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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

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

Tuesday, January 29, 2013

Ind. Courts - "Reflecting on Forty Years of Merit Selection in Indiana"

The most recent issue (Vol. 46, No. 1) of The Indiana Law Review is now online. It covers the presentations at the Indiana Law Review Symposium held earlier this spring at the Robert H. McKinney School of Law: "Reflecting on Forty Years of Merit Selection."

As Prof. Joel Schumm writes in the introductory article:

On April 5, 2012, nearly 200 people gathered in the Wynne Courtroom for a remarkable symposium reflecting on the merit selection 1 of Indiana Supreme Court justices and Court of Appeals’ judges that began with voter approval of a constitutional amendment in 1970. The symposium brought together national and local presenters and attendees from the judiciary, academia, advocacy groups, and the broader bar.

The symposium explored successes and concerns in the initial selection of judges, subsequent retention elections, and the impact of merit selection on the tenure of those judges.

There is much to read here.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Courts in general | Indiana Courts

Ind. Gov't. - "Bloomington mayor to preside at same-sex weddings as protest" [Updated]

This story, written by Jill Disis, was posted this morning on the IndyStar site. Some quotes:

Bloomington Mayor Mark Kruzan is conducting a wedding ceremony Thursday for more than a dozen LGBT couples, in a move meant to protest a proposed constitutional amendment that would ban same-sex marriage. * * *

Indiana does not currently recognize same-sex unions. A proposal for a constitutional amendment banning such marriages passed both Indiana's House and Senate in 2011.

Some readers may remember that Gavin Newsom, currently Lt. Gov. of California, did something similar in 2004. From Wikipedia:
In 2004, [when he was mayor of San Francisco,] Newsom gained national attention when he directed the San Francisco city-county clerk to issue marriage licenses to same-sex couples, in violation of the current state law. In August 2004, the Supreme Court of California annulled the marriages that Newsom had authorized, as they conflicted with state law at that time. Still, Newsom's unexpected move brought national attention to the issues of gay marriage, solidifying political support for Newsom in San Francisco and in the gay community.
No mention in the Star story of marriage licenses, however.

[Updated at 7:12 PM]
The Bloomington Herald-Times has a longer, more informative story, reported by Jon Blau. A few quotes:
Mayor Mark Kruzan will officiate a symbolic marriage of dozens of gay couples during Bloomington’s PRIDE LGBTQ Film Festival, according to Adam Wason, a spokesperson for the mayor. The event, which will follow film presentations at the Buskirk-Chumley Theater, begins at 10 p.m. Thursday during the opening night of the festival.

“I’m sad that this has to be done symbolically,” Kruzan said. “Years in the future we will look back on this time in our history and this issue and wonder why we would be against equality.”

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Government

Ind. Decisions - Three interesting opinions today from COA

One, in an issue of first impression, attempts to define what suffices as “reasonably particularity” in a request for public records submitted under the Access to Public Records Act (APRA).

A second affirms the trial court’s denial of Appellant's petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemeanor, ruling that "the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor."

The third is a case where Appellant, who pleaded guilty to selling pirated movies out of his truck, successfully argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property because copyright infringement is not theft.

Read more in this earlier post.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Seth Anderson v. Huntington County Board of Commissioners, a 12-page opinion, Judge Baker writes:

In this case, we are presented with an issue of first impression, namely, what suffices as “reasonably particular” in a request for public records submitted under the Access to Public Records Act (APRA). Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to the APRA. Each request was identical – all seeking the emails sent or received within a four and one-half month time span – the only difference between the requests was that each named a different employee.

About one week later, appellee-defendant, the Huntington County Board of Commissioners (the “Commissioners”), sent a letter through counsel to Anderson, requesting further clarification and assuring Anderson that once clarification was received, the appropriate records would be provided. Instead, Anderson filed a formal complaint with the Public Access Counselor, who upheld the Commissioners’ decision, insofar as Anderson’s request was not “reasonably particular” as required by the APRA.

Anderson filed a complaint to compel access to the public records, seeking a court order to compel the Commissioners to supply the records as originally requested and for attorney fees and costs. The Commissioners informed Anderson that they intended to comply with his requests as written. Anderson concedes that he has received all requested information but not before a hearing was held after which, the trial court concluded that the Commissioners did not improperly deny Anderson’s requests because they were not “reasonably particular” and denied his request for attorney fees and costs.

We conclude that, inasmuch as a county employee spent ten hours and purchased new software to retrieve 9500 emails that then had to be turned over to human resources for further redaction, we agree with the Public Access Counselor and the trial court that Anderson’s requests were not reasonably particular. Likewise, we conclude that Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to attorney fees, court costs, and reasonable expenses * * *

It is noteworthy that while the Commissioners agree with Anderson that the Public Access Counselor’s decision is not binding on the trial court or this Court, in the absence of case law or adequate statutory authority, this Court should give considerable deference to the opinions of the Public Access Counselor. The Commissioners point out that in other areas of administrative law, “with respect to an agency’s interpretation of statutes and regulations that [it] is charged with enforcing, such interpretation is entitled to great weight . . . .” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind. Ct. App. 2011). Nevertheless, the Commissioners concur with Anderson that unlike other cases under the Administrative Orders and Procedures Act, the trial court reviews an opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9. * * *

Although the Commissioners ultimately spent the time and expense compiling and reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the fact that the Commissioners provided the information exactly as Anderson requested it does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion that Anderson’s requests were not reasonably particular under the APRA, and the Commissioners were under no legal obligation to provide to him the information as he requested. Consequently, this argument fails.

In John Alden v. State of Indiana , a 7-page opinion, Judge Pyle writes:
John Alden (“Alden”) appeals the trial court’s denial of his petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemeanor. We affirm. * * *

Alden argues that his petition should have been granted because there was sufficient evidence to show that he met all of the statutory requirements for reduction of his felony conviction to a misdemeanor. The State argues that the statute in question grants the trial court discretion in deciding whether or not to grant this type of petition. * * *

It seems clear that the General Assembly has adopted a policy wherein trial courts can reward good behavior by removing the stigma of certain Class D felony convictions. See State v. Brunner, 947 N.E.2d 411 (Ind. 2011) (modification of conviction for good behavior may be equitable and desirable, but only after legislature grants authority to courts). However, the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor. The word “may” shows an intent by the legislature to give trial courts the discretion to grant or deny a petition, even if all of the statutory requirements have been met by the Petitioner. While it is best for trial courts to keep in mind the policy preference of rewarding good behavior with a reduction of a Class D felony conviction to a Class A misdemeanor, trial courts are free to deny a petition as long as the denial is supported by the logic and effect of the facts.

In Michael L. Curtis v. State of Indiana , a 7-page opinion in a pro se appeal, Sr. Judge Sharpnack writes:
Michael Curtis appeals the denial of his Indiana Trial Rule 60(B) motion for relief from judgment following the forfeiture of his truck. We reverse. * * *

In his 60(B) motion, Curtis stated that his attorney failed to inform him of the forfeiture order and argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property. Assuming the truth of his claim that his attorney did not inform him of the final judgment, Curtis may have been unable to file a timely notice of appeal. He did, however, file a motion for a belated appeal, in which he notified the trial court for the first time that his attorney did not inform him of the forfeiture order and argued that the copyright infringement was not theft, but the trial court did not rule on the motion. * * *

Here, the forfeiture of Curtis’s truck was based on the assumption that the content of the pirated movies sold out of the truck constituted “stolen . . . or converted property.” Ind. Code § 34-24-1-1(a)(1)(B). We must disagree. As noted in Dowling, “the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple goods, wares, or merchandise.” 473 U.S. at 217 (quotation omitted). Moreover, Section 34-24-1-1(a)(1)(B) clearly allows forfeiture in cases of theft or conversion but says nothing about copyright infringement or even fraud, the crime to which Curtis pleaded guilty. See Chan v. State, 969 N.E.2d 619, 621 (Ind. Ct. App. 2012) (“[F]orfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed.”).

The State nonetheless asks us to affirm the trial court on two alternative grounds. First, it argues that Curtis has waived any arguments on appeal for failure to present a cogent argument. In his brief, Curtis argues that the trial court abused its discretion by denying his Rule 60(B) motion and further cites relevant portions of Dowling. This is sufficient to avoid waiver. Second, the State argues that Curtis cannot challenge the forfeiture inasmuch as he already pleaded guilty to committing the underlying crime with his truck. The crime to which Curtis pleaded guilty, however, was not theft or conversion, and the forfeiture provision here allows seizure only in cases of stolen or converted property.

As the forfeiture of the truck was not authorized by statute, we conclude that Curtis has established extraordinary circumstances justifying relief.

NFP civil opinions today (4):

In Re: The Paternity of K.G.; J.G. and S.S. and A.S. (NFP)

Accessabilities, Inc. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Denise Polak and Dianne Rose and Dianne Rose, Lake County Trust Co., as Trustee for Trust #6041, and Jeanne Collins Living Trust, Dianne Rose, Trustee v. Tiffiny Jordan (NFP)

Ray Ortega v. Susko Corp., Inc., d/b/a Our Place (NFP)

NFP criminal opinions today (6):

Jeffrey A. Booth v. State of Indiana (NFP)

Kelly Coots v. State of Indiana (NFP)

Rudy J. Smith v. State of Indiana (NFP)

Clarence Johnson v. Juana Johnson (NFP)

Madelyn Smith v. State of Indiana (NFP)

Lanard E. Foster v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Transfer Statistics From the Chief Justice Dickson-Led Indiana Supreme Court"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

This post from July 9 and this November 7 post analyzed transfer statistics in civil and criminal cases broken down by published or NFP status. The following table does the same for transfer dispositions from Justice Rush’s November 7 appointment to the Court through the end of the year.

Indiana Supreme Court Transfer Dispositions: Nov. 7, 2012-Dec. 31, 2012
  FP cases NFP cases FP & NFP
CIVIL 3/14 (21.4%) 1/19 (5.3%) 4/33 (12.1%)
CRIMINAL 3/19 (15.8%) 3/64 (4.7%) 6/83 (7.2%)
ALL CASES 6/33 (18.2%) 4/83 (4.8%) 10/116 (8.6%)

Because of the short time period and relatively few cases, any conclusions about the “new” Indiana Supreme Court that include Justice Rush must be tempered. The categorical numbers are fairly consistent with earlier periods: transfer grants were more likely in civil (12.1%) than criminal (7.2%) cases, and the overall grant rate (8.6%) was fairly close to recent historic averages.

The odds for a grant of transfer from an NFP opinion, though, were considerably higher (4.8%) in the final two months of the year than in the August to November 1 period when transfer was granted in only 1.8% of NFP cases, provoking this post titled “A Grant of Transfer is Nine Times More Likely From a Published Court of Appeals’ Opinion.”

Perhaps most surprising, though, are the NFP cases in which transfer was granted. Two of the three criminal cases were petitions from the State in which the Court of Appeals had reduced a sentence. The Supreme Court vacated the reduction in Kimbrough because the defendant had not raised an Appellate Rule 7(B) challenge for a reduced sentence but simply alleged the trial court abused its discretion in its sentencing statement. And in Kucholick the Court essentially split the difference in reducing a sentence from the one imposed by the trial court but above the reduction ordered by the Court of Appeals. Oral argument was not heard in either case.

