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Thursday, January 31, 2013

Ind. Decisions - COA decision in Brewington engenders national interest

UCLA Law Prof Eugene Volokh of The Volokh Conspiracy has just posted again on the Jan. 17th Ind. COA opinion in Brewington v. State. Here is his Jan. 22nd post.

The ILB has had a number of posts on this opinion, including this one from Jan. 21, 2013.

From today's Volokh post:

I blogged last week about Brewington v. State (Ind. Ct. App. Jan. 17, 2013), a decision that strikes me as unconstitutional, and as quite perilous for Indiana speakers: It basically concludes that harshly and repeatedly criticizing someone — in that case, a judge, but the law applies equally to legislators, other government officials, business leaders, and others — for that person’s past conduct can be criminally prosecuted. * * *

This, I think, clearly violates the First Amendment, and has a potentially very broad sweep. The law doesn’t just apply to disgruntled litigants, but also to newspaper columnists, advocacy groups, politicians, and so on. Under the court’s view, someone who goes to a legislator and says, “If you vote for this law [or because you voted for this law], we’re going to condemn you so much that your constituents will have contempt for you and vote you out of office,” would be guilty of a crime. Indeed, someone who simply keeps writing harshly critical columns about a legislator’s actions, without an overt threat of future such columns, would be guilty of a crime, too.

Brewington is asking the Indiana Supreme Court to review the case, and I think it would be helpful to have a friend-of-the-court brief supporting that request, and alerting the Indiana Supreme Court to the broader danger posed by the Indiana Court of Appeals opinion. (The Indiana Supreme Court is entitled to pick and choose which Court of Appeals cases it reviews, so the brief needs to persuade the Indiana Supreme Court to focus its time on attention on this case.) I plan to write that brief, pro bono.

I already have local counsel lined up, and a likely amicus organization, but I’d like to have more, including those generally seen as on the left, those generally seen as on the right, and those generally seen as elsewhere. If you’re involved with an Indiana advocacy, political, or journalist group — or for that matter an Indiana newspaper, whether professional or student-run — and you think the organization might be interested in joining, please let me know.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Ind. App.Ct. Decisions

Law - "Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut"

That is the headline to this long, front-page story in today's NY Times, reported by Ethan Bronner. It begins:

Law school applications are headed for a 30-year low, reflecting increased concern over soaring tuition, crushing student debt and diminishing prospects of lucrative employment upon graduation.

As of this month, there were 30,000 applicants to law schools for the fall, a 20 percent decrease from the same time last year and a 38 percent decline from 2010, according to the Law School Admission Council. Of some 200 law schools nationwide, only 4 have seen increases in applications this year. In 2004 there were 100,000 applicants to law schools; this year there are likely to be 54,000.

Such startling numbers have plunged law school administrations into soul-searching debate about the future of legal education and the profession over all.

“We are going through a revolution in law with a time bomb on our admissions books,” said William D. Henderson, a professor of law at Indiana University, who has written extensively on the issue. “Thirty years ago if you were looking to get on the escalator to upward mobility, you went to business or law school. Today, the law school escalator is broken.”

Another quote:
The drop in applications is widely viewed as directly linked to perceptions of the declining job market. Many of the reasons that law jobs are disappearing are similar to those for disruptions in other knowledge-based professions, namely the growth of the Internet. Research is faster and easier, requiring fewer lawyers, and is being outsourced to less expensive locales, including West Virginia and overseas.

In addition, legal forms are now available online and require training well below a lawyer’s to fill them out.

See also this ILB post from March 6, 2006.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to General Law Related

Ind. Law - Whittling away at public access?

Scott Smith of the Kokomo Tribune reported this story on Sunday, headed "Police addresses to be harder to find: Bill could result in restricted access." The bill is HB 1219. Some quotes:

Prompted by a request from a local deputy prosecutor, State Rep. Mike Karickhoff is hoping to restrict public access to local property and tax information on the Internet.

