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Monday, December 31, 2012

Ind. Decisions - "Justices weigh walkout fines levied on Democrats"

The Supreme Court oral argument set for 9 AM on Thursday, Jan. 3rd in the case of Tim Berry, et al. v. William Crawford, et al. (see ILB entry here) is the subject of a brief editorial this morning in the Fort Wayne Journal Gazette:

On Thursday, the Indiana Supreme Court will hear arguments in a case involving the fines Indiana House Speaker Brian Bosma levied on Democrats during an extended 2011 walkout and a shorter walkout in 2012.

The court faces an interesting legal challenge.

Mark GiaQuinta, the Fort Wayne attorney who has represented Democrats, argues that Bosma has no legal authority to order pay to be withheld from lawmakers. Money cannot be withheld, he argues, without a court’s direction.

And he has a good argument.

For example, a debtor cannot simply tell an employer to withhold money from a check; the debtor must go to court and obtain an order to garnishee wages.

Bosma and the state argue that because the legislature and judiciary are separate branches of government, the courts cannot intervene in a legislative matter.

You will be able to watch the oral argument Thursday morning via this link.

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to Upcoming Oral Arguments

Law - More on "Do Rapists Have the Right to Parent Children Conceived in Rape?"

Updating this ILB entry from Dec. 16th, here is Part 2 of Prof. Sherry F. Colb's two-part series in Justica's Verdict.

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to General Law Related

Ind. Courts - "Benjamin Diener, a first-time judge, has taken the bench on Carroll County Circuit Court"

That is the headline from this story yesterday by Caitlin Huston in the Logansport Pharos-Tribune. The long story begins:

DELPHI — After about a week in his new job, Carroll County Circuit Court Judge Benjamin Diener is still getting used to the title of “Your Honor.”

The 32-year-old Republican candidate has been on the bench since Dec. 18 after he won the local primary against an incumbent judge and beat an independent candidate in the general election. A first-time judge, Diener acknowledges that he’ll have to do some learning on the job and work to prove the critics of his young age wrong.

Diener grew up in Monticello and earned his bachelor’s degree from Indiana University and a law degree from Barry University in Florida. He’s been in private practice since 2007 and is licensed in Texas, where he worked for as assistant attorney general for one year, as well as Indiana. He brought his private practice to Monticello in 2009 and later moved to Delphi.

Although he said his time as a private attorney did help, Diener said he feels that there’s not a direct correlation for the skills used as an attorney and as a judge.

“I don’t think anyone is ever fully prepared to change from attorney to judge,” Diener said.

Diener also didn’t have as much time for preparation as he expected. His term was supposed to begin in January, but former Carroll County Circuit Court Judge Donald Currie was called to serve as a Judge Advocate shortly after the primary. Since that time the circuit court has been using senior judges, but the last senior judge wasn’t able to finish out December and agreed to let Diener step in on Dec. 18.

“So that I can kind of get my feet wet,” Diener said.

At the end of January, Diener will attend a judges’ school for all newly elected judges in Indiana. But before then, Diener said he will preside over at least two jury trials and any matters that come up in circuit court, which includes class A, B and C felonies, divorce cases, some juvenile cases and civil filings.

“Between now and then it’s sort of a trial by fire,” Diener said.

Posted by Marcia Oddi on Monday, December 31, 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, December 30, 2012:

From Saturday, December 29, 2012:

Posted by Marcia Oddi on Monday, December 31, 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 (12/31/12):

Thursday, January 3rd

Next week's oral arguments before the Supreme Court (week of (1/7/13):

Thursday, January 10th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/31/12):

Next week's oral arguments before the Court of Appeals (week of 1/7/123):

Wednesday, January 9th

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 31, 2012
Posted to Upcoming Oral Arguments

Saturday, December 29, 2012

Ind. Courts - Photos of two women justices now on display, along with the many photos of the men who have served, or are serving, on the Supreme Court

My two favorite photos from yesterday's ceremony are linked below, thanks to the Lafayette Journal Courier (and photographer Matt Kryger/Indianapolis Star)

Here is the accompanying story, reported by Eric Weddle.

Posted by Marcia Oddi on Saturday, December 29, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Courts - Still more on: "ACLU of Indiana Challenges Marion County Judicial Election System"

Updating this ILB entry from Nov. 1, 2012 (which includes a link to the complaint, filed in federal court), this one from Nov. 5th, linking to an IndyStar editorial, and this one from Nov. 6, linking to a Star letter to the editor. The suit is Common Cause Indiana v. Indiana Secretary of State:

The Indiana Secretary of State is Indiana’s chief election official, IC 3-6-3.7-1, and is sued in her official capacity. Among other things, the Indiana Secretary of State is charged by law with certifying the results of judicial elections in Indiana (IC 3-12-5-1).
Today the ILB has obtained a copy of the memo in support of a motion to dismiss, filed by the Indiana Attorney General on Dec. 20th. It begins:
Defendant, Indiana Secretary of State, in her official capacity, by counsel, Deputy Attorneys General Dino L. Pollock and Kenneth L. Joel, respectfully submits this memorandum of law in support of her Motion to Dismiss. 1. Introduction Plaintiff has filed its Complaint. pursuant to 42 USc. § 1983, raising a First Amendment2 challenge to Indiana Code § 33-33-49-13 , alleging, inter alia, that the statute prevents some of its - members and other registered voters in Marion County - from being able to cast a meaningful vote in Marion County Superior Court judicial elections. See Campi. at ~~ 5, 25, 28. As set forth below, Plaintiff's Complaint must be dismissed because Plaintiff lacks standing to bring this suit. Moreover, Plaintiff's Complaint must be dismissed because this suit is barred by the Eleventh Amendment and because the Complaint fails to state a claim upon which relief may be granted.

Posted by Marcia Oddi on Saturday, December 29, 2012
Posted to Indiana Courts

Ind. Decisions - "Contraception Mandate Faces Justice Sotomayor and Seventh Circuit"

In an order issued yesterday, Dec. 28th, in the case of Korte v. Sebelius, the 7th Circuit panel, 2-1, granted the motion for an injunction pending appeal.

A day before, Dec. 27th, in another case, Grote Industries v. Sebelius, Indiana district court Judge Sarah Evans Barker denied a similar motion. See the ILB entry here.

See this long Volokh Conspiracy post this morning by Jonathan Adler that discusses yesterday 7th Circuit ruling (it does not mention the Grote ruling). The post begins:

It’s been a significant week for litigation over the contraception mandate. On December 20, a motions panel of the U.S. Court of Appeals for the Tenth Circuit denied employer Hobby Lobby’s motion for an injunction pending appeal. As a private employer, Hobby Lobby is not eligible for the safe harbor from enforcement, and will be subject to the mandate at the start of the new year. As a consequence, Hobby Lobby filed an emergency application for a stay with the Supreme Court, which Justice Sonia Sotomayor denied with a brief four-page opinion. According to Justice Sotomayor, Hobby Lobby could not meet the extraordinarily demanding standard for such an injunction. Lyle Denniston has a brief report on SCOTUSBlog, and Ed Whelan critiques the decision on Bench Memos (see also here). for what it’s worth, I am not as convinced as Whelan that Hobby Lobby’s rights under the Religious Freedom Restoration Act are “indisputably clear.” While I think religious institutions have a strong RFRA-based free exercise claim, and that religious institutions — and not the government — define the contours of what the exercise of a given religious faith requires — I am not sure that private, for-profit corporations can avail themselves of RFRA in the same way as avowedly religious institutions., even when privately held by religiously devout individuals, nor am I aware of any case law that would clearly establish this point (but see below).

Meanwhile, the U.S. Court of Appeals for the Seventh Circuit is looking more favorably on another private employer’s challenge to the contraception mandate. In what Lyle Denniston calls “the most significant federal appeals court ruling so far on the new federal health care law’s contraceptives mandate,” a divided panel of the Seventh Circuit granted a private employer’s emergency motion for an injunction against enforcement of the contraception mandate. Judges Flaum and Sykes voted in favor of the employer’s claim; Judge Rovner against.

Posted by Marcia Oddi on Saturday, December 29, 2012
Posted to Ind. (7th Cir.) Decisions

Friday, December 28, 2012

Ind. Decisions - "Judges thwart BMV action against former habitual traffic violator" [Updated]

Wednesday's Court of Appeals opinion in Orndorff v. BMV (ILB summary here) is the subject of an Indianapolis Star story by Tim Evans. Some quotes:

A Monroe County woman involved in several public programs aimed at lifting her family out of poverty has won a reprieve from a driver’s license suspension the Bureau of Motor Vehicles issued eight years after she was deemed a habitual traffic offender — and almost four years after the agency gave her a license.

The Indiana Court of Appeals order issued this week concludes the BMV’s belated action to suspend the license of Bloomington resident Leslee Orndorff “presents a threat to the public interest and that no public interest will be served by suspending” her driving privileges.

The opinion hinges on three factors: the long delay in the BMV’s action to suspend Orndorff’s license; her clean driving record since the BMV erroneously issued Orndorff a license in 2008; and the critical role an ability to drive plays in the Bloomington woman’s job as a home health worker and her efforts to become self-sufficient. * * *

The BMV didn’t catch the problem with Orndorff’s license until 2011, when court records indicate the agency implemented a new process to identify individuals who qualified as habitual violators. Orndorff was among scores of Hoosiers snagged by the new BMV process. On April 24, 2012, the agency sent Orndorff a notice that her license was being suspended for 10 years.

Days later, Orndorff sought a judicial review. She claimed the BMV’s “extreme delay in suspending her driving privileges threatens the public interest.” Orndorff also argued that suspending her driving privileges after she had been awarded a license “and had proven to be a safe driver” with no violations in four years was irrational and violated her right to due process.

Monroe Circuit Judge Michael Hoff ruled in favor of the BMV in June 2012, but noted it was an unusual case, “because (Orndorff) has established that she will be irreparably harmed by the suspension” and that the “adverse effects on her family do not advance the general public interest, as it is not in the public’s interest to make it harder for a productive parent to support her children and to better her family’s circumstances.”

The appeals panel agreed, finding “although the adverse effects are undeniably personal, under the facts of this case, public policy interests are materially impacted.” The decision cites the single mother’s involvement in a subsidized housing program and a self-sufficiency project “designed to support individuals in escaping poverty” — both of which would be end if Orndorff can no longer drive and perform her job.

“Significant government resources have been expended to enable Orndorff to become self-sufficient and free of the need to depend on government aid,” Judge Terry A. Crone wrote in the appellate opinion. “There is a substantial probability that the public interest in reducing poverty will be thwarted if the BMV is not barred from suspending Orndorff’s driving privileges” based on the agency’s long delay in taking action.

The decision also notes that, had the BMV suspended Orndorff’s license in 2004, she could have looked for employment that did not require her to drive and “she would now be eligible for a probationary license that would allow her to drive for employment and other special circumstances.”

For background, see this ILB entry from July 20, 2012, headed "Woman sues to stop Indiana BMV from suspending her license, saying agency waited too long."

See also this Aug. 13th ILB entry, which includes the Orndorff trial court opinion and petition for review. It also links to documents in a related case, White v. BMV.

Here, in a Nov. 6th entry, is a separate case involving Kevin McGraw.

Yet another recent BMV case was the federal court hearing of Joseph Worley, who was unable to obtain a photo ID. Start with this Oct. 26th entry.

[More on Orndorff] Charles Wilson of the AP has this story headed:Court blocks BMV from suspending woman's license." Some quotes:

The state Court of Appeals reversed a Monroe County judge who denied Leslee Orndorff's request that he block the BMV from imposing a 10-year suspension stemming from her designation as a habitual traffic violator in 2004. The American Civil Liberties Union of Indiana filed the request on her behalf in May, and the judge issued a temporary restraining order while the ACLU appealed his decision. * * *

Orndorff, 30, said in a phone interview Thursday that she was thrilled by the ruling, adding that she'd been pulled over Saturday while driving her daughters to visit their father and threatened with arrest over the HTV designation. She said the officer told her she'd been pulled over because her car door was open, but he finally let her go when he found proof online of the temporary restraining order.

"I said, 'Google me.' Thank God for Google," she said.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Rush takes oath as newest Indiana Supreme Court justice"

Eric Weddle of the Lafayette Journal Courier has an initial story here. A quote:

The heavy contingency of Lafayette and Tippecanoe County attendees — including Mayor Tony Roswarski and commissioners — led Daniels to joke the city was empty.

“Today would be a good day to rob a bank in Lafayette because nobody is home,” he said.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Ind. Courts - Justice Loretta Rush investiture ceremony this morning

Justice Rush taking the oath from Governor Daniels. Photo here.

Justice Rush and her four children. Photo here.

Indiana's only other woman justice, Myra Selby, unveiled Justice Rush's photo on the wall of the chamber, joining the photos of the four current justices.

In her remarks, Justice Rush said: "I look forward to the day a woman's appointment to this Court is unremarkable."

Watch the video of the entire robing ceremony here.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP)

For publication opinions today (3):

James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.

Joel Zivot v. Pamela London

In Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission , a 20-page opinion, Judge Vaidik writes:

On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (“IURC” or “Commission”) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges (“ALJ”), Scott R. Storms, had been communicating with Duke Energy Indiana (“Duke”) 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 granted Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. The IURC conducted an audit but 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 at which updated evidence was presented, the IURC, in a lengthy order, denied Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. Duke now appeals, arguing that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change.

We, however, find that the IURC’s findings are based on substantial evidence that was placed into the record following the IURC’s order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. As for Duke’s argument that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair, we find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion. We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.

NFP civil opinions today (4):

In Re the Term. of the Parent-Child Rel. of K.K.; R.I. v. The Indiana Dept. of Child Services (NFP)

Rebecca J. Bartle v. Jackson Street Investors, LLC as Assignee of Paul E. Turner (NFP)

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group, Inc., Ticor Title Ins. Co. v. The Ross Group, Inc., Benito Gamba, HIlda Gamba and Gamba Real Est. Holdings (NFP)

In Re The Adoption of C.H.; M.W. v. B.H. and V.H. (NFP)

NFP criminal opinions today (17):

State of Indiana v. Elvis Holtsclaw (NFP)

State of Indiana v. Blake Lodde (NFP)

Ricky Jester v. State of Indiana (NFP)

Johnny C. Horton v. State of Indiana (NFP)

Michael Watson v. State of Indiana (NFP)

Steven McIntyre v. State of Indiana (NFP)

Alexander A. Lopez v. State of Indiana (NFP)

William Holly v. State of Indiana (NFP)

Jesus Torres v. State of Indiana (NFP)

Randell Vandeventer v. State of Indiana (NFP)

Guy Cummings v. State of Indiana (NFP)

Mark Sexton v. State of Indiana (NFP)

Kieth McCoy v. State of Indiana (NFP)

Quintez Deloney v. State of Indiana (NFP)

Manuel J. Silva v. State of Indiana (NFP)

Robert R. Ashcraft v. State of Indiana (NFP)

Paul Marcum v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Ind. App.Ct. Decisions

Thursday, December 27, 2012

Ind. Decisions - Transfer list for week ending December 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, December 21, 2012. It is two pages (and 18 cases) long.

One transfer were granted last week, with opinion:

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Transfer Lists

Ind. Gov't. - IURC Decision Today Limits Cost Recovery on Duke Energy Edwardsport Plant: Commission approves modified settlement agreement and credits ratepayers an additional $28 million

Via a press release from the IURC:

INDIANAPOLIS – Today the Indiana Utility Regulatory Commission (IURC) modified and approved a settlement agreement reached in the Duke Energy Indiana case involving the revised cost estimate for the electric utility’s new integrated gasification combined cycle facility (IGCC) in Edwardsport, Ind.

The settlement agreement set a hard cost cap for the project at $2.595 billion (as of June 30, 2012), which prohibits Duke Energy from recovering project construction costs above this amount from retail electric customers, excluding costs related to force majeure situations defined in the agreement. It also requires the utility to absorb nearly $900 million in cost overruns given the plant is now projected to cost approximately $3.5 billion.

Although Duke Energy is limited in its recovery of project costs, the settlement agreement does allow the utility to recover financing charges accrued to fund the project’s construction. This arrangement is otherwise known as allowance for funds used during construction (AFUDC) and has been approved thus far in this case in accordance with state law.

Through a modification to the settlement agreement, the IURC also provided $28 million in additional value to ratepayers by directing Duke Energy to credit customers for cost control incentive payments found to be unwarranted, given the delays that arose from the project cost overruns. The IURC also modified the settlement agreement in such a way that if Duke Energy should recover through litigation claims more than the IGCC project costs absorbed by its shareholders, any surplus recovery is required to be returned to ratepayers.

The investment recovery sharing coupled with the other terms of the settlement agreement created value that was found to be in the public interest. The settlement agreement was reached by the utility, Nucor Steel Indiana, the Duke industrial group, and the Indiana Office of Utility Consumer Counselor. Packaged with the settlement agreement is also a guarantee by Duke Energy that it will not file a rate case prior to March 2013, nor implement one before April 2014.

For your reference, the IURC’s decision under Cause No. 43114 IGCC 4 S1 can be found online at www.in.gov/iurc. To read the “Commission Discussion and Findings” section, please turn to page 109. If you need to access other case-related documents, visit our Electronic Document System at https://myweb.in.gov/IURC/eds/. Instructions on how to best use this database can be found at www.in.gov/iurc/2666.htm.

[More] Here is John Russell's just-posted Indianapolis Star story.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Government

Ind. Decisions - Judge Barker denies injunction in Affordable Care Act challenge

The news yesterday, as stated briefly in the NY Times:

Justice Sonia Sotomayor of the Supreme Court refused to block enforcement next week of a requirement in the health care overhaul that some companies provide insurance coverage for contraceptive drugs and devices. In an order Wednesday, Justice Sotomayor, who hears emergency appeals from the 10th Circuit, said two companies controlled by the Oklahoma City billionaire David Green and his family did not qualify for an injunction while they challenged the rule. The companies, Hobby Lobby Stores, with more than 500 stores, and Mardel, with 35 Christian bookstores, said it violated their religious beliefs to require their health plans to cover contraception.
Indiana has a similar challenge in its earliest stages. In this 24-page Order Denying Plaintiff's Motion for a Preliminary Injunction, dated Dec. 27, 2012, in the case of Grote Industries v. Sebelius, Judge Sarah Evans Barker writes:
[Plaintiffs are] challenging preventive care coverage regulations (“the mandate”) issued under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act” or “ACA”), which Plaintiffs allege require them “to pay for and otherwise facilitate the insurance coverage and use of abortifacient drugs, contraception, sterilization, and related education and counseling.” Compl. ¶ 7. Plaintiffs contend that the mandate violates their statutory rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”) as well as their constitutional rights under the First and Fifth Amendments to the United States Constitution. Plaintiffs seek both declaratory and injunctive relief.

Presently before the Court is the Plaintiffs’ Motion for Preliminary Injunction seeking an order prohibiting Defendants from enforcing the mandate against them and others similarly situated when it goes into effect on January 1, 2012. After review of the parties’ submissions, we DENY Plaintiffs’ request for injunctive relief. * * *

For the reasons detailed in this entry, we find that Plaintiffs have failed to establish a reasonable likelihood of success on the merits of any of their claims. Because likelihood of success is a threshold requirement for injunctive relief, we need not proceed further in our analysis. Accordingly, Plaintiffs’ Motion for Preliminary Injunction is DENIED.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Reminder: Formal Investiture Ceremony for Justice Rush set for Friday, Dec. 28

As posted here on Dec. 19th, tomorrow at 10:00 AM the formal oath of office for Justice Loretta Rush will take place. You will be able to watch it here. The one-hour ceremony will include remarks from Governor Mitch Daniels, former Supreme Court Justice Myra Selby, Allen County Superior Court Judge Charles Pratt and Dr. Will Miller. Governor Daniels will administer the oath and Justice Rush’s official courtroom photograph will be unveiled.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Courts

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

In US v. Earls (ND Ind., Van Bokkelen), a 16-page opinion, Circuit Judge Bauer writes:

On July 10, 2011, a jury found Fairly W. Earls (“Earls”) guilty of making a false statement on a passport application, aggravated identity theft, and knowingly transferring a stolen identification document in violation of 18 U.S.C. § 1542, § 1028A(a)(1), and § 1028(a)(2). On October 5, 2011, the district court sentenced Earls to thirty-six months’ imprisonment on Counts One and Three with a consecutive sentence of twenty-four months’ imprisonment on Count Two. Earls’ base offense level at sentencing was determined to be eight; however, through the application of a cross-reference listed in Sentencing Guidelines Section 2L2.2(c)(1)(A), Earls’ offense level was increased to fifteen. On appeal, Earls challenges the admission of certain evidence at trial, as well as his sentence. For the following reasons, we affirm.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

Medea Woods v. State of Indiana

Slavojka Pistalo v. Progressive Casualty Insurance Company and The Estate of Iris M. Wilks, Deceased

Indiana Rail Road Company v. John Blaine Davidson, Admin. of the Estate of Carolyn Davidson, Deceased, and Tonya Kincaid, as Mother and Next Friend of Cierra Kincaid, a Minor

NFP civil opinions today (4):

Term. of the Parent-Child Rel. of R.D. (Minor Child), and M.D. (Father) v. The Indiana Dept. of Child Services (NFP)

Donald and Jennie Walker v. Glenn Sermersheim (NFP)

Mark A. Guffey v. Deborah L. Guffey (NFP)

David Darst v. Indiana Dept. of Correction and Bruce Lemmon in his official capacity as Commissioner (NFP)

NFP criminal opinions today (9):

John T. Brightwell v. State of Indiana (NFP)

Eric D. Smith v. State of Indiana (NFP)

Todd Fuller v. State of Indiana (NFP)

Michael Craig v. State of Indiana (NFP)

Lee E. Davis, Jr. v. State of Indiana (NFP)

Kent A. Easley v. State of Indiana (NFP)

Robert J. Pearson v. State of Indiana (NFP)

Elbert M. Jones, II v. State of Indiana (NFP)

Mark Allen Pratt v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 3 yesterday, Dec. 26th (and 9 NFP)

For publication opinions today (3):

Lisa A. Birkhimer v. Neil S. Birkhimer

Christopher White v. State of Indiana (NFP)

In Leslee Orndorff v. Indiana Bureau of Motor Vehicles, R. Scott Waddell, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles , a 22-page opinion, Judge Crone writes:

Leslee Orndorff committed three driving offenses that qualified her as a habitual traffic violator (“HTV”) in 2004. In 2008, the Indiana Bureau of Motor Vehicles (“BMV”) issued Orndorff a driver’s license. In 2012, the BMV notified Orndorff that her driving privileges were to be suspended for ten years based on her HTV status. Orndorff filed a complaint against the BMV alleging that the equitable doctrine of laches prevented the BMV from suspending her driving privileges and requesting a preliminary injunction to stop the suspension. The trial court denied her request for a preliminary injunction, concluding that Orndorff did not have a reasonable likelihood of prevailing on the merits of her laches defense at trial because it was unlikely that laches would apply to the government and the BMV’s delay was understandable.

Orndorff appeals the trial court’s ruling, arguing that laches applies to the government because the suspension of her driving privileges now, eight years after she qualified as an HTV and four years after she obtained a valid driver’s license, will cause her to lose her job, which requires her to drive, and thrust her family into poverty, thereby threatening the public interest. She also contends that the BMV’s delay is inexcusable. We conclude that under the facts of this case, there is a reasonable likelihood that Orndorff will succeed in establishing that suspending her driving privileges will threaten the public interest such that laches applies to the government. We also conclude that she has a reasonable likelihood of showing that the BMV’s delay is inexcusable. Therefore, we conclude that Orndorff has a reasonable likelihood of succeeding on the merits of her laches defense. We also conclude that Orndorff has carried her burden to establish the other requirements for a preliminary injunction, and thus we reverse the trial court’s denial of her request for a preliminary injunction and remand for further proceedings.

NFP civil opinions today (3):

In Re the Paternity of C.C.M.: M.M. v. V.K.H. (NFP)

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

Karl Kapanke, Universal Am-Can, Ltd., and M.C. Schmitt Trucking, Inc. v. James Stovall and Tracy Stovall (NFP)

NFP criminal opinions today (6):

Sharif Fields v. State of Indiana (NFP)

Billy Adams v. State of Indiana (NFP)

Robert D. Ratcliff v. State of Indiana (NFP)

Allen Clark v. State of Indiana (NFP)

Jonathon P. Grigsby v. State of Indiana (NFP)

Jeffrey Adams v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bev Gard to head new Environmental Rules Board

The 2012 General Assembly abolished the Air, Water, and Waste Boards effective Dec. 31, 2012, replacing them with a single Environmental Rules Board. Here is the official release from the Governor today:

Indiana Environmental Rules Board

The board was created during the 2012 legislative session to combine the functions of the former air pollution control, water pollution control and solid waste management boards. These are the first appointments to the board. Legislation required that initial members be appointed by December 31, 2012.

Membership: 16 members, 11 of whom are gubernatorial appointees from various industries and the general public. The commissioners of the state departments of health and environmental management, the director of the department of natural resources, the lieutenant governor and the secretary of commerce are ex officio members of the board.

New Appointments:

· Local government representative: Joanna Alexandrovich, Evansville, is the ozone officer at the Vanderburgh County Health Department.

· Environmental interests representatives: Tom Anderson, Michigan City, is the owner of Conservation Connections, LLC a conservation consulting group.

· Manufacturing representative: Gail Boydston, Indianapolis, is manager of environmental services at Eli Lilly.

· Public utility representative: Kelly Carmichael, Merrillville, is director of environmental policy and permitting at NiSource, Inc.

· Solid waste management industry representative: Cal Davidson, Clayton, is recycling manager at Ray’s Trash Service.

· Small business representative: Bill Etzler, LaOtto, is vice president and regional manager for Aqua Indiana. He will serve as vice chairman of the board.

· General public representative: Beverly Gard, Greenfield, former Indiana state senator and former chair of the state senate energy and environmental affairs committee. She will chair the board.

· Labor representative: Chris Horn, Lynnville, recently retired from ALCOA Aluminum

· Health professional representative: Ted Niemiec, East Chicago, is medical director and manager of health services at ArcelorMittal Indiana Harbor.

· General public representative: Gary Powdrill, former member of water pollution control board and Indiana State Chamber of Commerce environmental committee.

· Agricultural representative: Ken Rulon, Arcadia, operates his family owned farm, Rulon Enterprises.

Terms expire December 31, 2016.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment | Indiana Government

Environment - Reminder: 2012 Edition of Indiana Environmental Statutes is available

This is the new, as of the Fall of 2012, edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, that I edit and publish each year.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

The 2012 General Assembly made many changes to the environmental laws, including the abolition of the three long-time environmental boards (air, water, and waste), replacing them with a single board. Because this new law does not take effect until Jan. 1, 2013, this year's volume includes both the current (effective until 1/1/13) and future (effective upon 1/1/2013) versions of the affected sections, of which there are many.