Oral argument is scheduled in March in the other NFP criminal case, which is from a defendant’s petition and involves whether Indiana Code section 35-50-2-8(b)(3) limits application of the general habitual offender rule when the instant offense is a “drug offense.” The NFP civil case involves honest home sale disclosures, which generated some media coverage, and will be argued next month.

Although Justice Rush has not yet issued an opinion or written a separate concurring or dissenting opinion this early in her tenure, her votes to grant transfer in cases in which transfer was denied suggests she is taking a hard look at both FP and NFP opinions and is more likely than her colleagues to grant transfer. Of those divided cases in which transfer was denied in 2012, Justice Rush voted to grant transfer primarily in FP cases: Palilonis and Gracia, both FP criminal, and Peniel Group and Houser, both FP civil cases. The exception was Tice, an NFP criminal opinion where she and Justice David voted to grant transfer. In the early weeks of this year, however, she had voted to grant in three other NFP criminal cases (Tompkins, Lopez, and App) as well as two FP criminal cases (R.W. and Semenick).

Finally, combining all three time periods yields the following statistics for the Chief Dickson-led Indiana Supreme Court.

Transfer Dispositions April 1, 2012-December 31, 2012*
  FP cases NFP cases FP & NFP
CIVIL 22/111 (19.8%) 3/92 (3.3%) 25/203 (12.3%)
CRIMINAL 13/99 (13.1%) 11/292 (3.8%) 24/391 (6.1%)
ALL CASES 35/210 (16.7%) 14/384 (3.6%) 49/594 (8.24%)

___________________
*This data is slightly different from the aggregate of the tables from the three separate time periods because it was updated to include the recent order vacating transfer as improvidently granted in Ohio Farmer’s Insurance v. Indiana Drywall & Acoustics, Inc. from yesterday.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts | Schumm - Commentary

Law - More on "Pa. home sellers can keep murders, suicides secret" But what about Indiana?

Updating this ILB entry from Jan. 6th, Susanna Kim of ABC News has a long Jan. 28th story headed "Homebuyer Appeals to Pa. Supreme Court on Her Home's Bloody Past."

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to General Law Related

Ind. Law - "Ind. highway funds in jeopardy unless stricter drunken driving laws passed"

That is the heading to Norman Cox's WRTV6 story with video, last evening. It begins:

Indiana is fighting to preserve more than $40 million in federal highway money that it could lose over a disagreement on the strength of its drunken driving laws.

State leaders say Washington is being arbitrary and unreasonable.

The dispute is over a revised federal interpretation of Indiana's laws on open containers and repeat drunk driving offenders.

When the laws were enacted eight years ago, Indiana received written certification that they met federal standards.

Now, even though neither federal nor state laws have changed, Washington officials have reinterpreted Indiana's statutes and say they don't measure up.

"It gets very specific very quickly," said INDOT spokesperson Will Wingfield. "But it relates to open container laws and the hours of community service that someone who's a repeat intoxicated offender would have to do. And Indiana already has strict laws in that regard."

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law

Ind. Law - "Washington agreement on immigration reform put Indiana debate on hold"?

This post from Jim Shella's Blog includes:

Just two years ago Indiana passed one of the toughest immigration laws in the country in a fight led by state Senator Mike Delph (R-Carmel.) Much of that law was struck down by a federal judge in a case that is still tied up in the federal courts.

In 2011 there were protests, including one that led to the arrests of college students who objected to one provision in particular. “Targeting us,” said Karla Lopez Owens at the time, “and then making it so we can’t pursue a higher education because we can’t afford it.” And Monday GOP House Speaker Brian Bosma said, if anything, lawmakers should go back to undo that provision. “A high school student that graduates here from Indiana schools that was brought here by their parents is subject to out of state tuition,” he said. “That has caused me to think just a little bit. Certainly we want these people to be productive.”

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law

Ind. Courts - Remarkable Unanimity at the Indiana Supreme: August-December 2012

This analysis is from Ind. University-Robert H. McKinney School of Law professor Joel Schumm.

The last five months of 2012, following the July 31 retirement of Justice Sullivan, have been a period of extraordinary unanimity at the Indiana Supreme Court. Of the Court’s nineteen opinions, a whopping 95% (18/19) have been unanimous.* The sole exception was a per curiam opinion in a criminal case where the Court essentially split the difference in reducing a sentence from the one imposed by the trial court but above the reduction ordered by the Court of Appeals. Chief Justice dissented “believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.”

The 95% rate stands in stark contrast to the 50% unanimity rate from this August 31 post that summarized vote alignments between the retirements of Chief Justice Shepard and Justice Sullivan. One would expect less unanimity, though, as the Court cleared its docket of long-pending cases upon the retirement of one of its members. In contrast, one would not expect as many divided opinions in the weeks after Justice Rush’s appointment. Uncontroversial cases in which all justices agree with the outcome and reasoning are more likely to be decided quickly. If two or more justices have separate opinions in circulation, however, the case is likely to take longer to decide, and we will surely see some of these in the coming weeks and months. The average rate of unanimity over the past three years has been 66%.

Nevertheless, I wouldn’t be surprised to see a unanimous opinion in two of the Court’s highest profile pending cases. I continue to believe the Court is likely to uphold the constitutionality of the Choice Scholarship (school voucher) program. The legislative fines case seems less clear cut, as the justices expressed serious concerns at oral argument with the notion that courts are powerless to intervene in any and every legislative branch squabble. That argument also included the unusual closing comments from the Chief Justice encouraging the parties to find a compromise. Although the Indiana Supreme Court is certainly deferential to other branches of government, Berry seems in some ways similar to A.B., where the Court put a limit on what would otherwise have been unrestricted and unreviewable power of another branch of government. Although that opinion included two separate concurring opinions debating deeper issues about Single Subject Clause of Article 4, Section 19, the justices were unanimous in placing limits on the DCS’s director’s authority. I suspect they will strive for a unanimous opinion in resolving the legislative fines dispute as well.
_______________
*I consider the Court’s Farmer disciplinary opinion unanimous because Justice David concurred in the result without writing a separate opinion.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Decisions - After oral argument Supreme Court withdraws transfer grant and reinstates COA opinion

The Supreme Court held oral argument in Ohio Farmers Ins. Co., et al. v. Indiana Drywall & Acoustics, Inc. on Jan. 17th.

In a 4-1 Order filed Jan. 28th, the Court rules:

By order dated October 19, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674 (Ind. Ct. App. 2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. * * *

All Justices concur except Rush, J., who votes to grant transfer.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Standards Governing Electronic Media, Still Photography, and Personal Computing Devices at Supreme Court Oral Arguments"

The Supreme Court has posted an order, filed Jan. 23, headed "Standards Governing Electronic Media, Still Photography, and Personal Computing Devices at Supreme Court Oral Arguments." The 4-page order details permissible use of cameras and other electronic devices for press coverage of its arguments.

Paragraph 5, however, appears to move beyond press coverage:

5. Impermissible Use of Media Material.
(a) None of the film, video tape, still photographs or audio reproductions developed during or by virtue of coverage of a Supreme Court proceeding shall be admissible as evidence in the matter out of which it arose or any matter subsequent or collateral thereto, whether involving the same or different parties.
[BTW, there is no "(b)"]

A reader writes:

Para. 5(a) is interesting, but what does it mean? May I cite to a justice's concern expressed on a topic in making an argument to the Court of Appeals? That is simply illustrative; I'm not asking that it be admitted into evidence.

I understand I could not admit it into evidence in a trial court, but could I not cite it in a brief there as illustrative support?
Additionally, as the ILB has pointed out in several posts, the Supreme Court recently has begun citing statements in the oral argument video in its opinions.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Courts - "Nominating Commission Names Five Finalists To St. Joseph County Superior Court"

From an INCourts news release:

The St. Joseph County Superior Court Judicial Nominating Commission announced five finalists to fill an upcoming judicial vacancy. Commission Chairman and Indiana Supreme Court Justice Mark Massa announced the finalists Monday. “The Commission members were impressed by the high quality of all of the applicants,” Massa said. “The five individuals we are recommending to Governor Pence represent the best of an impressive pool of talent.”

The nominees are:

  • Mary Catherine Andres, deputy prosecuting attorney in St. Joseph County
  • Scott Duerring, a general practice attorney in South Bend
  • Andre B. Gammage, managing partner at Berger & Gammage in South Bend
  • Elizabeth C. Hurley, Magistrate for the St. Joseph Circuit Court
  • Jeffrey Lane Sanford, sole practitioner, deputy public defender for St. Joseph County, and deputy city attorney in South Bend
A vacancy on the St. Joseph Superior Court will occur March 31, 2013, when Judge Roland W. Chamblee, Jr., retires. In December 2012, the Commission announced applications for the position were available online and should be submitted to the St. Joseph County Clerk by January 18. On January 25, the Commission interviewed thirteen candidates and then met in executive session to deliberate.

Governor Mike Pence will name a Superior Court judge from among the five finalists submitted by the nominating commission. * * *

The [St. Joseph County Superior Court Judicial] Nominating Commission was established by the Indiana General Assembly in 1973.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Law - More on: Daniels replaces long-time Purdue attorneys with his former chief counsel [Updated]

Today's story by Eric Weddle in the Lafayette Journal Courier adds more information to yesterday's post. Some quotes:

Daniels, now Purdue’s president, said Purdue was the only Big Ten school without in-house legal counsel that can act as a clearinghouse to decide which matters require outside assistance. It remains to be seen how much the change reduces the university’s legal fees, Daniels said. In the past three years, Purdue paid Stuart & Branigin $6.77 million for services, in addition to hiring other law firms. * * *

According to a memo from Daniels, Schultz will manage legal functions and oversee delivery of legal services to the university, as well as perform professional services and provide proactive advice on operations and programs. Schultz will be paid $240,000 per year. * * *

J. Paul Robinson, professor and chairman of the faculty senate, decried the amount of university legal bills for faculty investigations and other issues Monday at the regular University Senate meeting.

Between April 2011 and December 2012, $1.58 million was paid to Stuart & Branigin for “legal issues resulting from administration action against any staff or faculty member,” according to documents obtained through an open records request by Robinson and provided to the Journal & Courier. An additional $330,000 was paid to other law firms. What those issues are were not included in the request.

[Updated at 8:44 AM] A reader has just noted:
Stuart & Branigin will need to update their entire section on education practice or just disband it.
Fourteen partners currently are listed on their Purdue/General Counsel webpage.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law

Monday, January 28, 2013

Ind. Decisions - Transfer list for week ending January 25, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the January 11, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 25, 2013. It is one page (and 12 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Transfer Lists

Ind. Law - Daniels replaces long-time Purdue attorneys with his former chief counsel

Posted a few minutes ago by the online Lafayette Journal Courier:

Purdue President Mitch Daniels today announced changes to the university’s legal counsel.

Starting Feb. 1, Steve Schultz will join Purdue in the position of legal counsel. He will manage the legal function and oversee the delivery of legal services to the university, as well as perform such professional services as may be requested by the president and the board of trustees, according to a memo from Daniels.

Schultz will report directly to the president and to the board of trustees. His appointment will be formally ratified by trustees at the Feb. 8 meeting.

