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Wednesday, January 30, 2013

Ind. Decisions - 7th Circuit 2-1 panel reverses Judge Barker in Grote and consolidates Grote with Korte

Updating this ILB entry from Dec. 29, 2012 and this one from Jan. 2, 2013, the 7th Circuit has just posted in typescript this Order in Grote v. Sebelius.

From the 19-page, 2-1 opinion (Flaum and Sykes in majority, Rovner in dissent):

Members of the Grote Family and their company, Grote Industries, appeal the district court’s order denying their motion for a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations that require Grote Industries to provide coverage for contraception and sterilization procedures in its group health‐insurance plan. They have moved for an injunction pending appeal. See FED. R. APP. P. 8. We recently granted such an injunction in a similar case. See Korte v. Sebelius, No. 12‐3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012). As explained below, this case is materially indistinguishable. Accordingly, we consolidate this case with Korte and likewise grant the motion here. * * *

IT IS ORDERED that the motion for an injunction pending appeal is GRANTED. The defendants are enjoined pending resolution of this appeal from enforcing the contraception mandate against the Grote Family and Grote Industries.

IT IS FURTHER ORDERED that this case is consolidated with Korte. Oral argument will be scheduled by separate order when briefing has been completed.

ROVNER, Circuit Judge, dissenting. [beginning on p. 6 of 19] * * * Despite the differences between the two appeals, I am no more persuaded that preliminary injunctive relief is warranted in Grote than I was in Korte. Specifically, the appellants have not, in my view, shown that they are reasonably likely to prevail on the merits of their claims. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547‐48 (7th Cir. 2007). With the benefit of the memoranda submitted by the parties in Grote and additional time to contemplate some of the issues presented by these appeals, I write separately here to expand on the doubts I expressed in Korte.

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Who’s protecting our right to know?" What is adequate public notice?

Here is Steve Key's column in the most recent issue of HSPA newsletter. Key is executive director and general counsel for the Hoosier State Press Assocation.

The Environmental Protection Agency responded to HSPA’s letter of concern about IDEM’s decision to replace public notice advertising with government website posting to give notice of hearings, as required by the Clean Air Act.

Unfortunately and not sur prisingly, [US EPA] Deputy Assistant Administrator Janet McCabe didn’t acknowledge any need to step into the fray or change the EPA’s current regulations and guidance pertaining to public notification.

In broad terms, she spoke of the EPA policy to be “media neutral on the method of notice … as long as the state has determined that the pub lic would have routine and ready access to such alternative publishing venues.”

The answer is illustrative of the lack of understanding many have concerning public notice and the difference between placing that notice in someone’s hands compared to making that notice accessible to someone.

In my letter to the EPA, I argued that media neutrality should apply only when it can be shown that the alterna tive to newspaper publication actually fulfills the require ment for public notice.

Indiana Department of Environmental Management Commissioner Thomas Easterly made it clear he believes the posting of the notices on the agency website adequately reaches those known to regularly comment or attend the hearings.

As Rep. Matt Pierce, D-Bloomington, said – IDEM’s website reaches “the usual suspects.”

So IDEM is satisfied that its web-posted notices are viewed by an average of 105 unique visitors a week.

This is compared to the combined circulation of the five Indiana newspapers IDEM was using to publicize the notices – 382,100. Taking into account the average num ber of people who read a par ticular copy of a newspaper, IDEM was placing notices in the hands of 802,400 people a week.

Public notice is a policy intended to reach citizens in general, not those with a special interest in compliance with the Clean Air Act.

The public in general may trust government officials to do right by them, may be too busy to act, or may be apathetic to government actions. Engraved invitations hand- delivered to homes wouldn’t guarantee a crowd at an IDEM hearing.

But attendance isn’t necessarily the goal of public notices. The opportunity to be involved is the key.

It’s an obligation of govern ment agencies in a democracy to let citizens know what is being contemplated, proposed or acted upon. The public can become involved or not, but they have the opportunity to hold their government accountable.

Public notice also serves to protect the public agency from accusations that it acted secretly because it can show that notice was placed in the hands of a large cross-section of the public.

