future happiness and wellbeing. In fact, returning the minor children to Mother and Father’s care immediately after a long acquiescence in their grandparents custody, as decided by the trial court and affirmed by the majority, sentences them to a fate worse than a Child In Need of Services where a parent must initially adhere to a visitation schedule and a transition phase prior to full custody. Based on the evidence before me, I am convinced that the children’s best interest is substantially and significantly served by their current placement. The trial court’s decision to grant the petition to terminate guardianship was clearly erroneous and should be reversed.
NFP criminal opinions today (5):
Ind. Gov't. - "New study casts doubt on fairness of Indiana Toll Road lease"
Tim Vandenack of The Elkhart Truth has this lengthy story today - it begins:
ELKHART — Sure, the state of Indiana got $3.8 billion by leasing management of the Indiana Toll Road to a private concessionaire.Here is the article from the Ind. Univ. Public Administration Review, titled "The Indiana Toll Road Lease as an Intergenerational Cash Transfer."
That isn’t pocket change, and the funds have been put toward improvement of Indiana’s infrastructure per the state’s 10-year Major Moves road plan.
A public policy expert’s new review of the 2006 deal, though, casts doubt on whether the transaction is all it’s cracked up to be. Indeed, John Gilmour, a government professor at the College of William and Mary in Williamsburg, Va., says future generations of Hoosiers will be short-changed.
As he sees it, Indiana has essentially taken a lump sum payment here and now on the value of the toll road — akin to a home-equity loan — for short- and medium-term benefit. Down the road, in decades to come, he argues, Hoosiers of the future will pay the price for the 75-year deal in the form of lost toll road revenue that otherwise would have made its way into government coffers.
“These transactions have important consequences for intergenerational justice because they enrich current citizens and governments at the expense of future citizens and governments by transferring future revenue to current budgets,” Gilmour says in his report.
His analysis, more fodder for the debate over the 2006 deal, appears in the November/December issue of Public Administration Review, a journal put out by Indiana University’s School of Public and Environmental Affairs.
Indiana authorities came back, calling Gilmour’s article “flawed.” The response — prepared by Troy Woodruff, the Indiana Department of Transportation chief of staff — also appeared, in shortened version, in Public Administration Review.
Among other things, Woodruff writes, Gilmour doesn’t consider the value of some $4.4 billion in future maintenance and improvements to the toll road that will be the responsibility of the new toll road manager, the ITR Concession Co.
Ind. Courts - "Federal judge to study felon's plea for help suing West Lafayette"
That is the headline to this long weekend story in the Lafayette Journal Courier, reported by Sophia Voravong. It begins:
The benefit of a court-appointed attorney is typically reserved for criminal defendants who have no assets, source of income or family willing to front the money for private counsel — and not plaintiffs who want to sue another person, the government or a business.Here is a copy of Judge Simon's Nov. 27th order.
But one could be granted to 23-year-old Brandon M. Winters, a convicted felon from Lafayette, in a civil lawsuit he has filed against the city of West Lafayette and the police officer who shot him during a robbery investigation three years ago.
In an order signed Nov. 27, Chief Judge Philip P. Simon of U.S. District Court in Hammond wrote that the unusual move might be necessary to even simply decide whether the lawsuit should proceed to trial.
“... It has become apparent to me that there is an official capacity claim against the city and that Winters is not capable of adequately proceeding pro se on this claim, which he asserts he does not understand,” Simon wrote.
“To prove this claim, or even obtain the facts necessary for me to determine if it is a valid claim that deserves to go to trial, will require discovery and analysis that appears to be beyond Winters’ abilities.”
The judge stayed the case for 90 days, during which he plans to attempt to find Winters someone to represent him, court records show.
The Nov. 27 ruling reverses a prior order he issued that denied Winters’ request for a court-appointed attorney, since “there is no constitutional or statutory right to counsel in a civil case,” Simon wrote in June.
The change of heart came while Simon was reviewing a request by attorneys for the city of West Lafayette and patrolman David Smith to dismiss the lawsuit because Winters missed a deadline to hand over discovery.
Simon denied the defendants’ request on grounds that the missed deadline — medical records from Winters’ stay at an Indianapolis hospital were among the documents that the defendants asked for — was due to Winters’ lack of legal comprehension and not from bad faith.