Schultz is an Indianapolis native and was Daniels’ first chief counsel when he was governor. * * *

The role of lead counsel to the university has historically been filled by members of the firm of Stuart & Branigin. * * *

Daniels thanked Stuart & Branigin for their longstanding service to the university.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 3 of the General Assembly

Here is the third weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session. A number of bills of interest were considered in committee last week ...

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts

Ind. Courts - Kansas legislature may consider changes to its Missouri Plan-type method of judicial selection

John Hanna of the AP has a long analysis today, here as published in the Columbus Republic, headed "GOP conservatives push for overhaul of Kan. judicial selection but face big obstacle." A few quotes from the lengthy report:

TOPEKA, Kansas — Conservative Republican legislators are pushing aggressively for an overhaul of how Kansas fills vacancies on its two highest courts, but they face significant obstacles in getting a proposed amendment to the state constitution on the ballot.

Some GOP lawmakers have argued for almost a decade that the current system of having an attorney-led nominating commission screen applications for the state Court of Appeals and Supreme Court is biased against conservatives. They've been frustrated with court decisions ordering the state to increase spending on public schools, and abortion opponents view the courts as too liberal on that issue. Conservative Republican Gov. Sam Brownback also is pushing for change.

What about Indiana? In Indiana two proposed constitutional amendments, SJR 6 (Sen. Delph) and SJR 19 (Sen. Young), have been introduced.
SJR 6 Digest: Supreme court and court of appeals judges. Provides that the governor fills vacancies on the supreme court and the court of appeals, subject to the approval of the senate. Provides that a justice of the supreme court or judge of the court of appeals is retained in office only if the justice or judge receives at least 67% of the total number of votes cast on the question of retention of the justice or judge. Provides that a law, judicial rule, decree, or order may not abridge the freedom of a judge, lawyer, candidate for judicial office, or any other person from: (1) speaking, writing, or otherwise expressing the person's views freely regarding a political issue, political party, or candidate for office, including a candidate for a judicial office; or (2) making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Makes stylistic changes.

SJR 19 Digest: Selection of justices and appellate court judges. Renames the judicial nominating commission as the commission on judicial nominations and qualifications. Provides that one commission member is selected by attorneys licensed in Indiana, one commission member is appointed by the speaker of the house of representatives, and one commission member is appointed by the president pro tempore of the senate. Requires that at least one commission member appointed by the governor must be an attorney. Prohibits a person who is a lobbyist from serving on the commission. Provides for the governor to fill a vacancy on the supreme court or the court of appeals from nominees recommended by the commission, subject to confirmation by the senate. Provides that a justice of the supreme court and a judge of the court of appeals serves until July 1 of the tenth year after the justice's or judge's appointment is confirmed by the senate or the justice's or judge's retention in office is confirmed by the senate. Provides that if a justice or judge wants to serve a new term, the justice or judge must apply to the senate for retention. Specifies that a judge or justice will be retained, unless: (1) the judge or justice does not apply to the senate for retention; or (2) at least 60% of the members of the senate vote against retention. Amends the provisions concerning impeachment proceedings for a justice or judge. Provides a transition for justices and judges serving at the time of the adoption of these amendments to the constitution. This proposed amendment has not been previously agreed to by a general assembly.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts

Law - "R-Rated Saginaw Case Raises Question Of Efficacy Of Sealing Record In The Age of Internet Search Engines"

Good question raised by this post in the SBMBlog.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to General Law Related

Ind. Gov't. - Replace "Regulated Occupations Evaluation Committee" (ROEC) with "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER)?

The ILB had a number of posts last year under the heading "Hairdressers may have killed bill that would eliminate licensing." From the Jan. 29, 2012 entry:

This Jan. 26th 2012 ILB entry pointed out that this review group is not an interim committee, but an independent, permanent, staffed, Regulated Occupations Evaluation Committee (ROEC), created by the General Assembly in 2010 to review and evaluate each regulated occupation at least every seven years.

In the past the General Assembly has enacted similar laws providing that not only state agency rules, but state agency programs and even the agencies themselves will expire unless they are readopted every seven years. These laws are generally impractical to implement in practice (for instance, many environmental rules are amended continually, so how do you determine review dates?) and review quickly becomes cursory, pushed-forward, or worse.

"Or worse" happened last year with the state's massive FSSA, which was allowed to go out of existence by oversight. There were many stories about that at the time. But as the ILB pointed in this July 10, 2011 entry:

Four years ago, at the end of 2007, the very same FSSA laws expired and apparently no one noticed! There was no statutory basis for the FSSA for months, until the laws were restored, retroactively, by actions of the 2008 General Assembly.
With this newest, 2010 law, at least the agencies do not expire automatically. But the legislature has already lost interest, while the law will continue to require review and action. Next year, the committee's recommendations re real estate, auctioneer, and plumbing occupation requirements, to name only a few, will be before the General Assembly. And the following year, a new group, etc. As the FWJG opines today: "[L]awmakers really need to decide whether the committee it created should continue evaluating all of the state’s 35 licensing boards." Or is the 2010 review law itself a waste of time and money?
This year a bill has been introduced (SB 520) to repeal IC 25-1-16, the current "Regulated Occupations Evaluation Committee" (ROEC), and replace it with the "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER).

Here is the current committee's webpage, and its schedule of upcoming meetings. These minutes from its most recent meeting give a good idea of what it is about.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Government

Ind. Courts - A Spike in Supreme Court Oral Arguments on Whether to Grant Transfer (But Only in Criminal Cases)

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

In recent months the Court’s oral argument schedule seems especially full, usually with three arguments scheduled each Thursday. The increase is explained in large part by a spike in oral arguments in criminal cases in which the Court has not yet decided whether to grant transfer.

For those who do criminal appellate work, the odds of appearing before the Indiana Supreme Court for oral argument have increased considerably in recent months. During the three-year period from July 1, 2008 to June 30, 2011 — the most recent period addressed in the Court’s annual reports - the Court heard oral argument in a total of only seven criminal cases in which transfer is pending.

In contrast, in just a four-month period, from December 2012 through March 2013, the Court heard or will hear oral argument in eight criminal cases in which a petition to transfer is pending:

In contrast, the Court heard oral argument regarding a pending civil transfer petition an average of five times each year during the same three-year period, but in the most recent four months scheduled argument in just one civil case: Pine v. Stirling Clinic, which was argued January 17. (Transfer was denied 3-2, with CJ Dickson and Justice Rucker voting to grant.)

Transfer pending cases are — or at least have been — a small part of the Court’s oral argument docket. The Indiana Supreme Court generally discusses petitions to transfer in its weekly conference, denies transfer by order in about 90% of cases, issues an order granting transfer in just under 10% of cases , and schedules oral argument in the vast majority of those granted cases.* (A few seemingly straightforward cases are decided without oral argument, such as the recent per curiam opinions in Iltzsch and Kucholick, and Justice Rucker’s opinion in Kimbrough.)

Scheduling cases for oral argument before deciding whether to grant transfer offers some distinct advantages. First, the additional time and scrutiny from oral argument on the front end will likely reduce the number of cases requiring a post-argument order finding that transfer was improvidently granted.

Second, by waiting to grant transfer, Court of Appeals’ precedent of broad state-wide impact can remain intact. In Joey Jennings v. State, the most important misdemeanor sentencing case in memory, I included the following in an amicus brief filed on behalf of the Marion County Public Defender Agency:

II. Transfer is more appropriately addressed after hearing oral argument and in conjunction with an opinion on the merits.

Although trial courts are not uniformly following the Court of Appeals’ opinion in Jennings, many have changed their practices to conform. A grant of transfer will likely lead most, if not all, to return immediately to the pre-Jennings approach, even though the ultimate resolution of the issue will not be known until an opinion is issued by this Court.

Concerns for judicial economy and continuity of precedent counsel against an immediate grant of transfer. Postponing the grant of transfer until oral argument is held or an opinion is issued will minimize the inconsistency of courts flipping back and forth between approaches and mitigate the number of appeals pursued until the issue is ultimately resolved.

There, the Court scheduled the case for oral argument without granting transfer but then promptly granted transfer after the argument, suggesting the issue will not end well for defendants.

In short, the increased number of arguments in transfer pending cases strikes me as a positive trend. The stark contrast between arguments in criminal and civil cases, however, remains a bit of a surprise and mystery.
_____________________
*Indiana Supreme Court practice differs from U.S. Supreme Court practice. Although both courts consider petitions for discretionary review at a weekly conference, the similarity ends there. When the U.S. Supreme Court grants certiorari, parties are required to file briefs on the merits in the intervening months before oral argument is held. In contrast, no additional merits briefing is sought or permitted by the Indiana Supreme Court. Moreover, a grant of transfer immediately and automatically vacates a Court of Appeals’ opinion under Appellate Rule 58(A), and thus the timing of the grant is more significant than the timing of a certiorari grant. Transfer is granted after the conference discussion in most cases, although grants may also occur after oral argument in cases like those discussed above or simultaneously with the issuance of an opinion, likely where the justices were initially divided about whether to take the case or how to resolve it.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts | Schumm - Commentary

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, January 27, 2013:

From Saturday, January 26, 2013:

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, January 31st

Next week's oral arguments before the Supreme Court (week of (2/4/13):

Thursday, February 7th

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, January 30th

Next week's oral arguments before the Court of Appeals (week of 2/4/13):

Thursday, February 7th

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 28, 2013
Posted to Upcoming Oral Arguments

Sunday, January 27, 2013

Ind. Decisions - Still more on: Notre Dame sues feds over requirement to provide insurance coverage for contraceptives

Updating this ILB entry from January 10th, the South Bend Tribune today has published a long opinion piece by Bridgette Dunlap, the Human Rights Fellow at the Leitner Center for International Law and Justice at the Fordham University School of Law, and Kathryn Pogin, a Ph.D. student in philosophy at the University of Notre Dame. The heading: "Lawsuit raises question: Who is Notre Dame?" A few quotes:

In its lawsuit challenging the federal contraceptive coverage rule, the University of Notre Dame claims to have rights under the Religious Freedom Restoration Act. RFRA protects "(a) person whose religious exercise has been burdened" by the government. Such a person can seek an exemption from a law if she has a sincere religious belief that will be substantially burdened. The assertion that Notre Dame can sue under RFRA raises the question: Who is Notre Dame?

The claim to protection under RFRA would seem to rest on one of two theories: Either that the term "person" should be read to include corporations, or, that the corporation represents as-of-yet unidentified human persons, as when a church sues on behalf of parishioners. Notre Dame's court submissions exhibit confusion on this point, referring to Notre Dame both as having a singular "conscience" and as having plural "consciences." * * *

We believe the proposition that Notre Dame can hold one unified religious belief is antithetical to the very purpose of a university. Notre Dame's administration appears to disagree. Should it appeal the dismissal of the lawsuit or refile once the contraceptive coverage rule is finalized, the plaintiff should plead who or what is the person that holds the beliefs alleged. Perhaps more importantly, it should inform the members of the Notre Dame community, and those considering joining it, who can rightly claim "We Are ND."

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - "Court Rejects Obama Move to Fill Posts"

Updating ILB posts from Friday on the recess appointment decision, Charlie Savage and Steven Greenhouse of the NY Times had this front-page coverage in the Jan. 26th print edition of the Times. Some quotes:

WASHINGTON — In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago. * * *

But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees. * * *

Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867. But the three judges, all appointed by Republicans, said the original meaning of the words used in the Constitution clashed with subsequent historical practices. * * *

Among the decisions that could be vacated are three recent rulings in which the board has assumed a powerful role in telling companies that they cannot issue blanket prohibitions on what their employees can say on Facebook, Twitter and other social media.