The posting of notices on a government website that the public doesn’t know exists doesn’t do the job.

Common sense says average citizens have no inkling that they need to check IDEM’s website periodically on the chance that there may be an upcoming hearing that would spur them to action.

Numerous surveys conduct ed in different states show that the public expects and wants its government units to place public notices in their local newspapers rather than be solely on a government website.

Pulse Research of America this year in Indiana found more than 70 percent of adults preferred public notices in newspapers while less than 2 percent preferred govern ment website postings.

IDEM and the EPA don’t appear to hear or care what most taxpayers want in this case.

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Environment | Indiana Government

Ind. Decisions - "Judge rules public can't access cause of death records"

The ILB has had a number of entries about a dispute in Vanderburgh County over access to cause of death information. Today Mark Wilson of the Evansville Courier & Press reports in a long story that begins:

EVANSVILLE — A judge has ruled the Vanderburgh County Health Department does not have to provide information regarding a person’s causes of death to the general public.

In making his ruling, Senior Judge Carl Heldt addressed contradicting state laws that govern who maintains the information and who can have access to it.

The lawsuit in Vanderburgh Circuit Court was filed by Pike County resident Rita Ward and the Evansville Courier & Press, who were seeking access to cause of death information denied to them in separate requests in June and July 2012.

Courier & Press Editor Tim Ethridge said the newspaper is considering its options on whether to appeal the ruling.

The newspaper and Ward had argued the death certificates are public records, while the health department interprets state law to require it to restrict access to the information. The Courier & Press had published causes of death on its Sunday public records page from 2002 until May 2012 when the health department abruptly stopped including death causes in the information it provided to the newspaper.

Heldt’s ruling contradicts a July opinion by Public Access Counselor Joseph Hoage. The access counselor said a state law that became effective in January 2011 says people must show they have a direct interest to get cause of death information only applied to the state’s death registration system. Hoage’s opinion was that another Indiana law still required local health departments to keep records of the death certificates filed by physicians and make them available to the public.

That law, Indiana Code 16-37-3-3, says, “The person in charge of interment shall file a certificate of death or of stillbirth with the local health officer of the jurisdiction in which the death or stillbirth occurred.” The law also says, “The local health officer shall retain a copy of the certificate of death.”

The county contends a different law, Indiana Code 16-37-1-10, says access to records with the cause of death information is restricted to only those who can prove they have a direct interest in it, such as a spouse or immediate relative who may need it for legal purposes.

In his decision, Heldt acknowledged that the laws conflicted but he said that in cases when conflicting laws can’t be reconciled that the more specific law should apply. Heldt said the law cited by the county is more specific in its intentions.

ILB: This is the second significant, and adverse to public access, ruling in so many days. Yesterday was the COA opinion on "reasonable particularity."

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Ind. Trial Ct. Decisions

Courts - Does witness testifying in disguise violate the Confrontation Clause?

See How Appealing post re 9th Circuit opinion.

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Courts in general

Ind. Gov't. - More on: Judge Bonaventura named as the new Department of Child Services (DCS) director

Here is Gov. Pence's statement:

Indianapolis, IN - Governor Mike Pence today named Mary Beth Bonaventura as the head of the Department of Child Services.

Bonaventura will join Pence's administration as Director of the Department of Child Services. She brings a wealth of knowledge and experience, most recently serving as Senior Judge of the Lake Superior Court, Juvenile Division--one of the toughest juvenile court systems in the state. Bonaventura was appointed Senior Judge in 1993 by then-Governor Evan Bayh after having served more than a decade as Magistrate in the Juvenile Court.

Since the start of her career in the Juvenile Court, Judge Bonaventura has been recognized for her dedication and outstanding service to children. In 2008, Governor Mitch Daniels appointed Bonaventura as a member of the Indiana Commission on Disproportionality in Youth Services. In 2009, she was named Chair of the Civil Rights of Children Committee for the Indiana State Bar Association and the Chief Justice appointed Bonaventura as Chair of the Child Welfare Improvement Committee.

