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Wednesday, January 23, 2013

Ind. Gov't. - "Superintendent contracts tricky to find on school districts' websites, despite new Indiana law"

Good story by Kara Kenney of WRTV 6, with video. A few quotes:

INDIANAPOLIS - A new law requires school districts to post superintendent contracts online, but the Call 6 Investigators had trouble finding the documents on some websites.

A new law went into effect July 1 requiring Indiana school districts to post superintendent contracts online, as well as those of any other administrator with a contract.

Lawmakers passed the legislation last session after Call 6 Investigator Kara Kenney exposed former Wayne Township Schools superintendent Terry Thompson's $1 million retirement payout.

When Indianapolis Public Schools Superintendent Eugene White announced his retirement on Jan. 15, Kenney looked for White's contract on the district's website but was unable to find the document. * * *

RTV6 had to ask for help in finding contracts on other district websites.

For example, Kenney had to contact officials with Washington Township Schools, who said the contract was available in the Human Resources section of the website.

The website reads, "The Human Resource Department is also responsible for complying with certain provisions of the Indiana code that are HR specific in nature. (IC 20-26-5)," with no link indicated.

The page makes no mention of the superintendent contract, but the link is hidden in the "(IC 20-26-6)" mention.

RTV6 asked Indiana Public Access Counselor Joe Hoage if he could find the link.

"I don't see where it would be on the website," Hoage said. "You can't tell by looking at this that it's a link. It just looks like a continuation of the paragraph."

Like the Call 6 team, Hoage did his own test of school district websites and said he had a tough time with some, including Pike Township Schools.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Indiana Government

Ind. Courts - Glitches with the Clerk of the Courts' email notification system?

A reader writes:

Have you received any complaints from attorneys about the apparently dysfunctional or non-functioning email notification system put into place a while ago by the Indiana Supreme and Appellate Courts?

Recently the COA issued an opinion in one of my cases. I received no email or other same-day notification and learned of it only by reading your blog. In the past I’d receive email notification or at least a same-day fax copy of a decision but even that is no longer being done.

In some recent instances I haven’t received notice of a court ruling for several days until it arrived in the mail. This delayed notification raises the distinct possibility that a client could initially learn of a decision through the media before counsel had received notification from the Court, especially in a high-profile case.

It sure seems as if the early notification system that was once in place is no longer operational. I wonder if you’ve heard of other attorneys having similar experiences.

From a second reader:
Yesterday I called the Clerk's office because I have a CHINS appeal going, and it showed up nowhere on the appellate docket. I tried putting in the lower court cause number - nothing. My last name yielded nothing either. And I had no appellate cause number because all that had been filed was the NOA.

So I talked to a deputy clerk, who said that for some reason I was not put on the system as the attorney. That still didn't explain why I couldn't get it to pull up with the lower court cause number, but whatever.

She asked me if I received an email notification to verify my address, and I said I had not (I have not received one of those in months). She mentioned that the system was not working properly. She then put me on the docket as the attorney of record, and I still received nothing by way of email.

More from the second reader:
I received an email notification of an Order from the COA. So it seems to be working OK now, at least for orders...

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Rat poison conclusion can't be used in Bei Bei Shuai feticide case"

Carrie Ritchie filed this story at the IndyStar site a few minutes ago. A quote:

A pathologist’s conclusion that newborn Angel Shuai died as a result of the rat poison her mother, Bei Bei Shuai, ate in a suicide attempt cannot be used in court, Marion Superior Court Judge Sheila Carlisle ruled Friday. Dr. Jolene Clouse will be able to testify only about her “observations and anatomical findings” if she’s called as a witness at Shuai’s April 22 trial, Carlisle ruled.