The ILB posted about the NLRB ruling that social net speech is protected in this Jan. 22nd entry, quoting another NYT story.

"More Than 300 Labor Board Decisions Could Be Nullified" is the headline of this NYT companion story Saturday, also by Mr. Greenhouse, that begins:

The National Labor Relations Board has been thrown into a strange legal limbo — with the possibility that more than 300 of its decisions over the last year could be nullified — as a result of a federal appeals court ruling on Friday that President Obama’s recess appointments to the board were invalid.

By ruling that Mr. Obama’s three recess appointments last January were illegal, the federal appeals court ruling, if upheld, would leave the board with just one member, short of the quorum needed to issue any rulings. The Obama administration could appeal the court ruling, but no announcement was made on Friday.

If the Supreme Court were to uphold Friday’s ruling, issued by the United States Court of Appeals for the District of Columbia Circuit, it would mean that the labor board did not have a quorum since last January and that all its rulings since then should be nullified.

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Courts in general

Ind. Law - "Hoosier lawmakers may, or may not, vote on gay marriage ban"

Lesley Weidenbener, managing editor of TheStatehouseFile.com (a news website powered by Franklin College journalism students) and a longtime Statehouse reporter, draws upon her memory of past legislative sessions to unpack and then critique Speaker Brian Bosma's attitude this year on the question of legislative consideration of a constitutional ban on same-sex marriage. Her long column today in the Louisville Courier Journal begins:

INDIANAPOLIS — Republican leaders at the Indiana General Assembly seem at a loss as they decide how to proceed with a proposed constitutional ban to limit marriage to the union of one man and one woman — and restrict how lawmakers can grant rights to same-sex couples.

In fact, House Speaker Brian Bosma, R-Indianapolis, seems just annoyed — maybe even angry — when reporters ask about the issue.

Last week, he refused during a press conference about workforce proposals to answer a question about whether the marriage amendment would get a hearing or vote in committee. He said he’d talk about marriage later.

After the press conference was over, he said he hadn’t decided yet whether the proposal would get a vote.

And then he added: “Anybody have a real question, an important question?”

Yikes. It was a startling answer for a man who nine years ago called the constitutional ban on same-sex marriage “the most critical piece of the people’s business.” And more importantly, it was a slap to the thousands of Hoosiers for whom this issue is important — either because they believe marriage equality is essentially a civil rights issue or they oppose it as immoral.

Bosma’s indecision about the issue is certainly understandable. But his frustration with others’ interest in the issue is not.

Back when the marriage amendment was a key part of the House GOP agenda and Republicans were in the minority, Bosma led his party on a walk-out in the House after then-Democratic Speaker Pat Bauer of South Bend refused to allow a vote on the proposal.

Then two years ago, Republicans — who had won the majority — started the state’s long process for amending the state’s constitution. They need to approve the marriage amendment again this year or next to send it to the ballot for ratification by voters.

But along the way, attitudes about same sex couples and their legal status have been changing.

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Indiana Law

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

Updating this ILB entry from Jan. 24th, Tony Cook had this Jan. 25th story in the IndyStar, headed "Key lawmakers want second look at Rockport gas plant deal."

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Indiana Law

Saturday, January 26, 2013

Ind. Courts - Two stories today about problems for prosecutors

"Prosecutor says he may have to drop charge against mother accused of killing newborn" is the most recent story by Indianapolis Star reporter Carrie Ritchie on the Bei Bei Shuai case. See also this Jan. 22nd story, quoted in this Jan. 23 ILB entry. From today's long story:

Marion County Prosecutor Terry Curry admitted Friday that his office has a big problem with one of its most controversial cases.

Curry charged Bei Bei Shuai, 36, Indianapolis, with murder and attempted feticide in 2011 when her baby daughter, Angel, died a few days after being born. Prosecutors alleged that rat poison Shuai ate during a suicide attempt caused bleeding in Angel’s brain, which eventually killed her.

But now, they can’t prove it.

A week ago, a Marion County judge said she won’t allow a pathologist to tell a jury that the rat poison killed the baby. The process the pathologist used to make that conclusion “is not reliable,” the judge ruled, because she didn’t eliminate other potential causes of death and didn’t provide enough information about how she determined rat poison was the cause.

“With the existing combination of witnesses, without any proof of cause of death,” Curry said Friday, “we would not be able to go forward on the murder charge.”

Even if prosecutors drop the murder charge, they plan to continue pursuing the attempted feticide charge, which Curry said doesn’t require them to show that the rat poison killed Angel. * * *

Curry said he’ll continue to find ways to make the case work, which could draw out the length and the cost of the case. Curry’s office says it does not know how much the case will end up costing taxpayers. * * *

Shuai’s trial is set for April 22.

"Charges dismissed in Facebook photo saga" is the headline to this story in today's Lafayette Journal Courier, reported by Sophia Voravong. I admit I find it confusing. Here is a sample:
But now the seemingly strong evidence is gone — forcing the Tippecanoe County prosecutor’s office on Friday to drop charges of child exploitation, a Class C felony, and possession of child pornography, a Class D felony, against the mother, 50-year-old Lynda A. Rusk, Prosecutor Pat Harrington said.

“In the past few weeks, our office has received additional digital records from the multiple carriers involved in this case. Analysis of these records reflect the critical digital evidence, which was previously requested by the state, no longer exists,” the prosecutor’s office said in a written statement provided to the Journal & Courier.

“Without the before-mentioned evidence, the state is unable to prove the location of the electronic device that was the source of the image. Therefore, the state is unable to prove jurisdiction in Tippecanoe County.”

Harrington declined to comment further on the “multiple carriers,” or companies from which prosecutors subpoenaed evidence, or why the companies purged the information.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Indd. Courts - A fresh look at: "Center Twp. Trustee is attempting to move the location of the Center Township of Marion County small claims court"

The ILB has been following this matter since Scott Olsen's 2011 IBJ story, posted Sept. 19th of that year. His long, still available report is headed "Small claims court could move from City-County Building" and begins:

The Center Township trustee is pushing to move the township's small claims court from the downtown Indianapolis City-County Building to the Julia M. Carson Government Center in what is being promoted as a cost-saving measure.

Trustee Eugene Akers’ plan, which could be approved at a Wednesday township board meeting, is not without controversy, however. The court’s judge, Michelle Smith Scott, is adamantly opposed to the move.

“If the trustee for Center [Township] is able to do this and is allowed to interfere with the court over the objection of the judge,” she said, “I don’t think it sets a good precedent.”

A second IBJ story from Sept. 22nd was titled "Township board OKs small claims court move." A quote:
The proposal calls for the court to take the 2,200-square-foot space vacated by 300 East, a restaurant and bar at the Carson Center that closed Sept. 1. The small claims court now occupies 1,600 square feet in the basement of the City-County Building.
This Dec. 14, 2011 ILB entry is headed "Supreme Court names special judge to hear Center Twp. small claims court's mandate action" and quotes from the Supreme Court's order.

The ILB put together this Nov. 12, 2012 entry after acquiring and uploading all the documents in the mandate action.

Today Tim Evans of the Indianapolis Star has a lengthy, front-page story on the dispute, which is currently awaiting action by the Supreme Court. The headline, which some may read as indicating the paper's preference for the dispute's resolution, is "Center Township small claims court facilities ill-equipped for staggering volume of cases: Center Township trustee has renovated space to house the court, but judge wants to keep operations at the City-County Building."

Some quotes from today's long story:

A special judge appointed by the Indiana Supreme Court to look into the dispute agreed with Scott in a decision issued in June. By then, however, Akers had moved ahead with more than $500,000 in renovations to create the courtroom and offices.

Special Judge Charles L. Berger found the City-County Building is the preferred location because of its accessibility, safety, convenience and access to other public offices. * * *

The dispute, however, reaches far beyond a territorial fight among two elected officials right to taxpayer pocketbooks.

Besides the $500,000 in township funds spent with no guarantee the new court space in the Carson Center ever will be used, it will take at least another $50,000 in public money to upgrade the court's facilities in the City-County Building if the special judge's ruling is upheld by the Indiana Supreme Court .

"Center Township accepted the risk," Berger wrote in his ruling. "The fact that a court facility is now available at the Carson Center cannot dictate the outcome of this action."

Akers appealed that ruling, and the legal fight over the court's need for adequate facilities -- and, ultimately, its location -- is now up to the state's highest court. * * *

The City-County Building has clear benefits to Indianapolis attorney J.F. Beatty, who handles a number of cases in the court.

"From my standpoint and for the people the court is supposed to serve, the City-County Building is the best," said Beatty, whose Downtown office is about a block away.

Beatty added that the court has been in the City-County Building for years and people are familiar with that location. He also said the present site is safer because of security checks at the entrance and a large law enforcement presence.

"Safety is a real concern of ours every day in every small claims court," Beatty said.

The ILB disagrees with this statement in today's story:
Judicial mandates -- basically an order demanding a political authority, such as a trustee, to provide funding "reasonably necessary for the operation of the court" -- are uncommon in Indiana. Since July 1, 2001, according to Supreme Court records, only two others have been filed in the state.
ILB: Many county commissioners throughout the State, and many legislators, will likely agree with me that judicial mandate actions are not uncommon. Here is a very long list of ILB entries on judicial mandates; the first entry in the list was posted in 2005.

Also in 2005 I published a Res Gestae article on judicial mandates, titled "Separation of Powers in the County Courthouse." Two of the cases discussed may be relevant here. In one, from 1887, the county commissioners in Vigo County often closed down the courthouse elevator in the afternoons while the judges on the third floor were still holding court. Finally, to quote from my article, the judge of the Vigo circuit court issued the following order:
It is hereby ordered that the elevator running from the basement to the court-room floor be run and operated in accordance with the following schedule. ...
The case made its way to the Supreme Court, which wrote:
[T]he court ... possesses all powers necessary for the free and untrammeled exercise of its functions. Considering, therefore, the facts concerning the Vigo county courthouse ..., there can be but little doubt that the order made by the court as to the running of the elevator was a proper exercise of the inherent powers of the court.
The article also discusses a 1986 Crawford County mandate case, involving:
... the reassignment by the Crawford commissioners of Room 7 in the courthouse, from the clerk’s office to the department of public welfare. The Supreme Court rejected the commissioner’s argument that the present mandate was not within the scope of TR 60.5 because it did not specifically seek “funds.” Citing Stout, the Court found the contention without merit: “Our case law illustrates that Ind. R.Tr.P. 60.5 applies to mandates in addition to those specifically for ‘funds.’” Again citing Stout, the Court stated: “A court of general jurisdiction cannot be controlled, directed, or impeded in its functions by any other department of government.”

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Ind. Courts - Former Vanderburgh County Superior Court Judge J. Douglas Knight dies unexpectedly

Judge Tim Crowley, Knox Superior Court 1, Vincennes, sends news of the passing of Judge J. Douglas Knight, a former judge of the Vanderburgh Superior Court.

Judge Knight passed away on Monday, January 21, 2013. His memorial service was Thursday in Evansville.