"Judge Bonaventura is uniquely qualified to lead the state's Department of Child Services and help to protect Hoosier children from abuse and neglect," said Governor Pence. "She is a strong leader who has an impeccable reputation of integrity and compassion for children."

Bonaventura, a life-long Lake County resident, was born in East Chicago. She received her undergraduate degree from Marian University in Indianapolis and her Juris Doctorate degree from Northern Illinois University in DeKalb, Illinois.

Statement from Pro Tem David Long
STATEHOUSE (Jan. 30, 2013) – “Judge Bonaventura has a strong record of being a tireless advocate for children in Indiana. Her longstanding career — as a probation officer, deputy prosecutor and magistrate in the juvenile court, where she was appointed by Governor Bayh — is a positive reflection of her lifetime commitment to children, as well as her devotion to raising awareness about juvenile delinquency and its impact on Hoosier families.

“Judge Bonaventura has received countless recognitions for her outstanding service to children throughout her career. Put simply, no one in this state understands the intricacies of child welfare better than Judge Bonaventura, making her the perfect choice to lead DCS.”

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Indiana Government

Ind. Decisions - Supreme Court posts 4 disciplinary orders today

In the Matter of John W. Nelson

Stipulated Facts: Count 1. Based on an incident on August 31, 2002, Respondent pled guilty to operating a vehicle while intoxicated ("OWI"), a class C misdemeanor. He did not report the finding of guilt to the Commission.
Count 2. Based on an incident on August 26, 2006, Respondent pled guilty to Domestic Battery, a class A misdemeanor. He did not report the finding of guilt to the Commission.
Count 3. Based on an incident on August 13, 2010, Respondent was tried and found guilty of OWI and operating a vehicle with an "ACE" of between .08% and .15%, both class C misdemeanors. He did not report the findings of guilt to the Commission, even though ordered to do so in the sentencing order. * * *

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 March 8, 2013, with 30 days actively served and the remainder stayed subject to completion of at least 36 months of probation.

In the Matter of Kathryn R. Janeway
Based on an incident on February 8, 2012, Respondent pled guilty to operating a vehicle while intoxicated ("OWI"), a class A misdemeanor. At the time of her arrest, she was a deputy prosecutor for Hendricks County. She has since been terminated from that position.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent self-reported her arrest and conviction to the Commission; (3) Respondent contacted IU Health at Methodist Hospital after her arrest and is in full compliance with its recommended treatment program; and (4) Respondent had no prior OWI arrests or convictions. * * *

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

In the Matter of Michael C. Kendall
Respondent has tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. * * *

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

In the Matter of David F. Rees - also a resignation, with language similar to above.

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on today's COA opinion in Christopher Smith v. State of Indiana

Here are links to a number of earlier entries relevant to the Muncie Central failure to report child abuse case decided today:

Ind. Gov't. - Sunday Muncie Star-Press focuses on child abuse in a number of stories today

In a long opinion piece today in the Muncie Star-Press, Lisa Nellessen-Lara writes about the incident a year ago where a Muncie Central student reported to school administrators that she had been raped, but officials delayed making a report. (See...

Posted in The Indiana Law Blog on April 22, 2012 10:57 AM

Ind. Gov't. - "Sharing concerns about children: Cases raise questions about how police are alerted to possible abuse"

Another lengthy story this Sunday from the South Bend Tribune about the "recent closings of local call centers in favor of centralizing all child abuse and neglect calls through Indianapolis." The story, reported by Virginia Black, begins:A judge declared a...

Posted in The Indiana Law Blog on March 25, 2012 07:53 PM

Ind. Courts - "Former Principal Wants Failure To Report Case Tossed: Penn State Case, Paterno Cited In Court Brief"

Updating this ILB entry from March 8, 2011, headed ""Ex-Muncie Central principal charged over handling of rape case"," WRTV6's Joanna Massee had a story last evening, Friday Nov. 18th on the upcoming trial. Here are some quotes; the video is...

Posted in The Indiana Law Blog on November 19, 2011 04:37 PM

Ind. Courts - Still more on "When did rape stop being rape?"