Clouse, who performed Angel’s autopsy, did not consider other potential causes for the brain bleeding that led to Angel’s death, Carlisle wrote in her ruling, and Clouse also didn’t provide sufficient evidence that rat poison was the cause of Angel’s January 2011 death.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: 7th Circuit decides one Indiana case today, declaring unconstitutional Ind. law prohibiting registered sex offenders from using social networking websites

Updating this ILB entry from this morning, here is the AP's Charles Wilson's story on today's ruling. Some quotes:

INDIANAPOLIS — An Indiana law that bans registered sex offenders from using Facebook and other social networking sites that can be accessed by children is unconstitutional, a federal appeals court ruled Wednesday.

The 7th U.S. Circuit of Appeals in Chicago overturned a federal judge’s decision upholding the law, saying the state was justified in trying to protect children but that the “blanket ban” went too far by restricting free speech.

The 2008 law “broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors,” the judges wrote.

“The goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm,” they said in a 20-page decision. * * *

The American Civil Liberties Union of Indiana filed the class-action suit on behalf of a man who served three years for child exploitation and other sex offenders who are restricted by the ban even though they are no longer on probation.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police. But the ACLU contended that even though the Indiana law is only intended to protect children from online sexual predators, social media websites are virtually indispensable. The group said the ban prevents sex offenders from using the websites for legitimate political, business and religious purposes. * * *

Federal judges have barred similar laws in Nebraska and Louisiana. Louisiana legislators passed a new, narrower law last year that requires sex offenders to identify themselves on Facebook and similar sites. A federal judge struck down part of Nebraska’s law last October.

Here is the Indiana ACLU's press release on today's decision.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "NCAA calls misconduct on itself for University of Miami investigation"

Amazing story, from the AP, here in the Louisville Courier Journal. It begins:

CORAL GABLES, FLA. — The NCAA has found what it calls “a very severe issue of improper conduct” committed by former members of its own enforcement program during the Miami investigation and will not deliver the long-awaited notice of allegations against the Hurricanes until an external review is completed.

NCAA President Mark Emmert announced the findings Wednesday. The sports governing body said former enforcement staff members worked with the criminal defense attorney for former Miami booster and convicted Ponzi scheme architect Nevin Shapiro “to improperly obtain information … through a bankruptcy proceeding that did not involve the NCAA.”

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to General Law Related

Ind. Courts - State of Judiciary speech at 2 today

You may watch it here. Or you may watch it later - here is the public broadcast schedule.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Indiana Courts

Ind. Law - "Retaliation for Facebook posting prompts arrest of 16-year-old girl"

Stan Maddux, NWI Times correspondent, had this report Jan. 21st that begins:

LAPORTE | Angry over offensive remarks about her on Facebook, a 16-year-old girl made a one-hour trip to LaPorte from Monticello to beat up a teenage girl responsible for the postings, LaPorte police said. * * *

Police were called back to the house 90 minutes later when the suspect allegedly told the victim during a profanity-laced telephone call that she was coming back to beat her some more.

However, with squad cars outside, the suspect did not stop but was seen in a pickup truck that drove by the house, telling the victim on a speakerphone, "I see you got the cops there," according to police.

Other officers, after given a description of the fleeing pickup truck, stopped the girl, who was a passenger in the vehicle driven by her boyfriend.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Indiana Law

Ind. Gov't. - Many agencies use outside counsel rather than Attorney General

Catching up again, some of the details in this lengthy Dec. 23rd Fort Wayne Journal Gazette story by Niki Kelly surprised me. Some quotes:

INDIANAPOLIS – The Indiana Attorney General’s Office has 144 lawyers on staff but in the past few years has approved more than 150 contracts for $39 million worth of outside legal counsel.

The hired law firms are working on a variety of litigation, such as the State Fair collapse lawsuit, defense of the school voucher program, complying with federal highway-building regulations and defending medical malpractice cases.

Chief Deputy Attorney General Gary Secrest approves the outside counsel requests from other agencies and points out they represent a small percentage of the state’s overall legal work. * * *

Cases that aren’t sent out, meaning they will be handled by the staff in the Attorney General’s Office, include defending criminal conviction appeals, professional licensing actions and standard civil rights cases.

Other matters – like writing or complying with state or federal rules and regulations; constitutional lawsuits; or out-of-state collections – often involve use of outside counsel.