As a result, this year the soft-bound volume is 610 pp. (up from 570 pp.in 2011), but still costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment

Environment - "E.P.A. Chief to Step Down, With Climate Still Low Priority"

This long story on the NYT website, reported by John M. Broder, begins:

Lisa P. Jackson is stepping down as administrator of the Environmental Protection Agency after a four-year tenure that began with high hopes of sweeping action to address climate change and other environmental ills but ended with a series of rear-guard actions to defend the agency against challenges from industry, Republicans in Congress and, at times, the Obama White House.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Environment

Ind. Courts - 7th Circuit website changes

This will be of interest to those of you who use the official 7th Circuit website.

ILB Note: The last time the 7th Circuit rewrote its software, which was years ago but in the early days of the ILB, the change permanently broke all the links to past 7th Circuit decisions...

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Maine Bank Agrees to Reimburse Hacking Victim $300K in Precedent-Setting Case"

This story is from Nov. 30th. Kim Zetter's report in WIRED begins:

In a case watched closely by banks and their commercial customers, a financial institution in Maine has agreed to reimburse a construction company $345,000 that was lost to hackers after a court ruled that the bank’s security practices were “commercially unreasonable.”

People’s United Bank has agreed to pay Patco Construction Company all the money it lost to hackers in 2009, plus about $45,000 in interest, after intruders installed malware on Patco’s computers and stole its banking credentials to siphon money from its account.

Patco had argued that the bank’s authentication system was inadequate and that it failed to contact the customer after its automated system flagged the transactions as suspicious. But the bank maintained that it had done due diligence because it verified that the ID and password used for the transactions were authentic.

The case raised important questions about how much security banks and other financial institutions should be reasonably required to provide commercial customers.

Small and medium-sized businesses around the country have lost hundreds of millions of dollars in recent years to similar thefts, known as fraudulent ACH (Automated Clearing House) transfers, after their computers were infected with malware that swiped their bank account credentials. Some have been lucky to recover the money from banks that valued their business, but others, like Patco, were told by their banks that they were responsible for the loss.

Although the assets of customers with personal bank accounts are protected under federal law, commercial bank accounts are not. The only recourse such customers have when their bank refuses to assume responsibility for stolen funds is to try to pursue their money in state courts under the Uniform Commercial Code.

People’s United Bank agreed to the settlement only after an appellate court indicated that the bank’s security system and practices had been inadequate under the UCC.

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Courts in general

Ind. Law - "Costs, public sentiment mean fewer Indiana death penalty cases"

From Lesley Weidenbener 's column in the Sunday Louisville Courier-Journal:

INDIANAPOLIS — Gov. Mitch Daniels acknowledged during a recent interview that implementing a death sentence — essentially allowing an execution to take place without intervention — is one of the duties he was least prepared for when he took office.

But it’s an issue that future governors will be facing less often, he said.

It’s a change Daniels attributed to the changing public perception about the death penalty but it’s one no doubt connected to cash-strapped county budgets as well.

Daniels is right that support for the executions of murderers has been dropping fairly steadily since about 1994, according to polling company Gallup. * * *

Thirty-three states still impose the death penalty, although there’s been a trend toward abolishing it. New Jersey repealed its death penalty in 2007, New Mexico in 2009, Illinois in 2011, and Connecticut in 2012, according to the Indiana Public Defenders Council.

Also, Maryland has passed legislation narrowly restricting its use of the death penalty.

In Indiana, there’s been little talk about such a move. But still, death penalty cases — and death sentences — have been dropping steadily.

According to the public defenders council, local prosecutors were seeking the death penalty an average of roughly seven times per year from 1997 through 2001. In the last few years, that average has dropped to fewer than two.

And the number of death sentences actually imposed annually has dropped to nearly none.

Eight Hoosiers are currently on death row — the last convicted in 2007 — and three more people have had their sentences vacated in cases in which the state is appealing, according to the council.

The reason may be partly public perception but it’s just as likely because of the cost a county faces when trying to seek a death sentence.

State law and court rules set strict guidelines about who can serve as defense attorneys in the cases, which means counties are often paying more for indigent defendants — plus the cost of forensic evidence and experts.

Death punishments also come with automatic appeals and extensive options for defendants to try to seek commutation, including that last request to a governor for help.

It all comes with a cost. A 2-year-old analysis by the nonpartisan Legislative Services Agency found that a death penalty case typically costs about $450,000 — and higher profile cases or those that have complicated scientific evidence can cost substantially more. A case involving a life-without-parole sentence costs just 10 percent of the death penalty average, LSA found.

And according to the Tribune Star in Terre Haute, officials in Parke County actually sought an increase in the county income tax rate to pay for the prosecution of a man accused of killing his wife and daughters. Eventually, the defendant received a sentence of life without parole, saving the county significantly.

The state reimburses counties for part of the cost of death penalty cases.

But for many prosecutors and county officials, the price tag is still to high to make it worthwhile in all but the most egregious cases — especially with public support for executions fading.

Here are some earlier ILB entries on the cost of the death penalty:

Posted by Marcia Oddi on Thursday, December 27, 2012
Posted to Indiana Law

Wednesday, December 26, 2012

Ind. Courts - Who will replace Magistrate Graham who replaced Judge Rush who replaced Justice Sullivan on the Supreme Court?

The answer (from the Lafayette Journal Courier this afternoon):

Lafayette lawyer Crystal A. Sanders has been named the new Tippecanoe County juvenile court magistrate, it was announced today.

Sanders will succeeded Faith A. Graham, who was picked by Gov. Mitch Daniels earlier this month to replace Loretta H. Rush who was appointed to the Indiana Supreme Court in September.

Sanders is a 2003 Purdue University graduate. She earned her law degree from Indiana University Law School-Indianapolis in 2007.

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to Indiana Courts

Law - "A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties"

That is the headline to this Dec. 25th story in Politico, reported by Katie Glueck.

First, some Indiana background. This Jan. 27, 2010 ILB entry quoted from a Fort Wayne Journal Gazette editorial about a bill then pending in the General Assembly (the bill later became law):

House Bill 1068 would seal a public record, an act that almost never serves the public. The bill would make permits to carry handguns a private record, no longer open to the public. These are not “gun permits”; these are licenses that specifically allow people to carry handguns in public. Such permits are not necessary to carry rifles or shotguns, nor are they needed to have a handgun in your home.

The move comes after the Indianapolis Star and the Bloomington Herald-Times published information about gun permits. Notably, neither paper published the names and addresses of permit holders – the information the gun lobby says should be secret. The Star’s story, in fact, illustrated exactly why the permits should be a public record: It found numerous instances where the carry permits were wrongly issued to convicted felons or unwisely issued over the recommendations of local police chiefs and sheriffs.

Supporters of the law want to deny the scrutiny that could uncover future cases where convicted felons get permits to carry concealed handguns. And gun rights advocates should note that public scrutiny of records can also guard against people being wrongly denied carry permits.

The Jan. 27, 2010 ILB entry also quoted from a story by Mary Beth Schneider in the Indianapolis Star headed "House OKs bill to keep gun permits secret."
House Bill 1068, which was authored by Rep. Peggy Welch, D-Bloomington, was prompted by databases published in The Indianapolis Star and the Bloomington Herald-Times. Those databases did not identify gun permit holders by name or address, but did allow people to search their ZIP code to see the number of permits held in that area.

The Star used the gun permit information to investigate the state’s process for issuing them, learning that violent individuals were granted permits, sometimes against the wishes of local police departments.

The Jan. 27, 2010 ILB entry also contain a link to the original Oct. 11, 2009 Star investigative story by Mark Alesia, Heather Gillers, Tim Evans and Mark Nichols, headed "Should these Hoosiers have been allowed to carry a gun in public?" The Star story is still accessible here (although slow to load); but the gun permit database itself evidently is no longer available. The Bloomington Herald-Times database is still available, to subscribers.

This ILB update on Feb. 14, 2010 quoted from an Indianapolis Star editorial:

Tuesday, the Indiana House resoundingly passed a bill to deny the press and public access to the public records from which The Star learned that Indiana State Police routinely grant gun permits to individuals known for violence. State law allows for the denial of permits, local police often object to the granting of them, and those who get them sometimes go on to commit crimes.

The newspaper would not have learned this without entree to the total gun permit archive, with its names and addresses. The Star, in its online database, did not publish those names and addresses; only general information about gun permits by race, gender, age and ZIP Code.

That was enough, some lawmakers have said, to scare and even outrage them as to the endangerment of privacy, Second Amendment rights and life itself. Gun owners and non-owners alike bombarded them with pleas to keep the bad guys from knowing who might have a gun in his house and who might be unarmed, supporters of secrecy declare.

Far fewer have spoken up for the cause of open and responsible government. No one thus far has proposed a legislative inquiry into lax enforcement of a legislative mandate governing deadly weapons.

Okay, now back to the present and yesterday's Politico story, which reports:
A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties.

“The newspaper didn’t even feel it necessary to publish a rationale for that violation of privacy — publishing the names and addresses of gun owners makes them more vulnerable to robbery when they aren’t at home, since criminals will know where the guns are,” charged Ben Shapiro of Breitbart.com.

The story, published by the White Plains-based Journal News and posted on its website, LoHud.com, includes maps of Westchester county to the north of New York City and Rockland county to the north west — with the names and addresses of people with gun licenses represented by dots — on which readers can click to learn that information. It was posted over the weekend.

“Being included in this map does not mean the individual at a specific location owns a weapon, just that they are licensed to do so,” the newspaper cautioned, and noted that the information was the result of Freedom of Information Act requests. * * *

In a separate piece, the Journal News cited the interest readers might have in public information about gun owners.

“In the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., and amid renewed nationwide calls for stronger gun control, some Lower Hudson Valley residents would like lawmakers to expand the amount of information the public can find out about gun owners,” wrote the paper’s Dwight R. Worley. “About 44,000 people in Westchester, Rockland and Putnam — one out of every 23 adults — are licensed to own a handgun.”

But that didn’t resonate with some outraged readers, who posted scathing comments at the bottom of the piece, via accounts linked to Facebook.

“This is CRAZY!!” wrote Curtis Maenza. “why in the world would you post every licensed gun owner information?? What do you hope to accomplish by doing this. This is the type of thing you do for sex offenders not law abiding gun owners. What next? should i hang a flag outside my house that says I own a gun? I am canceling my subscription with your paper today!!!”

Here is the White Plains NY Journal News overview, along with the maps, as published Dec. 22nd. Here is the accompanying story by Dwight R. Worley. Some quotes:
In the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., and amid renewed nationwide calls for stronger gun control, some Lower Hudson Valley residents would like lawmakers to expand the amount of information the public can find out about gun owners. About 44,000 people in Westchester, Rockland and Putnam — one out of every 23 adults — are licensed to own a handgun.

Anyone can find out the names and addresses of handgun owners in any county with a simple Freedom of Information Law request, and the state’s top public records expert told The Journal News last week that he thinks the law does not bar the release of other details. But officials in county clerk’s offices in Westchester, Rockland and Putnam maintain the public does not have a right to see such things as the specific permits an individual has been issued, the types of handguns a person possesses or the number of guns he or she owns — whether one or a dozen.

Combined with laws that allow the purchase of rifles and shotguns without a permit, John Thompson, a program manager for Project SNUG at the Yonkers Family YMCA, said that leaves the public knowing little about the types of deadly weapons that might be right next door.

“I would love to know if someone next to me had guns. It makes me safer to know so I can deal with that,” said Thompson, whose group counsels youths against gun violence. “I might not choose to live there.”

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to General Law Related

Ind. Courts - "Sketches evidence of court reporter's keen eye"

Great story this weekend by Sophia Voravong of the Lafayette Journal Courier about the late 1960s-early 1970s courtroom sketches made by Jane Moore, a former Tippecanoe County court reporter. The story notes that "Since Moore’s death in 2002, the drawings have been stored in two photo albums [Tippecanoe Circuit Court Judge Don] Daniel keeps in his chambers."

[ILB: These sound like something the Indiana Courts and/or Historical Bureau might scan and post online, along with historical notes.]

From the story:

there are still some places where handheld technology is of little use.

Most of Indiana’s county courtrooms, for instance.

Though attorneys can have access to laptops, projectors and monitors, and some courtrooms video-record daily proceedings, cameras of any kind remain prohibited. That includes cellphones.

For Tippecanoe Circuit Court Judge Don Daniel, it makes the hundreds of vintage courtroom sketches — started in 1968 by Jane Moore, a former court reporter in Tippecanoe Superior Court 1, according to a Jan. 31, 1974, Journal & Courier article — that he holds onto all the more valuable.

Moore’s drawings are mostly headshots of attorneys and defendants, with a sprinkle of sketches of jurors in the jury box, done in the late 1960s and early ‘70s on pieces of scratch paper, roughly the size of a small notepad.

Most court reporters in Indiana courtrooms do not record proceedings by hand using stenography equipment. Rather, they record the proceedings on tape or digitially, then later transcribe testimony or proceedings when necessary. Moore had time to make sketches because she was not constantly taking shorthand.

Since Moore’s death in 2002, the drawings have been stored in two photo albums Daniel keeps in his chambers.

But for about three months in 2005, they were posted at the now-closed Wells Yeager Best pharmacy at 120 N. Third St., along the courthouse square. Pharmacy owner Steve Klink said Daniel showed the drawings to him, and he immediately thought, “other people have to see these.

“ … People came just to see them. Relatives of people in the drawings came to see them,” Klink said. “Lawyers who were pictured got a big kick out of it. It was interesting for everyone to see the defendants and talk about the old cases.”

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to Indiana Courts

Ind. Courts - "Judge Nemeth gives his parting words: He pulls no punches about DCS, openness, and how we let our kids down"

Virginia Black of the South Bend Tribune had a very long story/interview Dec. 23rd with St. Joseph County Probate Judge Peter J. Nemeth, whose last day in office was Friday, Dec. 21st. Just a sample:

Nemeth's last day in the office was Friday, as he finished packing his books and mementos and prepared to hand over the reins to Probate Judge-elect Jim Fox.

Nemeth has spent nearly 20 years as a probate judge, ever since Gov. Evan Bayh appointed him in 1993 to fill out his father's term in that seat. He had earlier been South Bend's mayor from 1976 to 1980, a member of the common council and a deputy prosecutor.

The judge has been outspoken on many issues over the years, taking on county officials' attempts to cut his budget, for example, and criticizing state officials for their running of juvenile facilities.

In the past year, he has openly lambasted Indiana's Department of Child Services over the agency's many changes under Gov. Mitch Daniels, and the effects of budget cuts, altered policies and less local control.

Earlier this year, the judge announced his decision to retire from the bench. Now 71, he'll join his son's firm, Nemeth, Sweeney and Masters, working on economic development issues and seeking certification as a mediator of civil cases. * * *

Q: For this community, it seems like the number of reports in this county are still high, CASIE Center says their caseload has gone up ever since Tramelle Sturgis died.

I think the DCS has responded because of what happened, because of the fury of the press, as well as the folks, and that's a good thing. But why weren't they doing that all along?

Q: People didn't know about a lot of the changes before.

And that's the other thing, everything's confidential, so nobody really knows what's going on. I have said for years that I think the days of confidentiality should be gone.

I don't understand the reason for maintaining confidentiality in juvenile cases. Certainly in paternities, the only difference from a divorce is that there's no property settlements in paternities, divorces are public. Why shouldn't paternities be public? The days of the shotgun wedding and the embarrassment and so forth when 40 percent of the kids are born out of wedlock, I don't know that that justifies maintaining that confidentiality anymore.

And certainly with CHINS cases (when children are deemed wards of the state because of abuse or neglect allegations), I think if citizens knew what was going on in their community, they might be able to respond much better and prevent some of these problems that reach a tragic end. Certainly, I think it would be after a probable cause hearing; if probable cause doesn't exist, it would remain confidential. ...

I will say that once things become public, then the press loses interest. The press is generally more interested when something's confidential, and they want to know what's going on. You open it up, and after a time, then people become numb or immune, whatever. But I still think it would be a good thing. ...

I think the theory was to prevent the child from suffering some stigma, from peers being cruel, but I kind of think in our present-day society we've gone way beyond that point. I don't think the objections are as valid as they may have been 50 years ago.

Q: I've sat in on a couple of hearings this year that were related to CHINS cases that were in your courtroom. I had to get your permission, but DCS objected pretty stringently under the confidentiality clause. ... With the Sturgis phone call, when we sought that, we believed that we might not hear anything that revealed anything about how that case unfolded or how it might have been prevented. As it turned out, we think it showed a great deal about maybe where there were some flaws in the system.

I think that tells you something: When DCS opposes the release on confidentiality, that's supposed to protect the children and families, not DCS. But yet DCS is the one that appears to be taking advantage of that.

Q: We've never talked about the circumstances of that phone call. We had our day in court, and made our argument, and you ordered it released. But you knew they would be unhappy, and it wasn't redacted (confidential information had not been electronically removed from the recording, although The Tribune edited it greatly to protect the identity of the caller and others named in the call). There was information there I guess you trusted us to use our judgment with, but can you talk about what your thinking was? You thought it was an important record for the community to hear, or -- ?

I think it was. I think frankly that the way the state set up DCS, they're virtually omnipotent, there's no check on them. Courts have been the check for years, but basically we were reduced to almost a subsidiary. You can't place a child anywhere without their consent, you can't do what's in the best interest of the child because they don't agree to it. ...

That's crazy, that a bureaucrat is going to tell me how to decide a case. It's not a good thing.

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to Indiana Courts

Ind. Courts - Electronic filing mandatory in SD Indiana effective Jan. 1, 2013

See the notice here of that change, plus others.

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to Indiana Courts

Ind. Courts - Local closings because of snow storm

Official word:

The Indiana Supreme Court, Court of Appeals of Indiana and Tax Court are closed today, December 26th.

Supreme Court Chief Justice Brent E. Dickson, Court of Appeals of Indiana Chief Judge Margret Robb and Tax Court Judge Marti Wentworth made the announcement of the closing due to the severe weather.

From an Indpls Bar Association tweet: "Marion Superior & Circuit Courts closed Wednesday due to weather."

From Judge Michelle Smith Scott: "Center Township Small Claims Court will be CLOSED 12/26. All cases will be re-scheduled and parties will be notified by mail."

Posted by Marcia Oddi on Wednesday, December 26, 2012
Posted to Indiana Courts

Monday, December 24, 2012

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (12/24/12):

Next week's oral arguments before the Supreme Court (week of (12/31/12):

Thursday, January 3rd

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/24/12):

Next week's oral arguments before the Court of Appeals (week of 12/31/12):

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 24, 2012
Posted to Upcoming Oral Arguments

Ind. Decisions - January set to be a relatively busy month for Supreme Court

The Indiana Supreme Court has scheduled a baker's dozen (i.e. 13) oral arguments for January 2013, starting off at 9 AM on January 3rd with the legislative fines case, Berry v. Crawford.

Posted by Marcia Oddi on Monday, December 24, 2012
Posted to Indiana Courts

Friday, December 21, 2012

Ind. Courts - "David Camm's lawyers hint at defense in third murder trial"

A lengthy story by Grace Schneider posted this evening on the Louisville Courier Journal website.

Posted by Marcia Oddi on Friday, December 21, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Kenneth S. Tipton v. State of Indiana , a 13-page opinion, Judge May writes:

Kenneth Tipton was convicted of Class C felony criminal recklessness; Class D felony dealing in marijuana; and being an habitual offender after he shot at a house during a standoff with police. He argues on appeal the evidence was insufficient to convict him of criminal recklessness because that offense requires proof there was a risk of injury to a person, but nobody was in the house when he shot at it. We affirm. * * *

As explained above, we believe someone shooting a gun at a residence may, for purposes of a criminal recklessness prosecution, create a substantial risk of bodily injury to another person even if the resident is away from home at the moment of the shooting. We must accordingly affirm Tipton’s conviction.

In Patrick Austin v. State of Indiana , a 16-page opinion, Judge May writes:
Patrick Austin appeals his conviction of and sentence for two counts of possession of cocaine as Class A felonies. Austin argues: the trial court erred by denying his motion for discharge under Criminal Rule 4; the trial court abused its discretion by admitting contested evidence; the trial court abused its discretion by rejecting his tendered jury instruction regarding constructive possession; and the sentence assigned by the trial court was both an abuse of discretion and inappropriate based on Austin’s character and offenses. We affirm.
In Steven E. Malloch v. State of Indiana , a 39-page opinion, Sr. Judge Sharpnack writes:
Steven E. Malloch appeals his conviction for Class A felony child molesting, Ind. Code § 35-42-4-3(a)(1) (1998), for an incident involving his stepdaughter. We affirm.
NFP civil opinions today (1):

Term. of the Parent-Child Rel. of B.W., Minor Child; R.C., Father v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (4):

Charles D. Stutz v. State of Indiana (NFP)

Michael R. Anderson, Jr. v. State of Indiana (NFP)

Joseph Lamar Johnson v. State of Indiana (NFP)

Anthony K. McCullough v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Auditors find accuracy and technology problems in state tax dept., follows $526M in errors"

Updating this ILB entry from Dec. 17th, the Fort Wayne Journal Gazette editorial today is titled "Heed advice on revenue errors." Some quotes:

Experts from Deloitte, a financial consulting firm, concluded the state agency placed so much emphasis on processing tax returns quickly that it compromised accuracy, resulting in errors state officials are still working to fix. * * *

Lesley Weidenbener of the Franklin College Statehouse news bureau noted that, on several occasions, Daniels had lauded the agency for its quick processing of tax returns.

“But the report said the agency’s strategic focus on cutting the time and cost of handling income tax returns meant ‘support areas such as information systems management and financial accounting and reporting appear to have been a lower priority for the organization,’ ” Weidenbener wrote.

The good news is that, under new leadership and with the addition of more than 20 top-level managers, the accounting mistakes have been corrected and no additional, significant errors were found. Auditors, however, noted the state is not using the integrated software system that might prevent problems.

“The issues identified did not arise overnight; neither will they be fixed overnight,” Deloitte’s Kathie Schwerdtfeger told budget officials. “Many of the issues are complex and will require a significant investment of time and resources to address, while others may be able to be addressed quickly. The task of evaluating, prioritizing and remediating these issues will be great, especially in light of other competing priorities and sustaining day-to-day operations.”

One of those priorities should be a switch to the integrated software system cited by Deloitte. Revenue Commissioner Mike Alley said he had considered buying one but estimated it could cost $50 million.

While it’s a hefty expenditure, $50 million spent certainly is preferable to $526 million lost. In fact, a more efficient software system seems like an obvious priority for that additional $1.28 billion in the rosy revenue forecast.

Posted by Marcia Oddi on Friday, December 21, 2012
Posted to Indiana Government

Ind. Law - "Indiana law already allows teachers to carry guns"

That is the headline to this AP story by Charles Wilson that appeared in many state papers yesterday and today. It begins:

INDIANAPOLIS (AP) — While legislators in other states are wrestling with the idea of allowing teachers to carry guns in school, experts say Indiana law already allows it.

The idea has gained traction following the school shooting in Connecticut.

Experts say in Indiana, anyone appointed as a school security guard can carry a gun on school property. But attorney Guy Relford says the law applies to anyone authorized by the school.

The ILB cited the statute, IC 35-47-9, Dec. 19th in this entry.

Sec. 2 provides:

A person who possesses a firearm:
(1) in or on school property; (2) in or on property that is being used by a school for a school function; or
(3) on a school bus;
commits a Class D felony.
As added by P.L.140-1994, SEC.11.
Sec. 1 of the law, however, contains exceptions:
This chapter does not apply to the following:
(1) A:
(A) federal;
(B) state; or
(C) local;
law enforcement officer.

(2) A person who has been employed or authorized by:

(A) a school; or
(B) another person who owns or operates property being used by a school for a school function;
to act as a security guard, perform or participate in a school function, or participate in any other activity authorized by a school.

(3) A person who:

(A) may legally possess a firearm; and
(B) possesses the firearm in a motor vehicle that is being operated by the person to transport another person to or from a school or a school function.
As added by P.L.140-1994, SEC.11.
Some (including perhaps a school's insurer) might not read it as perfectly clear that Indiana law already authorizes allowing teachers to carry guns in school as a matter of course.

Posted by Marcia Oddi on Friday, December 21, 2012
Posted to Indiana Law

Thursday, December 20, 2012

Ind. Decisions - Still more on Jeffrey M. Miller et al v. Junior Achievement et al

Updating this ILB entry from Dec. 10th, the Supreme Court has this afternoon filed an order denying Indianapolis Newspapers' emergency motion requesting that the Supreme Court assume jurisdiction. Access it here.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments"

The heading is from this article by Craig Fehrman posted today in Slate. Some quotes:

To date, the states that have passed right-to-hunt legislation are largely in the South (Arkansas, Alabama) and West (Nebraska, North Dakota). But the idea seems to be migrating east. Seven state legislatures broached it in 2012, including those in New York, New Jersey, and Pennsylvania. “We'll continue to work on passing this legislation in other states moving forward,” says Samford, the NRA spokeswoman.

What she means, of course, is in other state constitutions. That raises a larger point: More and more, we're seeing legislators and interest groups clutter our constitutions with current events. One reason the lines at Florida polling places stretched so long this November was that voters had to parse 11 different amendments to their state's constitution. Michigan voted on six new amendments, including ones on renewable energy and on collective bargaining. Aren't constitutions supposed to be foundational and philosophical documents—documents that are insulated from this kind of petty maneuvering?

ILB: Indiana's General Assembly adopted a "right to hunt" constitutional amendment in 2011. If it passes again this session (2013) or in 2014, the question of its ratification will appear on the 2014 ballot.

Here is the text of this proposal to amend Article 1 of our Constitution, the Indiana Bill of Rights (see SJR 9 here):

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
For background, see this April 11, 2011 ILB entry.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Indiana Law

Ind. Decisions - "Supreme Court allows hospital to charge uninsured patients more"

Jeff Swiatek of the Indianapolis Star has a story on yesterday's Supreme Court ruling in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here, see also here). Some quotes:

The state Supreme Court has reversed an appeals court ruling that let two uninsured patients sue IU Health over hospital bills that were much higher than insured patients were charged for the same care.

The 5-0 decision by the Supreme Court is the first time it's wrestled with the question of whether a hospital can charge uninsured patients more than insured ones.

The decision comes down squarely on the side of IU Health, which argued that the rates it charged the two uninsured patients in 2008 and 2009 were reasonable, even though they were much higher than the rates its insured patients paid.

IU Health had appealed the case to the Supreme Court after the appeals court overturned a Marion County court's dismissal of the case.

The two patients, Abby Allen and Walter Moore, contended that the charges by IU Health (formerly Clarian) were unreasonable and amounted to a breach of contract.

The patients were billed according to IU Health's so-called "chargemaster" rates, which are its unpublished, proprietary rates before insurer-negotiated discounts are applied.