Specifically, Karickhoff wants to establish some means by which those connected with law enforcement can have their names and addresses stricken from government-run databases, like the one Howard County government uses.

All Howard County property records are online, through software called Beacon, administered by the Indianapolis-based consulting firm Schneider Corp.

The records, used by real estate professionals, homeowners associations, prospective homebuyers, planning officials and anyone else curious about a particular property, show a property’s sales history, liens against the property, tax assessments and other data.

Kokomo Police Chief Rob Baker said he supports the legislation, saying criminals could use the data to target officers and their families.

He said Wednesday he received a recent call from another officer, who was also named Rob Baker, who warned Baker that an individual in another jurisdiction was pursuing a vendetta.

According to the KPD chief, the other Rob Baker was calling out of concern the disgruntled individual might target the wrong Rob Baker, based on information taken from the Internet.

Baker said he didn’t have additional information on the disgruntled individual, including whether or not the person was incarcerated.

Karickhoff’s legislation, HB 1219, passed out of the House Local Government Committee Thursday, after representatives from the Indiana State Sheriff Association and the Fraternal Order of Police testified in favor. The chair of that committee, State Rep. Timothy Neese, R-Elkhart, is signed on as a co-author of the bill.

The ILB contacted Steve Key, attorney for the Hoosier State Press Association, for his comments. He responded:
I did testify against HB 1219. I told the committee it was uncomfortable because no one wants to put a law enforcement officer or family in danger. I also thanked the author for limiting the scope to databases posted on the Internet. But the problem with this type of bill is where do you draw a line in eliminating information from public view, even if still available at the courthouse. Other committee members during the hearing started suggesting additional groups to exclude: domestic violence victims, probation officers. There are a lot of groups who might want to be included – teachers who feel threatened by students or parents, lawyers (remember Rep. Ed Delaney was nearly killed by someone unhappy over a civil lawsuit – wasn’t even a divorce case), legislators, even journalists get death threats).

It becomes a bear for local government officials to comply and defeats the purpose of open records. If a law enforcement officer can keep information about liens on his property relatively secret or the fact his home may be beyond the expected means of a patrolman, are we preventing the public or a reporter from questioning whether the officer’s debt or largess may indicate a problem with his ability to do his job.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Law

Ind. Law - "Criminal records expungement bill moves forward"

Maureen Hayden of the CNHI Statehouse Bureau reports today (also here) on yesterday's meeting of the House Courts and Criminal Code Committee that considered HB 1482, a bill that would allow actual expungement of, rather than restriction of access to, certain criminal records. Some quotes:

Legislation that would allow more people the opportunity to erase their criminal records if they could show they’d redeemed themselves passed a critical vote Wednesday.

The House Courts and Criminal Code Committee voted to send the bill on to the full House, after hearing testimony from ex-offenders who said their long-ago convictions made it hard for them to find work and access other opportunities often denied to people with a record.

Among them was 66-year-old Bob Wilson of Indianapolis, who said he’s been out of prison and out of trouble since 1973, after serving time for a robbery he committed when he was 19.

“My question is: When do you stop being an ex-con?” said Wilson. “I’ve been out for 40 years and done everything expected of me.”

Under the legislation, authored by state Rep. Jud McMillin, R-Brookville, residents with long-ago arrests or convictions could petition a judge to expunge their records if they meet certain conditions.

Indiana currently has a criminal records “sealing” law that allows people with long ago, low-level arrests or convictions to get a court order to shield that record from public view. But it only applies to certain misdemeanors and Class D felonies.

The expungement bill goes further: It allows judges to expunge — or virtually erase — some class B and class C felonies from the records. Arrest and conviction records that are eligible to be sealed under the current law would also be eligible to be expunged.

There are limits: There is a waiting period of at least five years after a sentence is completed; violent crimes and sex crimes couldn’t be expunged; and the person seeking the expungement would have to show they’d stayed out of trouble.

Similar legislation has failed in the past, with some lawmakers arguing that employers have a right to know someone’s criminal history.