Here is a Jan. 22nd story by Mark Wilson in the Evansville Courier & Press that begins:

EVANSVILLE — Family and friends said the death of former Vanderburgh County Superior Court Judge J. Douglas Knight at an Evansville hospital Monday was unexpected.

Knight, 68, died from a sudden hemorrhagic stroke, said Emily Friend, his youngest daughter. He retired from the bench in December 2010 after more than two decades on the court. However, he remained active as a senior judge, helping hear cases as needed, said fellow Senior Judge Maurice O’Conner.

Here is the obituary from the C&P.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Ind. Law - Per NRA: "Indiana General Assembly Off to a Good Start with Pro-Gun Bills Introduced"

From the NRA Institute for Legislative Action:

The 2013 session of the Indiana General Assembly is off to a great start with multiple pro-gun bills being filed. Some great strides have been made over recent years in Indiana and your NRA will continue working to move forward to protect the rights of the law-abiding gun owners in the Hoosier State.

House Bill 1473, sponsored by state Representative Jim Lucas (R-69), would allow a person who legally possesses a firearm to keep that firearm stored in a locked trunk of their vehicle, a glove box, or stored out of plain sight in the vehicle while on school property. This would allow parents to park on school property for a meeting with a teacher or principal to do so without the fear of breaking the law. HB 1473 has been referred to the House Committee on Public Policy.

State Representative Sean Eberhart (R-57) has filed pro-hunting legislation, House Bill 1563, which applies to fish and wildlife matters. The Hoosier State maintains a rich hunting heritage and HB 1563 would make a few enhancements to Indiana’s wildlife laws. HB 1563 has been referred to the House Committee on Natural Resources. [ILB: The enhancements include "Repeals certain prohibitions against the possession or use of a silencer while in the act of hunting."]

Sponsored by state Senators Jim Banks (R-17) and Jim Tomes (R-49), Senate Bill 97 prohibits a state agency, including a state-supported college or university, from regulating the possession or transportation of firearms, ammunition, or firearm accessories on land, in buildings and other structures that are owned or leased by the state. Please be advised that SB 97 would not affect prohibited places under federal law. SB 97 has been referred to the Senate Committee on Rules and Legislative Procedure.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Law

Ind. Courts - "Justice Loretta Rush urges 16 Tecumseh Junior High girls to be true to themselves"

Nice story in the Lafayette Journal Courier, reported by Mikel Livingston. A quote:

The event, planned to take place monthly, gives a small group of handpicked seventh- and eighth-graders a chance to dine and interact with successful Lafayette women. It was organized by local pediatrician Anna Wildermuth and Ivy Tech faculty member Cindy Gerlach.

“I see a lot of teenagers and preteens and just thought especially girls, when I ask them what they want to do, they really had no idea,” Wildermuth said. “If they did have an idea, they didn’t know how to go about it.”

The 16 students were selected through an interview process. Future guests for the luncheons include State Rep. Sheila Klinker, Tippecanoe Chamber Music Society executive director Margot Marlatt and WLFI anchorwoman Gina Quattrocchi.

Posted by Marcia Oddi on Saturday, January 26, 2013
Posted to Indiana Courts

Friday, January 25, 2013

Courts - More on "DC Circuit Recess Appointments Clause Decision"

"Court Ruling Upsets Conventional Wisdom On Recess Appointments" is the title to this long analysis by Carrie Johnson of NPR.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

Ind. Courts - Still more on: Glitches with the Clerk of the Courts' email notification system?

Bill Groth, the attorney quoted in the initial ILB Jan. 23rd post, notes today:

It’s now been 4 days since I saw the opinion in Jenkins v. So. Bend Community Schools posted online. While I’m very pleased with the decision, I still have yet to receive it by email, fax, or regular mail. Something is definitely amiss with the notification system.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Ind. Courts - Ex longtime Indiana Super Lawyer now represented by public defender

Updating this list of earlier ILB entries on William F. Conour, including this one with the criminal complaint, this one re his resignation from the Indiana bar, and this one mentioning the reception for Chief Justice John G. Roberts in the Conour Atrium at the IU-Indianapolis Law School, today the ABAJournal notes:

A once-prominent personal injury attorney in Indiana is now represented by a public defender as he awaits trial in a federal wire fraud case in which he has been accused of stealing $4.5 million from 25 clients.

William F. Conour, 65, told a federal judge in Indianapolis at a Friday hearing that his only income is $2,000 a month from Social Security. Authorities say he misappropriated client funds in an operation dating back as far as 1999 that involved running his law firm in a manner akin to a Ponzi scheme.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Courts - "DC Circuit Recess Appointments Clause Decision"

Good post by Prof. Lawrence B. Solum on the recess appointment ruling today.

This story by Robert Barnes in the Washington Post includes:

The decision flatly rejected the administration’s rationale for appointing the board members, and jeopardizes the separate recess appointment of former Ohio attorney general Richard Cordray to head the Consumer Financial Protection Bureau. Cordray is the subject of a different lawsuit.

The ruling acknowledged that it conflicts in parts with what other federal appeals courts have held about recess appointments. The issue is likely to be decided by the Supreme Court.

The decision came from Circuit judges David B. Sentelle, Karen LeCraft Henderson and Thomas B. Griffith.

Here is Lyle Denniston's post at SCOTUSblog.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

Courts - "D.C. Circuit rules that President Obama's recess appointments to the NLRB were invalid"

See How Appealing and The Volokh Conspiracy.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

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

For publication opinions today (3):

In Term. of the Parent-Child Rel. of: D.T., (Minor Child), and T.S. (Father) v. The Indiana Dept. of Child Services, a 12-page opinion, Chief Judge Robb writes:

T.S. (“Father”) appeals the termination of his parental rights as to D.T. and raises one issue on appeal: whether his due process rights were violated when the lower court did not appoint a Guardian ad Litem (“GAL”) for Father. Concluding that his due process rights were not violated, we affirm.
In David Delagrange v. State of Indiana , a 14-page opinion with a dissent beginning on p. 10, Judge May writes:
David Delagrange appeals his conviction of four counts of Class C felony attempted child exploitation. Delagrange presents two issues, one of which we find dispositive: Whether the trial court erred when it denied Delagrange’s motion for directed verdict. We reverse and remand.

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement. * * *

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute. * * *

As the opinion on interlocutory appeal did not address the portion of the statute at issue here, the issue herein is not res judicata.

KIRSCH, J., concurs.
NAJAM, J., dissents with separate opinion. * * * I would hold that the law of the case doctrine precludes such a reconsideration of the relevant statutory language. But, second, the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires. Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children. * * *

In sum, the law of the case doctrine precludes our consideration of the issues raised in this appeal. And, to the extent that the majority reads the child exploitation statute to require a child victim to actively participate in the sexual conduct element of the crime, I disagree. While the statute may not be well-drafted, the legislature cannot have intended that interpretation.

For more on the "shoe camera" case, start with this post from June 27, 2010.

In Robertson Fowler v. State of Indiana, a 3-page opinion, Judge May writes:

Robertson Fowler petitions for rehearing of our decision dated August 31, 2012, affirming the denial of his petition for post-conviction relief. In that opinion, we held Fowler’s guilty plea precluded him from later challenging his sentence. We grant his petition for rehearing in order to acknowledge and address a subsequent decision by another panel of this court that reached a different result in resolving a similar allegation of error, and we reaffirm our original opinion.
NFP civil opinions today (1):

Term. of the Parent-Child Rel. of D.C., Minor Child; A.R., Mother, and S.C., Father v. Indiana Dept. of Child Services, Lake County CASA (NFP)

NFP criminal opinions today (7):

David McCombs v. State of Indiana (NFP)

Dale D. Engle v. State of Indiana (NFP)

Charles Kingery v. State of Indiana (NFP)

Ricky J. Thurston v. State of Indiana (NFP)

D.J. v. State of Indiana (NFP)

Paul Hoffert, Jr. v. State of Indiana (NFP)

Kip Hurt v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Jan. 23rd, another reader, Gary L. Miller, who returns to a seat on the Marion County Superior Court this coming Monday, writes:

I had a case where I wasn’t notified of a decision by email or hard copy. I found out about the case from the DEFENDANT when I ran into him on election day last spring. The decision had been rendered as a NFP months earlier. I was pissed, and I looked like an idiot.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Environment - Rights to hunt, fish, engage in agriculture, and to engage in traditional and modern farming and ranching practices, to be enshrined in Indiana Constitution?

On Dec. 2, 2012 the ILB posted an entry headed "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments," the headline referencing an article in Slate. I noted that:

Indiana's General Assembly adopted a "right to hunt" constitutional amendment in 2011. If it passes again this session (2013) or in 2014, the question of its ratification will appear on the 2014 ballot.

Here is the text of this proposal to amend Article 1 of our Constitution, the Indiana Bill of Rights:

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
The measure has been introduced again this year, as SJR 7.

New this year is a proposed amendment to the Indiana Constitution's Bill of Rights that reads:

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 40. The right of Indiana citizens to engage in traditional and modern farming and ranching practices shall be forever guaranteed in Indiana. No law shall be enacted that abridges the right of Indiana citizens to employ traditional or modern agricultural technology, animal production, or ranching practices.
It has been introduced in the Senate as SJR 21 and in the House as HJR 5.

Today a Fort Wayne Journal Gazette editorial opines:

Farming may fall somewhere near the ranks of apple pie and baseball in its importance to the American ethos, but ensuring all citizens have equal protection under the law should be far more important. Unfortunately, some state lawmakers want to enshrine special protections for farmers into the Indiana constitution.

House Joint Resolution 5 and Senate Joint Resolution 27 [sic], identical pieces of legislation making their way through the two chambers, seek to amend the Indiana Constitution to prevent any legislative body from adopting any rules regulating farming.

“It makes unconstitutional any law governing farming,” said Kim Ferraro, an attorney and director of water and agricultural policy for the Hoosier Environmental Council. “It seems to elevate one profession over all others for constitutional protections.”

The amendment, apparently, would prevent any rules regulating large industrial agricultural businesses such as confined animal feeding operations. It would also prevent any laws that protect public health and private property rights for Hoosiers who are not farmers. Even zoning laws could be challenged.

A resolution must be approved in two separately elected sessions and then win approval in a statewide referendum before the constitution is amended.

State legislators are also proposing a slew of bills that purport to promote the interests of agriculture and farming in Indiana, but as written would prohibit state and local governments from creating rules that protect communities from water pollution or other public health threats.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Environment | Indiana Law

Thursday, January 24, 2013

Ind. Gov't. "Franklin County fights federal gun control measures with 'Second Amendment Preservation Act'"

Renee Jameson has this report, with video, this evening at WRTV6. The story begins:

FRANKLIN COUNTY, Ind. - As the highly charged debate over gun control rages in Washington, an Indiana county is taking a stand against federal gun laws.

Franklin County commissioners recently adopted what they call the Second Amendment Preservation Act, declaring that all federal laws on gun control violate the U.S. Constitution's Second Amendment.

"If you have a license for an assault gun, than yes, you should be able to own one," said Donald Grizzell, one of the county's 24,000 residents.

The act says all federal gun control measures should be considered null and void in Franklin County.