"We align ourselves with those courts that have recognized the uniqueness of the market for health care services delivered by hospitals, and hold that patients' agreement to pay 'the account' in the context of Clarian's contract to provide medical services is not indefinite and refers to Clarian's chargemaster. As a result, we cannot impute a 'reasonable' price term into this contract," the Supreme Court said.

The court cited a scholarly article on the issue that said, "courts have generally tolerated low levels of specificity in medical contracts." * * *

The issue of uninsured-versus-insured billings has become largely moot since new federal guidelines now require hospitals to give discounts to uninsured patients similar to those given to insured ones. The guidelines weren't in effect when the two patients were treated by IU Health.

ILB: Can anyone point me to these "new federal guidelines"?

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. Sup.Ct. Decisions

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

But first, a non-Indiana ruling today, Adams v. Raintree Vacation Exchange, a 15-page opinion that begins:

POSNER, Circuit Judge.
This appeal requires us to consider the enforceability of a forum selection clause by entities not named as parties to the contract in which the clause appears.
In Parish v. City of Elkhart (ND Ind., Lozano), a 13-page opinion, Judge Rovner writes:
This appeal concerns a civil action brought under 42 U.S.C. § 1983 by Christopher Parish seeking damages for his wrongful conviction based on a violation of the Due Process Clause. The appeal, brought by Parish who prevailed in his § 1983 action, focuses on the adequacy of the damages award and the district court’s restriction of evidence relating to it. * * *

Because the district court’s rulings improperly limited the introduction of evidence relating to Parish’s innocence, and that evidence was critical to the damages issue, the award of damages cannot stand. The excluded evidence did not impact the jury’s consideration of the liability issue and that issue is not before us on appeal, and therefore a new trial is required only as to the damages issue. See Cobige v. City of Chicago, IL, 651 F.3d 780, 785 (7th Cir. 2011). Accordingly, the jury’s determination of liability is affirmed, the award of damages is vacated, and the case remanded for a new trial as to the issue of damages only. Circuit Rule 36 shall apply on remand. Costs on appeal are to be taxed against appellees.

In US v. Elliot (ND Ind., Simon), a 22-page opinion, Judge Rovner writes:
After he pleaded guilty to a felonin- possession charge, 18 U.S.C. § 922(g)(1), James Elliott was sentenced as an armed career criminal based on the district court’s finding that a series of three robberies he perpetrated in a five-day period when he was eighteen years old were “committed on occasions different from one another,” 18 U.S.C. § 924(e)(1). Elliot challenges that finding, contending that he had a right to have a jury, rather than the judge, assess the nature of his prior crimes, and that our decision in United States v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir. 1994) (en banc), abrogated on other grounds by Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), should be overruled. We affirm.
In Beller v. Wishard Hospital (SD Ind.. Pratt), a 10-page opinion, Judge Rovner writes:
The plaintiffs brought suit alleging that the defendant, Health and Hospital Corporation of Marion County, Indiana d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service (“Wishard”) violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, by failing to stabilize Melissa Welch and her minor son, Joshua Beller, during an emergency medical situation. The district court granted summary judgment for Wishard, and the plaintiffs appeal. * * *

The issue in this case is whether the plaintiffs had “come to the emergency room” of Wishard Memorial Hospital when they were transported in the Wishard ambulance. The regulations to the EMTALA, promulgated by the Department of Health and Human Services’ Center for Medicare and Medicaid Services (“DHHS), provide a definition of when a person is deemed to have “come to the emergency room,” but the 2001 definition in effect at the time of the incident was subsequently amended. Both parties agree that under the 2003 definition, the plaintiffs would not have “come to the emergency room” of Wishard, and therefore the claim could not proceed. The core issue, then, is which definition applies. * * *

We agree with the district court’s conclusion that the DHSS considered the 2003 regulation to be a clarification of the definition of “comes to the emergency department.” * * *

The 2003 definition merely provided guidance as to what it means for an ambulance to be “operated by” a hospital. The district court properly held that the 2003 amendment is a clarification, which therefore applies in interpreting the meaning of the 2001 language. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed. The decision of the district court granting summary judgment in favor of the defendant is AFFIRMED.

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

Environment - "Judge rejects Dune Acres residents' plea to stop NPS tree cutting"

Updating these earlier ILB entries from April 13, 2012 and May 11, 2012, Kevin Nevers reports Dec. 13th in the Chesterton Tribune in this story:

The National Park Service (NPS) is free to continue cutting down trees in Cowles Bog at Indiana Dunes National Lakeshore, after a federal judge on Wednesday denied a motion for a temporary restraining order (TRO) filed by a group of Dune Acres residents.

U.S. District Judge Joseph Van Bokkelen issued a two-page order denying the TRO only 24 hours after the Coalition to Protect Cowles Bog Area filed it in the Hammond Division of the U.S. District Court for the Northern District of Indiana.

Van Bokkelen noted in his order that the Coalition’s attorney, Cheryl Evans—who is herself one of the plaintiffs—failed to meet three requirements in her motion for the TRO:

•She did not file a separate motion for relief. Instead, her motion sought both a TRO and a preliminary injunction.

•She did not file a supporting brief for the motion.

•And the motion did not include certification of any efforts which Evans might have made to give notice of the filing to NPS and the named defendants, U.S. Secretary of the Interior Kenneth Salazar, National Lakeshore Superinten-dent Constantine Dillon, and NPS botanist Dan Mason. It also failed to include reasons such certification should not be required.

Although Van Bokkelen did not comment on the merits of the filing, he did state that it “gives no basis for the court to conclude that plaintiffs are likely to prevail in this case.”

At issue is what the Coalition refers to as NPS’ “clear-cutting” of some 3,400 trees in Cowles Bog, with the stated purpose of “restoring” the bog to the condition in which it appeared to the groundbreaking ecologist Henry Cowles when he studied it in the early 20th century. Work began on the project shortly after NPS received a “Finding of No Significant Impact” (FONSI) on Nov. 13, that is, after the project was deemed to pose no significant environmental threat.

Numerous Dunes Acres residents, however, formally objected to the Cowles Bog project, citing fears that it would affect water levels and lead to the flooding of Mineral Springs Road, that the removal of trees would subject the town to increased traffic and railroad noises, and that it would otherwise negatively affect residents’ quality of life.

The Coalition’s filing made four specific allegations, in seeking a TRO and preliminary injunction: that the environmental assessment prepared by NPS presented an insufficiently wide range of options (no action, 97-percent tree removal; or 99-percent removal); that it promoted “inaccurate data”; that it “suppressed” prior research into the history of Cowles Bog in order to make a better case for tree removal; and that it also “suppressed” public responses to the project.

This lengthy story, posted the day before (Dec. 12) by the Chesterton Tribune and also reported by Luke Nevers, details the contentions made in the Coalition's complaint/motion.

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

M.C.-G. v. M.G. (NFP)

In Re The Matter of the Adoption of A.S.P.: R.S.P. v. J.C.S. (NFP)

The Marion County Sheriff's Department v. Gwendolyn Y. Davis, individually and as Administratrix of the Estate of Anthony J. Robinson, Jr. (NFP)

Term. of the Parent-Child Rel. of J.M., M.M., A.M., and S.M.: R.M. & H.M. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Jeffrey Higgenbottom v. State of Indiana (NFP)

Otto McGee v. State of Indiana (NFP)

Michael B. Buckner v. State of Indiana (NFP)

Ronald Edward Madison v. State of Indiana (NFP)

John Chupp v. State of Indiana (NFP)

Anthony Anderson v. State of Indiana (NFP)

Kevin W. Black v. State of Indiana (NFP)

Netiko Jones v. State of Indiana (NFP)

Joseph B. O'Brien v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 20, 2012
Posted to Ind. App.Ct. Decisions

Wednesday, December 19, 2012

Ind. Gov't. - Gov.-elect Pence names Ryan Streeter as policy director

Ryan Streeter will become Mike Pence's senior economic policy director.

Gov. Daniels named Streeter as one of three citizen members of the Judicial Nominating Commission last July to fill the remainder of Fred McCashland's term.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, a partial reversal

In Norman Bernstein v. Patricia Bankert (SD Ind., Young), a 66-page opinion, ND Ind. Judge DeGuilio, sitting by designation, writes:

This appeal is the latest chapter in the story of the Environmental Chemical and Conservation Company (“Enviro-Chem”), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind. The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro- Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Indiana Environmental Legal Actions Statute (“ELA”), and more. The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court’s final judgment. Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims. * * *

For the reasons stated, we reverse the district court’s dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The Trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on today's Supreme Court decision on health care costs

With respect to the Supreme Court's decision today in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here), see this post today from Masson's Blog, which points to the language in the COA opinion stating that "Clarian considers its chargemaster rates confidential and proprietary."

See also this Oct. 13, 2011 ILB post.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides three today

In John Kimbrough, III v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

Defendant John W. Kimbrough was convicted of multiple counts of child molesting and sentenced to an aggregate term of eighty years. Concluding the trial court abused its sentencing discretion the Court of Appeals remanded this cause with instructions to impose an aggregate term of forty years. We grant transfer and affirm the judgment of the trial court. * * *

In summary, because the trial court correctly entered its sentencing statement in compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in imposing Kimbrough’s sentence. Further, Kimbrough did not seek review and revision of his sentence under Indiana Appellate Rule (7)(B).

In Abby Allen and Walter Moore v. Clarian Health Partners, Inc., an 8-page, 5-0 opinion, Justice Rucker writes:
Uninsured patients filed a putative class action complaint against a hospital alleging breach of contract and seeking a declaration that rates the hospital billed were unreasonable and unenforceable. The trial court granted the hospital’s motion to dismiss. We affirm the trial court’s judgment. * * *

Before receiving treatment Allen, who is uninsured and not covered by Medicare or Medicaid, signed a form contract drafted by Clarian under which she agreed to pay all charges associated with her treatment. The contract did not specify a dollar amount for services rendered, but provided that Allen “guarantees payment of the account.” Clarian provided medical treatment to Allen and then billed its “chargemaster” rates for medical services and supplies in the amount of $15,641.64. Patients’ two-count putative class action complaint alleges breach of contract and seeks declaratory judgment, namely, that rates the hospital bills its uninsured patients are unreasonable and unenforceable. According to the complaint, if Allen had been insured then Clarian would have accepted $7,308.78 for the same services and supplies. The complaint alleges that Clarian charges only uninsured patients the chargemaster rates, while “[i]nsured patients and Medicare/Medicaid patients pay significantly discounted rates for the same services and supplies.”

Clarian moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Indiana Trial Rule 12(B)(6). The trial court granted the motion. Patients appealed and the Court of Appeals reversed the trial court’s judgment and remanded this cause for further proceedings. Among other things the Court of Appeals concluded that because the contract did not contain a price term the reasonable value of services should be implied, and the issue of reasonableness requires resolution by a fact-finder. ... We disagree with our colleagues, and having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now affirm the judgment of the trial court. * * *

We align ourselves with those courts that have recognized the uniqueness of the market for health care services delivered by hospitals, and hold that Patients’ agreement to pay “the account” in the context of Clarian’s contract to provide medical services is not indefinite and refers to Clarian’s chargemaster. As a result, we cannot impute a “reasonable” price term into this contract. See First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind. 1990) (refusing to engraft reasonableness language onto a real estate lease, where the express provision at issue was “well understood in the business community and commonly found in such leases”). Because Patients’ complaint stated no facts on which the trial court could have granted relief, it properly granted Clarian’s motion to dismiss. Having thus resolved Patients’ breach of contract claim, we need not reach Patients’ declaratory judgment claim.

ILB: For background, see this April 30, 2012 ILB entry.

In Hugh David Reed v. Edward Reid; Reid Machinery, Inc.; North Vernon Drop Forge, Inc.;Jennings Manufacturing Co., Inc.; Reid Metals, Inc.; Glen White; Douglas Dibble; et al., a 35-page, 5-0 opinion, Justice Rucker writes:

After a steel fabrication company deposited solid waste on a landowner’s property the landowner filed a complaint seeking damages against multiple parties and on multiple grounds, including a claim for an environmental legal action. Both sides moved for summary judgment. The trial court granted the motions with respect to some claims and denied the motions with respect to others. We affirm the trial court in part, reverse in part, and remand this cause for further proceedings. * * *

[This opinion deals with the ELA (environmental legal action statute), illegal dumping, private nuisance, trespass, and many other claims]

We affirm the trial court as follows: denial of summary judgment for David on his ELA claim; denial of summary judgment for David on his claims that Edward and his corporations are liable under the corporate law doctrine of piercing the corporate veil; denial of summary judgment for David on his claim against Jennings Manufacturing as successor to Forge; grant of summary judgment for Defendants on David’s unjust enrichment claim; grant of summary judgment for Defendants on David’s intentional torts claim; and grant of summary judgment for Dibble and White on David’s responsible corporate officer claim.

We reverse the trial court as follows: denial of summary judgment for David on David’s claim against Edward as responsible corporate officer of Forge; grant of summary judgment for Defendants on David’s ELA claim; grant of summary judgment for Defendants on David’s illegal dumping claim; grant of summary judgment for Defendants on David’s claim of fraud; grant of summary judgment for Defendants on David’s nuisance claim; grant of summary judgment for Defendants on David’s trespass claims; grant of summary judgment for Defendants as responsible corporate officers of Forge; grant of summary judgment for Jennings Manufacturing on David’s successor liability claim; and grant of summary judgment for Reid Metals on its personal jurisdiction claim.

This cause is remanded for further proceedings.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Stephen W. Robertson, Ins. Comm. of the State of Indiana, on behalf of the Indiana Dept. of Ins. v. Ticor Title Ins. Co. of Florida, n/k/a Chicago Title Ins. Co. , a 22-page opinion, Judge Mathias writes:

The Insurance Commissioner of the State of Indiana initiated administrative proceedings against Ticor Title Insurance Company of Florida (“Ticor”) after an investigation revealed that Ticor was charging potentially excessive and discriminatory title insurance rates to its Indiana customers. A hearing was held and a hearing officer for the Indiana Department of Insurance (“the IDOI”) determined that Ticor’s title insurance rates were excessive and discriminatory. The hearing officer issued an order directing Ticor to, in part, refund excessive premiums, establish an internal control process to ensure that the appropriate premium is charged to Ticor’s customers, and pay unpaid premium taxes. Ticor subsequently filed a Petition for Judicial Review of Administrative Order in Marion Superior Court. After a hearing was held on the petition, the trial court issued findings of fact and conclusions of law reversing the administrative order. The IDOI appeals and raises the following issues:

I. Whether the trial court failed to appropriately defer to the IDOI’s interpretation of the Rate Statute when the court accepted Ticor’s interpretation of that statute in issuing its findings of fact and conclusions of law and,
II. Whether the trial court erred when it reversed the administrative order because the administrative hearing officer’s findings of fact and conclusions of law are supported by substantial evidence.

Concluding that the IDOI’s interpretation of the Rate Statute was reasonable and that the administrative hearing officer’s findings of fact are supported by substantial evidence, we reverse and remand for proceedings consistent with this opinion. * * *

We conclude that the trial court exceeded its authority when it reweighed the
evidence presented to the administrative hearing officer. Because there is substantial evidence to support the administrative hearing officer’s findings that Ticor allowed its agents to charge excessive and discriminatory rates to its Indiana customers, we reverse the trial court’s decision to set aside the Indiana Commissioner of Insurance’s September 3, 2010 order, and we reinstate the administrative order.

In LBM Realty, LLC, d/b/a Summer Place Apartments v. Hillary Mannia, a 15-page opinion, Judge Pyle writes:
After a fire broke out at an apartment building owned by LBM Realty, LLC d/b/a Summer Place Apartments (“LBM”), LBM’s insurance company, Greater New York Mutual Insurance Company (“Insurer”), paid LBM’s fire loss claim and then filed an insurance subrogation action, in LBM’s name, against LBM’s tenant, Hillary Mannia (“Mannia”), who is alleged to have negligently started the fire on her balcony patio. Mannia filed a Trial Rule 12(B)(6) motion to dismiss LBM’s claims of breach of contract and negligence, and the trial court granted her motion. LBM now appeals from the trial court’s dismissal of its complaint against Mannia. We reverse and remand. * * *

LBM argues that the trial court erred by granting Mannia’s motion to dismiss LBM’s complaint. Specifically, LBM contends that the trial court erroneously adopted the no-subrogation approach and concluded that Mannia was a co-insured under LBM’sinsurance policy.

NFP civil opinions today (1):

Sandra R. Peters v. Wal-Mart (NFP)

NFP criminal opinions today (3):

Larry Garmon v. State of Indiana (NFP)

Toby Hicks v. State of Indiana (NFP)

Toni L. Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Formal Investiture Ceremony for Justice Rush set for Friday, Dec. 28

From a news release:

The robing ceremony and oath administration for Loretta Rush as Indiana’s 108th Justice will take place on December 28th. Chief Justice Brent E. Dickson announced the date and invited the public to watch a webcast of the ceremony at courts.in.gov.

The one-hour ceremony will include remarks from Governor Mitch Daniels, former Supreme Court Justice Myra Selby, Allen County Superior Court Judge Charles Pratt and Dr. Will Miller. Governor Daniels will administer the oath and Justice Rush’s official courtroom photograph will be unveiled. A photo gallery of previous swearing-in ceremonies is online.

In September, Governor Daniels named Judge Loretta Rush to succeed Justice Frank Sullivan, Jr., who stepped down from the bench earlier this year. After her appointment, Rush continued her work as Judge of Tippecanoe Superior Court #3 until November. Chief Justice Dickson administered a private oath on November 7th so that Rush could officially begin her work as an Indiana Justice prior to the December 28th ceremony.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Indiana Courts

Environment - Still more on: Concerns in NW Indiana about Enbridge Energy Partners LP's aging Line 6B oil pipeline and its replacement

Updating this ILB entry from Oct. 25th, Bowdeya Tweh reports in the NWI Times:

LAPORTE | There may be a growing chorus of Northwest Indiana residents who are frustrated about a proposal from Enbridge Energy LP to build a new oil pipeline adjacent to an existing one that spans four Indiana counties.

Nearly all of the 11 people who spoke at an Indiana Department of Environmental Management hearing Tuesday urged IDEM to provide a rigorous review of the entire project because they questioned the company's effort to reduce impacts to landowners and the environment.

Enbridge plans to shut down its existing Line 6B crude oil and liquids pipeline that runs from Griffith to Sarnia, Ontario, and build a new one adjacent to it. The new pipeline, which is expected to cost hundreds of millions of dollars to construct, would have a larger transmission capacity than the current one.

IDEM organized the hearing to help guide its decision to approve or deny two Enbridge applications establishing the framework for placing fill material in state-regulated waters and how the company will mitigate the environmental impacts. About 60 people from Indiana, Illinois and Michigan attended the public hearing. * * *

Kim Ferraro, Hoosier Environmental Council Water and Agriculture policy director, said IDEM also should require Enbridge to conduct post-construction wetland and waterway monitoring until full restoration is achieved, provide a clear timeline for annual monitoring and have a financial assurance mechanism to ensure funds are available for additional restoration work.

From a side-bar:
Information on Enbridge's applications seeking two Section 401 Water Quality Certifications can be found online. The certifications are required before Enbridge can petition the U.S. Army Corps of Engineers for permission to move forward with pipeline construction.
The link leads to the index page for the two applications, which look to be thousands of pages long.

[More] Here is a Dec. 18th Chesterton Tribune story headed "Save the Dunes, HEC, others urge state scrutiny of Enbridge pipeline."

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Environment

Ind. Decisions - "Judge OKs sale of 2 vacant public schools"

For background, start with this Nov. 3, 2012 ILB entry headed "EACS sues to clear up confusion on sale law: Charters get 1st buy chance."

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

FORT WAYNE – An Allen Superior Court judge ruled two local public school districts can sell two vacant schools without letting the buildings languish for four years in case a future charter school wants to use them.

The ruling came Tuesday in two cases involving the Indiana Public Charter Schools Association and Fort Wayne Community Schools and East Allen County Schools.

In the case involving the Fort Wayne school district, the charter school association 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 charter school law went into effect, but was about to be made official by an airport board vote the day the association filed its lawsuit.

In the East Allen case, the district sued the charter school association to get a judge to weigh in on whether the district should be allowed to sell the shuttered Monroeville Elementary School to the Fort Wayne-South Bend Catholic Diocese, which wanted to use it for educational purposes. Because the diocese has offered to buy the building, no existing charter school has expressed any interest in its use. * * *

At issue was 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.

Attorneys for both districts argued that a plain reading of the statute said that the buildings go on the Department of Education list until another offer comes up or until a charter school expresses interest in buying or leasing it for $1.

Attorneys for the Indiana Public Charter Schools Association argued that a district cannot sell or dispose of a building until it sits on the list for four years, unclaimed by an interested charter school. But even if no charter expresses interest, the building must remain on the list.

In her 12-page ruling, Allen Superior Court Judge Nancy Boyer found in favor of the school districts. She said state law does not prohibit the districts from selling or transferring buildings to entities that want them.

She wrote that those amendments to the law, enacted in 2011 as part of a sweeping charter schools bill, did not modify or repeal the existing wording of state law and did not limit the school districts’ ability to transfer its own property.

“Reading (state law) to require a school corporation to refuse to sell or transfer unneeded property to a purchaser … forces a school corporation to bear the costs associated with maintaining an unneeded and unoccupied building for an unreasonably long period of time,” she wrote.

The 48-month time frame is not triggered unless a charter school files a letter of intent expressing interest in the building, Boyer wrote.

“(The) Charter Schools’ interpretation fails to protect taxpayer investment in school assets,” Boyer wrote. “Forcing unused school properties to sit idle for four years, even if no charter school is interested, is contrary to the public interest.”

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to Ind. Trial Ct. Decisions

Law - "Michigan Governor Vetoes Gun Bill"

The WSJ Law Blog reported last evening:

Michigan Republican Gov. Rick Snyder vetoed a controversial bill Tuesday that would have allowed concealed weapons to be carried into public spaces including schools, day-care centers and hospitals.

The bill was passed by the GOP majority last week in the waning hours of the state legislature’s lame-duck session. Mr. Snyder, who received national attention for signing so-called right-to-work legislation last week, said in an interview Monday that he had reservations about the bill because it may have given schools and other institution no choice but to allow highly trained holders of concealed weapons to enter.

ILB: Indiana passed a similar bill in 2011. It is located at IC 35-47-11.1, "Local Regulation of Firearms, Ammunition, and Firearm Accessories." It was referred to by some opponents at the time as the "Take your gun to the library" bill. From a news description at the time:
Senate Bill 292 essentially prohibits local governments, libraries and mass transit systems from regulating guns in any manner. That would eliminate prohibitions against guns in most municipal buildings and public parks.

State law prohibiting guns on school grounds would stand. And the bill doesn't prohibit state regulations on guns, such as state rules passed in 2007 banning guns from the Statehouse and adjoining government center, though lawmakers get an exception.

There's another exception for buildings with courts.

The prohibition against guns in schools is not in SB 292, it is IC 35-47-9.

Posted by Marcia Oddi on Wednesday, December 19, 2012
Posted to General Law Related

Tuesday, December 18, 2012

Ind. Decisions - More on: Charges against Kristine Bunch reported dropped [Updated]

Updating this post from earlier today, WISHTV has posted this story, which includes the full statement released by Bunch's defense team.

[Updated Dec. 19] Tim Evans of the Indianapolis Star has this long story today. From the beginning:

The Decatur County prosecutor on Tuesday dismissed a murder charge against Bunch, 38, of Greensburg.

But the legal ordeal that has consumed nearly half of her life is likely to continue.

The charge was dismissed “without prejudice,” which means it can be refiled. And the prosecutor’s motion makes that possibility clear, saying the state may present evidence “to a grand jury at a later date.”

“We have not surrendered,” said Doug Brown, Decatur County’s chief deputy prosecutor. “We are still evaluating what (evidence) is available with the intention to go forward. Dismissing the case gives us the time we feel is appropriate to fully investigate what we need going forward.”

The latest legal maneuvers leave a cloud over Bunch nearly 17 years after her son died in a fire she was accused of setting, her attorney Ron Safer said. He said Bunch is not speaking publicly about the case at this time.

“She is relieved,” Safer said of her reaction to the dismissal of the murder charge. “But she also has to live with the Sword of Damocles over her head. Hopefully, the prosecutor will rectify that in short order.”

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Law - FWJG: "Meet in middle on gun legislation"

A thoughtful editorial today in the Fort Wayne Journal Gazette; it begins:

As the nation again examines how it regulates gun ownership in the wake of last week’s tragedy in Newtown, Conn., there seems to be some hope that reasonable, moderate Americans may be able to take the debate away from the extremists on either end of the issue.

In Indiana, that should mean repealing some of the nonsensical laws passed in recent years, borrowing from Texas standards for having a permit to carry a gun and looking at the need to keep guns secure.

The long editorial summarizes some recently enacted Indiana gun laws:
Indiana, however, requires no training or proof of skills – and allows Hoosiers to obtain a lifetime carry permit, ending a renewal process that could identify people who no longer qualify.

Three years ago, the Indianapolis Star – using the database of Indiana handgun permits – found that state police wrongly approved gun permits in Lake and Marion counties for Hoosiers with criminal histories. State lawmakers responded in their 2010 session – by making secret the previously open records of people who received state permits.

Also in that session, lawmakers passed a rare bill against the interests of businesses, creating a law allowing workers to keep guns in their cars parked at businesses. Previously, businesses had wide ability to regulate what employees can and cannot bring to their workplace property.

In 2011, lawmakers took away the ability of local officials to ban guns in government-owned buildings. But while the legislature insisted that citizens would be safer if they were allowed to take guns to city council meetings, members continued the no-gun restriction for their own sessions at the Indiana Statehouse.

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Indiana Law

Ind. Decisions - Charges against Kristine Bunch reported dropped

Updating earlier ILB entries on the widely-watched Kristine Bunch arson case, WRTV6 is reporting at noon: "BREAKING: Attorneys say charges dropped against a woman who spent 16 years in prison after conviction in a fire that killed her son." MORE

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (0):

In Timothy Schepers v. State of Indiana, a 9-page opinion, Judge Baker writes:

This case is before us on interlocutory appeal, where we determine whether Timothy Schepers’s right to a speedy trial under Indiana Criminal Rule 4 was violated. Schepers was charged with several criminal offenses, and the trial court appointed a public defender to represent him. Schepers subsequently filed a pro se motion to have the public defender removed as counsel and demanded a jury trial within seventy days pursuant to Criminal Rule 4.

After Schepers filed his motions and demand for a jury trial, and before a ruling was made on the request for removal of counsel, the trial court held a hearing and informed Schepers that it was appointing a special public defender to represent him. Schepers agreed to that appointment. When the trial court set a trial date beyond seventy days of Schepers’s pro se motion, Schepers moved to dismiss and the trial court subsequently held a hearing to determine whether a violation of Criminal Rule 4 had occurred.

