Monday, January 07, 2013
Courts - "Michigan Supreme Court Justice Hathaway to retire amid scandal"
This ILB post January 3rd quoted a report in the Detroit Free Press that:
Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state's top court, much of that time in the minority responding to opinions set by the conservative majority. * * *It's not Tuesday yet, but this afternoon we learn, per this story by Paul Eagan in the Free Press, that:
Kelly, 74, is not hanging up her black robe by choice. The state Constitution bars judicial candidates over the age of 70 from running for office. * * *
University of Michigan law professor Bridget McCormack, who was endorsed by Democrats, won a seat in the Nov. 6 election and will replace Kelly on Tuesday.
Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged “blatant and brazen violations” of judicial conduct rules the commission said were “unprecedented in Michigan judicial disciplinary history.” * * *
Hathaway’s pending retirement means Gov. Rick Snyder will be able to name her replacement, increasing the GOP majority on the court to 5-2 from 4-3. * * *
The Hathaway scandal is the biggest controversy to rock the state’s highest court since 1975, when former Michigan Supreme Court Justice John Swainson was indicted by a federal grand jury and later convicted of perjury.
Courts "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"
That is the issue in the case of Missouri v. McNeely; the oral argument before the SCOTUS is this Wednesday at 10:00. Lyle Denniston of SCOTUSBlog has just posted a lengthy argument preview.
Ind. Courts - Even more on: "ACLU of Indiana Challenges Marion County Judicial Election System"
Updating this ILB entry from Dec. 29th, re Common Cause Indiana v. Indiana Secretary of State, which included links to the complaint and the motion to dismiss, an amended complaint was filed Jan. 3rd, expanding the suit to include the State Election Commission and the Governor.
Ind. Law - "Rep. Turner urges Indiana House to vote on gay marriage amendment"
Eric Bradner of the Evansville Courier & Press takes a comprehensive look this afternoon at the status of the pending constitutional amendment prohibiting same-sex marriage and similar arrangements.
Ind. Decisions - Transfer list for week ending Jan. 4, 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, Jan. 4, 2012. It is one page (and 26 cases) long.
Four transfers were granted last week:
- Veolia Water Indianapolis LLC, City of Indianapolis Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse - From the Aug. 3, 2012 opinion: "We conclude that both the City and Veolia are entitled to common law immunity, because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. We further conclude that the explicit language of the City's contract with Veolia disavows any intent to create third-party beneficiaries. Therefore, we reverse."
- Andrew McWhorter v. State of Indiana - From the July 12, 2012 opinion: "Conclusion. McWhorter has established that he was denied the effective assistance of trial counsel. Accordingly, we reverse the denial of post-conviction relief. McWhorter may be retried on the charge of Reckless Homicide."
- Ronald G. Becker v. State of Indiana - This was a June 14, 2012 NFP opinion where the issue was "whether he, by operation of law, is a SVP and thus required to comply with statutory requirements applicable to a SVP." The COA afffirmed.
- Kevin Clark v. State of Indiana - This is an Oct. 31, 2012 COA opinion where the court concluded:
The trial court did not abuse its discretion in admitting the evidence gleaned from the search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its discretion when it allowed Trooper Shortt to testify over Clark’s objection because her testimony was opinion testimony of a lay witness based on her experience, and not expert testimony. Accordingly, we affirm.
Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
Term. of the Parent-Child Rel. of: C.A. & Z.A. (Minor Children), and H.A. (Father) v. The Indiana Dept. of Child Services (NFP) - "DCS established by clear and convincing evidence the requisite elements to support the termination of parental rights."
NFP criminal opinions today (0):
Courts - SCOTUS To Hear Gay-Marriage Cases March 26-27
Ind. Gov't. - Profiles of Speaker Bosma, Governor-elect Pence
"With new power, House Speaker Brian Bosma's challenge is to channel it," a long profile in today's Indianapolis Star, written by Chris Sikich.
"Mike Pence - How the governor-elect found his conservative voice and a strategy for winning the race: keep it quiet." A 5,000-word profile by Craig Fehrman for Indianapolis Monthly.
Ind. Decisions - "Durham won't have to pay to appeal $200M fraud conviction"
From the Indianapolis Star:
A federal judge says a former Indiana financier doesn't have to pay to appeal his conviction for swindling investors out of more than $200 million.
U.S. District Judge Jane Magnus-Stinson issued an order Thursday granting Timothy Durham's request to proceed with his case as an indigent.
Durham said last month that he had no money to file an appeal with the 7th U.S. Circuit of Appeals in Chicago because his multimillion-dollar home is in foreclosure and his financial assets are tied up in bankruptcy proceedings of the companies he used to control.
Courts - "Fight over mandatory retirement for PA judges moves to federal court"
Ind. Gov't. - "Changes coming for Porter gun permit applicants"
Phil Wieland reports in the NWI Times:
VALPARAISO | Beginning next Monday, the Porter County Sheriff's Department will no longer do fingerprinting for gun permits.