But bill supporters argue that since Indiana is one of the few states without a criminal-records expungement law, it puts Indiana residents with a record at a disadvantage when seeking work.

Andrew Cullen, legislative liaison for the Indiana Public Defender Council said someone from another state who had his criminal record expunged could pass a criminal background check, while an Indiana resident with a record couldn’t.

Cullen also argued the bill offers an incentive to people with a criminal record.

“This is the type of bill that not only reduces recidivism, which assists the criminal justice system, but it gives people who’ve committed a crime the hope, that one day, that’s going to finally be behind them if they follow the rules.”

ILB: Reading through the new language, the ILB had some trouble with the various terms: "expungement," "restricted access," "redistricted disclosure," "prohibit the release of the person's records or information in the person's records to anyone without a court order," "seal" and "unseal", etc.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

For publication opinions today (6):

Mark S. Weinberger, M.D., et al. v. Gloria Gill

In Paul D. Edwards v. Zobeida E. Bonilla-Vega, a 6-page opinion, Judge May writes:

Paul Edwards (Husband) appeals the distribution of marital assets as part of the dissolution of his marriage to Zobeida E. Bonilla-Vega (Wife). He presents three issues for our review, one of which we find dispositive: Whether the settlement proceeds from Husband’s action against his former employer, which commenced prior to the dissolution proceedings and was finalized before the dissolution was final, were properly included and valued as a marital asset. We affirm. * * *

Husband claims the settlement proceeds from the chose in action is not subject to distribution in the marital estate because the exact amount of damages, if any, were not known at the time Wife filed for dissolution. Wife asserts the settlement proceeds should be included in the distribution of assets because the chose in action was a property right that existed before she filed for dissolution. * * *

Herein, Husband settled his in chose in action with his former employer in November 2010, which was between the filing of the dissolution petition and the date of the final hearing on August 22 – 24, 2011. Therefore, the decision whether to include the property settlement monies in the marital estate was entrusted to the sound discretion of the trial court, and we cannot say the trial court abused its discretion when it included Husband’s tort claim settlement monies in the marital pot and divided them accordingly.

In Henry Wagler, Barb Wagler and Henry and Barb Wagler, LP v. Fort Wayne-Allen County Department of Health , an 8-page opinion, Judge Crone writes:
Henry and Barb Wagler built their home in an unincorporated area of Allen County and had their own septic systems installed. The Fort Wayne-Allen County Department of Health (“the Department”) petitioned for injunctive relief and moved for summary judgment, claiming that the Waglers were required to obtain a construction permit from the Department prior to installing their septic systems. The Waglers filed a cross-motion for summary judgment, claiming a statutory exemption from the permit requirement. The trial court entered summary judgment for the Department.

On appeal, the Waglers renew their statutory exemption argument. We conclude that the statute is inapplicable and therefore affirm the trial court.

In Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., a 12-page opinion, Judge Baker writes:
In this case, we consider an issue of first impression, namely, whether and to what extent the doctrine of fraudulent concealment tolls the two-year deadline for filing claims contained within Indiana’s Wrongful Death Act (the “WDA”).

Virginia E. Alldredge and Julia A. Luker, as co-personal representatives of the Estate of Venita Hargis (collectively, “the Plaintiffs”), filed a wrongful death complaint against The Good Samaritan Home, Inc. (“Good Samaritan”) twenty-three months after learning that Good Samaritan had allegedly fraudulently concealed the nature of Hargis’s death. Concluding that the WDA’s two-year deadline had been equitably tolled but that the Plaintiffs nevertheless failed to file their complaint within a reasonable time, the trial court granted Good Samaritan’s motion for summary judgment.

The Plaintiffs argue that the two-year time frame required by the WDA for the filing of claims is a statute of limitations, not a condition precedent to the filing of a wrongful death claim, and that Indiana Code section 34-11-5-1 (the “Fraudulent Concealment Statute”) should have applied to toll the statute of limitations such that they had a full two years to file their complaint after learning of Good Samaritan’s fraudulent concealment. Furthermore, the Plaintiffs argue that the reasonable time standard used by the trial court violates equal protection principles and that public policy concerns require a uniform standard for determining when the statute of limitations runs after it has been tolled by fraudulent concealment.