Schepers was still represented by counsel when he filed his pro se motions, and Schepers’s filing of those motions did not amount to a request to proceed with hybrid representation. Additionally, Schepers’s subsequently-appointed counsel acquiesced to a trial date that was set beyond the seventy-day rule. For these reasons, we conclude that the trial court properly denied Schepers’s motion to dismiss. We therefore affirm and remand this cause for trial.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Dan Stranahan v. Debra Haines (NFP)

Trenton Jones v. State of Indiana (NFP)

Michael Dominique v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "The Disappearing Jury Trial in Indiana: Some Thoughts (and Stats) on the Past Five Years"

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

Last year in courts across the state, less than 1,300 cases were resolved by jury trials. Although the numbers were down for both civil and criminal cases; the civil numbers seem especially low at 271.*

Why the Decline—and Does it Matter?

Applicants this summer for the vacancy created by Justice Sullivan’s retirement were asked a number of questions about their jury trial experience and their views on the jury system. The standard application form asks applications to “[d]escribe the extent of [their] jury experience, if any.” This question appears rooted in the statutory criteria that require the Commission consider an applicant’s “type of legal practice, including experience and reputation as a trial lawyer or trial judge.” No one was asked directly why there are so few jury trials or if the paucity was a positive or negative thing.

The reasons for the decline in the civil realm are ably explored many places, including a 2004 empirical article about the “vanishing trial” by the Litigation Section of the ABA and a 2012 essay by U.S. District Judge James E. Gritzner. These include the rise of alternative dispute resolution, the cost of trials as cases become more complex and require more expensive experts, and “judge hostility to trials.”

The increasing number of cases resolved by summary judgment mentioned in some states would appear less applicable in Indiana. As summarized in a post this summer, Indiana’s summary judgment makes a grant of summary judgment more unlikely than under the federal standard.

The decline in the criminal realm is less clear and perhaps not uniform across the state. Every defendant charged with a felony will presumptively have a jury trial unless they waive the right and either plead guilty or have a bench trial. Some prosecutors offer more generous plea agreements (and are more risk adverse) than others, and some defendants and defense lawyers are more willing than others to take cases to trial.

Wide variations by county and court

Despite the overall decline in [both civil and criminal] jury trials, some courts continue to hold an average of more than twenty jury trials each year. This chart shows the courts with the highest number of jury trials over the past five years. (It is not clear if one judge heard all of those trials or the judge was assisted by a magistrate or commissioner.)

Although caseloads vary considerably in courts around the state, it is interesting that the five courts with the highest number of jury trials are in Allen County (three of the top five) and St Joseph County (two of the top five). Rounding out the top ten are another St Joseph court, two from Marion County, and one each from Vanderburgh and Lake counties.

In contrast, many courts had no jury trials for a number of years. If a court hears only domestic relations, small claims, or juvenile cases, one would expect no jury trials because the right does not exist. But in some counties with only a Circuit Court, which necessarily hears every type of case, some judges have gone at least four years without a jury. For example, Martin County and Union County last had a jury trial in 2007; none were held in 2008-11.

Infractions/ordinance violations

Finally, although hundreds of thousands infractions are resolved each year in Indiana, only a handful of litigants exercise their right to a jury trial. The Court of Appeals made clear in a 2005 opinion that litigants charged with a traffic infraction have a right to trial by jury.

Conclusion

A resurgence of jury trials seems unlikely. Therefore, an emphasis on trial skills in law school and CLEs must (and to some extent already has) give way to classes and seminars on such things as ADR, negotiation skills, sentencing, and improved writing. And new Supreme Court decisions on plea negotiations arguably assume more significance than cases involving jury selection.

Unfortunately, fewer jury trials mean fewer lawyers, young and old, enjoy the experience described in Judge Gritzner’s article:

There is a special experience in my work that I enjoy all too infrequently anymore. It is when I take the bench and announce the jury has advised they have reached a verdict. I direct the court officer to bring the jury into the courtroom and a group of citizens of all stripes files into the jury box. Their faces often show the strain of their difficult task, but they also show the resolve of knowing they, as a group, have done their duty. Some may show emotion. Some may look as firm as a warden. But each face reveals an understanding of the importance of what they have just completed. The foreperson advises that they have reached a verdict and the form is brought to me. At that moment we all experience the purest form of democracy.
____________
*My review was limited to the last five years, in part because some of the older data struck me as potentially inaccurate. For example, the 2006 report lists 50 ordinance violation jury trials in Monroe Circuit Court 6, and the 2005 report shows 301 infraction jury trials in Frankfort City Court. (I also doubt there were 34 infraction jury trials in Benton Circuit Court in 2010.)

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to Indiana Courts

Ind. Law - "Supporters say drinking 'raw milk' is about food freedom"

Updating earlier ILB entries on the sale of raw milk in Indiana, the Lafayette Journal Courier has a long story today by MaryJane Slaby adding content to the earlier reports. It begins:

Unpasteurized milk: It’s straight from the cow on the farm to the consumer’s glass without being heated to sterilize it with the intention of making it safer.

Sometimes it’s called “fresh milk,” but it’s more often known as “raw milk,” and Indiana is one of 20 states that prohibit the sale of raw milk for human consumption. And the legality of selling raw milk has become a hot topic both nationally and in Indiana.

“It’s not what it’s villain-ized to be,” said Linda Swihart, who supports the sale of raw milk. “Like any food, it can be done wrong.”

In the 2012 session of the Indiana General Assembly, a bill failed that would allow the sale of raw milk from dairy farms with 20 or fewer cows.

And at the beginning of the month, a panel created by the Indiana Board of Animal Health gave its recommendations in a report concerning raw milk, saying allowing raw milk would lead to human illnesses, but was “ultimately a political decision.”

The report offered two choices: Allow limited sales of raw milk but with sanitary requirements the board would set, or toughen current laws to close loopholes such as cow-shares, which is currently a legal way to buy raw milk.

But what’s caused the debate surrounding raw milk to become such a hot topic? Why do people want to buy and drink unpasteurized milk? And what could happen if the failed bill is reintroduced in 2013?

Posted by Marcia Oddi on Tuesday, December 18, 2012
Posted to General Law Related

Monday, December 17, 2012

Ind. Gov't. - "Auditors find accuracy and technology problems in state tax dept., follows $526M in errors"

Updating these of earlier ILB entries on the Ind. Dept. of Revenue's $526 million error, Tom LoBianco of the AP reports this afternoon:

INDIANAPOLIS — A patchwork system of outdated technology and a work culture that sacrificed accuracy for speed were at the heart of $526 million in tax errors, according to an independent audit of Indiana's Department of Revenue released Monday.

Auditors for the international accounting firm Deloitte also discovered additional errors with 55,000 taxpayer accounts and 2,880 tax refund requests that were never processed, but said the errors were "miniscule" compared to the larger errors which spurred lawmakers to seek an audit in the first place. * * *

The Deloitte audit caps a year of questions about the state's ability to accurately gauge what it's taking in and how much it has to spend. Auditors Kathie Schwerdtfeger and Bari Faudree described Monday a system in which speed trumped accuracy.

"As indicated in the risk assessment, the (revenue department) seemed much more focused on efficiency of tax processing than they were on ensuring a strong system of control and accountability over taxpayer funds," Schwerdtfeger wrote in the report.

Faudree and Schwerdtfeger also pointed out that the state's collage of multiple filing and processing systems led many workers to create workarounds to maintain accuracy and consistency, a problem that could easily be fixed by transferring to a single integrated filing system as other states have.

Workarounds, Schwerdtfeger said, increase "the risk of errors being made and makes processing of transactions less efficient than they otherwise should be."

The auditors consistently praised the revenue department management put in place in May for beginning to implement changes.

"It's a cultural shift more than anything else, so we have begun adding much more focus in terms of the quality and the accuracy," said Revenue Commissioner Mike Alley after the audit hearing Monday afternoon.

Alley said he had considered buying an integrated filing system, but estimated off-the-cuff that it could cost the state $50 million and could be a while before it was in use.

Deloitte's audit results come roughly a year after Gov. Mitch Daniels disclosed the first major error: the misplacement of $320 million in corporate tax collections.

Here is a link to the 66-page Deloitte Controls and Performance Audit. Other reports are here on the DOR site.

Posted by Marcia Oddi on Monday, December 17, 2012
Posted to Indiana Government

Law - "7 of the most striking ways states have loosened gun laws"

That is the heading of this long survey article by Suevon Lee of ProPublica, here as published in the Syracuse NY Post-Standard.

Posted by Marcia Oddi on Monday, December 17, 2012
Posted to General Law Related

Ind. Decisions - Transfer list for week ending December 14, 2012 [Updated]

[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, December 14, 2012. It is three pages (and 32 cases) long.

Six transfers were granted last week, two with opinion:

Posted by Marcia Oddi on Monday, December 17, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Charles Knight v. Allstate Property and Casualty Ins. Co. (NFP)

Star Homes, Individually and d/b/a Garden Homes, Inc., David Garden, Donna Rothwell, John Michael Myers, Indiana Telephone Co., et al. v. Equity Trust Co., FBO James E. Henke, IRA (NFP)

In the Matter of B.A., Child Alleged to be in Need of Services; C.A. v. Indiana Dept. of Child Services (NFP)

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

NFP criminal opinions today (2):

Shelly Watson v. State of Indiana (NFP)

Ellis DeBerry v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 17, 2012
Posted to Ind. App.Ct. Decisions

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 16, 2012:

From Saturday, December 15, 2012:

Posted by Marcia Oddi on Monday, December 17, 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 (12/17/12):

Thursday, December 20th

Next week's oral arguments before the Supreme Court (week of (12/24/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/17/12):

Monday, December 17th

Tuesday, December 18th

Next week's oral arguments before the Court of Appeals (week of 12/24/12):

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 17, 2012
Posted to Upcoming Oral Arguments

Sunday, December 16, 2012

Courts - Impact of SCOTUS rulings on a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining

See this Sentencing Law post, linking to a new paper by Laurie Levenson, Loyola Law School Los Angeles.

Posted by Marcia Oddi on Sunday, December 16, 2012
Posted to Courts in general

Law - "Do Rapists Have the Right to Parent Children Conceived in Rape?"

This August 23, 2012 ILB entry is headed "Denying rapists parental rights snarls panel." It quotes a NWI Times story that began:

A General Assembly study committee learned Wednesday that changing Indiana law to prohibit a rapist from having any contact with a child produced by his or her crime is not as simple as it might seem.
An August 28th Fort Wayne Journal Gazette editorial began:
Most Hoosiers were as shocked as legislators earlier this year when they learned that in Indiana, rapists retain parental rights over children conceived by their violent crime. State lawmakers are finding it nearly impossible to right this blatant wrong. But it can be done. At least one other state shows what at a minimum is possible.

In Indiana, if a rape victim who became pregnant because of sexual assault chooses to give birth, she can find herself being victimized by her rapist a second time when he seeks parental visitation rights or even custody. It’s revolting, but rapists retain their rights in at least 27 states, including Indiana.

This week, Sherry F. Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell University, posted the first of a two-part series in Justica's Verdict, under the heading "Do Rapists Have the Right to Parent Children Conceived in Rape?" Here is the link to Part 1. Part 2, on "How do state laws handle rapists’ claims of parental entitlements?" will follow on Dec. 19th.

Posted by Marcia Oddi on Sunday, December 16, 2012
Posted to General Law Related

Ind. Courts - More on: 7th Circuit rules on Illinois "ready-to-use" gun law

The 7th Circuit's opinion Tuesday in Michael Moore v. Lisa Madigan, AG (ILB summary here) is the focus today of a long story by Mark Sherman of the AP headed "High court fight looms over right to carry a gun." Here is how it begins:

WASHINGTON (AP) -- The next big issue in the national debate over guns - whether people have a right to be armed in public - is moving closer to Supreme Court review.

A provocative ruling by a panel of federal appeals court judges in Chicago struck down the only statewide ban on carrying concealed weapons, in Illinois. The ruling is somewhat at odds with those of other federal courts that have largely upheld state and local gun laws, including restrictions on concealed weapons, since the Supreme Court's landmark ruling declaring that people have a right to have a gun for self-defense.

In, 2008, the court voted 5-4 in District of Columbia v. Heller to strike down Washington's ban on handgun ownership and focused mainly on the right to defend one's own home. The court left for another day how broadly the Second Amendment may protect gun rights in other settings.

Legal scholars say the competing appellate rulings mean that day is drawing near for a new high court case on gun rights.

The appeals court ruling in Chicago came early in a week that ended with the mass shooting in Connecticut that left 28 people dead, including 20 children at an elementary school and the presumed gunman.

Posted by Marcia Oddi on Sunday, December 16, 2012
Posted to Ind. (7th Cir.) Decisions

Saturday, December 15, 2012

Ind. Courts - Is bloodhound evidence admissible in Indiana?

No, ruled Porter County Superior Court Judge Alexa this week. Kevin Nevers reported Dec. 14th in the Chesterton Tribune:

Prosecutors will not be allowed to enter dog-tracking evidence against the accused murderer of Amanda Bach, Dustin McCowan, when his trial begins on Feb. 4.

On Thursday, Porter Superior Court Judge Alexa granted a motion filed by McCowan’s attorneys on Aug. 16, seeking the exclusion of that evidence.

Prosecutors had hoped to introduce the results of tracks made on Sept. 21-22 by retired PCSP Sgt. Charlie Douthett’s bloodhound Jury, who Douthett testified at the hearing in August had alerted to McCowan’s scent at the site near his home where Bach’s body was found; at Dean’s General Store on Ind. 130, where Bach’s abandoned vehicle was found; and along Jones Road and C.R. 650W, the main route between McCowan’s former home on C.R. 625W in Union Township and Dean’s.

Exactly how useful that evidence would have been — had Alexa allowed it — is unclear, since under cross-examination by McCowan’s attorney, Nick Barnes, Douthett acknowledged that under certain circumstances it’s not only possible for a scent to last in excess of five months but also for a bloodhound to track a person who’s traveled in a vehicle.

In any event, Alexa did not allow the dog-tracking evidence as proof of guilt. Citing well-established Indiana case law nearly a century old, Alexa ruled that “bloodhound evidence is inadmissible because it is an unreliable form of evidence.”

In that specific case, Ruse vs. State (Ind. 1917), the Indiana Supreme Court ruled as follows: “When it is considered that the use of bloodhounds, even under the most favorable conditions, is attended with some degree of uncertainty, which may readily lead to the conviction or accusation of innocent persons, and that, at best, evidence as to their conduct in following a supposed trail is properly not of a great probative value, it follows . . . that both reason and instinct condemn such evidence, and courts should be too jealous of the life and liberty of human beings to permit its reception in a criminal case as proof of guilt.”

A much more recent decision by the Indiana Supreme Court, in 1985, also upheld the Ruse vs. State ruling, Alexa noted.

ILB: Unfortunately, the ILB has not located a freely available copy of the 1917 case online. The ILB also did not find the 1985 decision referred to above. However, it did find this statement in Brafford v. State, 516 NE 2d 45 - Ind: Supreme Court 1987:
The trial judge was correct in limiting this line of questioning. It has long been held in Indiana that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence. Ruse v. State (1917), 186 Ind. 237, 115 N.E. 778.
In addition, in Hill v. State, 531 NE 2d 1382 - Ind: Supreme Court 1989, the dissent by J. DeBruler, joined by C.J. Shepard, begins:
In this case the trial court over objection permitted the prosecution to present evidence that the dog tracked appellant's scent from the laundromat. In Brafford v. State (1987), Ind., 516 N.E.2d 45, this court reiterated the longstanding prohibition against the use of this type of evidence to convict:
"It has long been held in Indiana that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence."
In Ruse v. State (1917), 186 Ind. 237, 115 N.E. 778, Judge Spencer wrote for the court regarding this type evidence:
". . both reason and instinct condemn such evidence, and courts should be too jealous of the life and liberty of human beings to permit its reception in a criminal case as proof of guilt."
It flows a fortiori from this rule of evidence that no satisfactory foundation for the admission of bloodhound evidence can be made. The rule is based upon the unobtainability of scientific and other information which can furnish a satisfactory basis or reason for admitting such evidence. A scientist who is intimately acquainted with every detail of a grandiose scientific investigation has not necessarily reached a single conclusion worthy of being regarded as reliable. The objection raised at trial, while not completely in focus, was adequate and should have been sustained.

While the majority opinion now recognizes that tracking dog or "bloodhound evidence" is not sufficiently reliable to be admitted into evidence in a criminal case as proof of guilt, the majority apparently believes that wrongfully admitted evidence should simply be ignored so long as a sufficient amount of probative evidence remains to support the conviction.

The ILB also located two related 1969 New York opinions in the case of People v. Centolella. The first opinion (People v. Centolella, 61 Misc. 2d 723 - NY: County Court 1969) rules that:
The following jurisdictions favor the view that such evidence is admissible in evidence:

Alabama: Burks v. State (240 Ala. 587); Arkansas: Rolen v. State (191 Ark. 1120); Florida: Tomlinson v. State (129 Fla. 658); Georgia: Mitchell v. State (202 Ga. 247); Kansas: State v. Netherton (133 Kan. 685); Kentucky: Daugherty v. Commonwealth (293 Ky. 147); Louisiana: State v. Green (210 La. 157); Maryland: Terrell v. State (3 Md. App. 340); Massachusetts: Commonwealth v. Le Page (352 Mass. 403); Mississippi: Hinton v. State (175 Miss. 308); Missouri: State v. Fields (434 S. W. 2d 507); North Carolina: State v. Rowland (263 N. C. 353); Ohio: State v. Dickerson (77 Ohio St. 34); Oklahoma: Buck v. State (77 Okla. Crim. 17); Pennsylvania: Commonwealth v. Hoffman (52 Pa. Super. Ct. 272); South Carolina: State v. Brown (103 S. C. 437); Tennesee: Copley v. State (153 Tenn. 189); Texas: Parker v. State (46 Tex. Crim. 461); West Virginia: State v. McKinney (88 W. Va. 400).

Those jurisdictions which hold such evidence inadmissible include: Illinois: People v. Pfanschmidt (262 Ill. 411) (bloodhounds held to be unreliable); Indiana: Ruse v. State (186 Ind. 237) (such evidence too uncertain); Iowa: State v. Grba (196 Iowa 241) (such evidence weak and uncertain); Montana: State v. Storm (125 Mont. 346) (such evidence incompetent); Nebraska: Brott v. State (70 Neb. 395) (such evidence unsafe).

Minnesota declined to pass upon the question of admissibility saying that in that case, Crosby v. Moriarty (148 Minn. 201) no proper foundation had been laid for the evidence.

The second Centolella opinion (People v. Centolella, 61 Misc. 2d 726 - NY: County Court 1969)provides:
An examination of scores of cases in other jurisdictions suggests that the following minimum requirements are necessary to satisfy the preliminary proof to permit the court to allow a jury to pass upon this testimony as a circumstance tending to connect the defendants with the crime:

1. That the dog or dogs used are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination. (State v. McLeod, 196 N. C. 542; Pedigo v. Commonwealth, 103 Ky. 41; State v. Steely, 327 Mo. 16.) In this case, the prosecution has introduced the registration of Colonel of Redstone and the pedigree and these exhibits are certified copies of the records of the American Kennel Club. (Cf. State v. Harrison, 149 La. 83.)

2. That the dog or dogs possessed these qualities and have been accustomed and trained to pursue the human track. (Moore v. State, 26 Ala. App. 607; State v. McLeod, supra; Pedigo v. Commonwealth, supra; State v. Harrison, 149 La. 83.)

In this case, Trooper Suffolk detailed the training of both Colonel of Redstone and Corporal of Redstone, a blood brother on practice trails under various conditions and circumstances.

That the dog or dogs have been found by experience in actual cases to be reliable in such tracking. (State v. McLeod, supra; Pedigo v. Commonwealth, supra; State v. Steely, 327 Mo. 16; Harris v. State, 143 Miss. 102.)

But see: Villacreses v. Rivera, 485 F. Supp. 2d 239 - Dist. Court, ED New York 2007

Posted by Marcia Oddi on Saturday, December 15, 2012
Posted to Indiana Courts

Friday, December 14, 2012

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

For publication opinions today (5):

In Brenda Alexander v. Donald Alexander, a 10-page, 2-1 opinion, Judge Bailey writes:

Brenda Alexander (“Wife”) appeals the denial of her motion to correct error, which challenged the omission of an award of incapacity maintenance in the decree dissolving her marriage to Donald Alexander (“Husband”). She presents the sole issue of whether she is entitled to an award of incapacity maintenance. We affirm. * * *

Although there was evidence that Wife had physical limitations and received disability payments, there was also evidence that she was college-educated, that she had recently provided child care for pay, and that her limitations would not entirely preclude sedentary work. We will not reverse a judgment merely because we might have, on the same evidence, reached a different conclusion. Wilder-Newland, 967 N.E.2d at 560. The denial of Wife’s request for incapacity maintenance is not clearly erroneous. Affirmed.

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 7, and concludes] In light of these special findings and without a determination of the effect of such disability payments on Brenda’s ability to support herself, I cannot conclude that the trial court properly exercised its discretion to deny Brenda an award of incapacity maintenance when its special findings would otherwise authorize an award. See Cannon, 758 N.E.2d at 527. Thus, the trial court’s denial of incapacity maintenance under these circumstances was contrary to law and an abuse of discretion. I would therefore remand to the trial court with instructions to determine the propriety of Brenda’s request for incapacity maintenance.

In Christine Banks v. Timothy R. Banks, a 10-page opinion, Judge Barnes writes:
Christine Banks appeals the trial court’s reduction of the amount of spousal maintenance she receives from her ex-husband, Timothy Banks. We affirm.

The dispositive issue we address is whether there is sufficient evidence to support the trial court’s modification of spousal maintenance. * * *

The trial court was permitted to modify and reduce Timothy’s spousal maintenance obligation to Christine solely upon the basis of evidence related to the parties’ respective finances and Timothy’s health, and that evidence justifies the reduction of Timothy’s obligation from $500 per month to $40 per week. We affirm.

In A Plus Home Health Care Incorporated v. Kathleen Miecznikowski, a 9-page opinion, Judge Najam writes:
A Plus Home Health Care, Inc. appeals the decision of the Indiana Worker’s Compensation Board in favor of Kathleen Miecznikowski on her claim for worker’s compensation. A Plus raises a single issue for our review, namely, whether Kathy’s claim arose out of her employment. We affirm. * * *

On August 27, 2011, Kathy worked for A Plus as a home health care registered nurse. While visiting a patient at the patient’s home, Kathy realized that she had left some medical equipment in her car, and she returned to her car to retrieve the equipment. On her way back inside the patient’s house, Kathy lost her footing and fell on a concrete sidewalk, injuring her left arm and hand. * * *

Kathy’s evidence submitted to the SHM and credited by both the SHM and the Board demonstrated that her injuries both did not arise from a personal risk and did arise from a neutral risk. Because the injuries arose from a neutral risk, they were incidental to Kathy’s employment and, therefore, compensable. Accordingly, we affirm the Board’s decision in favor of Kathy.

In Granite State Insurance Company v. Robert Lodholtz and Pulliam Enterprises, Inc., an 11-page, 2-1 opinion, Judge Bradford writes:
Robert Lodholtz was seriously injured while working in a facility operated by Pulliam Enterprises, whose commercial general liability carrier was Granite State Insurance Company. On June 24, 2011, Lodholtz sued Pulliam, who contacted York Rick Services, Granite State’s claims administrator, ten days later. York requested and received an extension of time to respond to Lodholtz’s claim, but did not. As a result, default judgment on the question of liability was entered in favor of Lodholtz on August 23, 2011, and the issue of damages was set for trial. On August 24, York sent a letter to Pulliam’s private counsel urging Pulliam to “take immediate action to vacate the default judgment and defend itself in the matter.”

Taking matters into its own hands as York had suggested, Pulliam decided to settle with Lodholtz instead of moving to vacate the default judgment. Among other things, Lodholtz agreed that he would not proceed against Pulliam to collect his damages but would instead seek to collect from Granite State and York. About a week after the settlement, Granite State offered to represent Pulliam while reserving the right to deny coverage, an offer Pulliam refused. About two weeks after that, Granite State moved to intervene. The trial court denied Granite State leave to intervene and awarded Lodholtz approximately $3.9 million in damages. In a case that brings to mind the admonition, “Be careful what you wish for, you may receive it[,]”1 we conclude that the trial court did not abuse its discretion in denying Granite State leave to intervene. * * *

ROBB, C.J., concurs.
BAKER, J., dissents with opinion. [that begins on p. 9] I respectfully dissent from the majority’s decision to affirm the trial court’s denial of Granite State’s motion to intervene. In my view, Granite State has demonstrated that its interest in the tort suit is sufficient to support intervention, that its interest is in danger barring intervention, and that its interest is not currently being protected, thus satisfying the requirements of Indiana Trial Rule 24(A)(2). * * *

I part ways with the majority’s view that Granite State sought to intervene simply “because it did not like the results” when Pulliam and Lodholtz settled. Slip op. at 7, n.3. In short, I believe that the trial court erred in denying Granite State’s motion for leave to intervene.

In Melissa Patterson v. State of Indiana , a 9-page, 2-1 opinion, Judge Friedlander writes:
Melissa Patterson was charged with two counts of aiding, inducing, or causing invasion of privacy as a class A misdemeanor, an offense set out in Ind. Code Ann. § 35-46-1-15.1(5) (West, Westlaw current through 2012 2nd Reg. Sess.). Upon interlocutory appeal, Patterson appeals from an order denying her motion to dismiss those charges, presenting the following restated issue for review: Can a protected person who is the subject of a no-contact order be criminally liable for aiding, inducing, or causing another person to violate that order? We reverse and remand. * * *

In summary, our General Assembly has determined that where a protected person invites the subject of a protective order to violate the terms of the order, such is irrelevant to the subject’s guilt. As the Ohio court aptly noted, “Protection orders are about the behavior of the respondent and nothing else. How or why a respondent finds himself at the petitioner’s doorstep is irrelevant. To find appellant guilty of complicity would be to criminalize an irrelevancy.” Id. at 648. We agree and conclude that the General Assembly did not intend that the prohibitions in I.C. § 35-46-1-15.1 should be applied to a protected person under a no-contact order. The statute’s prohibitions are explicitly addressed only to the actions of the restrained party. Therefore, Patterson cannot be convicted of aiding, inducing, or causing an invasion of privacy as alleged in CM-936 and CM-1026 and the trial court erred in denying her motion to dismiss those charges. We remand with instructions to do so.