Residents of unincorporated Porter County must go to L-1 Identity Solutions at any of its area locations, including 2323 Willowcreek Road, Portage, to have their fingerprints taken and sent electronically to the state for approval. Residents must first fill out the permit application online with the state.
After filling out the application, residents have 30 days to schedule an appointment with L-1 online. No walk-ins are allowed, and L-1 charges $9.95 for the service and collects the state's application fee for the type of permit being sought.
Applicants also must go to the sheriff's department between 8:30 a.m. and 3:30 p.m. weekdays, except holidays, with a money order payable to the Porter County Sheriff's Department (no cash, checks or credit cards accepted) for the local fee and to sign the application.
Residents should bring their Indiana's driver's license or a photo ID showing their current address, along with their current gun permit, if applicable. * * *
Residents of the incorporated areas of Valparaiso, Portage, Chesterton, Porter, Hebron, Ogden Dunes, Burns Harbor or Beverly Shores must contact their city or town police departments for gun permit instructions.
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, January 6, 2013:
- Law - More on: "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"
- Ind. Courts - Indiana attorneys plead guilty ...
- Law - " Laws are needed to remove the [Codis] databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers"
- Ind. Courts - "Indy woman's suicide attempt, baby's death spark national cause"
- Law - "Pa. home sellers can keep murders, suicides secret" But what about Indiana?
- Ind. courts - "Judge Alevizos tells bank robbery suspect he's to blame for his heroin addiction"
- Ind. Courts - Two significant trial court school rulings in December
From Saturday, January 5, 2013:
From Friday afternoon, January 4, 2013:
- Ind. Courts - "Skadden attorneys may face sanctions for failing to cite Wigod in TPP case"
- Ind. Courts - More on: Judicial Qualifications Commission Files Misconduct Charges Against St. Joseph Probate Court Judge Peter J. Nemeth
- Ind. Courts - More reactions from attorneys on the Court's 3-phase pilot project
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (1/7/13):
Thursday, January 10th
- 9:00 AM - K.W. v. State of Indiana (49A02-1201-JV-9) - Based on an in-school encounter with a police officer serving as a school liaison officer, K.W. was adjudicated delinquent for an act that would be resisting law enforcement if committed by an adult. The Court of Appeals reversed, holding the officer was not engaged in the execution of the officer’s duties as a law enforcement officer at the time of the encounter. K.W. v. State 976 N.E.2d 61 (Ind. Ct. App. Aug. 28, 2012), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
- 9:45 AM - Brad W. Passwater v. State of Indiana (48S05-1210-PC-583) - A jury instruction on the insanity defense, given without objection at Passwater’s 2004 murder trial, stated in part that the defendant could be committed to a facility for a period of “not more than ninety (90) days.” The jury found Passwater guilty but mentally ill and he was sentenced to fifty-five years. The Madison Circuit Court later denied post-conviction relief with respect to the instruction. The Court of Appeals affirmed, citing Georgopolus v. State, 735 N.E.2d 1138 (Ind. 2000), in a memorandum decision, Passwater v. State, No. 48A05-1201-PC-17, slip op. (Ind. Ct. App., Jul. 25, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 10-page, July 25, 2012 NFP COA opinion involving PCR, concluding: "Indeed, it would seem that his defense counsel chose a sound strategy in requesting the instruction given the apparent misunderstanding of the consequences expressed by a juror during voir dire. Passwater has not shown any deficient performance by his defense counsel, and, therefore, his claim of ineffective assistance of counsel is unavailing."
- 10:30 AM - Dennis Jack Horner v. Marcia (Horner) Carter (34S02-1210-DR-582) - Following a hearing on post-dissolution matters, the trial court held among other things that a provision of the parties’ mediated settlement agreement requiring monthly housing payments was in the nature of a property settlement, as opposed to maintenance. In affirming, the Court of Appeals held in part that the trial court erred in excluding evidence of communications made during mediation, which had been offered to prove that a mistake occurred in drafting the agreement, but held further that the exclusion of this evidence was harmless. Horner v. Carter, 969 N.E.2d 111 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 12-page, June 13, 2012 COA opinion:
Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence—specifically, communications that occurred during mediation—to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.
Thursday, January 17th
- 9:00 AM - City of Indianapolis v. Rachael Buschman (49S02-1210-CT-598) - After Rachel Buschman was in an accident with an Indianapolis police officer, she submitted a tort claim notice to the City stating there was damage to her car and "No injures." Buschman later filed a personal injury complaint. On the issue whether Buschman's tort claim notice met the requirements of the Tort Claims Act, the Marion Superior Court entered summary judgment for Bushman. The Court of Appeals reversed and remanded. City of Indianapolis v. Bushman, 970 N.E.2d 757 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 26, 2012 opinion.