We conclude that the WDA’s two-year limitations period is in fact tolled by fraudulent concealment and that plaintiffs whose wrongful death claims have been fraudulently concealed beyond the WDA’s limitations period have a full two years after the concealment is or should be discovered with reasonable diligence in which to file their claims. Accordingly, we affirm the trial court’s judgment in part and reverse in part. * * *

That being said, we observe that when these types of cases arise, it may be preferable for the trial court to bifurcate the issues of negligence and fraudulent concealment from the issue of damages in the interest of saving judicial time and resources. This is because the application of the fraudulent concealment doctrine to the WDA still requires a decedent’s personal representative to show not only the underlying negligence that resulted in the decedent’s death but also that the underlying negligence has been fraudulently concealed by the defendant.

In In Re: The Paternity of A.S.: Melissa Slansky v. Mary Doffin-Syler, and Bradley Howell, a 13-page opinion, Judge Pyle writes:
M.S. (“Mother”) appeals the trial court’s order awarding custody of her daughter, A.S., to the maternal grandmother, M.D (“Grandmother”). * * *

We reverse and remand with instructions that the trial court vacate its award of physical custody to Grandmother, thereby returning custody to Mother. The trial court shall determine the details of Father’s visitation. It shall also determine what, if any, visitation rights are due to Grandmother under the Grandparent Visitation Act.

In Brian Kendrick v. State of Indiana , a 5-page opinion, Judge May writes:
Brian Kendrick appeals his sentence on remand for Class A felony attempted murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license. He contends the trial court erred when, after we vacated his two convictions of Class C felony feticide, it again sentenced Kendrick to fifty-three years. We affirm. * * *

When resentencing, a trial court may not “impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentences that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Ind. Post-Conviction Rule 1(10)(b). Kendrick argues the trial court erred when, on resentencing, it increased his sentence for Class A attempted murder by eight years. We disagree.

On appeal of a sentence, our court “should focus on the forest – the aggregate sentence – rather than the trees – consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). While Kendrick’s sentence for Class A felony attempted murder increased from thirty years to thirty-eight years, his aggregate sentence, fifty-three years, did not change. Therefore, the trial court did not impermissibly increase Kendrick’s sentence. See Hicks v. State, 729 N.E.2d 144, 147 (Ind. 2000) (affirming resentencing of defendant when enhancement increased sentence for murder but aggregate sentence remained the same). We accordingly affirm.

NFP civil opinions today (4):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of V.M. and M.A. v. Indiana Department of Child Services (NFP)

In Re the Termination of the Parent-Child Rel. of N.W. and D.W. v. Indiana Department of Child Services (NFP)

In Re the Involuntary Termination of the Parent-Child Rel. of S.F.; C.P. v. The Indiana Dept. of Child Services (NFP)

Bernard Carter, Prosecuting Attorney, Lake County, John Buncich, Sheriff of Lake County, and Indiana Dept. of Correction v. Tim J. Hurd (NFP)

NFP criminal opinions today (18):

French Tibbs v. State of Indiana (NFP)

Schwala M. Royal v. State of Indiana (NFP)

Marvin Willis v. State of Indiana (NFP)

Joseph J. Rheubottom, Jr. v. State of Indiana (NFP)

Steve Pigg v. State of Indiana (NFP)

Michael A. O'Brien v. State of Indiana (NFP)

Brian Buffington v. State of Indiana (NFP)

Edmond MIller v. State of Indiana (NFP)

Joey Saylor v. State of Indiana (NFP)

Richard Keith Lazur v. State of Indiana (NFP)

Jovan Fitzhugh v. State of Indiana (NFP)

Melvin Sanders v. State of Indiana (NFP)

Dustin L. Grissom v. State of Indiana (NFP)

Darrol Fox v. State of Indiana (NFP)

Keith A. Harlow v. State of Indiana (NFP)

Torrey Pargo v. State of Indiana (NFP)

Reuban L. Strong, Jr. v. State of Indiana (NFP)

Toby Webster v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Marion County public defender accused in prostitution sting

Updating this brief ILB entry from Jan. 18th, John Tuohy of the Indianapolis Star reports today:

The Marion County Public Defender has fired a lawyer accused of trying to trade legal services for sex with a prostitute.

