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Monday, January 21, 2013

Ind. Courts - More on "Blogger Jailed; Allegedly Threatened Dearborn Judge"

Updating this ILB entry from April 28, 2011, the COA on Jan. 17th, in a 44-page opinion, Daniel Brewington v. State of Indiana, ruled on an appeal of Mr. Brewington's conviction.

Today EagleCounty 99.3 has a report on the opinion, in a story headed "Jailed Blogger Wins Part of Appeal, Still Serving 5 Years." Some quotes:

(Lawrenceburg, Ind.) - An Internet blogger convicted of intimidating a Dearborn County judge has seen part of his conviction overturned, but it won’t affect his time behind bars.

Dan Brewington took to the Internet to voice his displeasure with how Dearborn Circuit Court Judge James D. Humphrey handled his 2008 divorce and child custody case. He also partly blamed court appointed custody evaluator Dr. Edward Connor in the events chronicled at his Blogger site and www.DanHelpsKids.com.

Brewington was eventually charged and arrested for some of the jabs he wrote. During a 2011 jury trial presided over by Judge Brian Hill from Rush County, the Cincinnati Ohio resident was convicted of Intimidation of a Judge, Attempt to Commit Obstruction of Justice, Perjury, and two lesser counts of Intimidation. Dearborn-Ohio County Prosecutor Aaron Negangard had convinced jurors that Brewington’s criticism went beyond political speech and crossed the line to “fighting words.”

Following the conviction, Brewington appealed his conviction to the Indiana Court of Appeals, arguing five points: the court allegedly abused its discretion by impaneling an anonymous jury, that Hill erred by admitting a custody evaluation and a divorce decree into evidence, the intimidation and obstruction of justice convictions were double jeopardy, whether the evidence was sufficient for convictions, and that the court’s final jury instructions were erroneous.

Oral arguments were held last November. On Thursday, January 17, the Court of Appeals issued a ruling vacating Brewington’s convictions for the two lesser intimidation charges. Those related to Judge Humphrey’s wife, Heidi, and Dr. Connor. The Connor intimidation conviction violated the double jeopardy rule, Judge Carr L. Darden wrote in the decision. * * *

With the help of his family, Brewington has continued to blog from prison. He has entries on his blog site as recent as January 6.

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Criminal code re-write would restore ‘fairness and proportionality’"

Updating this ILB entry from January 17th, here are three items on the bill, all published January 20th:

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Indiana Law

Ind. Courts - Still more on "End-of-life case splits family"

Supplementing this ILB entry from Jan. 17th, the Indianapolis Star on Jan. 18th published this op/ed from attorney/physician David Orentlicher that begins:

As readers of The Star follow the sad story of Paul G. Smith's end-of-life medical care, many must wonder what they can do to ensure that things go smoothly for them and their family members.

Despite Smith's careful planning with a living will and durable power of attorney, disagreement among his children has resulted in legal proceedings to sort out his wishes and determine how health-care decisions will be made in what appear to be his final days.

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Indiana Courts

Ind. Decisions - More on: Right to work law decisions in ND Ind. and 7th Circuit

Updating this ILB entry from Friday re the 7th Circuit's 2-1 opinion in Wisconsin Ed. Ass'n. v. Walker, here is a long AP story on the ruling from the Jan. 18th Washington Post. A few quotes:

MADISON, Wis. — A federal appeals court on Friday upheld Wisconsin Gov. Scott Walker’s contentious law stripping most public workers of nearly all of their collective bargaining rights in a decision hailed by Republicans but not undoing a state court ruling keeping much of the law from being in effect. * * *

The decision, however, does not resolve a flurry of other lawsuits that have been filed over the law.

The most positive ruling for unions came in September when a state circuit court judge said the law was unconstitutional as applied to school and local government workers. That ruling is under appeal to the state appeals court.

While Friday’s 2-1 ruling by a panel of the 7th Circuit could influence the state appeals court and others hearing the cases, it’s not binding, said Paul Secunda, a Marquette University law professor. It certainly doesn’t signal the end of the legal fights, he said, and it could be appealed to the full federal appeals court and the U.S. Supreme Court.