"This is just another piece of the puzzle that we do need to step up and hold our public officials accountable for their oath to the Constitution," said Scott McDonough, a Franklin County commissioner.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Indiana Government

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

Updating this ILB entry from Jan. 23, this comprehensive story today by Allie Grasgreen in INSIDE Higher Ed seems to touch on all the issues.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to General Law Related

Ind. Decisions - Supreme Court files one opinion late this afternoon

In Iltzsch v. State, a 5-page, 4-1 per curiam opinion, the majority writes:

Following a bench trial, Carlin Iltzsch was found guilty of burglary, a class B felony, adjudicated an habitual offender, and sentenced to an executed term of twenty-two years. In addition, the trial court ordered Iltzsch to pay restitution to the victim in the amount of $711.95. At issue in this appeal is the restitution order. * * *

The Court of Appeals unanimously reversed the restitution order on grounds there was insufficient evidence to support the amount of restitution awarded. Iltzsch v. State, 972 N.E.2d 409, 412-14 (Ind. Ct. App. 2012), vacated. Without doubt, the better practice for the State would have been to present more substantial evidence about the nature and extent of the property damage, as outlined by the Court of Appeals. Similarly, the better practice for a defendant would have been to make contemporaneous objections (for example, hearsay and lack of foundation) as appropriate.

We grant transfer, though, to address whether the case can be remanded for a new restitution hearing. This question divided the Court of Appeals panel. * * *

[P]recedent supports remanding for additional evidence when appropriate. That has been the view of this Court and the Court of Appeals. [cites omitted] * * *

Accordingly, transfer of jurisdiction is granted pursuant to Appellate Rule 56(B). This case is remanded to the trial court with instructions to conduct a new restitution hearing at which the State will be permitted to present, and Iltzsch will be allowed to confront, any additional evidence supporting the victim’s property loss. The Court of Appeals opinion is vacated as to the remand; the remaining portions of the opinion are summarily affirmed. See Ind. Appellate Rule 58(A).

Rucker, David, Massa, and Rush, JJ., concur.

Dickson, C.J., dissents: I respectfully dissent, believing that we should not remand. As acknowledged by the per curiam opinion, Indiana statutory law requires that an order of restitution be "based on the actual cost of repair (or replacement if repair is inappropriate)." Ind. Code § 35-50-5-3(a). When on appeal the quantum of evidence presented by the State is found insufficient to satisfy its burden of proof on an issue, permitting the State a second opportunity to overcome its deficiency in proof is inconsistent with principles prohibiting double jeopardy. [cites omitted]

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Ind. Sup.Ct. Decisions

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

Updating this ILB post from Jan. 21st, Eric Bradner of the has this post at the Evansville Courier & Press blog, Capitol Journal - it begins:

A top Indiana lawmaker said the state’s 30-year deal to buy and then resell the proposed Rockport coal-to-gas plant’s product at a fixed rate needs a fresh review – either in the General Assembly or before utility regulators.

“Just the fact that the world has changed since this idea came into being requires us to take another look at it and see if it’s viable,” said state Senate President Pro Tem David Long, R-Fort Wayne.

Long said he’d like the Indiana Utility Regulatory Commission to review the contract once again – something Vectren Corp. has sued to force, since the Indiana Court of Appeals ruled last year that the contract needed some tweaks.

He said he is not willing to say “yet” that Indiana should try to kill the deal. But since natural gas prices that were around $13 per million British thermal units when the deal was negotiated have tumbled closer to $3 per unit now as a result of a shale gas boom, he said lawmakers “all have questions about it.”

“Energy prices have dropped substantially, and what looked like it had real potential when the price of gas was so much higher – now you have to bring into question whether it makes sense,” Long said.

“The idea of using coal in a cleaner way is a great idea, but whether or not this project per se is the way we go about it, given the costs associated with it, we have to ask those questions.”

Long’s comments come as the chairmen of the Indiana House and Senate utility committees consider holding a rare joint hearing on two bills that would revamp consumer protection mechanisms included in the contract.

More from the post:
House Speaker Brian Bosma, R-Indianapolis, said he agreed with Long that the deal should be reviewed.

“I would concur that the world has changed since that project first hit the books here in Indiana,” he said. * * *

Bosma said he has “some philosophical concerns” related to the state’s role in advancing the Rockport plant, and that he is not sure lawmakers would have approved the project at all if they knew how it’d turn out.

“There were some revisions to the original program that didn’t receive a lot of attention that collectively, now, when you look back at the program, you wonder if it would have passed that way in the first place,” Bosma said. “I think it is fair to have a fresh look at the program.”

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Indiana Law

Law - "Penn State Law Dean Flees To China"

A sample from the post by Elie Mystal of Above the Law:

I don’t see what else could have happened. Penn State Law is looking at a 20 percent drop in law school applications, one of the largest in the country. Dean McConnaughay’s major plan to consolidate Penn State’s two campuses was stopped in its tracks by politicians who, frankly, have no idea about the economics of running a law school these days. Then he proposed splitting the two campuses into two different law schools.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to General Law Related

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

For publication opinions today (3):

In William Pereira and Joseph McConnell v. Monica Pereira, John LeFebre and Karen LeFebre , a 13-page opinion, Judge Bailey writes:

William Pereira and Joseph McConnell appeal a summary judgment order which denied their complaint to quiet title in real estate acreage bequeathed by Joseph Sleeper (“Sleeper”) and allowed inheritance of a share of the acreage by John LeFebre and Karen LeFebre. We affirm.

A single issue is presented for review: whether the trial court erred in granting summary judgment, based upon a construction of Sleeper’s will to conclude that he had not devised a contingent remainder, subject to the condition of outliving a life tenant, but rather had made a gift to a class, which included John and Karen LeFebre’s mother, with a life estate intervening.

In Danny Boling v. State of Indiana , a 12-page opinion, Chief Judge Robb concludes:
The evidence is sufficient to support Boling’s conviction of attempted child molesting as a Class A felony and his forty-five year sentence is not inappropriate. However, the trial court erred in determining him to be a credit restricted felon because IC 35-31.5-2-72 does not include attempted child molesting as an offense for which one can be found a credit restricted felon. The conviction and sentence are affirmed, the credit restricted felon designation is reversed, and the case is remanded to the trial court to amend its records consistent with this opinion.
In Diano L. Gordon v. State of Indiana , a 10-page opinion, Judge Mathias concludes:
The admission of Pearce’s show-up and subsequent in-court identifications of Gordon did not amount to fundamental error because the show-up procedure was not unduly suggestive. We also conclude that the rule of lenity does not apply in this case, and therefore, we affirm Gordon’s Class D felony escape conviction.
NFP civil opinions today (1):

P.P. v. J.C. (NFP)

NFP criminal opinions today (2):

Terry Pounds v. State of Indiana (NFP)

E. Paul Haste v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still 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 yesterday afternoon, here is the long Indianapolis Star story today, written by Tim Evans. Some quotes:

The ruling from the 7th U.S. Circuit of Appeals in Chicago overturned a decision by U.S. District Judge Tanya Walton Pratt in Indianapolis. In June, Pratt upheld the law enacted by the legislature in 2008.

The American Civil Liberties Union of Indiana filed the class-action suit challenging the law on behalf of sex offenders, including a man identified only as John Doe who served three years for child exploitation. The offenders were all restricted by the ban even though they had served their sentences and were no longer on probation.

“We reverse the district court and hold that the law as drafted is unconstitutional,” judges Joel M. Flaum, John D. Tinder and John J. Tharp Jr. wrote in the ruling. * * *

It was unclear Wednesday how many people may have been charged under the law over the past four years and what their immediate recourse might be.

Larry Landis, executive director of the Indiana Public Defender Council, said one thing is clear: convictions will not automatically be vacated.

“There is no self-correction,” he said, “in our criminal justice system.”

Instead, those charged under the law will have to ask a court to vacate their conviction.

“It takes the person with a wrong conviction to initiate an action,” Landis explained.

Landis said he spoke out against the law when it was being discussed in the legislature “for the obvious reasons that it was overly broad and might interfere with employment opportunities.” But he said it was a hard sell because lawmakers have little sympathy for sex offenders — even when they have paid for their crimes.

“Often, with these kind of bills, your only success in killing them is to convince the committee chairman to not give it a hearing because you know everyone will vote for it when it comes up on the floor,” he said.

[More] Sentencing Law Policy Blog had this post yesterday on the 7th Circuit decision.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Ind. (7th Cir.) Decisions

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

Updating this long ILB entry from Jan. 21st, and this one from Jan. 17th, a lengthy editorial today in the Fort Wayne Journal Gazette takes a close, sometimes critical look at the current versions of the bills to rewrite the criminal code [SB 601, HB 1006]. A few quotes:

Now, two years after the General Assembly shot down a reform package from Gov. Mitch Daniels’ administration, a new proposal cleared a House committee last week. It appears to have a much better chance of success.

Whether it marks significant progress in its current form is a matter of debate. One welcome goal of the 2011 proposal was to put more lower-level criminals in county-based alternative sentencing programs instead of state prison, reducing costs to taxpayers and helping keep criminals from becoming repeat offenders.

But Larry Landis, executive director of the Indiana Public Defender Council, believes that as proposed the bill would have the opposite effect. “We think it will increase sentences across the board,” Landis said, and “undermines the goal” of reducing Indiana’s growing prison population.

Indeed, the bill would keep at least some criminals in prison longer, though many Hoosiers would argue that the bill does so appropriately in some cases. The proposal has a “truth in sentencing” component that would significantly reduce the amount of early-release credit that prisoners can earn by behaving in prison and earning college degrees. Most significantly, many criminals would have to serve at least three-fourths of their sentence, rather than half, before release – which seems appropriate for murder and other violent, high-level felonies but perhaps not for less-serious felonies.

The proposal also rightly increases the penalties for certain sex crimes, particularly those involving child victims.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Indiana Law

Ind. Courts - "Chief justice praises change, seeks more"

Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette of Supreme Court Chief Justice Brent Dickson's State of the Judiciary speech yesterday.

You may watch the video or read the transcript here.

Posted by Marcia Oddi on Thursday, January 24, 2013
Posted to Indiana Courts

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

Tuesday, January 22, 2013

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

Updating this ILB entry from Jan. 21st, Eugene Volokh of The Volokh Conspiracy late this afternoon posted an entry on our Indiana Court of Appeals' opinion in Daniel Brewington v. State of Indiana. The long post is headed "Harshly Criticizing a Judge (or Others) for Their Past Conduct = Crime?" and begins:

That’s what Brewington v. State (Ind. Ct. App. Jan, 17, 2013) appears to hold. The defendant may well have seemed like a potentially dangerous person, and he was also convicted of perjury and other crimes; moreover, the government argued that he threatened violence and not just criticism. But the court’s reasoning, which focused on the defendant’s continuing harsh criticism, would apply to many other defendants in the future. This strikes me as quite troubling.
The post concludes:
As I’ve said above, I think this decision is wrong, and quite dangerous. It’s not limited to blackmail of the “do this or I’ll reveal this secret about you” sort; indeed, this speech involved neither an attempt to coerce the judge (the speech happened after the judge’s actions) nor a revelation of secrets. It would also apply equally to speech that harshly and repeatedly condemns legislators for their “prior lawful act[s],” as well as speech that condemns others — journalists, business leaders, and the like — at least so long as the speech seems to carry within it the “threat” of more speech. A very bad result, which I hope the Indiana Supreme Court reviews and reverses.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Roe v. Wade turns 40: What has happened in Indiana"

The Indianapolis Star has this story on its website this afternoon, written by Shari Rudavsky and Cathy Knapp. It begins by stating that "40 years ago today the debate over abortion entered a new arena when the Supreme Court issued its monumental Roe v. Wade decision." Here is the decision, from Jan. 22, 1973.