The Journal Gazette requested four years worth of information regarding outside legal contracts approved by the office. A database of related documents was turned over, sometimes going back further than 2009 because of amendments to pre-existing contracts. Most of the legal contracts are negotiated using a cap for services.

Secrest said often it’s all about expertise. If his deputies don’t have skills in a certain area of law, it might be best to seek an outside attorney. Or, he noted, if a case is so large that multiple attorneys will be needed full-time, it makes sense to ship the work outside.

The Attorney General’s Office itself uses outside counsel most often – more than 40 times in recent years at a cost of almost $7 million.

The Family and Social Services Administration has called for outside help less often but has spent more – about $16 million worth of contracts.

The Indiana Department of Transportation and Indiana Department of Insurance also ranked high for outside counsel contracts.

The process is generally that the state agency sends a request to the attorney general to hire outside counsel. The request itself is not public record but the approval letter and contracts are.

Secrest said if the Attorney General’s Office handles a case under normal circumstances, the costs would come from that office’s budget. But when outside counsel is sought by an agency, then that agency has to pay for the legal services out of its budget.

“Ultimately, it’s all taxpayer dollars,” he said.

IBM litigation

The biggest case in recent years to use outside counsel was when the state sued IBM over a $1 billion contract to modernize Indiana’s welfare intake system. The state was then countersued.

The Barnes and Thornburg contract for work on that case has now topped $10 million, and the state lost the initial ruling, which is under appeal.

Michael Carter, general counsel for FSSA, said outside counsel was needed in the case because of the sheer volume of the litigation, not to mention expertise in contract law. * * *

The attorney general’s largest contract dates to 2007 and has been amended eight times since. Lewis and Wilkins was hired to handle state tort claims, and the contract now totals $3.4 million. Tort claims are lawsuits filed against the state, such as wrongful death cases stemming from highway fatalities.

The contract was originally bid out competitively but was controversial because the winning firm is made up of two former deputy attorneys general. The contracts’ size has grown each year. Both men were recently sworn as Special Deputy Attorneys General to represent the state in litigation arising from the Indiana State Fair stage collapse. * * *

Corbin noted several outside counsel contracts are expiring in 2013. Because other firms haven’t shown an interest – and the office doesn’t want to switch attorneys in the middle of the State Fair case – Lewis and Wilkins’ contract will be renegotiated.

Other Indianapolis law firms that received a large amount of outside counsel work include Faegre Baker Daniels; Ice Miller, Bingham Greenebaum Doll; and Perkins Coie. * * *

One agency you might not expect to have a lot of outside legal work is the Department of Insurance. In recent years, though, the federal health care law has required some rate analysis and other legal work.

And outside counsel also handle the Indiana Patient’s Compensation Fund, which provides medical malpractice payouts to Hoosiers.

Tina Korty, general counsel for the Department of Insurance, said the agency pays out twice a year, and each time there are about 75 claims. A maximum claim could receive more than $1 million.

She said the payout has almost doubled, which has made the cases more difficult to handle.

The agency has four in-house attorneys, but that is not enough to keep up with the demand of the fund. So they also use outside firms. * * *

Secrest said he has not approved only a few outside counsel requests – three in the database given to The Journal Gazette. And if a conflict is found with the outside firm, the state has to waive that conflict to hire.

For related posts, see this Sept. 16, 2012 ILB entry where the Attorney General was reported by the IndyStar as stating "he will reassume responsibility for Department of Child Services appellate court cases in the wake of a controversial attempt by DCS to block a newspaper from publishing information about a call to the agency’s child abuse hotline."

