Monday, January 14, 2013
Ind. Gov't. - More on: Here are Gov. Pence's first 15 executive orders
Updating this entry from late this afternoon, I just saw this tweet:
No executive order to reauthorize IEDC or Inspector General? Mitch Daniels Executive Orders Now Void.The writer, however, gives no authority for the statement.
A number of the 15 Executive Orders issued by Gov. Pence this afternoon are titled "Continuing the ...", as in "Continuing the Office of Faith Based and Community Initiatives and the Indiana Commission on Community Service and Volunteerism."
One is titled "Rescinding Executive Order 11-07." It provides in part:
WHEREAS, the intent of this Order is to reinstate the Indiana Education Employment Relations Board's obligation to report directly to the Governor, which existed from the formation of the Indiana Education Employment Relations Board until Governor Mitchell E. Daniels, Jr. issued Executive Order 11-07 * * * Executive Order 11-07 is rescinded and shall have no effect.It appears that Gov. Pence is reaffirming some Daniels' orders, and rescinding others, being careful to make his intentions clear.
I examined the question of "Does a governor’s executive order continue in effect when his term is over?" in this 2006 column ("Executive Orders, Signing Statements, and Veto Messages, Part Two," 49 Res Gestae 9 (May 2006), pp. 39-41.) My conclusion:
That an Indiana governor’s executive orders continue to be effective after the governor has left office may be implied from the practices of recent Indiana governors. Governor Daniels’ executive orders issued shortly after he took office in January 2005 show the use of phrases such as “is hereby superseded,” “continuing the office,” “rescinded and declared null and void,” “which continues in effect, is hereby amended to be consistent herewith.” This language supports the continuation of executive orders after the term of office.
Ind. Gov't. - Here are Gov. Pence's first 15 executive orders
Gov. Pence's first 15 executive orders.
The ILB has OCRed EO 13-3, which orders a moratorium on regulations. Access it here.
Ind. Decisions - Supreme Court issues five disciplinary rulings
The Supreme Court has posted five new attorney disciplinary decisions, all filed Jan. 10th:
- In the Matter of William E. Dittrich
- In the Matter of Thomas N. Nuttle
- In the Matter of Jon A. Criss - This is an interim suspension "due to Respondent being found guilty of a crime punishable as a felony." See July 26, 2012 story re arrest.
- In the Matter of Olubunmi O. Okanlami
- In the Matter of Diamond Z. Hirschauer
Ind. Decisions - Transfer list for week ending January 11, 2013
[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, January 11, 2013. It is two pages (and 18 cases) long.
Five transfers were granted last week:
- F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually v. Indiana Department of Family Services, Vanderburgh County Office of Family and Social Services, Evansville Police Department, and Vanderburgh County Prosecutor's Office - this 27-page, 3-opinion decision from Aug. 30, 2012, with 2 of the opinions dissenting "in part" concerns Indiana's child abuse reporting statutes and duties of the DCS.
- K.W. v. State of Indiana - see this post from Jan. 11
- Courtney L. Schwartz v. Jodi S. Heeter - a June 26, 2012 2-1 opinion re child support with a Sept. 13th opinion on rehearing.
- Kirk B. Lynch v. State of Indiana - This is a Nov. 2, 2012 2-1 NFP COA opinion involving a sentencing revision. (See also Merida)
- Calvin W. Merida v. State of Indiana - This was an Oct. 23, 2012, 2-1 COA opinion involving a sentence revision. See also this Dec. 9th, 2012 IndyStar story and a chart by Prof. Schumm.
Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (0):
Courts - Kentucky Court decides dram shop case, holds club not liable
Jim Hannah wrote this story which appears in several Gannett papers. It begins:
A Kentucky Supreme Court opinion that the Fort Mitchell County Club cannot be held liable for serving a golf cart driver alcohol may make it harder to hold establishments liable for their patrons’ actions.The decision is Fort Mitchell Country Club v. LaMarre. Here is Julie Byrne and D. Christopher Robinson's Jan. 2nd article in Lexology. It begins:
It is the first time the court has ruled this type of claim cannot proceed unless there is affirmative evidence the server knew the patron was intoxicated, said Louisville lawyer Jeremiah A. Byrne, who wrote a legal analysis of the opinion issued on Dec. 20.