BROWN, J., concurs.
PYLE, J., dissents with separate opinion. [that reads in full] The majority holds that a protected person under a no-contact order issued pursuant to Indiana Code § 35-46-1-15.1 cannot be convicted of aiding, inducing, or causing another to violate that order. The opinion ably outlines the policy supporting this view. However, I believe that the plain language of the statutory regime used by our General Assembly permits the prosecution of a protected person who deliberately seeks to aid another to disobey a court order for protection. While the majority’s policy position may, in fact, be consonant with the General Assembly’s intent, I believe it should be left for the legislative branch to explicitly exclude the prosecution of protected persons. As a result, I would affirm the trial court’s judgment.

NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of: MS. and M.T.; and A.H. and T.S. v. The Indiana Dept. of Child Services (NFP)

Henry Coyne Woodward v. Kimberlee Ann Norton (NFP)

NFP criminal opinions today (8):

Bert S. Watkins, II v. State of Indiana (NFP)

Nicholas Corbin v. State of Indiana (NFP)

Brian Taskey v. State of Indiana (NFP)

William C. Davis v. State of Indiana (NFP)

Benito D. Lesiak v. State of Indiana (NFP)

Dewayne Walker v. State of Indiana (NFP)

Kenneth Meer v. State of Indiana (NFP)

Miles A. Parker v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Support for gay-marriage ban wavering: Powerful Indiana Republican Kenley changes his stance"

So reports Maureen Hayden of CNHI Statehouse Bureau this morning in the Anderson Herald Bulletin. Some quotes:

INDIANAPOLIS — The last time the Indiana General Assembly took up the issue of putting a same-sex marriage ban into the state Constitution, state Sen. Luke Kenley voted for it.

But he’s not going to make that choice again.

Noting what he called the “rapidly evolving” shift in public opinion reflected in a poll released Thursday, the influential, conservative Republican said he’ll oppose such a measure if, as expected, it comes up for debate in the 2013 session.

“I don’t think putting it in the Constitution is a good idea,” said Kenley, the powerful Senate appropriations committee chairman who describes himself as a supporter of traditional marriage.

“I really value the institution of heterosexual marriage,” Kenley said. “But I do not think that putting a statement in the (state) Constitution which runs down or is bigoted toward people who have a different kind of loving relationship, that I may not understand, is going to be productive.”

Kenley weighed in on the issue Thursday during a break in a legislative preview conference in Indianapolis. Earlier in the day, conference attendees heard the results of a new poll that shows most Hoosiers hold views like Kenley: While most aren’t ready to legalize same-sex marriage, they also don’t want to amend Indiana’s Constitution to ban it. * * *

Kenley is in no way ready to legalize same-sex marriage, which is banned by law in Indiana. But he is ready to put a stop to a process that started in 2011. That’s when the Legislature voted overwhelming for a proposed constitutional amendment that bans both same-sex marriage and prohibits civil unions.

That vote was just the first step: To amend the Constitution, the Legislature must vote to approve the identical language again in the 2013 or 2014 legislative sessions, then send the issue to voters in the 2014 general election.

Only one Republican in the GOP-controlled General Assembly voted no on the measure during that 2011 vote: state Rep. Ed Clere of New Albany.

Clere, who continues to oppose the measure for a long list of reasons, said he won’t be the only Republican to vote against it the next time. “Clearly, a shift has occurred,” he said.

Clere said he’s been approached by state lawmakers who voted for the constitutional ban in 2011 but are now wavering in their support.

Some want to wait on the U.S. Supreme Court, which recently announced it will take up the issue, looking at both the constitutionality of a federal law that bans gay marriage and California’s decision to put a ban on same-sex marriage in that state’s Constitution.

But also prompting their concern is how the issue may conflict with the Republicans’ promise to focus this next session on boosting Indiana’s economy. Several prominent Indiana-based companies — including pharmaceutical giant Eli Lilly and engines-maker Cummins Inc — oppose the measure. They say it hurts the ability of Indiana businesses to recruit top talent and sends a message that the state is an intolerant place to work and live.

“We’re still recovering from a prolonged economic recession,” Clere said. “To the extent that action on the marriage amendment could have a negative impact on economic development and job creation activities, it’s the wrong time to bring it up.”

[MORE] "Poll shows same-sex marriage support; most Hoosiers say no to constitutional ban" is the headline to this long story today by Mary Beth Schneider in the Indianapolis Star. Some quotes:
Putting the ban into Indiana’s constitution has seemed like a virtual certainty. Indiana’s House and Senate overwhelmingly voted for the proposed amendment in 2011. To get it before Indiana voters for a referendum in the 2014 election, lawmakers need only to approve it a second time in either the 2013 or 2014 sessions.

But that timetable is now looking a little less certain.

The U.S. Supreme Court has said it will take up the issue on two fronts: by looking at the constitutionality of a federal law that denies same-sex couples the federal benefits available to heterosexual married couples and by examining the legality of California’s state constitutional ban on gay marriage.

Coupled with changing attitudes, as shown in this new poll and others, some observers are saying that Indiana’s lawmakers should wait, at least until the Supreme Court acts, before rushing to get this issue on the 2014 ballot.

“It would be ridiculous to spend state dollars, time and resources on something” that the Supreme Court could find unconstitutional, said Aaron Schaler, president of Indiana Stonewall Democrats, an organization of gay, lesbian and transgendered Democrats.

Ryan England, a 31-year-old Indianapolis man who wants to marry his partner, 29-year-old Ben Snyder, said he doesn’t see why the legislature would even discuss this issue before the Supreme Court rules.

“It seems like they should have better things to do, and this is making its way through the legal system as it is,” he said.

In fact, legislative Republican leaders and Indiana’s incoming governor, Mike Pence, have not made its passage a part of their legislative agenda, focusing instead on tax cuts, education and job creation.

Thursday, at a legislative conference, House Speaker Brian Bosma, R-Indianapolis, said he expects a lawmaker will file a bill on the proposed constitutional amendment and it will be handled the same as any other bill.

Neither polls nor the Supreme Court, he indicated, will influence what happens.

“There have been some that have suggested we should wait to see what happens (in the Supreme Court) before taking action. I’m not certain that that’s advisable at this point,” he said.

“Will it be a priority? No. Will it be addressed? Just like any other idea of the 1,500 ideas that will be addressed this year, I’m sure there will be discussion about whether they should proceed.”

But, Bosma added: “It’s not about who can marry. It’s about who decides. It has been my personal opinion that it’s appropriate for elected officials to decide this and not unelected judges as has happened in some states.”

"State GOP to take up gay-union amendment" is the heading to Niki Kelly's story today in the Fort Wayne Journal Gazette. Some quotes:
Indiana state law already limits marriage to between one man and one woman.

But supporters want the public policy inserted into the state constitution so judges can’t later overturn it.

State courts have already upheld the law once.

The proposed amendment specifically says, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

The second sentence would ban future legislators from enacting civil unions in the future, and might affect things like same-sex health benefits.

The General Assembly must approve the measure again in 2013 or 2014 before Hoosiers would get the final say on the matter with a statewide vote in the fall of 2014. Not acting this year doesn’t slow the process.

Senate Democratic Leader Tim Lanane of Anderson said no matter how much Republicans want to keep the discussion reasonable and calm there is a perception that this is an attack.

“And quite frankly it is. We’re placing discrimination into the constitution,” he said.

He noted a new poll released Thursday by The Bowen Center for Public Affairs at Ball State University showed only 38 percent of Hoosiers support the constitutional ban on same-sex marriage while 54 percent oppose.

More than a majority of Hoosiers also support civil unions that would give gay couples the same rights and benefits as married couples.

“This is an opportunity for us to step into the 21st century,” Lanane said. “The trend is clear on this issue. It is crystal clear. Talk to your kids, talk to your grandkids if you want to about this. They don’t get it.”

Bosma said he hasn’t seen the new poll but “Hoosiers are roughly divided on this issue and from my perspective that doesn’t change any approach. Unlike some I discourage my team from making decisions by polling.”

Gov.-elect Mike Pence declined to get involved in the topic Thursday, saying it is up to the legislature to set its agenda.

Instead, he is focusing on jobs and setting up a new administration.

In the past he has supported marriage between one man and one woman.

Gov. Mitch Daniels also is staying out of the fray, refusing in a meeting with a few reporters Thursday to comment on the appropriateness of a constitutional ban.

He did say he supports children growing up in intact homes, pointing to evidence that it lowers poverty. When asked if intact families extend to same-sex couples, he said yes.

“Well, it sure beats single parenthood. I’m personally familiar with some folks who I think are doing a very good job of parenting in a same-sex environment.

"Put marriage amendment on hold" was the title to an editorial yesterday in the Indianapolis Star. Some quotes:
The U.S. Supreme Court has just given the Indiana General Assembly a breather, if lawmakers and their leadership will only recognize it.

By agreeing to hear two cases involving the volatile issue of same-sex marriage and domestic partnerships, the high court has sent a clear signal to state governments to hold off on making decisions of their own.

Regardless of where one stands on the debate over state-sanctioned unions, the upcoming decisions on same-sex marriage bans in California's constitution and in federal law will provide essential guidance. Until then, any state action runs the risk of wasting effort and money while causing unnecessary acrimony. * * *

If the language of Indiana's proposed amendment passes muster, the process of placing it before the public would not have been affected by delay. If the proposal doesn't comply with the new standard, state lawmakers could then decide whether to rewrite or drop the effort altogether. In either case, Hoosiers will benefit from a year of welcome peace and more time dedicated to more pressing work.

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Indiana Government

Ind. Decisions - "Indiana high court considers capping punitive damage"

The Supreme Court heard oral argument yesterday in the case of State of Indiana v. John Doe, a direct appeal by the State of a trial court opinion. See this Dec. 10th "ILB upcoming oral arguments" for links to the trial court opinion and background.

Charles Wilson of AP has a long story on the oral argument, reported here in the South Bend Tribune. Some quotes:

INDIANAPOLIS -- A top state attorney defended Indiana's punitive damages law Thursday against claims that it renders trials meaningless by forcing judges to reduce awards in lawsuits without telling jurors.

Solicitor General Thomas Fisher asked the Indiana Supreme Court to overturn a Marion County judge's decision that found the law treads on judicial independence and violates the right to trial by jury guaranteed in the state constitution.

The judge refused to reduce a $150,000 punitive damages award to a man who claimed his uncle, a Roman Catholic priest, sexually abused him when he was 17. The judge had told jurors they could consider the priest's "reprehensible conduct" when they decided on damages.

Under Indiana law, juries in civil cases can award punitive damages of up to three times the amount of compensatory damages they decide on, but there is a $50,000 cap. The state gets a three-quarter share, which goes to a fund that helps victims of violent crime.

In this case, jurors gave the man $50,000 in compensatory damages and awarded triple punitive damages for a total of $200,000.

The priest appealed the punitive damages award, citing the $50,000 limit, but the judge rejected his appeal, saying the cap violated the state constitution. The state then intervened, seeking its 75 percent share. The judge denied the state's request, and the state appealed.

Patrick Noaker, who represents the man called John Doe in court documents, told the justices that secretly reducing the amount jurors decide to award plaintiffs after hearing the evidence infringes on the principle of trial by jury.

"It's a charade. It's a complete charade," Noaker said. He added, "We have to let the jury make a decision and whether we agree with it or not, we have to live with that decision."

Fisher disagreed, saying jurors don't necessarily need to know about the cap.

"The idea that the legislature doesn't want to confuse jury deliberations with the knowledge that there is some sort of cap is based on the idea that they don't want the jury to be somehow misguided by that extraneous fact," he said. "So what they're doing is setting up a process -- a step by step process -- designed to keep the jury insulated from extraneous information and at the same afford the appropriate timing for the cap to be in place."

Justice Robert Rucker questioned that reasoning.

"The problem with this statute, isn't it that it puts a cap and then it says once the jury deliberates, once the jury returns its verdicts after hearing all the evidence and awards punitive damages, you, mister trial court and judge, you are now instructed to reduce those damages," Rucker said. "It seems to me that that's part of the problem at least in terms of the separation of powers."

Noaker said it would have been within the legislature's power to completely bar punitive damages, or to have judges instruct jurors to limit their awards, but not to compel judges to reduce those amounts after the jury makes a decision.

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Ind. Trial Ct. Decisions

Thursday, December 13, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Byram E. Dickes, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, et al. v. Ronald D. Felger, and Shambaugh, Kast, Beck & Williams, LLP, an 8-page opinion, Judge Barnes writes:

Byram Dickes, Ruth Logar, Christopher Spiritoso, Gregory Spiritoso, Lindsey Dickes, Dickes Development Co., LLC, and Dickes Real Estate, LLC, (collectively, “Plaintiffs”) appeal the trial court’s grant of summary judgment to Ronald Felger and Shambuaugh, Kast, Beck & Williams, LLP (collectively, “Attorneys”). We affirm.

Plaintiffs raise three issues, which we consolidate and restate as whether the trial court properly determined that their attorney malpractice claim was barred by the statute of limitations. * * *

We agree that Plaintiffs here were aware of or could have discovered Attorneys’ alleged malpractice by the summer of 2006. Plaintiffs were aware that, despite the 1995 negotiations with the railroad and the deed, they in fact did not own the abandoned railroad right-of-way. Further, they were clearly aware that they had been damaged, as the right-of-way was interfering with their proposed development of the property. Although Plaintiffs were not able to definitively point to the wrong legal description on the deed as Attorneys’ exact error until the summer of 2007, they were aware of the issues with Attorneys’ work long before that time.

Plaintiffs also argue that the statute of limitations does not bar their claim because of Attorneys’ fraudulent concealment. * * * Even if Attorneys’ fraudulently concealed their error, Plaintiffs were still aware of the issues by the summer of 2006, and their March 2009 complaint was untimely. Consequently, we conclude that Plaintiffs’ claim was barred by the statute of limitations.

The trial court properly granted summary judgment to Attorneys because Plaintiffs’ attorney malpractice claim was barred by the statute of limitations. We affirm.

NFP civil opinions today (3):

Kerry Wagoner and Wagoner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)

Roseanne Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)

Melissa L. Freyberger v. Duane L. Freyberger (NFP)

NFP criminal opinions today (7):

Scott J. Lunsford v. State of Indiana (NFP)

Uriah S. Swelfer v. State of Indiana (NFP)

Decarlos Connell v. State of Indiana (NFP)

Joseph Majors v. State of Indiana (NFP)

Daniel A. Sage v. State of Indiana (NFP)

Tyler P. Hogue v. State of Indiana (NFP)

Jaconiah Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. App.Ct. Decisions

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

In Estate of Escobedo v. Officer Martin (ND Ind., Springmann), a 45-page opinion, Circuit Judge Manion writes:

In the early morning hours of July 19, 2005, Rudy Escobedo became suicidal and ingested cocaine. He dialed 911 and told the operator he had taken cocaine, had a gun to his head, and wanted to kill himself. An emergency response team was dispatched to negotiate with Escobedo and to try to get him to put down his weapon and leave his apartment volunopted to deploy a tactical response to remove Escobedo from his apartment, as they thought he presented a danger to the community around him. After deploying two volleys of tear gas into Escobedo’s seventh-floor apartment, a team of six officers wearing gas masks and other protective equipment broke into the apartment. The officers found him holed up in his closet with a gun to his head. The officers ordered him to put down the weapon, but Escobedo did not comply and was shot by two of the police officers. Escobedo’s Estate brought a § 1983 excessive force claim against the police and the City of Fort Wayne. After a variety of motions were filed and a partial summary judgment was granted and appealed, the case went to trial and the jury found in favor of the defendants. The district court also granted judgment as a matter of law in favor of the defendants after the jury entered its verdict. The Estate now appeals, and we affirm. * * *

For the foregoing reasons, we AFFIRM the jury verdict in favor the defendants, we AFFIRM both the district court’s grant of judgment as a matter of law on qualified immunity grounds to Officers Straub, Martin, and Brown, as well as the post-verdict grant to Deputy Chief Bender, Deputy Chief Lucker, Sgt. Hunter, and Lt. Zelt, and we AFFIRM the district court’s grant of summary judgment in favor of Officers Martin and Brown on the Estate’s excessive force claim.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Responses to: A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?

The ILB has received several responses to Prof. Schumm's post from earlier today.

A Marion County judge writes:

Re: late filing on briefs:

There are many cites in our Indiana case histories that demonstrate our state prefers to address matters on the merits rather than on technicalities. Nearly all of our trial rules have annotations wherein our courts have said, essentially, merit matters over minutes. I concur in that. The only trial rule where that is not the case is T.R. 56 which sets a hard and firm deadline on the filing of a response to a motion for summary judgment. That hard rule, and the accompanying caselaw, in my opinion, can, and has, lead to unjust results. The trial rules, deadlines, etc are there for the purpose of “just, speedy, and inexpensive determination of every action”.

Moreover, they are “intended to discourage battles over the form of pleadings, …and prevent parties from losing a claim or defense because of a technical defect … A court is not bound to blindly follow these rules.” - Civil Trial Rule Handbook, 2010 Edition, Rule 1.

I think that unwritten allowance you cite follows the Indiana tradition of judging each case on its own facts and the merits. Everyone always wants everyone to play by the rules, but no one is perfect and mistakes do happen. The merits and justice of a litigant’s case, however, should not be ignored due only to a blown deadline. The lawyer who consistently flirts with this allowance; however, does so at his own peril. And the Courts are empowered and entrusted to draw that line on a case by case basis with the opportunity for review if necessary. The rule serves a purpose, but justice probably deserves a little more leeway.

Westfield Attorney Jill Acklin writes:
I had a case (01 A 02 - 1106 - CR – 00554) where the Supreme Court accepted the Appellee's "Petition to Transfer" that was filed one day late. The reason given for the late filing was that the Appellee overlooked the "leap day" this year and filed the Petition on March 1, not February 29. There was a Motion made by the Appellee to ask the Indiana Supreme Court to accept the late Petition which was granted over objection by me. So, it seems that in some situations, the Supreme Court will allow extensions as well, despite Appellate Rule 57's instruction that there are no extensions.
Karen Neiswinger, an Indianapolis attorney, writes:
Even for those situations in which no extension of time may be granted per the Trial or Appellate Rules, the proper relief is to file a motion for leave to file a belated brief. This motion sounds in equity, and therefore, the usual grounds for equitable relief must be shown. This is very appropriate for the reasons stated by the Marion County Judge whose remarks you published. Also, there is no deadline for the Court of Appeals or Supreme Court to issue an opinion, so a few additional days makes no difference, other than to the party who loses because of a miscalculation of a due date, computer or copier malfunction, or just because the lawyer got so far behind that the deadline couldn't be met. Cases should be decided on their merits, and the law should be flexible, not rigid, if substantial justice is the goal.
The ILB may append additional responses to Prof. Schumm's observations.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Indiana Courts

Ind. Decisions - "A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge"

The Dec. 11th Court of Appeals opinion in Paul Henry Gingerich v. State of Indiana (ILB summary here) is the subject of an editorial today titled "Justice - delayed" in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals judges have determined something advocates for justice already knew: A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge.

Even worse, the court found, the key witness in the hearing was simply wrong in his testimony about crucial facts. Robert Babcock, Kosciusko County’s chief probation officer, testified that if Paul Gingerich remained in the juvenile system, he would be released at age 18, if not sooner, without parole. In fact, Gingerich could have been held until age 21 then released on parole.

Babcock testified there were no residential treatment facilities in Indiana appropriate for a juvenile who committed a homicide. In fact, Gingerich’s attorneys later found 17 private facilities that would accept a 12-year-old convicted of murder in addition to a state-run juvenile prison.

Judge Duane Huffer of Kosciusko Superior Court apparently ignored Indiana law that requires an accused underage killer be waived to adult court only after a “full investigation and hearing.” Huffer gave Gingerich’s original lawyer just four days to prepare for a waiver hearing, not enough time for a psychological evaluation, discovery of the prosecution’s evidence or research to prepare to question witnesses.

Further, Huffer suggested that the state’s juvenile system cannot properly handle a young juvenile charged with murder.

The appeals court wrote: “We note that such a view is contrary to the language of (the law) … which allows for the juvenile justice system to rehabilitate juveniles accused of committing an act of murder if the juvenile defendant demonstrates that ‘it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.’ ”

Gingerich – an 80-pound sixth-grader when he was accused of helping a friend kill the friend’s stepfather – pleaded guilty to conspiracy to commit murder and was sentenced to 25 years in prison. The appeals court rightly sent the case back to juvenile court for another waiver hearing.

Typically, Indiana’s attorney general would appeal this week’s ruling to the state Supreme Court, particularly if a precedent were at stake. But case law is already clear, and Attorney General Greg Zoeller’s office said his office will study whether to appeal.

“Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes,” Zoeller said. “For prosecutors and judges, these are among the most difficult cases as well in terms of balancing the rights of the juvenile with the safety of the community. We will carefully review our options after consulting with the county prosecutor and conducting further research.”

Zoeller might appeal, but he could conclude that the ruling is so obviously the right one that justice would be best served by sending Gingerich back to juvenile court for a proper hearing.

Make no mistake, deciding how to treat a 12-year-old who helped kill someone is no easy matter. And regardless of age, the boy helped kill Philip Danner. But Indiana’s constitution emphasizes that the criminal justice system is based on reformation, not vindictive punishment, and that is especially true for a child. Kosciusko officials were wrong to simply send Gingerich to adult court without a true and thorough investigation into the boy’s competency and options for incarceration.

Now, he will finally receive the evaluation justice demands.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Melvin Simon heirs settle estate feud"

Updating a long list of earlier ILB entries on the Melvin Simon estate dispute, Jeff Swiatek of the Indianapolis Star reports today in a long story that begins:

More than three years after Melvin Simon’s death, his nearly $2 billion estate finally will be divvied up.

How the assets will be split, however, could remain secret.

A Hamilton County judge Wednesday approved a sealed settlement in the nearly 3-year-old dispute over the division of the Simon estate, whose main holdings were shares in shopping mall giant Simon Property Group.

The settlement ends a bitter family fight over the estate of Simon, who died in 2009 at age 82.

The settling parties were Simon’s daughter Deborah Simon, who challenged his will, the court-appointed trustee of the estate and Simon’s widow, Bren Simon.

“Just and reasonable” was the way Superior Court Judge William J. Hughes characterized the settlement in a court order that came well before the scheduled summer trial date.

Caught up in the dispute were numerous Central Indiana charities, which now can expect to collect the gifts earmarked for them in the will.

Melvin Simon, who cofounded Indianapolis shopping mall developer Simon Property Group, made significant charitable pledges during his life to Indiana University, St. Vincent Hospital, Riley Children’s Foundation and Indianapolis Museum of Art, among other recipients.

The sometimes heated dispute over the will ended with a surprising absence of controversy. The judge said not a single person who had an interest in the settlement filed an objection to it.

The dispute reached the courts when Deborah Simon asked that her father’s will be invalidated, alleging that her stepmother, Bren Simon, coerced her ill husband to revise it some seven months before he died. The revised will boosted Bren Simon’s share of the inheritance and significantly reduced the portion going to her three stepchildren.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Ind. Trial Ct. Decisions

Ind. Courts - A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?

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

I attended a legal writing conference in Texas last week. Some professors at a law school there told me assignments that are more than two hours late earn a zero. I assume the tough policy helps law students become prepared for eventual practice. After all Texas is where, a few years ago “Michael Wayne Richard was executed at approximately 8:20 p.m., a little over three hours after a court official, at [Judge Sharon] Keller's direction, told his counsel that the clerk's office would not stay open approximately 20 minutes after its usual closing time to accept a late filing in his case ....” As the saying goes, don’t mess with Texas.

What about deadlines in Indiana? As hopefully every lawyer knows, the timely filing of a notice of appeal is a jurisdictional requirement. Blowing that deadline in a civil case generally means a lawyer better call his or her malpractice carrier; the appeal is forfeited. In criminal cases, Post-Conviction Relief Rule 2 allows belated appeals under certain circumstances.

There are numerous other deadlines throughout an appeal. If the clerk doesn’t file a notice of completion of the transcript within 90 days of filing a notice of appeal, failure by counsel to seek an order compelling completion within fifteen days “shall subject the appeal to dismissal.” The Appellant’s Brief must be filed within 30 days of completion of the transcript. A petition for transfer is due within 30 days of the Court of Appeals’ opinion. Responses to motions must be filed within 15 days of service of the motion. And so on.

One would assume all these deadlines are firm, and blowing a deadline is a bad thing with possible consequences. The Clerk’s office has long marked late filings “received” instead of filed, and counsel was then required to file a separate motion requesting the Court accept the late filing. The vast majority of these were likely accepted, as long as a good reason was provided.

I was recently told of an apparently new, unwritten policy allowing the late filing of briefs within five days of their actual due date. Some docket entries offer support, as the following three docket numbers all show (1) a late brief marked “received” by the clerk followed within a couple of days by (2) a sua sponte order from the Court of Appeals directing the clerk to file the brief as of the date of the order:

49A02-1108-CR-00721 (Appellee’s Brief filed one day late)

49A02-1207-CR-000528 (Appellant’s Brief and Appendix filed one business day late)

49A04-1207-CR-00372 (Appellant’s Brief and Appendix filed four days late)

Call me a curmudgeon, but I actually like deadlines. Deadlines bring useful predictability to any process. My first-year legal writing students know that a paper that is a minute late will earn a 10% penalty. This avoids the discussion of “it was only [fill in the blank, two, five, etc.] minutes late.” Late is late. There are no exceptions barring an emergency.

If the Court of Appeals truly does have an unwritten policy allowing briefs filed one to five days late, it seems likely a day or few late may become the new norm for filing. When trying to wrap up an appellate brief at 3:00 or 4:00 p.m. on the due date, there's no reason to work late and Rotunda-file a brief; just finish it up in the next day or two.

But questions persist about the reach of the purported policy. If counsel is given a “final” extension on a brief, does counsel actually have five days beyond that deadline? Will late filings be accepted just for briefs or for other types of filings, such as motions? What about Rule 35(C), which prohibits extensions of time on petitions for rehearing, petitions for transfer, and appeals involving termination of parental rights? Can those filings also be tendered a few days late? (And is the Indiana Supreme Court onboard with the same policy?)

Consistently enforcing all deadlines would obviate those questions. I’m not suggesting that an appeal should be dismissed when a lawyer makes a calendaring error and files something a day late. (Thirty-eight days, however, has been held to be too late.) But it’s not unreasonable for a late-filing lawyer to experience a healthy “oh, $%#&!” moment when a deadline is blown, followed by a motion that explains the error that will hopefully never be repeated.

If blown deadlines are instead greeted as a matter of routine with polite orders accepting the late filing, one might expect many more late filings--and some lawyers confused and upset if a late filing is at some point not accepted or the unwritten policy changes.