Christopher Hollander, 36, Indianapolis, was fired Thursday. He had been suspended for two weeks without pay pending the results of an internal investigation, said Public Defender Robert Hill.

Hollander was charged Jan. 17 with soliciting a prostitute during an undercover Indianapolis Metropolitan Police Department vice operation. He was scheduled to appear in Misdemeanor Court on Feb. 13 at 8:30 for a pre-trial hearing.

Police said Hollander offered legal assistance in exchange for sex to a cop posing as a hooker. He told investigators after his arrest that he had tracked down the prostitute by reading her arrest file in Marion County Misdemeanor Court. * * *

If the allegations prove true, Hollander probably violated several legal ethical codes that could get his license suspended. Lawyers are not allowed to contact potential clients by phone, have sex with clients or trade services for sex.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Courts

Ind. Law - "Additional DCS reforms endorsed by Senate panel"

Dan Carden of the NWI Times reports today on three bills. The ILB believes one of them may be problematic.

From the story:

Two more proposals intended to protect Hoosier children and improve the Department of Child Services have cleared a Senate committee.

On Wednesday, the Senate Judiciary Committee voted 8-0 for Senate Bill 125 establishing the Commission on Improving the Status of Children in Indiana.

Indiana Supreme Court Justice Loretta Rush, who is expected to lead the panel, told senators the 16-member commission would bring together leaders from the judicial, legislative and executive branches to review data and research on Hoosier children and "actually work toward better outcomes for kids in our state."

"Right now we don't have that central group that gathers the information so we can use the information to drive policy," said Rush, a former juvenile court judge in Tippecanoe County.

Mary Beth Bonaventura, Lake County's juvenile court judge who was named director of DCS today, also would serve on the commission.

The other proposal approved by the Senate committee, Senate Bill 164, restores the power of county prosecutors to file a Child In Need of Services petition without the consent of DCS. Prosecutors lost that authority in a 2008 rewrite of the DCS statutes.

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said allowing prosecutors to file CHINS petitions gives them a way to get an endangered or mentally ill child the help he or she needs if DCS doesn't want to act — and without having to resort to charging the child with a crime.

"We don't want to replace DCS," Powell said. "If nothing else, it just provides a fail-safe."

Both measures were recommended by the Legislature's DCS study committee that met throughout the summer and fall. They now go to the full Senate for possible amendment and a final vote to send them to the House.

Here, from today's story, is a description of the third bill:
The committee action follows Tuesday's 47-0 Senate vote for Senate Bill 105, another study committee recommendation, that allows child abuse or neglect reports by employees of schools, medical facilities, courts or law enforcement to bypass the state's centralized abuse hotline and be referred directly to a local investigator.
Here is what Sen. Steele's press release Tuesday said about the bill:
STATEHOUSE (January 29, 2013) – The Indiana Senate today unanimously approved State Sen. Brent Steele’s (R-Bedford) legislation to improve the Department of Child Services (DCS) by allowing for more direct communication between local DCS offices and professionals who work with children. Senate Bill 105 passed the full Senate 47-0 and now moves to the House of Representatives for further consideration.

Steele’s bill would allow any law enforcement official, judiciary employee, medical professional or school official to report cases of child abuse or neglect directly to local DCS caseworkers rather than to the statewide child abuse hotline based in Indianapolis.

Steele said this change would reduce caller wait times and give local caseworkers the freedom to respond to reports from professionals without having to wait for direction from Indianapolis.

