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Tuesday, January 15, 2013

Ind. Law - "Indiana legislator's bill could upset coal-gas plant plan at Rockport"

This story by Tony Cook has been posted this afternoon on the IndyStar website. A few quotes:

A Republican state lawmaker has introduced a bill that could derail a controversial plan to build a coal-gas plant in Rockport -- a project that critics say could cost natural gas ratepayers more than $1 billion in its first eight years.

Senate Bill 510, authored by Sen. Doug Eckerty, R-Yorktown, would require the state to determine whether natural gas ratepayers are receiving a savings from the deal based on three-year cycle. If not, then the plant's developers, Leucadia National Corp., would have to provide a refund. * * *

[A] fiscal impact statement from the Legislative Services Agency says the bill "could potentially void the contract because it makes retroactive changes to current statute that would modify the terms of the contract."

If passed, the retroactive nature of the bill could set off a legal fight that would pit Indiana Gasification and the Indiana Finance Authority against the state legislature.

Officials with the IFA said they are reviewing the bill and declined to comment.

Here are some earlier ILB entries on the Rockport project.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Indiana Law

Ind. Gov't. - Executive Order "ordering a moratorium on regulations" simply more of the same?

Gov. Pence's moratorium on new rulemakings, issued yesterday, provides that:

OMB shall perform a comprehensive evaluation and rigorous cost benefit analysis of existing administrative rules as adopted under Ind. Code 4-22-2 and Ind. Code 13-14-9. Agencies shall fully assist OMB in this evaluation by providing timely information and analysis when requested by OMB.
It imposes a requirement for the inclusion in certain rulemakings of:
a statement regarding the proposed rule's potential to promote private sector job growth or foster private-sector economic development
It also reiterates the need for agencies to:
follow all existing rules and procedures, including those set forth in Executive Order No. 2-89 and Financial Management Circular No. 2010-4.
The attached 8-page document compiled (quickly) by the ILB sets out statutory requirements already in the law designed to lessen the impact of state rules on Indiana businesses. These include:Environmental rulemakings are subject to the above, plus a number of additional requirements, such as:In addition, under IC 13-14-9.5 every environmental rule automatically expires after 7 years, unless specifically readopted.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Indiana Government

Law - "Savannah Dietrich case prompts Kentucky bill that would allow juvenile victims to talk"

Jason Riley of the Louisville Courier-Journal reports today in a long story that begins:

Upset over the handling of the Savannah Dietrich case, in which the juvenile and her two attackers were told by a judge not to speak about the case "for any reason,” a state representative has filed a bill that would allow juvenile crime victims to discuss what happened to them.

“I didn’t like it that the victims of crime can’t speak about their case,” Rep. Kevin Bratcher, R-Louisville, said in an interview Tuesday.

On June 26, 17-year-old Dietrich and two teens who admitted to sexually abusing her were strictly admonished by District Court Judge Dee McDonald not to discuss the case with anyone outside of juvenile court.

Bratcher’s bill, HB 115, which was introduced on Jan. 9, would allow the victim to talk not only about the incident but about what happened during the court hearings as well.

“I’m for the victims saying anything they want to,” Bratcher said. “They shouldn’t have any gag order on them, in my opinion.”

While what happenes in juvenile court is deemed confidential under state law, some juvenile justice experts said McDonald overstepped her authority in ordering Dietrich not to discuss what happened to her outside court, arguing it was a violation of her First Amendment rights.

See the ILB's earlier coverage here.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 6 today (and 7 NFP)

For publication opinions today (6):

In George Dean King v. Kay S. King, et al., a 21-page opinion, Judge Rley concludes:

Based on the foregoing, we conclude that (1) the trial court did not abuse its discretion when it approved the elimination of certain inter-company accounts receivable belonging to Crown prior to conveying Crown to George; (2) the trial court properly decided that the Receiver was not required to reimburse World for tax payments relating to inter-company accounts prior to conveying World to George; (3) the trial court did not abuse its discretion by allocating the Receiver’s legal costs to George after George’s unsuccessful prior appeal; and (4) the trial court properly released the Receiver from liability for all his actions during the pendency of the receivership.
In Amir H. Sanjari v. State of Indiana, an 11-page opinion, Judge Bradford writes:
Amir Sanjari had two children with Alison Gratzol and, when the couple divorced, Sanjari was ordered to pay child support. Sanjari failed to do this on a regular basis, and his arrearage eventually came to be almost $57,000. Sanjari was tried and convicted of two counts of Class C felony nonsupport and sentenced to two consecutive five-year sentences. On appeal, the Indiana Supreme Court reduced one of Sanjari’s convictions to a Class D felony and remanded for resentencing. The trial court sentenced Sanjari to eight years of incarceration for the Class C felony and two for the Class D felony, to be served consecutively. Sanjari again appeals.

Sanjari contends that his sentence violates prohibitions against double jeopardy, violates prohibitions against vindictive sentencing, and is inappropriately harsh. We conclude that Sanjari’s new sentence does not constitute double punishment. We also conclude that Sanjari has failed to show actual vindictiveness by the trial court and that his aggregate sentence does not entitle him a presumption of vindictiveness because it is no longer than the aggregate sentence originally imposed. Finally, in light of the severity of Sanjari’s offenses and his appalling character, we conclude that his ten-year executed sentence in not inappropriate. We affirm.

In Steven Engelking v. Amy Engelking, a 7-page opinion by Judge Pyle, the issue is:
Whether the trial court erred in determining that Father should pay child support as the parent of two children conceived through artificial insemination during his marriage to Mother. * * * Affirmed.
In Secrena D. Erwin, individually and as Mother of Sheyenne R. Jenkins, deceased v. HSBC Mortgage Services, Inc., Ian's Pointe Homeowners Association, Inc., and R&G Management Co., Inc., et al., a 14-page opinion, Judge Friedlander writes:
In the instant case, Mother has failed to designate evidence that CASI took affirmative steps to remedy the condition of the pool. She simply directs us to an ambiguous statement by CASI that the issue regarding the pool would be “taken care of”. Even if we were to take the leap with Mother and infer that this was an assurance that CASI would go onto the property and secure the pool, the fact is that CASI did not act upon this promise in any way. Thus, contrary to Mother’s assertions on appeal, her allegations amount to a claim of nonfeasance by CASI, requiring a showing of detrimental reliance or increased risk of harm. Mother makes no claim that CASI increased the risk of harm, and she directs us to no evidence that Mother, Sheyenne, or the Jenkinses detrimentally relied on CASI’s promise to another neighbor. In fact, there is no indication in the record that they were even aware of the conversation prior to the drowning. The trial court correctly determined as a matter of law that this is not a case of gratuitous assumption of duty.

The trial court properly granted summary judgment in favor of Defendants based upon lack of duty. Because we have affirmed the grant of summary judgment on this ground, we need not reach the attractive nuisance issue addressed by the parties. Judgment affirmed.

In J.R. v. State of Indiana , a 6-page opinion, Judge Kirsch writes:
J.R. appeals from his adjudication as a delinquent child for burglary, which would be a Class B felony if committed by an adult, theft, which would be a Class D felony if committed by an adult, auto theft, which would be a Class D felony if committed by an adult, and resisting law enforcement, which would be a Class A misdemeanor if committed by an adult. He raises the following restated issue: whether his adjudications for both theft and auto theft are barred due to the single larceny rule.
We affirm. * * *

The enactment of this separate statute indicated the General Assembly’s intention that auto theft be considered a completely separate offense from theft and that violations of the two statutes be considered distinct.