Posted by Marcia Oddi on Thursday, December 13, 2012
Posted to Indiana Courts

Wednesday, December 12, 2012

Ind. Decisions - Supreme Court issues three opinions (perhaps four?) this afternoon, all related [Updated with 4th opinion]

In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased, a 9-page, 5-0 opinion, Chief Justice Dickson writes:

The plaintiff in this case, Margaret Kosarko, challenges the trial court's denial of her motion for prejudgment interest following a jury verdict awarding her monetary damages. We reverse and hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. * * *

We hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute and also hold that the plaintiff's motion for prejudgment interest should have been evaluated as provided in the statute, and not on abrogated common law. We remand the case to the trial court for reconsideration of the motion accordingly. On remand, the trial court has broad discretion to determine whether to award prejudgment interest, what interest rate to use, what time period to use, and whether to calculate interest on the full $210,000 awarded by the jury, or on the amount of $100,000, representing insurance liability coverage limits, that was deposited with the clerk and released to Kosarko. The trial court's discretion is restricted only by the limits expressly enacted by the legislature in the TPIS.

In Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney, a 16-page, 5-0 opinion, Justice David writes:
In this case, the jury returned a verdict for plaintiff in the amount of $1.75 million. The issues presented focus on two separate, but significant, matters.

The first is whether the trial court erred by denying defendants’1 motion for a new trial based upon the cumulative effect of plaintiff’s counsel’s alleged unprofessional conduct during the trial. The second issue is whether the trial court erred when it refused to grant plaintiff prejudgment interest.

We affirm the trial court, as did the Court of Appeals, on the denial of defendants’ motion for a new trial. Under the circumstances of this case, we defer to the judgment of the trial court. However, this decision does not lesson our dissatisfaction and frustration with the behavior of counsel during the trial, particularly plaintiff’s counsel.

Professionalism and civility are not optional behaviors to be displayed only when one is having a good day. Professionalism and civility are the mainstays of our profession and the foundations upon which lawyers practice law. The public expects it. Fellow lawyers expect it. Our profession demands it.

Further, we affirm the trial court’s decision to deny the discretionary award of prejudgment interest. * * *

[ILB: See ftnote 3 on p. 8 "The acrimony between plaintiff’s and defendants’ counsel did not end at the trial. During the June 2010 hearing on the motion to correct error, the poor behavior began anew. Mr. Murphy accused Mr. Schaffer of bragging about his numerous sanctions having no effect on him, describing his conduct as unprofessional and making gestures during the trial, while Mr. Schaffer called Mr. Murphy an “outright liar” on two occasions."]

Although plaintiff’s counsel’s behavior was most troubling, both attorneys should have acted in a manner more becoming of our profession. The duty to zealously represent our clients is not a license to be unprofessional. Here the trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The trial court did not abuse its discretion in denying defendants’ counsel’s request for a new trial. We also affirm the trial court denial of plaintiff’s request for prejudgment interest. Laney’s 2005 letter did not meet the requirements for awarding of prejudgment interest. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court. The trial court was most certainly within its proper discretion in declining such an award.

In Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased, a 6-page opinion, Justice David writes:
In this companion case to Wisner v. Laney, Inman v. State Farm, and Kosarko v. Padula, all decided today, we discuss the issue of prejudgment interest, specifically the statutory requirements of Indiana Code section 34-51-4-6, and the discretionary nature of an award of prejudgment interest. * * *

We summarily affirm the Court of Appeals opinion relating to the second autopsy, the expert witness, and the admission of photographs. Its analysis was detailed and correct. We reverse the trial court’s decision to deny Guerrero prejudgment interest based upon a defective settlement letter. As we have held, Guerrero’s settlement letter did comply with Indiana Code section 34-51-4-6. However, the award of prejudgment interest is neither automatic nor required, and is left to the discretion of the trial court. We remand with instructions to the trial court to determine whether or not Guerrero should be entitled to prejudgment interest.

ILB: Inman v. State Farm, mentioned in the first line of Alsheik, above, has not been posted by the Court yet.

[Updated at 3:00 PM] The Inman opinion has now been posted.

In Kathy Inman v. State Farm Mutual Automobile Insurance Company, a 9-page opinion, Chief Justice Dickson writes:

The plaintiff, Kathy Inman, challenges the trial court's denial of her motion for prejudg-ment interest in the amount of $3,616.44 pursuant to Indiana Code Chapter 34-51-4. Inman's appeal raises two questions regarding the scope of the Tort Prejudgment Interest Statute ("TPIS"), Ind. Code §§ 34-51-4-1 to -9: whether the TPIS applies to an action by an insured against an insurer to recover benefits under the insured's underinsured motorist ("UIM") policy; and whether prejudgment interest can be awarded in excess of the policy limits set forth in an insured's UIM policy. Having granted transfer, we hold that the TPIS does apply to UIM coverage disputes because they are properly considered "civil actions arising out of tortious conduct" as required by Indiana Code Section 34-51-4-1. We also hold that, because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured's UIM policy limits. We conclude, however, that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest. * * *

Conclusion. Through its passage of the TPIS, the legislature has enacted a scheme which affords trial courts wide-ranging discretion to award prejudgment interest in civil actions arising out of tortious conduct, a broad category of cases which includes UIM coverage disputes. The trial court alone has discretion to determine whether to award prejudgment interest and what time period and interest rate to use in its computation. This discretion is not limited by insurance policy limits, the good-faith conduct of the parties, or the common law.[7] Rather, it is limited only by the statutory requirements enumerated in Indiana Code Sections 34-51-4-1 to -9. Because the trial court here acted within its statutory discretion in denying Inman's request for prejudgment interest, the judgment of the trial court is affirmed.
___________
[7] In another case handed down today, Kosarko v. Padula, ___ N.E.2d. ___, ___ (Ind. 2012), we hold that the TPIS "abrogates and supplants the common law rules governing the availability of prejudgment interest in cases covered by the statute." Kosarko, ___ N.E.2d at ___. Thus, in cases where pre-judgment interest is requested under the TPIS, the common law Roper standard, requiring damages to be complete and readily ascertainable in order for prejudgment interest to be awarded, N.Y., Chi. & St. Louis Ry. Co. v. Roper, 176 Ind. 497, 507, 96 N.E. 468, 472 (1911), is irrelevant to the trial court's determination.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. Sup.Ct. Decisions

Courts - "Michigan Appeals Court to Consider Anonymity for Blogger Who Criticized Cooley Law School"

Interesting ABA Journal post on a Michigan case, which is somewhat reminiscent of the Miller v. Junior Achievement case (recent ILB post here), with its trial court order compelling the Indianapolis Star to identify an anonymous online commenter.

A quote from the ABA Journal post:

Lawyers representing the blogger asked the appeals court in a brief (PDF) to adopt a “developing consensus” standard when courts consider requests to unmask anonymous speakers. The standard requires the court to:

• Provide notice to the anonymous speaker and an opportunity to defend secrecy.

• Require the plaintiff to identify the statements alleged to have violated his rights.

• Review the complaint to ensure it states a cause of action.

• Require evidence supporting the claims.

• Weigh the potential harm to the plaintiff from being unable to proceed with the harm to the defendant from losing anonymity.

“The court can thus ensure that a plaintiff does not obtain an important form of relief—identifying its anonymous critics—and that the defendant is not denied important First Amendment rights unless the plaintiff has a realistic chance of success on the merits,” according to the brief.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Courts in general

Ind. Decisions - Supreme Court issues disciplinary ruling re misuse of trust account

In the matter of Jacob P. Dunnuck is a 2-page unanimous order approving a a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline. From the order:

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.15(a), which prohibits failure to hold property of a client separate from lawyer’s own property.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning January 21, 2013, with 60 days actively served and the remainder stayed subject to completion of at least one year of probation.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Ponziano Construction Services, Inc. v. Quadri Enterprises, LLC , a 15-page opinion, Judge Bailey writes:

Ponziano Construction Services, Inc. (“Ponziano”) appeals the trial court’s decision granting partial recovery on its breach of contract claim against Quadri Enterprises, LLC (“Quadri”), denying foreclosure on its mechanic’s lien, and granting partial attorney’s fees based on its mechanic’s lien. We reverse the trial court’s award of $16,000 on the Contract and its denial of Ponziano’s request to foreclose on its mechanic’s lien; affirm the trial court’s award of $8,000 in attorney’s fees to Ponziano; and remand with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.

Ponziano raises four issues for our review, which we consolidate and restate as:
I. Whether the trial court erred in awarding Ponziano only $16,000 on the April 30, 2009 contract (“the Contract”);
II. Whether the trial court erred in denying foreclosure on Ponziano’s mechanic’s lien; and
III. Whether the trial court abused its discretion in awarding Ponziano only $8,000 in attorneys’ fees. * * *

The trial court erred when it awarded Ponziano only $16,000 on the Contract, and when it denied Ponziano’s request to foreclose on its mechanic’s lien. The trial court did not abuse its discretion when it awarded Ponziano $8,000 in attorney’s fees.

NFP civil opinions today (1):

Jason Wilson v. Kelly (Wilson) Myers (NFP)

NFP criminal opinions today (3):

Christopher A. Merder v. State of Indiana (NFP)

James Fusco v. State of Indiana (NFP)

Tymon Brown v. State of Indiana (NFP)

In Earl McClendon v. State of Indiana (NFP), an 8-page opinion, Judge Riley writes:

McClendon argues on appeal that the trial court abused its discretion when it denied his motion requesting the return of his firearm. He asserts that the trial court’s decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated firearms following the final disposition of a cause. In response, the State argues that the trial court’s decision was proper because: (1) McClendon was convicted for the misuse of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to possess the firearm. * * *

In sum, we find that the State did not prove that McClendon misused a firearm for purposes of I.C. § 35-47-3-2(b) or is an alcohol abuser for purposes of I.C. § 35-47-2-7(b). Accordingly, we conclude that the trial court abused its discretion and was instead required to return McClendon’s firearm as stated in I.C. § 35-47-3-2(b). We reverse the trial court’s decision and remand with instructions to return McClendon’s firearm.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Lawsuit to clean up Indiana voter rolls can proceed"

From the AP:

INDIANAPOLIS — A conservative watchdog group's bid to force Indiana to clean up its voter registration rolls can proceed.

The state's motion to dismiss a lawsuit filed by Judicial Watch was rejected Monday by U.S. District Judge William Lawrence.

The Washington, D.C.-based group alleges 2010 general election data shows 12 mostly rural counties had more people registered to vote than were eligible. Those counties are Brown, Crawford, Franklin, Hancock, Newton, Orange, Scott, Spencer, Tipton, Warren, Warrick and Union.

Here is the 11-page, Dec. 10, 2012 ruling by federal Judge Lawrence in Judicial Watch v. J. Bradley King.

The Election Law Blog heading for news of this ruling is "True the Vote NVRA Section 8 Claim Against Indiana Survives Motion to Dismiss," which says it all for the election law maven.

Posted by Marcia Oddi on Wednesday, December 12, 2012
Posted to Ind Fed D.Ct. Decisions

Tuesday, December 11, 2012

ind. Courts - 7th Circuit rules on Illinois "ready-to-use" gun law [Updated]

In Michael Moore v. Lisa Madigan, AG (CD & SD Illinois), a 47-page, 2-1 opinion (including the 26-page dissent), Circuit Judge Posner writes:

These two appeals, consolidated for oral argument, challenge denials of declaratory and injunctive relief sought in materially identical suits under the Second Amendment. An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). There are exceptions for a person on his own property (owned or rented), or in his home (but if it’s an apartment, only there and not in the apartment building’s common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. [cites omitted] Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible. [cites omitted]

The appellants contend that the Illinois law violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), and held applicable to the states in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home. The district courts ruled that it does not, and so dismissed the two suits for failure to state a claim. * * *

We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

REVERSED AND REMANDED, WITH DIRECTIONS;
BUT MANDATE STAYED FOR 180 DAYS.

WILLIAMS, Circuit Judge, dissenting. [that begins, at p. 22 of 47] The Supreme Court’s decisions in Heller and McDonald made clear that persons in the state of Illinois (unless otherwise disqualified) must be allowed to have handguns in their homes for self-defense. But those cases did not resolve the question in this case—whether the Second Amendment also requires a state to allow persons to carry ready-to-use firearms in public for potential self defense. The majority opinion presents one reading of Heller and McDonald in light of the question presented here, and its reading is not unreasonable. But I think the issue presented is closer than the majority makes it out to be. Whether the Second Amendment protects a right to carry ready-to-use firearms in public for potential self-defense requires a different analysis from that conducted by the Court in Heller and McDonald. Ultimately, I would find the result here different as well and would affirm the judgments of the district courts.

[Updated at 5:17 PM] The Washington Post has this long AP story, headed "Federal appeals court strikes down concealed carry ban in Illinois, the last state to have one." The story begins:
CHICAGO — In a major victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only remaining state where carrying concealed weapons is entirely illegal — and gave lawmakers 180 days to write a law that legalizes it.

In overturning a lower court decision, the 7th U.S. Circuit Court of Appeals said the ban was unconstitutional and suggested a law legalizing concealed carry is long overdue in a state where gun advocates had vowed to challenge the ban on every front.

“There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states,” Judge Richard Posner, who wrote the court’s majority opinion. “If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.”

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Justices to Take Up Generic Drug Case"

This long Dec. 7 story in the NY Times, reported by Edward Wyatt, begins:

WASHINGTON — The Supreme Court said on Friday that it would decide whether a pharmaceutical company should be allowed to pay a competitor millions of dollars to keep a generic copy of a best-selling drug off the market.

The case could settle a decade-long battle between federal regulators, who say the deals violate antitrust law, and the pharmaceutical industry, which contends that they are really just settlements of disputes over patents that protect the billions of dollars they pour into research and development.

Three separate federal circuit courts of appeal have ruled over the last decade that the deals were allowable. But in July a federal appeals court in Philadelphia — which covers the territory where many big drug makers are based — said the arrangements were anticompetitive.

Both sides in the case supported the petition for the Supreme Court to decide the case, each arguing that the conflicting appeals court decisions would inject uncertainty into their operations.

By keeping lower-priced generic drugs off the market, drug companies are able to charge higher prices than they otherwise could.

For more, see Lyle Denniston's SCOTUSblog post, updated Monday after the case was docketed.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Courts in general

Ind. Decisions - "Appeals court tosses young inmate Paul Henry Gingerich's murder conviction"

Here is the Indianapolis Star reporter Robert King's initial story [ILB: the link now goes to the final, 12/12/12 story] on this morning's COA reversal in Gingerich v. State (ILB summary here). Some quotes:

The Indiana Court of Appeals, ruling 3-0, found that the lower courts erred by not giving Gingerich’s attorneys more time to argue that his case should stay in the juvenile system. Gingerich, now 14, had been serving a prison term that was likely to keep him in jail until he was 24.

The decision means the case will start all over – going back to the juvenile court for a new hearing. The state could still argue – and potentially win – the right to move the case again back to the Circuit Court. But now, Gingerich’s attorneys will get time to prepare their case for keeping it in juvenile court. Two years ago, a judge in Kosciusko County gave Gingerich’s attorneys only four days. Gingerich’s attorneys argued that, in Marion County, for example, defendants get up to three months to prepare.

Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Dec. 7, 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, Dec. 7, 2012. It is one page (and 12 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Paul Henry Gingerich v. State of Indiana, a 36-page opinion in a nationally reported case, Judge Brown writes:

Paul Henry Gingerich appeals his conviction for conspiracy to commit murder as a class A felony. Gingerich raises five issues, one of which we find dispositive and which we revise and restate as whether the juvenile court abused its discretion when it denied Gingerich’s request for a continuance of the waiver hearing. We reverse and remand. * * *

Before turning to the merits of Gingerich’s claim, however, we first address the State’s argument raised on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. * * *

Having determined that Gingerich has not waived his ability to challenge the denial by the juvenile court of his request for a continuance, we turn to the arguments of the parties, as well as the arguments of Amicus MCPDA and Amicus CLC, which aided in our analysis. * * *

As noted above, the crux of the arguments of Gingerich and the amici are essentially that the juvenile court’s denial of the continuance prohibited Gingerich from receiving a full and fair opportunity to present his claims, i.e., a denial of due process. * * *

[W]e find that the juvenile court abused its discretion when it denied Gingerich’s request for a continuance. * * *

For the foregoing reasons, we reverse Gingerich’s conviction for conspiracy to commit murder as a class A felony, and we remand for proceedings consistent with this opinion.

In James O. Young v. State of Indiana , a 16-page opinion, Judge Mathias writes:
Following a jury trial in Elkhart Superior Court, James Young (“Young”) was found guilty of Class D felony domestic battery in the presence of a child and Class D felony strangulation. Young appeals and argues that (1) the hearsay testimony of two firefighters regarding the victim’s statements to them violated his rights under the Confrontation Clause of the Sixth Amendment of the Constitution of the United States; (2) the hearsay testimony of a police officer regarding the victim’s later statements to her was inadmissible hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment; and (3) there was insufficient evidence to support the convictions and to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense from a Class A misdemeanor to a Class D felony.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

The trial court did not abuse its discretion when it admitted the firefighters’ hearsay testimony of Medrano’s version of the incident. However, admission of Officer Stuff’s hearsay testimony was error and could not be harmless error. We therefore reverse Young’s conviction for Class D felony strangulation, subject however to possible retrial. Further, the evidence was insufficient to support Young’s conviction for domestic battery as a Class D felony but sufficient to support the lesser-included charge of Class A misdemeanor domestic battery; therefore, we remand with instructions that judgment of conviction for domestic battery as a Class A misdemeanor be entered against Young and that he be resentenced accordingly.

NFP civil opinions today (3):

Douglas A. Schwan v. Linda D. Schwan (NFP)

Richard A. Walls v. Janet Walls (NFP)

Garland Aschenbrenner, Winifred Aschenbrenner, and South Bend Carpetland USA, Inc., d/b/a Abbey Carpets and Floors v. Melvin H. Sandock Inter Vivos Revocable Trust, et al. (NFP)

NFP criminal opinions today (5):

Johnny Mosby v. State of Indiana (NFP)

Phyllis Allen v. State of Indiana (NFP)

Chad E. Aslinger v. State of Indiana (NFP)

Steven T. Lakes v. State of Indiana (NFP)

Bradley S. Sater v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals hears Duke Energy ice storm appeal

From Bloomberg BusnessWeek, this AP report by Rick Callahan on yesterday's oral argument. Some quotes:

INDIANAPOLIS (AP) — An attorney for Duke Energy Corp. urged the Indiana Court of Appeals on Monday to reverse a state regulatory panel's decision blocking the company's attempt to pass onto its customers the cost of damages it incurred during a 2009 ice storm.

Duke Energy attorney Jon Laramore said during oral arguments that the Indiana Utility Regulatory Commission's October 2011 order was an "arbitrary and capricious action."

That order came more than a year after the regulatory panel ruled in Duke Energy's favor in its initial request to pass onto its customers $11.6 million in power-outage repair costs following a January 2009 ice storm. Those costs would have been considered during the Charlotte, N.C.-based company's next rate case.

But the regulatory agency reversed itself after it reviewed the ice storm issue in the wake of an ethics case that followed Duke Energy's hiring of the panel's former chief counsel, Scott Storms.

Laramore told the three-judge court it was a "puzzling" about-face because the court made completely different rulings based on the same evidence.

"They came to polar opposite conclusions based on the same set of facts," he said.

However, Judge Nancy Vaidik pressed Laramore on that contention, noting that the commission's second order on the matter was based only on the ice storm case. In contrast, in its initial July 2010 decision, the panel had considered the impact of both a September 2008 windstorm and the ice storm that four months later left tens of thousands of southern Indiana residents without power for days.

Judge Paul Mathias noted other differences, including that the commission's staff was not the same one that that issued the first order.

David Steiner, an attorney for the commission, told the court that the utility panel had reviewed different information leading up to its second order, including new testimony in the case from a top Duke Energy executive.

"This was a completely new look at the evidence," Steiner said, adding that the decision was "fully supported by the law and the facts."

Storms, who had been both the commission's top attorney and its administrative law judge, was fired by Duke Energy in November 2010 after just two months on the job after it came to light that he discussed a position with Duke Energy while presiding over hearings concerning the company.

See also this ILB entry from Dec. 5.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Indiana Courts

Ind. Decisions - "LaPorte High athletic director may face trial in failure to report abuse"

Yesterday's Court of Appeals opinion yesterday in Edward Gilliland v. State of Indiana (ILB summary here) is the subject of a story by Dan Carden in today's NWI Times:

INDIANAPOLIS | The Indiana Court of Appeals on Monday cleared the way for a trial to determine whether the LaPorte High School athletic director should have reported child abuse he allegedly knew took place.

Edward Gilliland was charged last year with two misdemeanor counts of failing to report child abuse or neglect. He allegedly did not contact authorities when parents of students on the school's volleyball team told him in 2007 the assistant coach was rubbing lotion on players' bodies and spending time alone with one student before and after school.

That assistant coach, Robert Ashcraft, 48, later was convicted of four felonies involving sexual conduct with a 15-year-old student-athlete. He's currently serving 21 years in prison.

Gilliland argued in his appeal of LaPorte Superior Judge Jennifer Koethe's decision denying his motion to dismiss that the 2011 charges were barred by the state's two-year statute of limitations for misdemeanors. Gilliland also claimed the reports of a potentially inappropriate relationship were not evidence of child abuse.

The appeals court rejected both claims.

It ruled the statute of limitations does not apply because Gilliland helped conceal Ashcraft's crime by telling LaPorte police in 2008 that he "had no knowledge whatsoever" why Ashcraft resigned, despite Gilliland having recorded the parents' concerns in Ashcraft's personnel file.

In addition, the court said evidence of a sexual relationship isn't required to trigger the duty to report, just awareness of inappropriate contact.

"It is for a jury to determine whether Gilliland had reason to believe (the student) was a victim of child abuse or neglect based on his knowledge that Ashcraft had given foot rubs to (the student) and rubbed lotion on her back," the court said.

A different three-judge Court of Appeals panel ruled last month that MaryBeth Lebo, the former head volleyball coach at LaPorte High School, can also be tried for failing to report child abuse.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions

Monday, December 10, 2012

Ind. Decisions - "Indiana Supreme Court won't hear challenge to ruling allowing use of David Bisard blood test results" [Updated]

Updating this Oct. 12, 2012 ILB entry, the Indianapolis Star this afternoon is reporting, in a story by Tim Evans:

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.

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.

Here is a list of all the "Bisard" entries.

[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.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

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

Updating this ILB entry from Dec. 5th, the oral argument begins shortly - at 1:30 PM. Watch the webcast here.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Indiana Courts

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. * * *

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.

ILB: The ILB has had several earlier related entries, see the last 3 entries on this list.

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. * * *

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 civil opinions today (2):

In Re: the Paternity of E.M.T.; C.J.G. v. M.C.T. (NFP)

Term. of the Parent-Child Rel. of A.R., et al. (Minor Children); and T.M. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Darrell Woodruff v. State of Indiana (NFP)

Henry Lee Smith, Jr. v. State of Indiana (NFP)

Darnell C. Miller, Sr. v. State of Indiana (NFP)

Paul Jackson v. State of Indiana (NFP)

Stacey Huddleston, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Ind. App.Ct. Decisions

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.

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.

Here is the article from the Ind. Univ. Public Administration Review, titled "The Indiana Toll Road Lease as an Intergenerational Cash Transfer."

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Indiana Government

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.

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.

Here is a copy of Judge Simon's Nov. 27th order.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Ind Fed D.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Indiana Law

Courts - SCOTUSblog roundup of coverage and commentary on the marriage cases

Friday's roundup.

Monday's roundup.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Courts in general

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.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Indiana Law

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.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, December 10, 2012
Posted to Ind. (7th Cir.) Decisions

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:

From Saturday, December 9, 2012:

Posted by Marcia Oddi on Monday, December 10, 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 (12/10/12):

Thursday, December 13th

Next week's oral arguments before the Supreme Court (week of (12/17/12):

Thursday, December 20th

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

Wednesday, December 12th Next week's oral arguments before the Court of Appeals (week of 12/17/12):

Monday, December 17th

Tuesday, December 18th

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 10, 2012
Posted to Upcoming Oral Arguments

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

Friday, December 07, 2012

Courts - SCOTUS has announced that it will review the constitutionality of both the federal Defense of Marriage Act and California’s Proposition 8

That is per SCOTUSblog, more coming. Check back this evening when some good commentaries are available, or/and follow SCOTUSblog directly.

The Prop. 8 case page is here; the DOMA case granted cert is Windsor.

Background on Edie Windsor's DOMA challenge here; it is a very appealing story.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Courts in general

Law - "Louisiana U.S. Attorney Jim Letten resigns amid online commenting scandal in his office"

This is a bizarre story, somewhat reminiscent of the story a few years back about a judge's daughter allegedly submitting online comments to the local paper about a case her mother was trying.

Campbell Robertson of the NYT has this story, which presents a clearer explanation for a national audience - some quotes:

Beginning last spring, a series of legal motions had revealed that Mr. Letten’s senior prosecutors had been making provocative, even pugnacious comments about active criminal matters and other subjects under aliases at nola.com, the Web site of The Times-Picayune newspaper. * * *

Last month, the revelations of online misconduct reached Mr. Letten’s top assistant, Jan Mann. A federal judge, in a scathing 50-page order, broached the possibility of criminal conduct in regard to her online activities, as well as those of another senior prosecutor, Sal Perricone, who resigned in March.

The judge also revealed that another federal prosecutor had expressed suspicions about the comments to his supervisors in 2010.

The exposure of Ms. Mann, months after Mr. Letten’s avowals that Mr. Perricone had acted alone, raised doubts about the effectiveness of an internal investigation by the Justice Department. The revelations could also jeopardize hard-fought convictions — including those last year of police officers involved in post-Katrina killings on the Danziger Bridge — as well as continuing inquiries like a bribery investigation that appears to be steadily encircling C. Ray Nagin, the former mayor.

Here is the long version of the story, from the Times-Picaynne (NOLA.com), reported by Gordon Russell. Some quotes:
The news release also said that John Horn, First Assistant U.S. Attorney for the Northern District of Georgia, will investigate leaks and other matters in the Danziger Bridge case, a probe that U.S. District Judge Kurt Engelhardt requested in a tartly worded Nov. 26 order.

The series of moves comes eight months into a scandal revolving around anonymous online commenting by high-ranking prosecutors in his office, including the shocking revelation that Letten's longtime First Assistant, Jan Mann, was involved.

The troubles for Letten began in March, when landfill owner Fred Heebe -- the target of a sprawling federal probe -- filed a civil lawsuit alleging that prosecutor Sal Perricone had been using an online alias to savage him and other federal targets in comments posted at NOLA.com.

Perricone, the office's senior litigation counsel and a member of Letten's inner circle, quickly admitted his sins and resigned. The matter was referred to the Justice Department's Office of Professional Responsibility for investigation, and the scandal seemed to die down.

In an interview with New Orleans magazine published in August, Perricone insisted the commenting brouhaha started and ended with him, saying no one else in the office had been aware of his activities.