Now take a look at what the latest version of SB 105 actually says:
IC 31-33-1-2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 31, 2013]:Sec. 2. When confronted with a potential case of child abuse or neglect, any:
(1) law enforcement employee;
(2) judiciary employee;
(3) medical doctor or employee of a medical doctor; or
(4) school official;
may contact a local office of the department to report the suspected child abuse or neglect.
How does this fit in with the rest of IC 31-33 (ARTICLE 33. JUVENILE LAW: REPORTING AND INVESTIGATION OF CHILD ABUSE AND NEGLECT)?

Look where it is added, as a new Section 2 (!) of the now one section "Purpose of Article" statement. How does it fit in with IC 31-33-5, "Duty to Report Child Abuse or Neglect."

What kind of records are to be maintained? See existing IC 31-33-7 "Receipt of Reports of Suspected Child Abuse or Neglect."

Does the making of a report under the proposed new section absolve the individual form liability under IC 31-33-22-1?

See also the discussion of the relevant reporting statutes in the majority and dissenting opinions in yesterday's COA opinion in Christopher Smith v. State.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Law

Ind. Gov't. - "Permitting process cuts out public: Proposal would end hearings for some projects"

Paul Wyche reports in the Fort Wayne Journal Gazette in a story that begins:

A plan to eliminate many of the hoops that developers have to jump through would leave the public out of the discussion in many instances.

Fort Wayne and Allen County officials on Wednesday continued their series of meetings to explain proposed changes meant to streamline the area’s land-use permitting process. A major goal of the $1.4 million plan is to become more business-friendly.

That, however, will come with a cost: Ending public hearings on projects near residential areas.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Government

Ind. Gov't. - Pence record on appointing women

Off the top of my head, Governor Pence so far has appointed at least three well-respected Indiana woman attorneys to high-level positions in his new administration:

Two of them, Woods and Bonaventura, were applicants for recent Supreme Court vacancies.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Government

Ind. Decisions - "Court reverses former Central principal's conviction"

Yesterday's COA decision in Christopher Smith v. State of Indiana (ILB summary of opinion here, 3rd case) (links to many earlier posts here) is the subject of a story today in the Muncie Star Press, reported by Douglas Walker. From the long story:

MUNCIE — Former Central High School principal Christopher Smith is a convicted misdemeanant no longer.

In a 2-1 vote, the Indiana Court of Appeals on Wednesday overturned Smith’s conviction for failing to immediately report child abuse or neglect.

During a two-day bench trial before Delaware Circuit Court 5 Judge Thomas Cannon Jr. last March, prosecutors said the then-principal violated state law when he failed to immediately notify authorities of a Central student’s claim she had been raped in a school bathroom on Nov. 9, 2010. * * *

In Wednesday’s majority decision, appeals court Judge Elaine Brown wrote that Smith’s efforts to confirm the validity of the victim’s claims before calling police were reasonable.

“An allegation that a person 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,” she wrote.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Experts: Recast sex offender bill unconstitutional" [Updated]

Chaarles Wilson of the AP posted a long story yesterday (here in full via the San Francisco Chronicle) that reports:

INDIANAPOLIS (AP) — A bill rewriting an overturned Indiana law banning sex offenders from social networking sites is just the same tiger wearing new stripes, legal experts said Wednesday.

The 7th U.S. Circuit Court of Appeals in Chicago last week overturned a federal judge's decision upholding the 2008 law, saying the state was justified in trying to protect children, but that the "blanket ban" was too broad.

Two Republican senators introduced the rewritten ban earlier in the legislative session, but it was amended into a separate bill that a committee took under advisement Tuesday.

The bill's backers believe their changes should satisfy the court. But critics say the new version is still unconstitutional because it would virtually ban offenders from using social media, even if they don't try to directly contact children and their past crimes had nothing to do with the Internet.

"It applies to any site that a person knowingly uses and knows that minors are allowed access," said Ruthann Robson, a professor of constitutional law at the City University of New York. She said that would completely ban sex offenders from using Facebook, since kids also are allowed to access it.