In John Pichon, Jr. v. American Heritage Banco, Inc., et al., a 21-page opinion, Judge Najam concludes:
While Pichon failed to raise the affirmative defense of payment in his answer, AHB included in its statement of issues for trial in the PTO the issue of “[w]hether there is an unpaid balance owing to AH[B] on the 650K Note and, if so, the amount thereof.” Appellant’s App. at 44. Accordingly, Exhibit A, which is an original of the $650K note stamped “paid,” is relevant to the issue of whether there is an unpaid balance on that note, and the trial court should have admitted it into evidence. The trial court’s exclusion of Exhibit A prejudiced Pichon to such an extent that we hold it was reversible error. We reverse the trial court’s judgment with respect to the $650K note, only, and remand for a new trial on that issue. To the extent that the remaining issues will recur on remand, we hold that: AHB has standing to sue Pichon on the $650K note; Pichon has waived the issues of illegality, accord and satisfaction, and consideration; the trial court did not err when it denied Pichon an award on his counterclaims for failure to show pecuniary loss; prejudgment interest is appropriate in this case should AHB prevail on retrial; and Pichon is entitled to a set-off in the amount of $162,000 if he is found to be liable on the $650K note on retrial. Finally, we reverse the trial court’s attorney’s fee award.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

NFP civil opinions today (5):

Designplan, Inc. and Jill D. Willey v. John R. Price and The National Bank of Indianapolis Corporation (NFP)

Norma E. Singo, et al. v. Deutsche Bank National Trust Company Americas, and Fred Shimfessel, Richard Cart, d/b/a Cart's Creative Designs and Encore Credit Corp. (NFP)

Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy and Kim Sue Muncy v. Town of Avon, Indiana (NFP)

Pamela J. Podemski v. U.S. Bank National Association as Trustee (NFP)

Term. of the Parent-Child Rel. of Tr.C., Te.C., and K.C. (Minor Children); N.C. aka N.J. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

Bin Mu v. State of Indiana (NFP)

State of Indiana v. Jason Burkett (NFP)

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Disciplinary ruling re possession of marijuana

In the Matter of: Marla E. Muse, a 4-1 ruling, was filed Jan. 11. Some quotes:

Stipulated Facts: On April 10, 2012, Respondent entered a guilty plea to one count of possession of marijuana, a class D felony. The State agreed to alternative misdemeanor sentencing. She was sentenced to 365 days, with four days served and the balance suspended. The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; and (3) Respondent executed a voluntary monitoring agreement with the Indiana Judges and Lawyers Assistance Program ("JLAP") on November 5, 2012.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on trustworthiness or fitness as a lawyer.

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 180 days, beginning February 15, 2013, with 30 days actively served and the remainder stayed subject to completion of at least two years of probation. * * *

All Justices concur, except Dickson, C.J., who believes the period of active suspension to be too lenient.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:

In this medical negligence action the plaintiff sought an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. The trial court denied the request. Concluding that the plaintiff forfeited his opportunity to conduct such a hearing we affirm the judgment of the trial court. * * *

[N]ot only did Plank fail to file a pre-trial motion challenging the cap and asserting a need for an evidentiary hearing to develop a record in this regard, but Plank also failed to make any such claim at any time prior to the jury verdict in this nearly two-week long trial. In fact when Community moved to reduce the jury award in accordance with the cap, Plank raised no objection and agreed to “prepare a proposed judgment for the court[.]” Tr. at 1353. It was not until eight days later that Plank objected to the reduction of the award and requested a hearing. This was too late. By that point Plank had forfeited any opportunity he otherwise may have been afforded to conduct an evidentiary hearing. In summary, Plank did not take the steps necessary to preserve his claim.

Conclusion. We affirm the judgment of the trial court.

Practitioners' note: On p. 8, J. Rucker cites the oral video transcript in this manner: "Oral Arg. Video Trans. at 43:31."

Here is an Oct. 27, 2011 ILB entry on the Court of Appeals opinion.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Federal judge denies Joseph Corcoran’s request for relief in his 1999 death sentence.

Rebecca S. Green of the Fort Wayne Journal Gazette has the story here. It begins:

A U.S. District Court judge won’t grant convicted murderer Joseph Corcoran’s request for relief in his 1999 death sentence.

In the 32-page order, handed down last week, U.S. District Judge Jon DeGuilio found that Corcoran failed to show that Indiana’s decisions to uphold the death penalty in his case were contrary to decisions of the U.S. Supreme Court.