Updating yesterday's ILB entry, which quoted a South Bend Tribune story headed "South Bend schools finalist left last job in controversy over not reporting student rape: All three superintendent finalists will interview here next week" ... That story, by Kim...

Posted in The Indiana Law Blog on November 12, 2011 09:48 AM

Ind. Courts - More on "When did rape stop being rape?"

Recall this Aug. 7, 2011 ILB entry about the Muncie Central incident where "School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office...

Posted in The Indiana Law Blog on November 11, 2011 01:41 PM

Ind. Courts - "When did rape stop being rape?"

Recall the Muncie Central incident where "School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office for two and a half hours," reported...

Posted in The Indiana Law Blog on August 7, 2011 12:48 PM

Ind. Law - "Ex-Muncie Central principal charged over handling of rape case"

Updating a Nov. 19, 2010 Muncie Star-Press story that began:MUNCIE -- More than a week after a student reported she was raped at Central High School, school administrators are coming forward to speak with police detectives. The development happened after...

Posted in The Indiana Law Blog on March 8, 2011 11:25 AM

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Ind. App.Ct. Decisions

Ind. gov't. - Gov Pence names Lake County Judge Mary Beth Bonaventura to head DCS.

Stories to follow.

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Peter F. Amaya v. D. Craig Brater, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al., a 14-page opinion, Judge Crone writes:

Peter F. Amaya was dismissed from Indiana University School of Medicine for failure to maintain acceptable professional standards by allegedly cheating on an examination. He filed a lawsuit against D. Craig Brater, M.D., in his capacity as dean and director of Indiana University School of Medicine, the Board of Trustees of Indiana University, members of the Student Promotions Committee, Patricia Treadwell, M.D., chair of the Student Promotions Committee, Joseph A. DiMicco, Ph.D., Kathleen A. Prag, M.D., and Klaus A. Hilgarth, M.D. (hereinafter collectively referred to as “IUSM”), alleging multiple claims including breach of contract and breach of good faith and fair dealing. IUSM moved for summary judgment on those claims. Following a hearing, the trial court granted summary judgment in favor of IUSM. Amaya now appeals. The sole issue raised on appeal is whether the trial court erred when it entered summary judgment in favor of IUSM. Finding that no genuine issue of material fact remains on these claims and that judgment as a matter of law is appropriate, we affirm.
In Matthew Banks Ashworth v. Kathryn (Ashworth) Ehrgott , a 23-page opinion, Judge Riley concludes:
Based upon the foregoing, we conclude that the trial court did not abuse its discretion in calculating Father’s 2012 and subsequent weekly child support obligation. We conclude that the trial court abused its discretion by using an irregular income factor based upon the parties’ prior financial declarations to determine Father’s additional child support obligation for his 2012 and subsequent irregular income. However, the trial court did not abuse its discretion in its use of an income allocation ratio to determine the amount of additional child support. Further, we hold that the trial court did not abuse its discretion in calculating Father’s child support obligation based on his irregular income for 2011 and 2010. We reverse and remand with instructions to 1) apply the income allocation factor of .1549 to Father’s 2012 and future bonuses; and 2) correct a scrivener’s error in the April 24, 2010 Income Withholding Order and calculate the resulting credit owed to Father and its repayment method. Affirmed in part, reversed in part, and remanded.
In Christopher Smith v. State of Indiana , a 34-page, 2-1 opinion with a dissent beginning on p. 29, Judge Brown writes [emphasis added by ILB]:
An allegation that an individual has engaged in child abuse is a serious claim, and a reasonable investigation made in good faith of such an allegation prior to making a report is not improper and does not deprive the person required to make such a report of statutory immunity. See Phillips v. Behnke, 531 N.W.2d 619, 623 (Wis. Ct. App. 1995) (“An allegation that an individual has engaged in improper sexual behavior with a child is extremely damaging both to the individual’s reputation and career. Accordingly, investigating the reasonableness of one’s belief that a teacher has engaged in sexual misconduct prior to making a report is proper and does not deprive the individual of immunity.”). * * *

Based upon the evidence presented at Smith’s trial, and keeping in mind that we must strictly construe penal statutes against the State, we conclude that under these specific circumstances there is insufficient evidence of probative value from which the trier of fact could reasonably have found beyond a reasonable doubt that Smith committed the offense charged. Accordingly, we reverse and vacate Smith’s conviction for failure to immediately report child abuse as a class B misdemeanor. * * *

Conclusion. For the foregoing reasons, we reverse with instructions to vacate Smith’s conviction for failing to immediately report child abuse or neglect as a class B misdemeanor under Ind. Code § 31-33-22-1.