"There is not even a provision that the person "friend" or have contact with the minor," Robson said.

But legislators backing the bill said they believe the rewritten proposal falls within the guidelines set by the appellate court ruling. * * *

Larry Landis, executive director of the Indiana Public Defender Council, said he advised legislators that the proposal still needed work. He said most of the changes in the proposal shorten the list of offenders who would be banned, rather than narrowing free speech restrictions.

"This is not a good constitutional fix. I think they either misunderstood or misread the 7th Circuit opinion," Landis said.

The Senate Committee on Corrections and Criminal Law on Tuesday merged the bill with another one authored by Sen. Randy Head, R-Logansport, [ILB - that would be SB 347] which would increase the penalty for child solicitation if the offender uses a computer network and travels to meet the child. * * *

Ken Falk, legal director for the American Civil Liberties Union of Indiana, questioned whether the ban was even necessary because Indiana law already includes harsher penalties for those who solicit children online.

Landis said he understood that lawmakers "feel an obligation" to do something about sexual predators, but passing a law that is liable to be struck down is counterproductive. Regardless, he said he expects the bill to pass.

Head said lawmakers need to take their time with the wording.

"We can't have these things overturned," he said. "We have to make this stick."

The ILB is confused as to what bill ultimately came out of committee.

[Update at 11:17] I'm told the bill, SB 347, is still in committee, being worked on.

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Ind. App.Ct. Decisions | Indiana Law

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

Updating this ILB entry from yesterday, Bill Dolan reports for the NWI Times in a story headed "Lake County leaders give governor high marks for Bonaventura selection." It begins:

CROWN POINT | Leaders of Lake County's law enforcement and legal communities cheered Lake Juvenile Court Judge Mary Beth Bonaventura's appointment to oversee the investigation of child abuse and neglect.

"She'll knock ’em dead in Indianapolis," Chief Superior Court Judge John Pera said Wednesday afternoon. "She is the most cooperative, solution-driving person I know and a dear friend."

A story by Mary Beth Schneider and Tim Evans in the Indianapolis Star is headed "Choice of Mary Beth Bonaventura as DCS chief is praised." Some quotes:
Advocates for children, along with lawmakers in both parties, were hailing Mary Beth Bonaventura, Gov. Mike Pence’s pick to head Indiana’s Department of Child Services.

In hiring Bonaventura, a Lake County juvenile court judge, the state is getting someone with both the strength and compassion to deal with one of Indiana’s most difficult problems: protecting children from abuse and neglect.

Pence called Bonaventura “uniquely qualified” to head DCS. She has dealt with difficult issues affecting children since 1993, when she was first appointed to the bench by Gov. Evan Bayh, and has also served on state panels that address children’s civil rights, welfare and services.

Bonaventura will take over an agency with more than 3,000 employees — a number that will grow as Pence and the legislature are backing funds to hire more people to take on a stressful job at a time when the agency’s record has been both praised and criticized. * * *

Democrats have been particularly critical of the DCS management, but their reaction was best summed up by House Minority Floor Leader Linda Lawson. As Pence’s news conference ended, she threw her arms around Bonaventura and hugged her.

“Thrilled, thrilled,” Lawson said, saying she has known Bonaventura for 30 years. “She has the right idea about kids and what’s good for them. . . . She’s warm, she’s compassionate but she can be as tough as nails when she has to be. She can come down on parents. She can come down on the system when she has to, and she does.”

The ILB has had a number of entries on Judge Bonaventura over the past years. One of them links to this long July 8, 2012 story by Marisa Kwiatkowski in the NWI Times, headed "A day in CHINS court." See also this June 6, 2011 ILB entry, this July 6, 2010 entry, and this Jan. 30, 2007 story headed "Mary Beth Bonaventura to talk about MTV series filmed in her courtroom."

Posted by Marcia Oddi on Thursday, January 31, 2013
Posted to Indiana Government