Ind. Law - "Constitutional ban on gay marriage bad for state, its economy"
That is the headline to this editorial from Sunday's Evansville Courier & Press:
Statutory law of Indiana already bans same sex marriage in the Hoosier state. So why then do some Hoosier lawmakers want to pile on by amending the state constitution to ban same sex marriage? The Indiana Legislature, which goes into session in January, has plenty of legitimate issues — among them education, economic development, taxes — to deal with in 2013.
Of course, seeking to make gay and lesbian citizens feel even more unwelcome in Indiana than they already do is an economic development issue. Make that an anti-economic development issue, in that it discourages talented gay and lesbian citizens from seeking jobs in a state where they may not feel welcome. And it sends a message to companies headed by gay and lesbian individuals that their businesses are not welcome.
Fortunately, any number of Indiana businesses and industries have recognized the value in hiring skilled employees, and offer same sex couples the same benefits as traditional couples. And yet, the legislature of Indiana seeks to slam one more door in their faces. In the 21st century, this is ridiculous.
Look, no one expects that the Indiana Legislature will attempt any time in the near future to lift the statutory ban on same sex marriage. Yet, those who support the constitutional ban must fear that a majority of lawmakers in the distant future may try to lift the ban. They seek to take that option away from lawmakers not yet born. Yes, future lawmakers could try the four-year process of amending the constitution, but why should that be necessary?
As it stands now, last year the Indiana House and the Indiana Senate voted to pass a ban on gay marriages and on civil unions into the Indiana Constitution. If it passes both houses of the legislature again in the 2013 session, the proposed amendment would be eligible for a statewide referendum in 2014.
For now, the first question is whether the proposal will come up for a vote in the legislature this year, or whether Republican leaders will wait until next year to bring it up. In fact, such a delay may be necessary unless supporters can answer the question of whether the constitutional ban would affect more than 600 existing laws. According to Courier & Press staff writer Eric Bradner, a group of Indiana University law students conducted a study which said the amendment would impact laws ranging from blocking same-sex couples from receiving tax and pension benefits to allowing same sex couples to skirt conflict of interest laws.
One option might be to remove a ban on granting same sex couples similar legal status. Of course, changing the language of the measure as approved in 2011 would require starting the process over.
And that might be the best that opponents of the amendment could hope for in 2013.
Courts - SCOTUSblog roundup of coverage and commentary on the marriage cases
Ind. Law - Interesting answers re "Gay marriage and the Constitution - should Indiana put a ban to a vote?"
The Lafayette Journal & Courier has posed this question to its Rapid Response panel:
Question: Hoosiers could be asked in 2013 or 2014 to vote on whether the state’s ban on same-sex marriages should be included in the Indiana Constitution. First the General Assembly would need to approve the ballot measure during its 2013 or 2014 sessions. Do you favor the ban, and what do you think the General Assembly should do?Interesting thoughtful answers, each signed by a panel member.
Ind. Decisions - More on Jeffrey M. Miller et al v. Junior Achievement et al
Updating this ILB entry from Nov. 19, reporting that the COA would hold oral argument the following day re its stay "of a trial court’s order compelling the Indianapolis Star to identify an anonymous online commenter," The COA issued this news release this morning:
Attached please find a “Published Order Dismissing Appeal” in a Court of Appeals case titled Indiana Newspapers Inc. v. Jeffrey Miller et al, in which the Indianapolis Star appealed a trial court’s order to disclose the identity of an anonymous online commenter.
Please note that the Published Order dismisses the Star’s appeal but continues a previously ordered stay of the trial court’s order for seven calendar days. (see p. 3 of the Published Order)
The Court of Appeals conducted oral argument in this case on Nov. 20 and issued its published order on Friday, Dec. 7. A news release providing background information for that argument is also attached.
Ind. Decisions - Two non-Indiana 7th Circuit actions of note
How Appealing has posts this morning titled "Disagreement between Chief Judge Easterbrook and Circuit Judge Posner on whether to affirm criminal convictions obtained on "stated income" mortgage loans has resulted in the Seventh Circuit's granting of rehearing en banc" and "Opponent of wind farm construction loses Seventh Circuit appeal," here and here.
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 10, 2012:
- Ind. Decisions - Tax Court posts one Friday
- Ind. Gov't. - "New wrinkle in death records dispute: County health department says it doesn't keep records on causes"
- Ind. Decisions - "Is prison time cut too often for child molesters?"
- Ind. Law - Prof. Joel Schumm receives prestigious Indiana University distinguished service award
From Saturday, December 9, 2012:
Ind. Decisions - Upcoming oral arguments this week and next
This 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.