See also this Sept. 9, 2012 ILB entry which took a close look at the role of the Indiana attorney general.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In David Bleeke v. State of Indiana, Edwin G. Buss, Gregory Server, Randall P. Gentry, Thor R. Miller, Valerie J. Parker, William R. Harris, Mia Kelsaw, Damita VanLandingham, and Susan Feasby, a 24-page opinion involving a suit against the Indiana Parole Board, Sr. Judge Darden writes:

The following issues are dispositive:
I. Whether Bleeke waived any right to appeal the imposition of additional parole conditions when he signed a document permitting him to move to Ohio;
II. Whether the trial court erred in determining as a matter of law that provisions of Indiana Code Section 11-13-3-4(g) were not overbroad;
III. Whether the trial court erred in determining that the designated evidence supported the imposition of certain additional parole conditions prohibiting Bleeke’s association with children;
IV. Whether the trial court erred in determining as a matter of law that certain other additional parole conditions were neither overbroad nor vague; and
V. Whether the trial court erred in determining as a matter of law that the Indiana Sex Offender Management and Monitoring Program (“SOMM”), as applied to Bleeke, violates his right to due process. * * *

The upshot in this case is that the potential for revocation of parole forces Bleeke to give up his Fifth Amendment privilege or possibly return to prison. And although the five-year statute of limitation for perjury has expired, Bleeke is still subject to the possible use by law enforcement of any other incriminating statements. The SOMM program’s requirements violate the Fifth Amendment.

CONCLUSION. The trial court erred in granting summary judgment in favor of the Parole Board. Further, it erred in denying Bleeke’s motion for summary judgment. We reverse and remand with instructions that the trial court: (1) vacate its order granting summary judgment for the Parole Board and denying Bleeke’s motion for summary judgment; (2) enter an order granting Bleeke’s motion for summary judgment; (3) enter an order enjoining the Parole Board from enforcing any conditions premised on the fiction that Bleeke is a danger to minors; (4) enter an order enjoining the Parole Board from enforcing additional parole conditions 8, 15, 17, and 19 against Bleeke; and (5) enter an order enjoining the Parole Board from requiring Bleeke to incriminate himself as part of the SOMM program. Reversed and remanded.

In Fred C. Feitler, Mary Anna Feitler, and The Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, and JM Woodworking Company , a 3-page opinion on a petition for rehearing, Judge Bradford writes:
[W]e now conclude that JM was not required to issue a pre-lien notice in order to hold a mechanic’s lien, and therefore now affirm the trial court on this point. That said, we also deny Appellee J. Laurie’s rehearing petition in full and reaffirm our original opinion in all other respects.
In D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and IN. Dept. of Child Svcs., a 7-page opinion on a petition for rehearing, Chief Judge Robb writes:
Both D.L. (the “Family”) and the Department of Child Services (“DCS”) have petitioned for rehearing in our decision dated October 17, 2012. In our opinion, we held that DCS and its workers were not entitled to quasi-judicial immunity for their removal of a child from the home of relatives in whose care she had been placed and who were in the process of adopting her. D.L. v. Huck, 978 N.E.2d 429, 435 (Ind. Ct. App. 2012). We held that the workers and DCS were, however, entitled to statutory immunity under Indiana Code section 31-25-2-2.5. Id. at 436-36. We grant DCS’s petition only to clarify the purpose of rehearing, and otherwise affirm our opinion as to DCS in all other respects. We grant the Family’s petition in order to re-examine their federal civil rights claims and claims under the Indiana Tort Claims Act. * * *

Conclusion. We grant DCS’s petition for rehearing for the limited purpose of reminding counsel that relevant documents must be made a part of the record on appeal, and the record may not be supplemented on rehearing.

We grant the Family’s petition for rehearing in order to clarify our reading of Indiana Code section 31-25-2-2.5; to allow tort claims against DCS to proceed under a theory of vicarious liability, within the ITCA; and to allow federal civil rights claims to proceed.

We affirm our original opinion as to all matters not revised here.