“The public unions will fight until every one of their arguments are considered in full,” Secunda predicted.

Additionally, the ILB has received this comment from a union attorney re the decision:
Glad you reported on this decision yesterday, which has implications for the anti-union agenda of the Indiana Republican Party in the General Assembly. I'm especially looking forward to reading Judge Hamilton's dissent, which appears to be very solidly reasoned and grounded in First Amendment law. Since it's nearly certain en banc review will be sought by the union parties, it may be worth pointing out that one of the judges in the majority, Judge Bauer, is senior status and would not have a vote if the case is heard en banc. Thus, among the 10 active judges the split was 1-1. This is a case to watch as it continues to work its way through the appellate process.

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Ind. (7th Cir.) Decisions

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

Updating this ILB entry from Jan. 15th, Eric Bradner of the Evansville Courier & Press had this long story this weekend, headed "Official with Rockport coal-to-gas plant says contract changes would kill the deal: Lawmakers questioning wisdom of 30-year deal to buy plant's gas at fixed price." Some quotes:

INDIANAPOLIS — State lawmakers’ attempts to rework the deal Indiana struck with developers of the proposed Rockport coal-to-gas plant would kill the nearly $3 billion project, one of its top officials said Friday.

As a shale gas boom drives down natural gas prices, two Republican lawmakers say they question the wisdom of the Indiana Finance Authority’s 30-year contract to buy and then resell the plant’s synthetic gas at a fixed rate.

Both have filed bills that would drastically alter its terms. The bills would trigger the ratepayer protection mechanisms included in the contract every three years, rather than waiting until the end of the deal.

That would stop the plant in its tracks, said Mark Lubbers, a former Gov. Mitch Daniels aide who is helming the Rockport effort for Leucadia National Corp.

“Any ‘true-up’ of savings before the end of the contract term makes the project unfinanceable,” he said.

The House and Senate utility committees could consider the two measures at a rare joint meeting, the chairmen of those committees told the Courier & Press on Friday. * * *

Lubbers meanwhile doubled down on what he said is a rock-solid deal for Hoosier gas customers over the long term, saying Indiana needs a second plant — this one in Lake County — that would convert petroleum coke, rather than coal.

“Two plants would provide better consumer protection and keep even more Hoosier energy spending in Indiana,” Lubbers said. * * *

That deal, signed by Gov. Mitch Daniels, set a rate of between $6 and $7 per MMBtu for the life of the contract. It would have utilities tie 17 percent of ratepayers’ bills to that Rockport price, rather than their open market rate.

It appeared to be a steal when natural gas prices topped $13 per unit as recently as 2008. Since then, though, a nationwide shale gas boom has sent prices plummeting to near $3 per unit now.

And now that Daniels is gone, some lawmakers are looking for ways out of the deal.

“The market has changed, conditions have changed, and so we need to take a fresh look at this situation and there needs to be some changes that will protect the ratepayer,” said Rep. Suzanne Crouch, R-Evansville.

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Indiana Law

Ind. Courts - Appeals Court Judge Elaine Brown featured

With the naming of Judge Pyle, Judge Elaine Brown is no longer the newest member of the Indiana Court of Appeals. Tyler D. Helmond, Voyles Zahn & Paul, authored this interview, posted by the Indianapolis Bar Association. A sample:

Q: Speaking of art, what are your feelings on including (relevant) diagrams and pictures in appellate briefs?

A: I think that any demonstrative figure that helps to make a point clearer or more vivid should be used. I’ve seen Justice Breyer use a diagram in one of his concurring opinions, Judge Posner uses them in his opinions, and they have been used to illustrate points in a few of our appellate opinions. As long as they are accurate depictions, I find them helpful.

Posted by Marcia Oddi on Monday, January 21, 2013
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (1/21/13):

Tuesday, January 22nd

Next week's oral arguments before the Supreme Court (week of (1/28/13):

Thursday, January 31st

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 1/21/13):

Next week's oral arguments before the Court of Appeals (week of 1/28/13):

Wednesday, January 30th

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, January 21, 2013
Posted to Upcoming Oral Arguments