But last month, the scandal reignited with a vengeance, when Heebe filed a second defamation suit, this one claiming Mann had been commenting about federal targets and judges as "eweman" on NOLA.com. Many of the comments by "eweman" were adjacent to comments made by Perricone under one of his online aliases, suggesting a coordinated campaign.

Mann soon admitted she had commented online at NOLA.com, but did not cop to a specific alias. Letten, meanwhile, announced that she was being demoted from her ranking posts of First Assistant U.S. Attorney and chief of the office's criminal division.

Mann did not step down, however, and the problems for Letten's office continued to mount. Engelhardt -- who had asked for a full investigation into leaks in the Danziger Bridge case earlier this year -- issued a stinging order in late November in which he essentially accused Mann and Perricone of untruthfulness.

In particular, the judge was upset by a letter Mann sent him in October in which she wrote: "Prior to the Perricone incident, I was not a follower of NOLA.com postings and had no real sense of what was happening there."

In his order, Engelhardt strongly urged the Justice Department to appoint an independent counsel to investigate the problems, saying Mann's earlier inquiry had been insufficient. The judge also questioned the ability of the Office of Professional Responsibility -- a subset of the Justice Department -- to get to the bottom of the matter.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Terry L. Brown v. Tammy S. Brown, a 7-page opinion, Judge May writes:

Terry L. Brown (Terry) appeals a civil judgment in favor of his ex-wife, Tammy S. Brown (Tammy). Terry argues the trial court abused its discretion when it admitted evidence regarding criminal offenses he committed over twenty years ago. We reverse and remand. * * *

In light of the context in which Terry’s convictions were mentioned during trial, we conclude the evidence of his past convictions was not used for the narrow purpose permissible pursuant to Evid. R. 609(a) – to attack Terry’s credibility. The evidence could have reasonably led the jury to the forbidden inference that Terry’s past convictions, albeit over twenty years old, reflect his propensity to commit the acts for which Tammy alleged he should be held accountable herein. Further, as the evidence was not used for the limited purpose permitted by Evid. R. 609(a), the admission of that evidence was more prejudicial than probative, which violates the exception provided in Evid. R. 609(b). See Collins, 966 N.E.2d at 106 (evidence of thirty year old misdemeanor battery arrest and charge was highly prejudicial because the admission thereof unfairly tipped the scales of justice against Collins).

In Robert Geller and Judy Geller v. Kurt P. Kinney, Holly Kinney, and A.M. Rentals, Inc., a 21-page, 2-1 opinion, Judge Najam concludes:
In sum, we hold that the exculpatory clause of the Lease and Management Agreement exempts A.M. from liability for its failure to perform its duties to the Gellers under Indiana Code Section 25-34.1-10-10(a)(3)(C). We also hold that applying the exculpatory clause on these facts is not contrary to public policy. Finally, we hold that the trial court’s conclusion that the Gellers’ sale of their home mitigated the Kinneys’ damages to the Gellers is not clearly erroneous. As such, we affirm the court’s judgment.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins at p. 17, and which concludes] I would reverse the decision of the trial court and remand with instructions to enter judgment for Owner for all losses incurred as a result of Agent’s failure to perform its statutory duties to disclose to Owner the adverse material facts known to Agent and to exercise reasonable care and skill in this transaction.

In Verdyer Clark v. State of Indiana , a 13-page opinion, Judge May writes:
Verdyer Clark was convicted of battery as a Class D felony pursuant to a statute that required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because the only evidence it offered to prove he was over eighteen at the time of the crime was inadmissible hearsay. We reverse and remand so that the State may decide whether to retry Clark. * * *

As the only evidence the State offered to prove an element of Clark’s offense was inadmissible hearsay, we must reverse Clark’s conviction. Of course, this reversal does not prevent the State from retrying Clark. While a reversal for insufficient evidence bars retrial under the Double Jeopardy Clause, analyzing the evidence for these purposes includes consideration of the evidence improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 41 (1988). As the whole of the evidence admitted at trial plainly sufficed to prove Clark’s guilt of the charged offense, a second trial may be conducted. See, e.g., Carr v. State, 934 N.E.2d 1096, 1108 (Ind. 2010).

In Phillip T. Billingsley v. State of Indiana , a 17-page, 2-1 opinion, Judge Najam writes:
Phillip T. Billingsley appeals his conviction for possession of marijuana, as a Class D felony, following a bench trial. Billingsley raises three issues for our review, which we consolidate and restate as the following two issues:
1. Whether the officer responding to a 9-1-1 call initiated an investigatory stop of Billingsley or, instead, placed Billingsley under arrest when the officer withdrew his firearm upon his arrival at the scene; and
2. Whether the responding officer had a reasonable and articulable suspicion to initiate an investigatory stop of Billingsley.
We hold, based on the totality of the facts and circumstances available to the responding officer at the time he detained Billingsley, that the responding officer initiated an investigatory stop of Billingsley based on a reasonable and articulable suspicion that he was engaged in criminal activity. Accordingly, the trial court did not abuse its discretion when it admitted into evidence marijuana seized following the officer’s detention of Billingsley, and we affirm his conviction. * * *

Billingsley contends that the trial court abused its discretion when it admitted the seized marijuana into evidence because the State’s seizure of the marijuana from the front passenger seat of the SUV violated his rights under the federal and Indiana constitutions. * * *

Officer Lichtsinn lawfully detained Billingsley during an investigatory stop. Accordingly, the State lawfully seized the discovered marijuana and the trial court did not abuse its discretion in admitting that evidence against Billingsley. Thus, we affirm Billingsley’s conviction. Affirmed.

MAY, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins at p. 15 and that concludes] Because there was no supporting information or any other indicia of reliability for the name provided, I do not believe that the mere providing of a name by a 9-1-1 caller removes this case from the category of an anonymous caller. I also do not believe that the information known to the investigating officer was sufficient to satisfy the standards established by our Supreme Court and the Supreme Court of the United States for investigatory stops. Accordingly, I would reverse Billingsley’s conviction.

NFP civil opinions today (1):

In Re the Marriage of Lisa L. Shisler and Ned L. Shisler; Ned L. Shisler v. Lisa L. Shisler (NFP)

NFP criminal opinions today (8):

Brenda Varo v. State of Indiana (NFP)

Vickie Jessie v. State of Indiana (NFP)

Michael R. Krohn v. State of Indiana (NFP)

Quinn Nelson v. State of Indiana (NFP)

Anthony White v. State of Indiana (NFP)

Deandre L. Mathews v. State of Indiana (NFP)

Andrea Averitte v. State of Indiana (NFP)

Michael McClellan v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Ind. App.Ct. Decisions

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

This ILB post from Monday linked to the NY Times' three-part series on tax breaks and other incentives for local jobs. It also linked to the database of these incentives compiled by the Times.

Thursday in the Times, this editorial that begins:

Competition among states and cities to lure businesses in hopes of creating jobs is not new, but it has become more fierce in recent years. An investigation by The Times found that state and local governments are giving out $80 billion a year in tax breaks and other subsidies in a foolhardy, shortsighted race to attract companies. That money could go a long way to improving education, transportation and other public services that would have a far better shot at promoting real economic growth.
What caught my eye was this paragraph:
In one particularly egregious example in Pontiac, Mich., the State of Michigan gave $14 million in tax credits and a state pension fund guaranteed $18 million in bonds to a movie studio that created just 12 permanent jobs. In Texas, Amazon.com, the online retailer, received tax abatements, sales tax exemptions and other benefits totaling $277 million to open a warehouse that promises to employ 2,500 people. Those benefits were granted after the retailer closed another warehouse because of a dispute with the government involving sales taxes.
Because the State of Indiana has reportedly given Amazon breaks in collecting Indiana sales tax in return for its building warehouses in Indiana, the ILB looked in the Times database to see grants to Amazon by state. The Times table shows 9 states, Texas tops it with $277 million, Arizona is in the rear with $740,000. Indiana ranks fifth, with tax credits of $7 million to Amazon.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Government

Ind. Courts - 2010 Notre Dame sexual assault case news again

For background see these ILB entries from 2010-2011.

Melinda Henneberger, a Washington Post political writer, wrote this very long entry in her Dec. 4 "She the People" WAPO blog on Dec. 4. It is headed "Why I won’t be cheering for old Notre Dame" and begins:

Well, since you asked — and many of my friends have, some more than once — no, I will not be cheering for my alma mater, the University of Notre Dame, to win big-time college football’s championship on Jan. 7. What’s really surprising me are those who believe as I do that two players on the team have committed serious criminal acts – sexual assault in one case, and rape in another — but assumed that I’d support the team anyway, just as they are. * * *

Two years ago, Lizzy Seeberg, a 19-year-old freshman at Saint Mary’s College, across the street from Notre Dame, committed suicide after accusing an ND football player of sexually assaulting her.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Courts

Ind. Gov't. - "AG's office faces criticism over violations of Access To Public Records Act"

Kara Kenney of WRTV6 had this story and video last evening:

INDIANAPOLIS - The Indiana Attorney General’s office is facing criticism for several violations of Indiana’s Access to Public Records Act.

Greg Zoeller’s office is known as a champion of public records and open meetings, and holds training seminars around the state on the topic.

“When citizens can participate and readily access their government records and attend government meetings as the law intends, the system is more transparent and accountable,” Zoeller said in a Nov. 20 news release.

Illinois-turned-Hamilton-County, Ind-resident Paul Straughn told Call 6 Investigator Kara Kenney it’s been a nightmare getting records from the Attorney General’s office.

“I think it’s pretty disgusting frankly,” said Straughn, a retired federal government worker.

Straughn said his father Max, a World War II disabled veteran, was mistreated by two Indiana doctors.

“I have a very deep and abiding respect for all veterans,” said Straughn, choking back tears. "The victim in this case was a disabled World War II veteran, disabled because of his military service, and was left crippled for 66 years."

His father has since passed away, but Straughn filed a complaint with the Attorney General’s office in November 2011 asking the agency to investigate the mistreatment allegations.

Straughn said the agency closed the complaint without interviewing key witnesses.

“I’m the lead witness in this case, and I’ve never been interviewed,” said Straughn.

Frustrated, Straughn filed a request for documents on his father’s case under the Indiana Access to Public Records Act (APRA).

“I contend the Attorney General never fully investigated my complaint,” said Straughn. “So the APRA was my last resort to find out the information.”

Straughn said he still did not receive the information, and thus, filed an appeal with the state Public Access Counselor Joe Hoage.

In advisory opinions dated July 25 and Aug. 8 , 2012, Hoage found three separate violations of the APRA, including failing to preserve records and failing to meet its burden for redacting, or blacking out, information.

“I’m like wow, holy smokes,” said Straughn. “What can I say? I was dumbfounded. I find it refreshing -- the integrity of the public access counselor’s office.”

Straughn met last week with the Chief Deputy Attorney General in an attempt to resolve the matter.

Call 6 Investigator Kara Kenney asked to interview Zoeller about the violations, but spokesman Bryan Corbin declined, saying an interview was not necessary.

“We strive to complete all public records requests promptly and we have a good working relationship with the Public Access Counselor’s Office -- in fact, the state’s original public access counselor now works for our office as a Deputy AG -- but whenever an individual makes a complaint, the Counselor is required to issue an advisory opinion regardless of the complaint’s merit,” wrote Corbin in an email to Kenney. “We always address complaints fully. The Public Access Counselor's opinions are advisory only; there is no penalty or even a requirement for us to comply with them."

Corbin also pointed out the AG’s office has spent more than 40 hours of staff time on Straughn’s requests and has not charged him copying fees.

“It also should be noted that the AG’s Office has received 123 records requests from the public in 2012,” wrote Corbin. “Of those 123, Mr. Straughn made five complex multilayered requests that included a total 58 parts and a total 140 sub-parts.”

The story links to the July 25 (12-FC-174)and August 8 (12-FC-180) opinions of the Public Access Counselor.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Indiana Government

Ind. Courts - Bisard trial to move to another county

From Sandra Chapman's story last evening on WTHR13:

INDIANAPOLIS -

A judge has agreed to move IMPD Officer David Bisard's trial out of Marion County at the urging of the officer's attorneys.

Marion County Judge Grant Hawkins said Thursday the case surrounding David Bisard had generated too much publicity for him to get a fair trial in the Indianapolis media market.

Hawkins met with attorneys behind closed doors to discuss possible sites for the trial. He will choose the location for the trial from three sites in February. The possible locations are not known.

Bisard hit a group of motorcyclists with his squad car in August 2010. One of the motorcyclists, Eric Wells, was killed in the crash and two others, Mary Mills and Kurt Weekly, were critically injured.

Months ago, the big issue facing the Bisard case was an Appeals Court ruling on whether the blood draws could be legally used to substantiate drunk driving allegations in this case. In September, the Indiana Court of Appeals reversed a previous ruling and now says the blood can be used, clearing the way for the trial to be set.

The big question now is where the trial will be held.

Bisard's attorneys contend he cannot get a fair trial here in Marion County because of extensive pre-trial publicity surrounding the case for two years.

John Tuohy's long story this morning in the Indianapolis Star is headed "Moving David Bisard trial to another county viewed as smart call." Some quotes:
Moving the David Bisard trial to another county will be much like taking a theater production on the road, but it should sharply decrease the chance for juror bias, legal experts said Thursday.

“Most prosecutors would rather not move,” Morgan County Prosecutor Steve Sonnega said. “It’s the difference between playing a home game and a road game. You’re not at your own desk, you’re driving, living in a hotel.”

“Then again, you are eliminating a lot of potential problems.”

Citing pre-trial publicity that “endures” after more than two years, Superior Judge Grant Hawkins said a change of venue was necessary to ensure Bisard a fair trial.

The judge used a personal example to make his point.

“When I got off the elevators I was met by five (TV) cameras,” Hawkins said at a hearing Thursday. “That is evidence that interest in this case endures after 24, 26 months. I don’t see it attracting any less attention in the near future.”

The media attention the case has received would make it difficult to find impartial jurors who had not heard something about the case, Hawkins concluded.

The site of the trial still needs to be determined. Hawkins did not set a trial date. * * * The next hearing is Feb. 14. Deputy prosecutor Denise Robinson said she expected a trial date to be set then for late summer or early fall. * * *

Changes of venue in Marion County criminal cases are rare, but they are more common in smaller counties, said Ann Sutton, chief counsel for the Marion County public defender’s office.

“I can only remember one other case going back to the ’80s,” Sutton said.

That was the trial of Brian Reese, who was convicted in November 2009 of attempted murder for shooting IMPD Officer Jason Fishburn. The trial was moved from Marion to Valparaiso in Porter County.

Indiana State Court Administration records show that 1,350 cases were moved from superior, civil and probate court to other counties in Indiana in 2011, the latest year figures are available. Sixty-nine of those cases were moved from Marion County. But Sutton speculated that most of them were probably civil cases.

Cases can be moved because of pre-trial publicity, allegations of judicial bias, conflicts of interest by the judge and a handful of other reasons.

The prosecutor and Bisard’s attorney, John Kautzman, gave Hawkins the names of three judges or counties — they wouldn’t say which — they would prefer. Each side will then be able to strike one choice.

Robinson said it is still possible that Hawkins would remain the judge wherever they move. She did not object to the change of venue. * * *

It costs more money to hold a trial somewhere else, and the state is responsible for the transportation, lodging and security. But moving a high-profile case like this won’t be much more expensive than sequestering the jury in a hotel, which would probably be necessary in Marion, experts said. Juries are sequestered to prevent them from reading or watching news about the case they are judging.

Moving the trial now also eliminates any chance of a verdict being overruled later because of a juror who was privy to publicity he or she shouldn’t have been. Robinson said it also eliminates the potential hassle of beginning the jury selection here, realizing it won’t work, and moving everything anyway.

Here is a long list of earlier ILB "Bisard" entries.

Posted by Marcia Oddi on Friday, December 07, 2012
Posted to Ind. Trial Ct. Decisions

Thursday, December 06, 2012

Ind. Law - "Indiana Tech Law School receives library collection"

The FWJG has posted this news release; here are some quotes:

Fort Wayne, Ind. – Indiana Tech Law School Dean Peter C. Alexander announced today that the law school has received an anonymous donation of a significant library collection for the Fort Wayne law school start-up effort.

The donor, a businessperson who lives out of state, acquired the library collection of a law school that was not able to earn ABA accreditation. The donor stored the collection with the hope that the books and microfiche it contained would be put to good use someday.

The exact volume count of the collection is unknown, but Alexander has inspected the collection and he is very impressed.

“There are so many books that they are currently being stored in eight tractor-trailers, and the microfiche collection has been stored in a large climate-controlled storage area,” he said. “Everything is in very good condition.”

ILB: Okay, the real story here is, what law school is it that is apparently giving up the ghost after not being able to earn ABA accreditation?

The ILB's first guess is Duncan Law School in Tennessee. This fledgling law school, located in Knoxville, has been mentioned in a number of ILB posts on new schools' efforts to acquire ABA accreditation.

In addition to the stories linked in those posts, the WSJ Law Blog reported on Oct. 25th that:

The saga of Lincoln Memorial University’s Duncan School of Law has taken another turn, after the American Bar Association affirmed its denial of provisional accreditation for the school this summer. Now, Duncan has lost its dean, and may consider dropping a lawsuit against the ABA.

Dean Sydney Beckman, who has been with the school since 2008, stepped down and plans to return to teaching, the school told the Knoxville News Sentinel. Dean Beckman will be taking a research leave until the end of the school year and resume teaching in the fall.

Duncan is located in Tennesse, where graduates of unaccredited law schools can take the state bar without a degree from an ABA-approved school, so it is possible the school will continue even without the ABA approval. The Duncan Law website accreditation page states that:
On February 24, 2009, the Lincoln Memorial University – Duncan School of Law received approval from the Tennessee Board of Law Examiners rendering graduates eligible to take the Tennessee Bar Examination pursuant to Tennessee Supreme Court Rule 7, Section 2.03.
A Dec. 24, 2011 NYT story referenced "a businessman":
Mr. [Pete] DeBusk, Duncan’s principal backer, appears undaunted. Mr. DeBusk, the founder of a medical device company who was raised in a trailer home in Kentucky, said the school was part of his mission to bring education to the people from the Appalachian Mountains.
The ILB thinks Mr. DeBusk was featured on 60 Minutes, but could be wrong.

[More] The ILB has elected not to address the "gift horse" issue - many firms are getting rid of print books by the truckload; law books are expensive to maintain in a useful status because they must be continually updated; etc.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Law

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

Updating this ILB entry from Dec. 3rd, this is a selection from an editorial today in the Fort Wayne Journal Gazette [emphases added by ILB]:

Gov.-elect Mike Pence’s appointment of Jeff Espich understandably has unnerved some good-government advocates. But any concerns about revolving-door influence are tempered by the unusual nature of the appointment and the fact that the new administration needs solid state government experience.

In Espich, a 40-year veteran of the Indiana General Assembly and former House Ways and Means Committee chairman, the newly elected governor will have a senior adviser in the truest sense of the title. It says much about the Wells County Republican’s character that he accepted an appointment in the administration instead of waiting out a one-year ban from lobbying the legislature in a high-paid lobbying firm.

Yes, his position as an adviser on legislative affairs is uncomfortably close to the legislative director or legislative liaison position [ILB: but see below] addressed by the General Assembly’s ethics law. Statehouse observers who have watched as legislators switched sides to represent gambling, alcohol and other business interests are justified in any cynicism when it comes to the lucrative afterlife of an Indiana legislator.

But Espich’s role in the Pence administration appears advisory. Given his record, Espich can be counted on to offer brutally honest counsel to the new governor, who has never held a job in state government or come any closer to the General Assembly than managing the Indiana Policy Review.

It’s somewhat refreshing, in fact, to see Pence turn to a well-respected fiscal expert instead of an outsider determined to bring a business perspective to state government. The turmoil at the Indiana Bureau of Motor Vehicles when it was headed by retail executive Joel Silverman was one of the more benign effects of that approach; the failed privatization of welfare eligibility services and the ongoing ethics scandal at the Indiana Utility Regulatory Commission are some of the worst.

*Yesterday Pence's office announced:
Heather Neal has been named Pence’s Legislative Director. She will serve as the chief legislative liaison for the Pence Administration. Neal has served as chief of staff at the Indiana Department of Education where she directed operations of the agency, which includes 55 percent of the state’s annual budget and an additional $1 billion in federal funds. Neal also was Governor Daniels’ first appointee as the state’s public access counselor and served as chief of staff for Secretary of State Todd Rokita.
ILB: It is interesting to look back to some stories from eight years ago when Gov. Daniels emphasis was on appointing state government outsiders. Here is a quote from an Elkhart Truth editorial reproduced in this Dec. 9, 2004 ILB entry:
Besides impressive resumes, the eight share something else in common -- a shortage of experience with not only state government but public administration of any kind. Their willingness to leave lucrative careers or -- in Silverman's case -- retirement is admirable.

Daniels is counting on the fact that these new public servants will come into office unencumbered by biases and resistance to change of government bureaucracy. He's also counting on each of them bringing successful practices from the business world. * * *

While Silverman may bring to the BMV some good customer service ideas from his retail days, his greatest contribution may be in reshaping a culture focused too little on pleasing the customers -- Indiana motorists and vehicle owners. * * *

With Mitch Roob, Daniels has selected an individual who has enjoyed success with government reorganization. He helped rework Indianapolis city departments in the 1990s under then-Mayor Stephen Goldsmith and headed an agency that supervised the Marion County Health Department and Wishard Memorial Hospital. * * *

We're eager to hear about the merits of other new ideas Daniels' team has for the state, but the new administration should also be cautious about cleaning house too thoroughly. Like it or not, Daniels needs on his side the state bureaucracy he criticized in his campaign to make the changes he believes are necessary. Therefore, the governor-elect must also select competent managers with state government and public service experience -- Roob is a good start.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Government

Ind. Gov't. - What services will be included in Indiana's benefits package under the new health care law?

This article today in the NY Times, reported by Abby Goodnough, talks about the decisions being made by the various states. Some quotes:

The main goal of the health care law has always been to guarantee medical coverage to nearly all Americans, but as states finalize their benefits packages, it is becoming clear that what is received will depend partly on location.

According to proposals that the states have submitted to the Department of Health and Human Services, insurance plans will have to cover weight-loss surgery in New York and California, for example, but not in Minnesota or Connecticut. Infertility treatment will be a required benefit in New Hampshire, but not in Arizona.

Over all, the law requires that essential health benefits cover 10 broad categories, including emergency services, maternity and newborn care, hospitalization, preventive care and prescription drugs. But there is room for variation in those categories. Whether insurance will pay for hearing aids, foot care, speech therapy and various medications will vary significantly by state.

The Obama administration originally planned to impose a single set of essential benefits nationwide, so groups like Ms. Kang’s lobbied federal officials at first. But last year, amid accusations that the health care law was too rigid, it decided to allow each state to choose its own guaranteed benefits within the 10 broad categories.

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Indiana Government

Courts - "Michigan Supreme Court Campaign Credits Facebook Ads With Margin of Victory"

Here is an interesting article by Cotton Delo in AdAgeMobile. It begins:

What tipped the scales in favor of a candidate for the Michigan Supreme Court in a closely run election? Her campaign team surmises that a heavy helping of Facebook ads during the home stretch of the race played an outsize role.

Democrat Bridget Mary McCormack was ultimately the top vote-getter in a field of seven candidates running for two full-term seats on the bench. Her roughly 1.53 million votes edged out the other winner, Republican incumbent Stephen Markman, by more than 30,000 votes. (The first and second runners-up had roughly 1.4 million votes apiece.)

Ms. McCormack's campaign manager, Jon Hoadley, finds her margin of victory all the more surprising because of the onslaught on negative TV ads paid for by a Washington, D.C.-based group called the Judicial Crisis Network that were aimed at Ms. McCormack, a University of Michigan law professor, during the final week of the campaign. ( The ad featured the mother of a deceased American soldier and homed in on Ms. McCormack's offer to represent Guantanamo detainees.)

While the Judicial Crisis Network was filling the airwaves in Detroit and Grand Rapids with $1 million worth of attack ads, Ms. McCormack's team was spending liberally on Facebook. Mr. Hoadley estimates that 51% of the campaign's $100,000 ad budget was allocated to Facebook, and 80% of that sum was spent in the final five days with the intent of burning the candidate's name into liberal voters' brains. (Ms. McCormack also benefited from TV ads run by the Michigan Democratic State Central Committee to support its slate, made up of her and two other candidates.)

"Repetition over a short period of time really did make a difference," said Mr. Hoadley.

Doubling down on Facebook for the final stretch was more of an accident than a strategy, according to Josh Koster, managing partner of the digital agency Chong & Koster, which handled the buy for Ms. McCormack's campaign. Due to time constraints, it wasn't feasible to execute a diversified strategy that included display and search ads, he said.

Instead, the campaign ultimately had a half-dozen Facebook ads in circulation in the five days leading up to Nov. 6 after a brief testing window to find which performed best for different age and gender groups. All had positive messages (noting that Ms. McCormack had been endorsed by 10 Michigan newspapers, for example) with the aim of boosting recognition of her name by Election Day.

While Mr. Koster notes that efforts on behalf of the Democratic slate helped bring Ms. McCormack to within striking distance, he thinks the Facebook ads must have been the ultimate needle-mover.

"[They're] the only thing that could have moved her to being ahead of everyone else from being tied with every else," he said.

Read this in conjunction with CNHI's Maureen Hayden's story, here in the Dec. 3rd New Albany News & Tribune. A quote:
INDIANAPOLIS — There’s a new phrase starting to emerge in the lexicon of the Indiana Statehouse: “Getting Ritzed.”

It refers to the stunning Nov. 6 victory of political newcomer Glenda Ritz over her giant of an opponent, Tony Bennett, in the race for Superintendent of Public Instruction.

More so, it refers to the kind of campaign that rocketed Ritz past Bennett to win 1.3 million Hoosier votes.

Employing a mastery of social media that tapped into widening skepticism about the K-12 education overhaul that Bennett championed, the Ritz campaign pulled off the seeming impossible: They beat the Republican incumbent in a Republican-loving state and did it with a fraction of the money, TV airtime, and powerful partisan pull that Bennett enjoyed. And, and often noted since, they managed to get more votes for Ritz than Gov.-elect Mike Pence.

Getting Ritzed is the 21st century version of the Biblical tale of David and Goliath. (David Galvin, the engineer of Ritz’s social media campaign, tapped into that analogy in a fascinating article he wrote for the Nov. 15 issue of Howey Politics Indiana.)

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp, a 10-page opinion, Sr. Judge Barteau writes:

The Yateses and Tibbses raise one issue, which we restate as: whether the trial court erred by granting Kemp’s motion for summary judgment as to their claims for nuisance. * * *

The trial court determined that Kemp was not liable for his neighbors’ nuisance claims due to “I.C. § 14-22-31.5-1 et seq.” * * *

The key statute here, Indiana Code section 14-22-31.5-6 (1996) (“section 6”), provides a safe harbor in limited circumstances for owners, operators, and users of shooting ranges against claims of noise pollution. It provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.
Id. The parties have not cited to any prior cases applying this statute, and we have not found any.