NFP civil opinions today (3):

In the Matter of the Term. of the Parent-Child Rel. of: A.B. & P.B.; and E.B. v. The Indiana Dept. of Child Services (NFP)

Michael L. Harris v. State of Indiana, Elkhart County Sheriff's Dept. (NFP)

Nathan Abbott, State of Indiana and Indiana State Police v. Michael Mitchell and Leonard Love (NFP)

NFP criminal opinions today (5):

Robert Earl Davis v. State of Indiana (NFP)

Michael Gregg v. State of Indiana (NFP)

Joshua C. Jackson v. State of Indiana (NFP)

Dennis Knight v. State of Indiana (NFP)

Kevin Gene Rotino v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, declaring unconstitutional Ind. law prohibiting registered sex offenders from using social networking websites

In John Doe v. Prosecutor, Marion County (SD Ind., Pratt), a 20-page opinion, Judge Flaum writes:

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors. * * *

We conclude by noting that Indiana continues to possess existing tools to combat sexual predators. The penal system offers speech-restrictive alternatives to imprisonment. Regulations that do not implicate the First Amendment are reviewed only for a rational basis. The Constitution even permits civil commitment under certain conditions. But laws that implicate the First Amendment require narrow tailoring. Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not.

See this Dec. 2, 2012 ILB post linking to the audio of the oral argument before the 7th Circuit. See also this Oct. 19, 2012 post, and this one from June 24, 2012.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Reactive legislation and quick fixes vs. the big picture

"Indiana panel backs narrower early-release law: College degrees cut sex offenders' time" is the headline to this story today in the Louisville Courier Journal, written by Tom Davies of the Associated Press. The story begins:

INDIANAPOLIS — People convicted of sex offenses wouldn’t be allowed to have their prison sentences shortened by earning college degrees under a proposal supported Tuesday by an Indiana Senate committee.

The Senate’s Corrections and Criminal Law Committee voted 8-1 to advance the bill [SB 260], proposed following complaints from victims’ families about the early release last year of a former swimming coach and former church pastor who both were convicted of sexual misconduct with teenage girls.

Here are some earlier ILB entries on this issue:Now back to today's AP story, here is more:
Sen. Brent Steele, R-Bedford, said he agreed with Merritt’s aim of making sexual offenders serve more of their sentence time but worried that the bill might conflict with a larger package overhauling criminal sentencing laws that is making its way through the Indiana House.

That proposal would reduce the maximum college education-time credit from the current four years to two years for all inmates and scale back the amount of good-behavior credit time that inmates convicted of the most serious crimes could receive. * * *

[Merritt's bill] would still allow those convicted of rape, child molestation, child seduction and other sexual crimes to get early release time for earning a GED or completing rehabilitation programs.

Merritt said he disagreed with arguments that it was improper to block sex offenders from being able to earn release credits like other inmates.

“I believe those are heinous crimes and should be treated different,” he said.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Indiana Law

Courts - More on "Michigan Supreme Court Justice Hathaway to retire amid scandal"

Updating this ILB entry from Jan. 7th, which quoted the Detroit Free Press re the resignation of Michigan Supreme Court Justice Diane Hathaway "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'” -- here, via the SBMblog, is a copy of the 5-page Hathaway criminal information.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Courts in general

Environment - "FREE WEBINAR for the public on concerning legislation for Indiana's environment THIS FRIDAY"

That is the header to an announcement from the Hoosier Environmental Council (HEC). More:

HEC Launches First Webinar on Threats to Indiana’s Environment State’s largest environmental group concerned about several adverse legislative bills

INDIANAPOLIS, IN)- The Hoosier Environmental Council (HEC) will host the first of four monthly statewide online seminars on Friday, January 25, 2013 at noon (EST). The topic of the first hour-long webinar will be threats to Indiana’s air, land and water quality due to short-sighted legislation in the Indiana General Assembly.

HEC’s webinar series is designed to help citizens, policymakers, organizational partners and the media be better informed on environmental public policy. The webinars will feature senior policy staff and lawmakers working on efforts to clean our air, land, and water. The first webinar, on January 25, will feature HEC senior policy staff discussing a number of bills that would threaten Indiana’s environment.

The webinars are free and open to everyone. Participants only need to register to participate.

Register free here.

Posted by Marcia Oddi on Wednesday, January 23, 2013
Posted to Environment