Most of the online story is devoted to a "History of Indiana's abortion law." However, this detailed Star history begins on April 19, 1995, and moves forward from there, to Nov. 23, 2005.

Did nothing happen in Indiana from 1973, when Roe was decided, until 1995, and from 2005 until 2013?

Perhaps the Star's online archives only goes back to 1995? Actually, they appear to go back to 1991. For instance, here from the archives is a snippet from May 24, 1991 that begins: "Supporters of abortion rights called the ruling - which bans abortion counseling at federally funded family planning clinics - callous and shocking, while abortion opponents praised it for rejecting the "bizarre concept" that treats abortion the same as contraception."

Perhaps the reporters were confused by the source notes to IC 16-34-1, Indiana's abortion law. The source notes indicate that IC 16-34-1 was added by P.L.2-1993, SEC.17. Did the reporters assume that Indiana had no abortion statute prior to 1993? But a little research shows that PL 2-1993 was an LSA "recodification" bill that repealed existing law and reenacted it in substantively the same form, but with different numbers. According to this table, the source of IC 16-34-1 was IC 16-10-3.

For a glimpse at a much richer Indiana history on aspects of this topic, look at Maurer Law Prof. Dawn Johnsen's [yes, that Dawn Johnsen] 2009 Yale Law Journal article, “TRAP”ing Roe in Indiana and a Common-Ground Alternative. Two quote from Johnsen's article:

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending January 18, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the January 11, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 18, 2013. It is one page (and 17 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Lula L. Jenkins, et al. v. South Bend Community School Corp. , a 9-page opinion, Judge Kirsch writes:

Lula L. Jenkins (“Jenkins”), American Federation of State, County and Municipal Employees Council 62, and AFL-CIO Local 686 (collectively “the Union”) appeal from the trial court’s order entering summary judgment in favor of South Bend Community School Corporation (“SBCSC”) in Jenkins and the Union’s action seeking an independent determination of whether Jenkins was discharged for just cause from her position with SBCSC. On appeal, we are asked to decide if the trial court erred by granting summary judgment in favor of SBCSC instead of making an independent determination of whether Jenkins was discharged for just cause. We reverse and remand. * * *

In this case, we conclude that the “exclusive remedy” provision of the CBA at issue here was intended to function only as an exhaustion-of-administrative-remedies provision and not as a bar to Jenkins’s exercise of her right to free and open courts and their remedies. Thus, under this CBA Jenkins must proceed through the grievance procedure prior to resorting to judicial review of her claims. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the UAA’s provisions or for a determination whether the facts found by the arbitrator support the award. Consequently, we find that the trial court erred by declining to make that determination and by entering summary judgment in favor of SBCSC. Therefore, we reverse the trial court’s entry of summary judgment and remand this matter to the trial court for a determination of whether the facts found by the arbitrator constitute just cause under the CBA.

In Erving Sanders v. State of Indiana, a 12-page opinion, Judge Brown writes:
Sanders raises one issue, which we restate as whether the trial court erred in denying his motion to suppress. We reverse. * * *

Based upon the evidence presented at the suppression hearings, including the photographs of the Suburban which were taken one hour after the stop and depict the window tinting, we cannot say that there was an objectively justifiable reason for the stop of the vehicle. Accordingly, under the totality of the circumstances Officer Minch lacked reasonable suspicion to stop Sanders for investigatory purposes at the time he observed Sanders’s vehicle. The trial court erred in denying Sanders’s motion to suppress.

NFP civil opinions today (4):

David Frohwerk v. Mark Levenhagen (NFP)

Jacqueline R. Clements v. Clinton County, Indiana, by and through the Board of Commissioners of the County of Clinton, Ted R. Johnson, Barbara Conner, Michael W. Conner and William Clinton (NFP)

Term. of the Parent-Child Rel. of K.W., K.O.A., and K.E.A., Minor Children, and Their Father, O.W.: O.W. v. Indiana Dept. of Child Services (NFP)

Jason T. Myers v. Linda Phillips, Tippecanoe County Assessor and Office of the Indiana Attorney General, Unclaimed Property Division (NFP)

NFP criminal opinions today (3):

Aaron Di-Shon Windom v. State of Indiana (NFP)

Anthony Henderson v. State of Indiana (NFP)

Donald L. Swain v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Ind. App.Ct. Decisions

Law - "Even if It Enrages Your Boss, Social Net Speech Is Protected"

That is the headline to this long, front-page story today in the NY Times, reported by Steven Greenhouse. It take a comprehensive look at recent NLRB rulings saying:

... workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.

In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”

The decisions come amid a broader debate over what constitutes appropriate discussion on Facebook and other social networks. Schools and universities are wrestling with online bullying and student disclosures about drug use. Governments worry about what police officers and teachers say and do online on their own time. Even corporate chieftains are finding that their online comments can run afoul of securities regulators.

The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies — like bans on “disrespectful” comments or posts that criticize the employer — if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.

More from the story:
The N.L.R.B. is not the only government entity setting new rules about corporations and social media. On Jan. 1, California and Illinois became the fifth and sixth states to bar companies from asking employees or job applicants for their social network passwords.

Lewis L. Maltby, president of the National Workrights Institute, said social media rights were looming larger in the workplace.

He said he was disturbed by a case in which a Michigan advertising agency fired a Web site trainer who also wrote fiction after several employees voiced discomfort about racy short stories he had posted on the Web.

“No one should be fired for anything they post that’s legal, off-duty and not job-related,” Mr. Maltby said.

As part of the labor board’s stepped-up role, its general counsel has issued three reports concluding that many companies’ social media policies illegally hinder workers’ exercise of their rights.

There are a number of links within the article. In addition, many comments already have been posted to the NYT site.

The social media policies of Wal-Mart, Cosco and General Motors may be located by using the search box at this page, and typing in, eg, "Wal-Mart social media".

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Ind. Courts - " Judge switches up trial process; says problems caused by late plea agreements made in jury trials" [Updated]

Caitlin Huston reports in the Logansport Pharos-Tribune in a long story that begins:

Cass Superior II Judge Rick Maughmer is putting the responsibility for setting jury trials on lawyers due to issues caused by guilty pleas being entered shortly before the trial date.

Maughmer said lawyers will be responsible for setting the dates because often juries are being called, but not used, when plea agreements were filed close to the trial date. When guilty pleas are entered so close to the jury trials, lawyers and prosecutors say it’s harder to prepare and the court loses money.

To combat the problem of jury trials falling through, Maughmer said the court had previously decided to schedule multiple jury trials a day, so that the jury would be used in at least one of the cases.

However, Maughmer said this did not work as cases were resolved between final pretrial conferences and jury trials about 10 times in 2012.

“It’s been a process challenge,” Maughmer said.

While the court formerly provided a jury trial date early in the proceedings, Maughmer said he would only set a final pretrial conference and then wait for attorneys or prosecutors to request a trial date.

With the multiple jury trials scheduled on one day, Attorney Jim Brugh said attorneys would often spend time preparing for a trial, only to have it pushed to another day. That meant that attorneys would have to prepare for the same trial multiple times before it finally happened.

Attorney Matthew Barrett said having jury trials pushed to another day or canceled because of a plea agreement also creates problems for witnesses who have already scheduled the day off work or who have to travel long distances.

[Updated almost immediately] The ILB has received several reactions already, including this one from attorney Cara Wieneke:
I just see more problems than solutions with this new plan.

Problem #1: what happens when a defendant acts for his "fast and speedy"? I believe the judge is required to set a jury trial date within 70 days. Is the judge not going to?

Problem #2: let's say the defendant doesn't do anything at all. Then the onus is completely on the prosecutor to make sure a date is set. Because if the prosecutor doesn't do it within 365 days, the case gets dismissed.

How this problem is often handled in other counties: judges set a final date after which they won't entertain any further plea agreements. It seems to work pretty well.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Courts

Ind. Law - " Will Indiana put pot in its place? Both Republicans, Democrats call for lighter penalties"

Maureen Hayden and Scott Smith reported this lengthy story in the Sunday, Jan. 20th Kokomo Tribune. It begins:

Indianapolis — On the subject of Indiana’s marijuana laws, state Sen. Karen Tallian may be in the minority for the present, but even on the other side of the political aisle, she’s gaining some allies.

The Michigan City Democrat has been in the media for her marijuana bill, which proposes turning most possession offenses into an infraction, the same as a speeding ticket. The law doesn’t consider an infraction to be a criminal offense.

Tallian talks about a female constituent, who as a teen was convicted of marijuana possession. Five years later, the young woman is being told her past offense disqualifies her for a teaching assistant position, Tallian said.

“Is this the kind of message we want to send to our kids? You make a mistake one time, and it can negatively affect your career for the rest of your life?” Tallian asked.

The idea of decriminalization, as opposed to outright legalization, appears to be gaining traction in Indiana. A 2012 survey by the Bowen Center for Public Affairs at Ball State University found 53 percent of Indiana residents support the idea of a ticket for possessing small amounts of marijuana, with 41 percent in opposition.

But the idea of decriminalization has found little traction in the General Assembly, replaced instead by a push to bring down penalties for pot and other drug crimes.

Under major legislation backed by prosecutors and police groups, the penalties for most felony-level marijuana crimes would be reduced to misdemeanors. And people caught possessing or selling the drug would no longer automatically lose their driver’s license.

The bill, put forward by state Sen. Brent Steele, R-Bedford, would roll back Indiana’s marijuana laws — some of the toughest in the nation — that make possession a felony unless it’s a first-time offense or the amount is less than 1 ounce.

There is much more to the story.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Law

Law - Interesting separation of powers case from Wisconsin

Really catching up, here is a long Jan. 12, 2013 Milwaukee Journal Sentinel story that caught my eye. The headline to the long story: "Wisconsin Supreme Court race could shape several key rulings." The last item:

Administrative rules. In 2011, lawmakers changed state law to require that the governor sign off on all administrative rules. Though obscure, administrative rules have the force of law and contain more specifics than what is spelled out in state statutes on everything from environmental regulations to how elections are run.

A Dane County judge ruled in October that the law was unconstitutional as it relates to rules for the Department of Public Instruction. Those rules are in the purview of the state schools superintendent, who does not have to go through the governor to set them, the judge ruled.

Republican Attorney General J.B. Van Hollen is appealing the decision.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Ind. Gov't. - "Is Zoeller independent?"

Catching up, here is a Jan. 17th post from Niki Kelly's Fort Wayne Journal Gazette Political Notebook:

Gov. Mike Pence showed off his new cabinet Wednesday to reporters -- with one interesting addition.

Seated a few chairs down from the governor at the table was Attorney General Greg Zoeller -- a seperately-elected statewide office holder.

He didn't say anything but he even had a placard in front of him. And while he was at the table, other executive-branch appointees were relegated to chairs behind the governor.

It is unclear why Zoeller rated an invite but not the state's other four elected officeholders -- Secretary of State Connie Lawson, Auditor Tim Berry, Treasurer Richard Mourdock and Superintendent of Public Instruction Glenda Ritz

Pence Press Secretary Kara Brooks was asked specifically about why Zoeller was invited and if the other office holders were as well.