BAILEY, J., concurs.
VAIDIK, J., dissents with separate opinion. I respectfully dissent from the majority’s decision to vacate former Muncie Central High School principal Christopher Smith’s conviction for failing to report child abuse. I would find that Smith had reason to believe that sixteen-year-old G.G. was a victim of child abuse and failed to immediately report the abuse. * * *

On appeal, Smith contends that he had no reason to believe that G.G. was a victim of child abuse such that he was required to make a report. Smith also argues that, nonetheless, he did immediately report the abuse by virtue of Samuels’ 12:40 or 12:45 p.m. call to the YOC. The majority accepts Smith’s arguments. I believe that doing so disregards the evidence most favorable to the verdict and undermines Indiana’s child-abuse reporting statute. Further, the majority cites with approval case law from other jurisdictions that permits verification of a child’s allegations of abuse before making a report. I believe such a verification process is contrary to statute and, if permitted, may have the highly undesirable result of suppressing or deterring reports of abuse. * * *

Smith argues that he did not have reason to believe that G.G. was a victim of child abuse. His primary argument in support of this claim is that he consulted many school officials about G.G.’s allegations, none of whom believed that G.G.’s allegations constituted child abuse because two children were involved. The majority seems to accept this argument, noting school employees’ testimony to this effect and the fact that Muncie Central’s guidelines and policies did not define child abuse, though “a pamphlet” referred to “sexual abuse” as “any sexual act between an adult and a child.” But this ignores the common-sense conclusion that when a child is the victim of abuse—regardless of the age of the perpetrator—the act is abuse of a child. Moreover, one expressly stated goal of the reporting statute is the protection of children. * * * The evidence most favorable to the verdict shows that a child, G.G., alleged that she had been raped. I would find that Smith had reason to believe G.G. was a victim of child abuse.

I would also find that Smith failed to immediately report the abuse. * * *

This case exemplifies the dangers of sanctioning a verification process. Here, school officials thought G.G. might be lying about the attack and wanted to protect the reputation of her attacker. Undoubtedly school officials also had an interest in protecting Muncie Central’s reputation as a safe environment, not an environment where rape occurs during school hours. The internal investigation was hardly in the hands of unbiased and impartial investigators.

By requiring that reports of abuse be made to DCS or the proper authorities, the reporting statute aims to prevent a situation in which individuals familiar with an alleged victim or abuser, or otherwise invested in the situation, conduct an informal investigation shaped by bias or improper motives. The consequences of a tainted investigation are high—evidence may be lost with the passage of time, allegations may be suppressed, and victims may be reluctant to report abuse. For all of the above reasons, I respectfully dissent and would affirm the jury’s verdict.

NFP civil opinions today (2):

Michael Ramos v. Robertson's Apartments (NFP)

Kindred Nursing Centers, LTD Partnership d/b/a Wedgewood Healthcare v. Linda Davis (NFP)

NFP criminal opinions today (10):

Jill R. Kincer v. State of Indiana (NFP)

David Arndell v. State of Indiana (NFP)

John D. Rogers v. State of Indiana (NFP)

Kerry L. Williams v. State of Indiana (NFP)

Demetrius Walker v. State of Indiana (NFP)

James A. Crouch v. State of Indiana (NFP)

Monique Rowe v. State of Indiana (NFP)

Fernando Seba v. State of Indiana (NFP)

Noah Shane Warren v. State of Indiana (NFP)

Hobert Pittman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 30, 2013
Posted to Ind. App.Ct. Decisions