The Kentucky Supreme Court issued a significant opinion on December 20, 2012 that will affect restaurants, bars, country clubs, and other establishments that sell and serve alcohol. In Fort Mitchell Country Club v. LaMarre, 2011-SC-000665-DG, the Supreme Court rejected a personal injury claim by a country club patron after he was seriously injured on a golf cart driven by another member of his dinner party.
Courts - Justice Sonia Sotomayor and her new autobiography
Featured last evening on 60 Minutes:
In her first broadcast interview, Sotomayor talks about her life and career leading up to her appointment to the U.S. Supreme Court, including the role affirmative action played. Scott Pelley reports.Nina Totenberg of NPR begins this morning with what I believe are a week-long series of interviews with the Justice.
Here is the book, via Amazon. It will be released tomorrow. I pre-ordered mine last month.
Ind. Gov't. - "Crown Point officials approve '13 pacts with city attorneys"
CROWN POINT | Dollar amounts went unchanged from 2012 agreements with city attorneys David Nicholls, Alex Kutanovski, Mark Gruenhagen and Joseph Irak, under terms of the 2013 contracts approved by the Crown Point Board of Public Works and Safety.
Nicholls, the city attorney, is to be paid an annual retainer fee of $72,333, paid in monthly installments, as well as an hourly rate not to exceed $150 an hour for non-routine legal services such as litigation, issuing municipal bonds and special public works projects, under terms of the contract.
Kutanovski is to paid an annual retainer of $30,000, paid over 12 months. Irak and Gruenhagen each is to be paid $10,049 annually, over 12 months.
Kutanovski, Irak and Gruenhagen, all assistant city attorneys, each is to be paid an hourly fee not to exceed $125 an hour for nonroutine legal services, under terms of the contract.
Ind. Courts - "End-of-life case splits family"
Yesterday and today Tim Evans of the Indianapolis Star has featured an end-of-life battle involving Paul G. Smith of Carmel, a retired attorney and former Hamilton County court magistrate. He is hospitalized at St. Vincent's.
Here is yesterday's lengthy story. A few quotes:
[T]he responses and requests uttered by the gravely ill Smith from his bed at St. Vincent Hospital carry little weight.Today's story is headed "Daughter seeks hearing in Carmel attorney's end-of-life directives." It begins:
That's because hospital officials are following directives in a living will Smith signed nearly a decade ago. It restricts actions medical providers can take to keep him alive and hands decisions about artificially supplied nutrients and fluids to another daughter, Judith Sly.
Last week, doctors removed Smith from the ventilator that helped ease his labored breathing, apparently acting in accordance with the living will and Sly. Hospital staff occasionally moisten Smith's lips with a damp sponge, but a feeding tube that once provided nourishment also was disconnected.
Those moves infuriate [his daughter Susan] Rissman, exacerbating a long-standing family divide that has only deepened since Smith, whose condition deteriorated rapidly, was hospitalized in December with dehydration.
Even though Smith's attorney tried unsuccessfully in November to name Rissman her father's legal guardian, Sly has authority over his care and legal affairs. And her decisions, according to court records, appear to be backed by another sister and a brother.
Rissman has been her father's primary caregiver for the past several years and is against stopping an active treatment regimen for him. She thinks any decision should be left up to Smith because he is able to talk and answer questions.
It is a sad and controversial end for the retired attorney and former Hamilton County court magistrate who is at the middle of a family's fight over control of his care and, ultimately, a significant estate that includes investments and a home in Carmel valued at $241,000.
But the saga underscores broader issues: The importance of keeping health care plans up-to-date, medical ethics and the gut-wrenching dynamics of end-of-life decisions.
A fight over the medical treatment of a gravely ill 88-year-old man at St. Vincent Indianapolis Hospital was expected to land back in court today, according to a Hamilton County attorney who said he plans to ask a judge to review the condition and care of Paul G. Smith.The Star also provides links to four documents:
Tim Stoesz said he would file an emergency request in Hamilton Superior Court this morning on behalf of Smith's daughter, Susan Rissman, in an effort to learn why hospital staff are following a living will's end-of-life directives cutting off artificially supplied nutrients and fluids to the Carmel man. Smith is conscious and aware, Stoesz said, and the attorney said he believes Smith wants to control his care, rather than have decisions be made by another daughter who has power-of-attorney rights over him.