The Yateses and the Tibbses argue that Kemp is not entitled to the protection granted by section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating his shooting range. Kemp responds that their argument is “nonsensical.” Appellee’s Br. p. 7. The plain language of the statute supports the Yateses’ and the Tibbses’ argument. * * *

[B]ased on the plain language of section 6 and its context within the Act as a whole, we conclude that Kemp is not shielded by section 6 from liability related to his neighbors’ nuisances claim arising from noise pollution. * * *

To recover in a nuisance action the complaining party need show only inconvenience, annoyance, or discomfort. Lesh v. Chandler, 944 N.E.2d 942, 951 (Ind. Ct. App. 2011). Noise may be a nuisance if it is unreasonable in its degree, and reasonableness is a question of fact. Id.

The Yateses and the Tibbses have complained that Kemp is operating his shooting range to the detriment of their use and enjoyment of their property. Therefore, they are alleging a private nuisance. Furthermore, given that the range received conditional approval from the Marshall County Board of Zoning Appeals in 2008, we conclude that the range is an otherwise lawful use that may become a nuisance per accidens depending upon the circumstances surrounding the use. Thus, we must determine if the Yateses and the Tibbses have established a dispute of material fact as to whether Kemp has caused them to experience inconvenience, annoyance, or discomfort. * * *

All of this evidence is sufficient to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance, or discomfort. * * * Consequently, the trial court erred by granting summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance.

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings.

In Thomson, Inc., n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor Limited v. Continental Casualty Co.; Travelers Casualty & Surety Co. & Travelers Property Casualty Co. of Am., et al, a 9-page opinion, Judge Bradford writes:
Several years ago, Thomson, Inc., acquired the assets of Technicolor, Inc., which included, among other things, three contaminated former film-processing sites. Eventually, local environmental authorities directed Thomson to remediate the contamination at the sites, an expensive and ongoing process for which Thomson seeks indemnification from Continental, who insured Technicolor from 1969 to 1974. Thomson argues that the umbrella policy Continental issued to Technicolor covers losses resulting from orders from administrative agencies, as occurred here. Continental argues that its liability is limited to losses resulting from courtroom litigation.

After both parties moved for summary judgment on the question of whether coverage exists, the trial court ruled in Continental’s favor. Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) now appeal from the trial court’s grant of summary judgment in favor or Appellee/Defendant Continental Casualty Co. Finding that under California law, damages under the umbrella policy are limited to those as a result of courtroom litigation rather than administrative proceedings, we affirm.

NFP civil opinions today (2):

In Re: The Adoption of K.H.: S.H. (Mother) v. W.B. and B.B. (Guardians) (NFP)

Hugh Z. Nelson v. Renee Burtin (NFP)

NFP criminal opinions today (3):

Toni Cox v. State of Indiana (NFP)

Andra Dossey v. State of Indiana (NFP)

Steven Kamp v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 06, 2012
Posted to Ind. App.Ct. Decisions

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

Tuesday, December 04, 2012

Courts - More on: SCOTUS to hear cases on water runoff this week

Updating this ILB entry from Monday, the oral argument on "stormwater discharges through logging-road ditches and culverts" took a surprising turn, as explained in this SCOTUSblog post by John Elwood - a quote:

As it happens, the Court spent little time at argument Monday on any of the questions it granted cert. to decide, and instead devoted nearly the entire hour to discussing a new rule EPA promulgated unexpectedly on Friday – just days before argument, and likely after all of the advocates had completed their moot courts. And it seems to be a foregone conclusion that that Rule, which is so new it hasn’t yet made its way into the Federal Register (and even the version posted on the EPA website is labeled “not the official version”), will determine the outcome of these cases.
[More] For rulemaking geeks, this article by Lawrence Hurley and John McArdle, E&E reporters, headed "High Court puts spotlight on speed of rulemaking ," is absolutely fascinating. Hijinks involving the timely publication, or not, of the Unified Agenda of Regulatory and Deregulatory Actions?

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Courts in general

Ind. Gov't. - Governor-Elect Pence appoints several attorneys

Ice Miller partner Marilee J. Springer has been named Senior Policy Director by Governor-elect Pence.

Tony Bennett’s Chief of Staff (and former Public Access Counselor) Heather Neal will be Legislative Director.

More details here from Indy Politics.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

Ind. Gov't. - "States’ Film Production Incentives Cause Jitters"

Today the NY Times has the 3rd in its series on state tax incentives. The headline "Michigan Town Woos Hollywood, but Ends Up With a Bit Part."

The NY Times also wrote about this topic in 2008, as seen in this Oct. 12, 2008 ILB entry. The entry notes that Gov. Daniels had vetoed such incentives for Indiana, but the General Assembly overrode the veto. However, according to a IndyStar story from Aug. 15, 2008 quoted in the entry:

Indiana has finally positioned itself to become the real-life backdrop for blockbuster films and network TV shows.

But in the six weeks or so since offering its new film incentives program -- which went into effect July 1 -- no new film or television productions have qualified for the tax rebates offered. No applications have even been received.

Compare this to Michigan, which introduced its own film incentives just three months earlier. Since then, more than $150 million in film business has flooded into the state, including Clint Eastwood's newest film, "Gran Torino."

The difference? With up to a 42 percent rebate on production costs, Michigan's incentives are nearly triple the 15.percent in rebates the Hoosier state offers.

This July 16, 2009 ILB entry quotes from a Lesley Stedman Weidenbener Louisville Courier Journal report on budget cutbacks in the Indiana film tax credit program.

Also today, Maureen Hayden of the CNHI Statehouse Bureau has a story in the Logansport Pharos Tribune headed " Indiana's Hollywood Moment: ‘Parks and Rec’ meets real politics in Indiana shoot." It begins:

INDIANAPOLIS — What do you do when a political celebrity shows up for impromptu lunch at a landmark restaurant where the cast and crew of NBC’s “Parks and Recreation” are shooting a scene?

You ask him if he wants in on the action and then, on the spot, you write up a cameo role.

That’s what happened Monday when former presidential candidate Newt Gingrich walked into St. Elmo’s Steak House in downtown Indianapolis as actor Rob Lowe and his male co-stars were filming a scene for an upcoming episode of the popular sitcom based in fictional Pawnee, Ind.

“This is wild,” actor Adam Scott said as Gingrich passed by on his way to makeup.

It’s Scott’s character, Ben Wyatt, who’s the reason Hollywood had taken over much of the iconic steakhouse: St. Elmo’s is the scene of Ben’s big bachelor party in Indianapolis, thrown by his steak-loving co-worker, Ron Swanson, and attended by some of the civil servants who populate Pawnee’s city hall. (Ironically, Scott’s character has recently returned from a job on Capitol Hill.)

Gingrich had stopped by the restaurant, not knowing of the film shoot, on his way to an appointment with Indiana Gov. Mitch Daniels.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Lane Alan Schrader Trust as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust v. Larry Gilbert and Nancy J. Malecki, a 3-page opinion in a petition for rehearing in a case challenging a legal survey, Judge Baker concludes:

Petition for rehearing granted for the purpose of clarification. Otherwise, we stand by our previous opinion.
In James T. Mitchell v. 10th And The Bypass, LLC, and Elway, Inc., a 6-page opinion on a petition for rehearing, Judge Najam writes:
James T. Mitchell has filed a petition for rehearing asking that we reconsider our holding that the trial court did not abuse its discretion when it vacated its interlocutory partial summary judgment for Mitchell under Indiana Trial Rule 54(B). We grant Mitchell’s petition to address his contention that our opinion misunderstands and mischaracterizes his argument. We think not. After careful consideration, we conclude that on rehearing Mitchell attempts to adjust and supplement his original argument, which he cannot do. Having reviewed the original briefing, we conclude that we correctly decided the question presented in the first instance on appeal, and, therefore, we affirm our opinion in all material respects.
In Jerry Vanzyll v. State of Indiana , a 15-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion when it admitted the jail guard’s testimony that Vanzyll admitted to writing the letter that was also admitted at trial as State’s Exhibit 8A. The evidence was sufficient to prove that Vanzyll manufactured methamphetamine. However, the State failed to present sufficient evidence that Vanzyll committed Class A misdemeanor resisting law enforcement, and therefore, we reverse that conviction.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

NFP civil opinions today (1):

Richard Eric Johnson v. Gillian Wheeler Johnson (NFP)

NFP criminal opinions today (4):

Brian A. McKinney v. State of Indiana (NFP)

B.W. v. State of Indiana (NFP)

Robert E. Eastwood v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "RFP to replace legislative systems"

This July 23rd ILB post discussed the the Indiana Legislative Services Agency RFP, issued July 9th:

seeking a qualified vendor to provide business analysis, system analysis, software design, software development, software testing, and system integration services to replace existing legislative information systems.
What is the current status of this project?

LSA entered into a contract with Propylon, Inc., on October 3, 2012. Here is a copy. The total dollar contractual amount is $ $4,462,000. It will take several years to implement.

In addition, here is the meat of the contract; the following are the documents referred to in the Scope of Work section of the contract:

(1) Project Plan;

(2) Output Documents (a) scenarios_outputs_lsa (b) scenarios_outputs_chm (c) output_priorities_lsa (d) output_gathering_chamber;

(3) Project Milestone Schedule with the last page (concerning methodology trade secrets) deleted; and

(4) Propylon’s RFP Response with the following deleted: (a) Section 4 (contains methodology trade secrets); (b) Appendix A (contains detailed personnel information including specific salaries); and (c)Appendix E (contains confidential financial information).

Here are some recently updated legislative websites from other states:Of the four, North Dakota appears to have been a Propylon client. Here is a list of their clients.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Government

Courts - "SCOTUS to Decide if Human Genes Are Patentable"

David Kravets of WIRED reported Nov. 30th:

The Supreme Court announced Friday it would review a case testing whether human genes may be patented, in a dispute weighing patents associated with human genes known to detect early signs of breast and ovarian cancer.

A 2009 lawsuit filed by the American Civil Liberties Union claimed among other things the First Amendment is at stake because the patents are so broad they bar scientists from examining and comparing the BRCA1 and BRCA2 genes at the center of the dispute. In short, the patents issued more than a decade ago cover any new scientific methods of looking at these human genes that might be developed by others.

The ACLU, representing dozens of patients and researchers, said the case challenges the legality and constitutionality of granting patents covering the most basic element of every person’s individuality. The civil rights group maintains that, “What is patented is the abstract idea that nature has made the two genes different in a manner that increases that person’s risk of cancer.”

The patents at issue gave Myriad Genetics, the defendant in the case, a virtual monopoly on such predictive testing for breast and ovarian cancer, according to the suit. Women who fear they may be at an increased risk are barred from having anyone look at their BRCA1 and BRCA2 genes or interpret them except for the patent holder, which charges about $3,000 per test or more.

Here also is a Nov. 30th story from Adam Liptak of the NY Times.

The ILB has had a number of earlier entries about Myriad Genetics.

Alison Frankel's Thomson Reuter On the Case column yesterday is headed "In gene case, SCOTUS to confront Federal Circuit on patentability."

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Courts in general

Ind. Courts - "A Court that Cares: Judge Granger answers call of duty with special court for veterans"

On Nov. 29th the ILB quoted from a story in the Evansville Courier & Press on the Vanderburgh County's Veterans Treatment Court.

Today Maureen Hayden of the CNHI Statehouse Bureau reports in the New Albany News & Tribune in a long story that begins:

NEW ALBANY — Floyd County Superior Court No. 3 Judge Maria Granger is the proud daughter of a retired Marine, sister to a former sailor, and wife and stepmother of soldiers. She answered her call of duty in a different way: By creating a problem-solving court for veterans who find themselves in legal trouble.

Every Monday in her courtroom, young service members who’ve run afoul of the law in returning to civilian life appear in front of Granger to be sentenced to counseling and treatment instead of a jail or prison cell.

Her sentencing conditions are strict — supervision is intense and monitoring is frequent — but they’re handed down with a team of reinforcements that includes volunteer mentors who themselves have survived the experience of war.

It’s an interventionist approach, modeled on veterans treatment courts across the nation, that Granger says honors the guarantee of “restorative justice” found in the Indiana constitution.

It’s also a labor of love, done in the name of her stepson, Army Sgt. Steven Paul Mennemeyer, a combat medic in the Iraq war killed in the line of duty.

“I was so proud of him,” said Granger. “This is just one of the ways I can honor him.”

The special court that Granger started in February is one of four such courts in Indiana launched in partnership with the Veterans Administration and in collaboration with local prosecutors, defense attorneys, police and corrections officials. Two more are in the making.

Their existence is in response to a trend that Granger and other judges have seen in recent years: An increasing number of young service members returning from Iraq and Afghanistan showing up in court, charged with relatively small crimes linked to bigger mental health issues, including substance abuse and addiction.

ILB: Readers may recalled that Judge Granger was a semi-finalist for the Supreme Court position to which Justice Massa was ultimately appointed.

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Indiana Courts

Ind. Decisions - "Appeals court: Second region sex offender not required to register"

Yesterday's Court of Appeals ruling in State v. Hough (ILB entry here) is the subject of a story today in the NWI Times, reported by Dan Carden:

INDIANAPOLIS | For the second time in less than a month, the Indiana Court of Appeals has declared it unconstitutional to require a Northwest Indiana man to register as a sex offender.

Terry Hough, 48, of Portage, was convicted of rape in 1993 in Pennsylvania. He served nearly four years in prison, completed his parole obligations in 1998 and then moved to Indiana.

Hough's conviction came prior to enactment of sex offender registration laws in either Indiana (1994) or Pennsylvania (1996). Porter Superior Judge Roger Bradford previously ruled forcing Hough to register would be an unconstitutional, retroactive punishment.

Republican Attorney General Greg Zoeller appealed that finding. In a 3-0 ruling, the Indiana Court of Appeals concluded Bradford got it right.

The appeals court acknowledged changes since made to Pennsylvania law would compel Hough's registration if he lived there. But as an Indiana resident, Hough is protected from retroactive punishment by the Indiana Constitution, the court ruled.

"To require that Hough register as a sex offender for a conviction pre-dating the enactment of (Indiana's Sex Offender Registration Act) would violate Indiana's constitutional prohibition against ex post facto laws," Judge Paul Mathias wrote.

On Nov. 8, a separate three-judge Court of Appeals panel ruled Jerome Burton, of Hammond, convicted in 1987 of a sex crime in Illinois, is not required to register because his conviction came prior to creation of the Illinois and Indiana sex offender registries.

Zoeller spokesman Bryan Corbin said the attorney general's office is reviewing the rulings to decide whether to appeal to the state's highest court.

"The Indiana Supreme Court has held that the Indiana Constitution limits some of the circumstances in which the offender registration laws apply. So the courts are continuing to consider, case-by-case, the boundaries of those limits," Corbin said. "As state government's lawyer, the Indiana Attorney General's Office has a responsibility to help courts sort through these complex questions."

Posted by Marcia Oddi on Tuesday, December 04, 2012
Posted to Ind. App.Ct. Decisions

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:

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:

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

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

Thursday, December 13th

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

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

Monday, December 10th

Wednesday, December 12th

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

Sunday, December 02, 2012

Courts - "Courts to hear challenges to Obama recess appointments"

Two of those challenges were hear by the 7th Circuit on Friday, according to this lengthy Nov. 29th story by Sam Hananel of the AP. Some quotes:

WASHINGTON (AP) — In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama's decision to bypass the Senate in appointing three members to the National Labor Relations Board.

The challenges in more than two dozen labor cases around the country have been winding their way through the legal system since Jan. 4, when Obama moved to fill vacancies on the board under the constitutional provision for filling an office when Congress is in recess.

Obama's move outraged business groups and Republican leaders, who contend the appointments were unconstitutional because the Senate was technically in session when the president acted. Administration officials say the Senate was actually in a 20-day recess, and the tactic of gaveling in and out of session every few days solely to avoid being in recess was a sham.

The 7th U.S. Circuit Court of Appeals in Chicago will be the first court to hear oral arguments on the issue Friday. * * *

In the 7th Circuit, the court is hearing two consolidated cases in which the NLRB found that union officials interfered with workers' rights not to join a union or pay union dues. The National Right to Work Foundation is appealing the board's decision in part based on the recess appointments.

The oral argument held Nov. 30th in Douglas Richards v. NLRB (12-1973) is available via MP3 here.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Ind Fed D.Ct. Decisions

Courts - "Supreme Court delays decision on taking up gay marriage cases"

Updating last week's ILB entries on the gay marriage cases being considered by the SCOTUS (most recent ILB entry here), David G. Savage of the LA Times reported Friday afternoon in a story that begins:

The Supreme Court took no action Friday on a series of pending appeals involving gay marriage, putting off until at least next week a decision on which cases to hear.

The justices met behind closed doors to debate cases involving the Defense of Marriage Act and California’s Proposition 8, the voter initiative that limits marriage to a man and a woman.

Here is Lyle Denniston's report at SCOTUSblog, explaining the intricacies.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Courts in general

Ind. Law - More on "Indiana Holding 'Virtual Public Hearing' on Raw Milk Sales"

Updating this ILB entry from June 30th, Rick Howlett reported on Nov. 30th in a story headed "Report On Indiana Raw Milk Study Released." The story links to the Report on the Sale of Unpasteurized (Raw) Milk to Consumers.

Here is a Dec. 2nd AP story on the report.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Law

Ind. Decisions - 7th Circuit heard oral argument on Nov. 28th re Indiana's Facebook ban for sex offenders

The case is John Doe v. Prosecutor, Marion County. You can listen to the oral argument here. It opens with the voice of Ken Falk of the Indiana ACLU.

See earlier ILB entries, including this one from June 24th, which includes links to the June 22nd opinion and a link to the complaint. Also this ILB entry from Oct. 19, 2012.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Marijuana advocates hope to rise from 'prohibition'"

That was the headline to this long and comprehensive CNN story yesterday by Eliott C. McLaughlin.

Today Matt Tully's column in the Sunday Indianapolis Star is headed "Hashing out the likelihood of legalizing marijuana in Indiana."

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Logansport Pharos Tribune in a story titled "Lower pot penalties favored in Statehouse: Commission recommends new felony to target large growing operations." Some quotes:

INDIANAPOLIS — The head of the Indiana State Police may have surprised legislators last week when he told a state budget committee that he personally favored legalizing marijuana, but the push to re-think Indiana’s pot laws isn’t new.

A legislative commission set up three years ago to review Indiana’s criminal code is recommending that the Indiana General Assembly overhaul the state’s drug laws to reduce penalties for low-level marijuana and other drug crimes.

The commission’s recommendations don’t include legalizing pot or even decriminalizing possession of small amounts of the drug. But they do call for reducing some felony-level marijuana crimes down to misdemeanors, which would significantly reduce penalties.

Under current Indiana law, for example, anyone caught for the second time possessing less than 10 grams of marijuana (about 20 to 30 joints) can be charged with a class D felony, which carries a one-to-five year prison term. The commission calls for a second-time offense to be a class A misdemeanor, with no more than a year’s jail time.

In addition to pushing for some less-harsh laws for low-level marijuana offenses, the commission is also calling for Indiana legislators to create a new felony crime which would allow police to go after the “grow houses” — large-scale operations where marijuana is illegally grown and manufactured in bulk.

The recommendations were crafted by a work group of the Indiana Criminal Code Evalution Commission, whose members included judges, legislators, prosecutors, public defenders, probation and prison officials.

The commission ended its work in October, but its recommendations are likely to be contained in a sweeping sentencing reform bill to be introduced in the 2013 session.

The proposed changes are finding some traction among the Republicans who control the Statehouse and who cite concerns about the rising costs of prosecuting and incarcerating low-level drug offenders. Drug offenses have accounted for much of the rise in Indiana’s prison population over the last 20 years, according to Department of Correction numbers.

“I think we have to do something different than what we’ve been doing,” said state Rep. Heath VanNatter, a conservative Republican from Kokomo. “We need to be spending our prison dollars more effectively than putting people away for minor violations like some kid caught with a joint in his pocket.”

Indiana doesn’t appear to be posed to follow in the footsteps of Colorado and Washington, where voters passed measures in November to allow adults to have small amounts of marijuana.

After Indiana State Police superintendent Paul Whitesell made his surprise comments at a state budget committee hearing last week — when he said that if it was up to him, he’d legalize marijuana and tax its sales — Indiana’s newly elected governor slapped down the idea.

In a statement released to the Associated Press, a spokeswoman for Gov.-elect Mike Pence said Pence opposes decriminalizing marijuana.

That may put a damper on a proposal put forth by state Sen. Brent Steele, the powerful chairman of the Senate Judiciary Committee. The conservative Republican wants to decriminalize the possession of small amounts of marijuana, turning possession of 10 grams or less into an infraction, which is akin to a speeding ticket.

Steele is expected to carry the Senate version of the sentencing reform bill that will propose other changes to the state’s marijuana laws that may mirror much of what the Criminal Code Evaluation Commission proposed.

For example, Steele has already indicated he supports the idea of doing away with the “drug zone” laws that enhance penalties for people caught with small amounts of marijuana or other drugs within 1,000 feet of a school, daycare center or park.

Like VanNatter, Steele cites rising costs to the criminal justice system from low-level drug offenders who may be better served by community-based treatment programs.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Law

Ind. Courts - "COA decision could have impact on local case involving armed zoo patron"

Mark Wilson reported yesterday in the Evansvile Courier & Press:

EVANSVILLE — The outcome of another case before the Indiana Court of Appeals could be the deciding factor in a lawsuit that claims an Evansville ordinance that prohibited firearms in city parks violated a state law barring local gun regulation.

Benjamin Magenheimer filed the lawsuit after Evansville police officers responding to a call about a man openly wearing a gun removed him from Mesker Park Zoo & Botanic Garden on Sept. 10, 2011.

Both the city and Magenheimer's attorney, Guy Relford of Indianapolis, have filed motions asking Vanderburgh Circuit Court Judge Carl Heldt to rule in their favor, based on different grounds.

However, Heldt postponed a decision until after the Court of Appeals rules on a similar lawsuit against the city of Hammond, Ind. Relford, who also filed that lawsuit, is an Indianapolis attorney interested in gun rights who filed the Hammond lawsuit.

Magenheimer's lawsuit claims police were enforcing a city ordinance barring firearms from park properties when they removed him and that he had a license to carry a gun. His lawsuit also claims that the city ordinance in question violated the state law, which had been in effect for more than two months at the time he was removed.

That law, which took effect July 1, 2011, prevents local governments from regulating firearms on property or in buildings which they own or manage, with a few exceptions such as zoning to prevent selling firearms within 200 feet of a school; in buildings with courtrooms; and in municipal buildings occupied by private businesses or residential tenants (such as entertainment venues).

The law also exempts schools, public hospitals, courts and other public buildings.

In court Thursday, Relford argued that even though the state law includes language saying that it voids local ordinances, Evansville and other cities should have acted to repeal such regulations and not simply leave them on the books even though they couldn't be enforced.

He said the state law includes language allowing a person adversely affected by enforcement of local regulations to file a lawsuit. He said local governments, including Evansville, were warned of the possibility of lawsuits by the Indiana Association of Cities and Towns before the law took affect.

City attorney Robert Burkart disagreed that the city should have repealed the law.

"We think it is a silly argument," he said. "What that essentially means is there is some hidden liability the legislature didn't intend. Their argument would create a field day for plaintiff lawyers."

But Relford said he believes that is exactly what lawmakers intended. He called Magenheimer's case "a poster child" for that interpretation of state law.

"Had the city repealed it and communicated that to employees this incident wouldn't have happened," Relford said.

ILB: For background, see the four ILB entries listed here.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Courts

Ind. Gov't. - "Pence initial picks differ from Daniels'"

Niki Kelly of the Fort Wayne Journal Gazette reported Nov. 23rd:

So far, Gov.-elect Mike Pence is filling key roles in his administration with familiar faces.

The first three appointments have extensive ties to state government.

The head of the Indiana Office of Management and Budget will be Chris Atkins, who previously served as general counsel and policy director for Gov. Mitch Daniels in the same agency.

Then there is Mike Ahearn, who will be Pence's new general counsel. Ahearn spent the last eight years at the Indiana Department of Transportation.

And Pence has also tapped a former lawmaker with 40 years experience in state government – Jeff Espich – as a legislative affairs adviser.

Compare that to eight years ago when Gov. Mitch Daniels came in and plucked many of his key advisers and agency heads from the private sector.

His appointments started with Chuck Schalliol as budget director. He left his position as president and chief executive officer of BioCrossroads to serve. Prior to that he spent years as an executive at Eli Lilly.

Next came chief of staff Harry Gonso, an attorney. Then Debra Minott as head of the State Personnel Department. She previously spent 11 years at Eli Lilly and was a high-ranking officer at Guidant Corp. when hired. And then there was Joel Silverman as Bureau of Motor Vehicles commissioner. He formerly headed a sporting goods chain.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Government

Ind. Courts - "Refusing blood test order gets DWI suspect 90 days"

Rebecca S. Green reported in the Saturday Fort Wayne Journal Gazette:

FORT WAYNE – James Osenkowski Jr. will be spending the holidays in the Allen County Jail.

On Thursday, he was sentenced to 90 days in jail by Allen Superior Court Judge Wendy Davis for refusing a court order to have his blood drawn after he was arrested for operating a motor vehicle while intoxicated.

He is the first to be so charged under Allen County’s new policy dealing with those who refuse to submit to certified chemical breath tests and blood draws.

In September, Allen County Prosecutor Karen Richards announced a shift in how her office will handle drunken-driving arrests and suspects who refuse to submit to a certified breathalyzer test at the jail.

Now her office obtains a search warrant from a judge forcing the driver to stick an arm out and get a blood test.

While Indiana law requires anyone who refuses chemical breath tests to have his or her driver’s license suspended for a year, the refusals left prosecutors with little or no evidence to effectively prosecute the case. * * *

When he appeared in court Thursday morning for a hearing on a charge of indirect contempt, Osenkowski was subdued and remorseful, apologizing profusely to the judge for refusing her order on Nov. 18.

Davis said his remorse kept him from getting a sentence of 180 days on the indirect contempt charge.

Indirect contempt involves obstructing court process or refusing a judge’s order outside the presence of the judge. Direct contempt involves misbehavior within the courtroom or in front of the judge.

The warrants give the prosecutors the ability to force a suspected drunken driver to comply with a blood draw, but McAlexander said they do not want to see anyone get hurt.

So the judges are holding those, starting with Osenkowski, in indirect contempt. Prosecutors originally asked for a sentence of 180 days in jail for Osenkowski. Davis declined, citing his obvious remorse.

Since the policy change, prosecutors have had to seek fewer than 20 warrants for the blood draws. McAlexander said that the arrested person usually complies when the consequences are spelled out for them.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Courts