- 9:45 AM - Thomas Pine v. Stirling Clinic, Inc., et al. (49A02-1105-CR-382) - After Helen Pine's death, Plaintiffs filed a complaint alleging the Defendants failed to diagnose Helen's cancer timely and thereby increased her risk of harm. The Marion Superior Court granted all Defendants summary judgment. The Court of Appeals affirmed on grounds including that no expert "could give an opinion on [Helen's] percentage chance of survival" before the alleged failure to diagnose, and Plaintiffs therefore "failed to produce quantitative evidence of the risk of harm[.]" Pine v. Stirling Clinic, Inc, No. 49A02-1105-CT-382, slip op. at 14 (Ind. Ct. App. Feb. 29, 2012), trans. pending. Plaintiffs have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: Transfer has not yet been granted. This is a Feb. 29, 2012 NFP opinion.
- 10:30 AM - Ohio Farmers Ins. Co., et al. v. Indiana Drywall & Acoustics, Inc. (49S02-1210-CC-599) - Subcontractor Indiana Drywall sued general contractor S.C. Nestel for breach of contract and fraud, and sued surety Ohio Farmers for recovery under a payment bond. Defendants’ motions for summary judgment and judgment on the evidence were denied, and a jury eventually found in favor of Indiana Drywall and against both defendants. The Court of Appeals affirmed the judgment against S.C. Nestel but reversed the judgment against Ohio Farmers, holding among other things that a one-year limitation period in the surety bond barred Indiana Drywall from recovery under the bond. Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a May 22, 2012 COA opinion (initally NFP, reclassified on 7/6/12) where appellant's petition to transfer was denied and appellee's was granted by the Supreme Court.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/7/13):
Wednesday, January 9th
- 11:00 AM - Virginia E. Alldredge, et al, v. The Good Samaritan Home (82A01-1206-CT-249) Nearly three years after being told that Venita Hargis died from complications of a fall at a nursing home owned and operated by appellee-defendant, The Good Samaritan Home, Inc. (“Good Samaritan”), appellants-plaintiffs Virginia E. Alldredge and Julia A Luker learned that Hargis’s death had actually resulted from another patient attacking her. Twenty-three months later, Alldredge and Luker, as co-personal representatives of Hargis’s estate, filed an action against Good Samaritan under Indiana’s Wrongful Death Statute, Indiana Code section 34-23-1-1. Treating Good Samaritan’s motion to dismiss as a motion for summary judgment, the trial court found that Good Samaritan’s fraudulent concealment had equitably tolled the time by which the complaint needed to be filed, but that the action was nonetheless barred because Alldredge and Luker had failed to file their complaint within a reasonable time. On appeal, Alldredge and Luker argue that the two-year timeframe required by Indiana’s Wrongful Death Statute for the filing of claims is a statute of limitations, not a condition precedent, and that Indiana Code section 34-11-5-1 applies to toll the statute of limitations such that the two years begins when the fraudulent concealment is discovered. Furthermore, Alldredge and Luker argue that public policy considerations require this interpretation because the reasonable time standard used by the trial court violates equal protection. The Scheduled Panel Members are: Judges Baker, Riley and Barnes. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Wednesday, January 16th
- 1:30 PM - Christina Kovats vs. State of Indiana (15A01-1205-CR-224) Christina M. Kovats was a home healthcare nurse hired to look after eighty-nine-year-old N.C., who had recently suffered from a stroke. On the evening of October 28, 2011, Kovats was driving N.C. home from a weekly social event N.C. liked to attend when she stopped to fuel her car. Kovats then drove off from the gas station without paying for gasoline, and subsequently fled from an Indiana State Police Trooper who tried to stop her for her theft of the gasoline. After reaching speeds exceeding 100 miles per hour, Kovats lost control of her car. N.C. was seriously injured in the wreck, had to be cut from the car, suffered severe pain, and died six weeks later. At the time of the incident, Kovats tested positive for oxymorphone, a drug more potent than morphine or heroin. The State charged Kovats with Class B felony neglect of a dependent, Class D felony operating a vehicle while intoxicated, Class D felony resisting law enforcement, and Class D felony criminal recklessness. Following a four-day jury trial, Kovats was found guilty as charged. The trial court entered judgment of conviction on the jury verdicts, but at the sentencing hearing “merged” the Class D felony convictions into the conviction for Class B felony neglect of a dependent and sentenced Kovats to twenty years of incarceration on the Class B felony only. On appeal, Kovats claims that: (1) the trial court abused its discretion by considering as an aggravating factor that N.C. died six weeks after she sustained her injuries, (2) her twenty-year sentence is inappropriate in light of the nature of the offense and the character of the offender, and (3) the trial court should have vacated the judgments of conviction entered on the merged counts. The Scheduled Panel Members are: Judges Baker, Bailey and Mathias. [Where: Union County High School, 410 Patriot Blvd., Liberty, Indiana]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.