- 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)."
Thursday, December 20th
- 9:00 AM - Juan M. Garrett v. State of Indiana (49S04-1207-PC-431) - Garrett was charged with two counts of rape and other offenses. A jury found him not guilty on Count 1, but it could not reach a verdict on Count 2. Count 2 was retried to the bench, and the trial court found him guilty. The convictions were affirmed on direct appeal in Garrett v. State, No. 49A02-0807-CR-609, slip op. (Ind. Ct. App. Feb. 25, 2009), trans. denied. In post-conviction proceedings, Garrett contended trial and appellate counsel had been ineffective in not arguing that the retrial on the second rape charge violated his federal and state constitutional protections against double jeopardy. The Marion Superior Court denied relief and the Court of Appeals affirmed in Garrett v. State, 965 N.E.2d 115 (Ind. Ct. App. March 28, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Jason Michael Palilonis v. State of Indiana (42A05-1104-CR-197) - Following a jury trial in the Knox Superior Court, Palilonis was convicted of rape. The Court of Appeals affirmed in Palilonis v. State, 970 N.E.2d 713 (Ind. Ct. App. Jun 20, 2012), trans. pending. Palilonis has petitioned the Supreme Court to accept jurisdiction over the appeal, raising issues relating to extraneous jury communications, informing the jury the victim was dead, and the admission of certain statements of the victim.
ILB: See this June 20, 2012 ILB summary of the 37-page COA opinion; the case has not yet been granted transfer.
- 10:30 AM - Felix C. Sickels v. State of Indiana (20S03-1206-CR-308) - Sickels was convicted of nonsupport of his children. The trial court ordered him to pay the arrearage to the mother as restitution. The Court of Appeals reversed on grounds the mother was not “the victim.” Sickels v. State, 960 N.E.2d 205 (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 30-page Jan. 6th COA opinion which included on p. 28:
Sickels next argues that the trial court improperly ordered him to pay restitution. At the sentencing hearing, the trial court stated that “restitution” in the amount of “$86,420” is to be made to “Ms. Sickels, the victim in the case.” Transcript at 87. But in its written sentencing order, the court states: “Arrearage in the amount of $84,420.00 as of 2/8/11 reduced to judgment in favor of Kathy L. Sickles [sic], civil cause number 20D03-9107-DR205.” Appellant’s App. at 118 (emphasis original). These two statements are unclear in three respects and require a remand for clarification.
Webcasts of Supreme Court oral arguments are available here.
This 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)]
- 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 ]
Monday, December 17th
- 1:30 PM - State of Indiana v. Gregory Lagrone (49A05-1203-CR-135) Indianapolis Metropolitan Police Officers received an open parcel containing marijuana from a private parcel delivery company. The officers repackaged the marijuana with a GPS tracking device and parcel wire, affixed the original label addressed to “Michael Davis,” and then conducted a controlled delivery to the address on the shipping label, a hotel. Gregory Lagrone retrieved the parcel from the hotel, and surveillance officers followed him by car to his home. A short time later, the parcel wire activated a monitor with surveillance officers, indicating that the parcel had been opened. The officers then knocked and announced themselves. When no one answered, they entered the home without a warrant due to the risk of destruction of the marijuana. In the subsequent prosecution of Lagrone, the trial court granted his motion to suppress evidence obtained from the warrantless entry of the home. The State appeals. We ordered oral argument to ask the parties to address, in part, the relevance to this case of United States v. Jones, 132 S. Ct. 945 (2012), regarding the constitutionality of attaching a warrantless GPS tracking device to a person’s effects. The Scheduled Panel Members are: Judges Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Tuesday, December 18th
- 11:00 AM - Seth Anderson vs. Huntington County Board of Commissioners (35A04-1207-MI-357) Appellant-plaintiff Seth Anderson filed for access to public records from appellee-defendant Huntington County Board of Commissioners. His request was denied for “lack of particularity.” Anderson requested and obtained an advisory opinion by the Indiana Public Access Counselor, which affirmed the Board of Commissioners position for denial. This appeal followed
On appeal, Anderson argues that, as an issue of first impression, an email communication is a “public record” within the definition of Indiana Code section 5-14-3-2(n). Moreover, Anderson maintains that his requests were offered with “reasonable particularity” as required by Indiana Code section 5-14-3-9(f).
The Scheduled Panel Members are: Judges Baker, Riley and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
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.