Corcoran’s attorneys have said they planned to review the ruling but are already planning to appeal. The case has been pending in federal court since 2005.

“We think there are some issues still pending,” said Alan Freedman with the Midwest Center for Justice in Evanston, Ill. “We’ll see where we’re going to go from there.”

If they do so, it would mark Corcoran’s fourth time before the judges of the 7th Circuit of Appeals.

Corcoran’s case has been reviewed by the U.S. Supreme Court twice, the U.S. District Court twice and before the Indiana Supreme Court five times.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Transfer list for week ending January 11, 2013

Yesterday's transfer list post has now been completed with case descriptions.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - More on: Who speaks for Indiana at the federal level?

Updating this ILB entry from Jan.11th, Niki Kelly reports today in the Fort Wayne Journal Gazette under the heading "State official puts deputy in DC to watch the feds." Some quotes:

INDIANAPOLIS – Attorney General Greg Zoeller is sending a deputy to Washington, D.C., to monitor and review federal actions that might affect the state.

The legality of the move, though, is unclear since several bills filed this year in the Indiana General Assembly to create such a position have not yet passed.

Senate Bill 36
expands a 1905 statute that allowed for the appointment of one assistant in the nation’s capital related to claims involving swamplands and swampland indemnity.

Specifically it allows a deputy to review and monitor federal legislation, regulations and administrative actions and take any action the attorney general finds necessary to respond to or influence a proposal.

Bryan Corbin, spokesman for Zoeller, said the bills were filed out of caution and Zoeller is creating the position on an interim basis administratively until then. * * *

The bill related to the new job is being heard Wednesday in a Senate Committee.

Corbin was unaware whether any other state Attorney General has a staffer on-hand in Washington, D.C.

Also today the FWJG has published this editorial, the second of two under the heading "Unappealing Choices":
Indiana has nine elected U.S. representatives and two U.S. senators who represent Hoosiers in the nation’s capital. But that’s not enough for Zoeller, who assigned a deputy attorney general to work as a Washington lobbyist. The move seems at least partially motivated by Zoeller’s anti-federal government politics.

“Lobbyists and special interest groups live in Washington and have regular access to Congress and they often work to undercut the authority of state governments and centralize the authority of the federal government,” Zoeller said in a news release announcing the appointment of Richard Bramer to work in Washington.

The news release notes that Zoeller, at the request of Sen. Richard Lugar, prepared a report analyzing the Affordable Care Act. Part of that research was later used to help support the lawsuit Indiana and 25 other states filed in a failed attempt to block the health care law. While Zoeller uses the example as a reason to have a Washington lobbyist, it instead proves that Indiana can challenge the actions of Congress without having an attorney general’s lobbyist in Washington.

And don’t 11 elected members of Congress already represent Indiana?

After being elected in 2006, Ohio’s attorney general was the first to send a lobbyist to Washington.

But the job was eliminated less than two years later.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Indiana Government

Environment - "Birds at risk from growing wind power in Indiana: Indiana has avoided extensive bird kills, but lack of regulations may add to risk"

That is the headline to this front-page story by Bill McCleery in the Jan. 13, 2013 Indianapolis Star. The story begins:

Indiana is home to one of the world's single largest concentrations of wind turbines.

But all of those giant rotors -- about 700 standing among the corn and soybeans along I-65 in Benton County -- do more than harness energy from the wind.

They also can kill birds.

"During migration, birds are traveling long distances, often at night," said Brad Bumgardner, president of the Indiana Audubon Society and an interpretive naturalist with the Indiana Department of Natural Resources.

"Birds migrating at night simply don't see these spinning blades."

So far, wind farms in Indiana have avoided the extensive bird kills documented in other states, most notably Maryland and California, but Bumgardner and other local naturalists are concerned about the turbines' continuing development here and the lack of strong regulations to protect birds.

Developers face virtually no federal regulations aimed at preventing bird deaths at wind farms, said Kelly Fuller, wind campaign coordinator for the Washington, D.C.-based American Bird Conservancy.

Posted by Marcia Oddi on Tuesday, January 15, 2013
Posted to Environment