- Court document: Guardianship order
- Court document: Report of Guardian Ad Litem
- Court document: Agreed order appointing guardianship
- Living will declaration of Paul G. Smith
Ind. Law - Tuesday, Jan. 22 at 4 pm, Legislative Panel at IU Law School, CLE available
Here is the info:
January 22, 2013
Phi Alpha Delta Event
Phi Alpha Delta Legislative Panel
Time: 4-6 pm
Location: Wynne Courtroom and Atrium, Inlow Hall, 530 W. New York Street, Indianapolis, IN
Contact: Erin Radefeld at email@example.com
Phi Alpha Delta Law Fraternity and Black Law Students Association are hosting a Legislative Panel on January 22 featuring prominent members of the political process discussing the legal issues that the Indiana legislature will address this year.
CLE applications available for submission.
Phi Alpha Delta is a legal fraternity and began hosting this event in January 2012. This year the Black Law Students Association at the IU Robert H. McKinney School of Law is co-hosting. The Office of Professional Development is a sponsor of the event.
- Moderator: Amos Brown
- Senate Republican: Luke Kenley
- Senate Democrat: John Broden
- House Republican: Brian Bosma, ‘84
- House Democrat: Cherrish Pryor
- Superintendent of Public Instruction: Glenda Ritz
The event will begin at 4:00 p.m. with a reception in the atrium of the law school, which will give the audience an opportunity to talk with the members of the panel. The panel will begin promptly at 5:00 p.m. and promises to be an informative session in which the panelists will discuss what issues will be important during the upcoming legislative session. An RSVP is not necessary, but is appreciated.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, January 13, 2013:
- Ind. Decisions - Still more on "Contraception Mandate Faces Justice Sotomayor and Seventh Circuit"
- Ind. Law - Bills of interest to the judiciary heard in committee during Week 1 of the General Assembly
From Saturday, January 12, 2013:
- Ind. Courts - "If drivers refuse a breath test, we’re drawing your blood. And if you refuse that, we’re going to get a warrant. And if you refuse that you’re going to jail."
From late Friday afternoon, September 21, 2012:
- Ind. Decisions - "US-born Taliban fighter John Walker Lindh wins prison prayer lawsuit"
- Ind. Gov't. - Who speaks for Indiana at the federal level?
- Ind. Courts - Marion Superior Court Judicial Vacancy
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (1/14/13):
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.
Next week's oral arguments before the Supreme Court (week of (1/21/13):
Tuesday, January 22nd
- 11:00 AM - Girl Scouts of So. Illinois, et al. v. Vincennes Ind. Girls (42S00-1210-PL-597) - In 1965, the National Girl Scouts underwent reorganization, and as a result, the appellee, Vincennes Indiana Girls (“VIG”) was required to convey some ten acres of land known as Camp Wildwood to an Illinois scout council, the appellant, Girl Scouts of Southern Illinois (“GSSI”). The deed specified that ownership of the camp would revert to VIG if that camp was not used as a scouting facility for a period of 49 years. The deed also specified that if VIG’s corporate existence was terminated, the reversion right would automatically terminate; VIG was administratively dissolved for a time because an annual fee had not been paid to the Secretary of State. By 2009, GSSI had stopped using the land as a scout camp and had notified VIG that it intended to sell the camp. VIG filed a quiet title action, asserting that title to Camp Wildwood had reverted to VIG. IC 32-30-3-14 provides that “a possibility of reverter…concerning real property is invalid after thirty (30) years from the date [it] is created….” The Knox Circuit Court granted summary judgment for VIG, deciding that IC 32-30-3-14 was unconstitutional as applied, that VIG did not lose its right to the camp when it was administratively dissolved, and that VIG owns the fee simple title to Camp Wildwood. This is a direct appeal.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/14/13):
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]
- No arguments currently scheduled.
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.