Her response avoided the question, simply saying Zoeller "attended today's cabinet meeting to meet the agency heads and so that they could meet him as well."

Brooks also ignored a follow-up email asking again whether the other office holders were invited or not.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Government

Courts - Watch Justice Sonia Sotomayor on The Daily Show

Here is the link to the segment from last night's show.

Here is Part 2.

Here is part 3.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Courts in general

Law - "Asset Forfeiture Abuse Revisited"

It has been some time since the ILB has posted on asset forfeiture on either the state or federal level. Here is a long list of earlier entries, the most recent dated Aug. 30, 2011. Today Ilya Somin has a post in The Volokh Conspiracy, commenting on an article in Reason.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Law - If boilerplate is your passion, this post is for you

From the Law Librarian Blog, a post that points to a number of books about boilerplate. A sample:

As an intellectual exercise, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law sounds like it may make for stimulating reading.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

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

Sunday, January 20, 2013

Ind. Law - NWI Times begins two-part series on allegations of misconduct against area man [Updated]

Part 1 of today's lengthy NWI Times story by Marisa Kwiatkowski is headed "Man faced myriad sexual misconduct allegations in decades-long career working with children." It begins:

Michael Ritchie has been entrusted with the care of hundreds of children in his decades-long career.

The 61-year-old has worked as a teacher, Special Olympics coach, scoutmaster with the Boy Scouts, basketball coach, chess club sponsor and employee at a facility for developmentally disabled people, according to employment, court and police records obtained by The Times.

Where Ritchie has gone, allegations of misconduct have followed.

Yet Ritchie has never been convicted of a crime, is not a registered sex offender and still has a valid teaching license, according to police and Indiana Department of Education records.

He's resigned from at least two local school districts amid accusations of inappropriately touching children, police and court records show. He also ran a website dedicated to pictures of young boys and has admitted having romantic fantasies about them, according to court records.

[Updated 1/21/13] Here is Part 2.

Posted by Marcia Oddi on Sunday, January 20, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 2 of the General Assembly

Here is the second weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Posted by Marcia Oddi on Sunday, January 20, 2013
Posted to Indiana Law

Friday, January 18, 2013

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

From a story by the Indianapolis Star's Robert King and Tim Evans:

A federal judge threw out a union’s lawsuit seeking to overturn Indiana’s “right to work” law Thursday, saying such a challenge should remain at the state level.

Judge Philip Simon of the U.S. District Court for the Northern District of Indiana issued the ruling, approving the state’s motion to dismiss the suit filed last year against former Gov. Mitch Daniels, Attorney General Greg Zoeller and former Commissioner of Labor Lori Torres.

The plaintiffs, Local 150 of the International Union of Operating Engineers, claimed the law, which bars companies and unions from negotiating contracts that require all employees to pay for representation, violated the constitution.

The law’s passage by the General Assembly last February was a major milestone in what has become a national tug of war over union rights.

Indiana became the first state in the industrial Midwest to put such a measure on the books. By December, Michigan had followed suit. * * *

Judge Simon wrote that: “For better or worse, the political branches of government make policy judgments. The electorate can ultimately decide whether those judgments are sound, wise and constitute good governance, and then can express their opinions at the polls and by other means.

“But those are questions beyond the reach of the federal court, which instead is limited to analysis of particular legal arguments that the challenged legislation runs afoul of preemptive federal labor law or the U.S. Constitution wrote. None of the legal challenges launched by the Union here to attack Indiana’s new Right to Work law can succeed.”

Here is a copy of the opinion in Sweeney v. Daniels.

This afternoo
n the 7th Circuit issued this opinion in Wisconsin Ed. Ass'n. v. Walker See this post from How Appealing, that begins:
Seventh Circuit overturns that portion of a federal district court's ruling holding that parts of Wisconsin's Act 10, regulating collective bargaining for public employees, are unconstitutional.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

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

Michael Boren of the Indianapolis Star posted this story this afternoon.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Courts

Ind. Decisions - COA posts another opinion, an order on rehearing

Sometime after the COA posted the six opinions today, it posted another, In Re Indiana Newspapers, Inc., d/b/a The Indianapolis Star v. Jeffrey M. Miller, et al. (Here are earlier, related ILB entries.) From Chief Judge Robb's 6-page opinion granting the petition for rehearing and affirming its order [dismissing appeal in this matter] in all respects:

In its original briefing, The Star maintained that the Discovery Order at issue here was a final judgment eligible for direct appeal. When we scheduled oral argument on The Star’s Motion to Stay, we asked the parties “to address whether the court has jurisdiction to consider the trial court’s discovery order.” We rejected The Star’s arguments for the reasons stated in our Order.[2]

Now The Star advances a number of additional arguments as grounds for the exercise of jurisdiction in this case. It is a well-settled rule that a party may not advance new arguments on rehearing, and, to the extent the Petition breaks new ground, it is out of bounds. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008), trans. denied. When a party offers new arguments in a petition for rehearing, we usually deny the petition. Nevertheless, we have granted the Petition to consider the additional reasons The Star now presents for this court to exercise jurisdiction.
_________
2 Among other reasons, we noted that The Star’s rationale for jurisdiction amounts to a constitutional challenge to our rules of procedure and leads to the conclusion that every interlocutory order would be subject to an immediate direct appeal.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Jermaine Hines v. State of Indiana , a 9-page opinion where the issue was "Whether the trial court erroneously admitted the firearm into evidence.," Judge Pyle concludes:

In this case, law enforcement officers lawfully attempted to detain Hines based upon their reasonable suspicion that he had been engaged in criminal activity. While fleeing from law enforcement officers, Hines threw the firearm away. Hines was in such a rush to get away from law enforcement officers that he crashed his moped, got up, and continued to flee on foot. Additionally, Hines was in such a rush to get rid of the firearm that it struck the side of the house at 2309 Hendricks Street when he threw it away. The objective facts in this case show Hines’ clear intention to relinquish any possessory interest in the firearm. See Campbell v. State, 841 N.E.2d 624 (Ind. Ct. App. 2006) (defendant who threw firearm under a car after police shined flashlight on him was found to have abandoned firearm). Therefore, we affirm the trial court’s admission of the firearm into evidence.
John F. Harris, III v. State of Indiana , an 11-page opinion, Judge Crone writes:
John F. Harris, III, was convicted of possession of cocaine, which was enhanced to a class B felony because the offense occurred within 1000 feet of a family housing complex. Harris was also found to be a habitual offender based on prior convictions of escape and possession of cocaine with intent to deliver.

On appeal, Harris argues that a statutory defense to the class B felony enhancement applies because he was present in the proscribed zone for only a brief period of time and no children were present. Although no children were seen at the time of the offense, there was proof that children were residing in the immediate vicinity. We conclude that, pursuant to supreme court precedent, this evidence was sufficient to prove that children were present and therefore the defense was rebutted.

As to the habitual offender enhancement, Harris argues that he falls within a provision that precludes application of the enhancement to certain offenders who do not have more than one dealing offense. We agree that the State has failed to prove that Harris has more than one dealing offense, and we therefore reverse the habitual offender enhancement. * * *

The State relies on a document titled “Bail Review Pretrial Release Report” which indicates that Harris has a 1997 conviction of “Manufacture/Delivery of a Controlled Substance” from Illinois. The record is silent as to which drug Harris manufactured; therefore, we cannot determine which offense in Indiana is analogous to the Illinois conviction. Not all of Indiana’s manufacturing offenses fall within the sections identified in Indiana Code Section 35-50-2-8(b)(3)(C). The State has failed to prove that Harris has more than one conviction falling under Indiana Code Section 35-50-2-8(b)(3)(C). All the conditions of subparagraph (b)(3) are met; therefore, Harris is not a habitual offender, and we reverse the enhancement.

NFP civil opinions today (1):

Kelly Bertholet Stokes v. Estate of Kenneth Stokes (NFP)

NFP criminal opinions today (3):

Danielle Kelly v. State of Indiana (NFP)

Matthew A. Parks v. State of Indiana (NFP)

Jonathan Books v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "House Bill 1118 has sympathy for motorcycles, scooters stuck at lights"

Dorothy Schneider of the Lafayette Journal Courier has this story today. A quote:

House Bill 1118 would amend Indiana motor vehicle code to allow operators of motorcycles, motorized bicycles, motorscooters and bicycles to proceed through a steady red signal if they first:

• Come to a complete stop at the intersection for at least 120 seconds; and

• Exercise due caution as provided by law, treat the traffic control signal as a stop sign, and determines that it is safe to proceed.

Really.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Law

Ind. Gov't. - Public Records Commission to prohibit redistribution of digital data?

This item in the coming issue of Indiana Legislative Insight certainly caught my eye this morning:

The Oversight Committee on Public Records will hold a public hearing February 20 on a proposed amendment to Title 60 of the Indiana Administrative Code that would regulate the commercial use of records received using an Access to Public Records Act request to the Commission on Public Records. Specifically, any person receiving electronic data from the Commission through a public records request (or from the beneficiary of a public records request), would be barred from employing the electronic data for commercial use or benefit; or transferring the data to another person for the commercial use or benefit of either party.
Here is a copy of the proposed new rule.

A public hearing will be held on the proposal on Feb. 20, 2013.

Here is the one-line "economic impact on small business" statement.

Here is the provision of the law apparently authorizing this rule: IC 5--14-3-3(d) and (e):

(d) Except as provided in subsection (e), a public agency that maintains or contracts for the maintenance of public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency's data storage system. This subsection does not apply to an electronic map.

(e) A state agency may adopt a rule under IC 4-22-2, and a political subdivision may enact an ordinance, prescribing the conditions under which a person who receives information on disk or tape under subsection (d) may or may not use the information for commercial purposes, including to sell, advertise, or solicit the purchase of merchandise, goods, or services, or sell, loan, give away, or otherwise deliver the information obtained by the request to any other person for these purposes.

Use of information received under subsection (d) in connection with the preparation or publication of news, for nonprofit activities, or for academic research is not prohibited.

A person who uses information in a manner contrary to a rule or ordinance adopted under this subsection may be prohibited by the state agency or political subdivision from obtaining a copy or any further data under subsection (d).

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Government

Environment - "About a Dozen Environment Reporters Left at Top 5 U.S. Papers"

This story by Katherine Bagley, InsideClimate News, begins:

The news last week that the New York Times is dismantling its environment desk and reassigning the reporters throughout the newsroom provoked an outpouring of reaction, much of it suggesting that now isn't the time to take risks that could diminish the coverage of climate change.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Environment

Law - IU McKinney Law School Clinics

Here is a just released 2:30 promo for the IU McKinney Law School and its clinical courses, offering students a broad range of practical lawyering experiences before graduation.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to General Law Related

Thursday, January 17, 2013

Courts - More on "Indiana Farmer Tackling Monsanto's Seed Policy Gets A Day In Supreme Court"

Updating this ILB entry from Oct. 17, 2012, Alison Frankel's "On the Case" column today is headed "Supreme Court conundrum: How far does a soybean seed patent go?" begins:

Jan 17 (Reuters) - Vernon Hugh Bowman is the rare Indiana soybean farmer destined for immortality as a U.S. Supreme Court caption.

Bowman had the temerity to attempt to outwit Monsanto, the giant agriculture company that, as you surely know, invested hundreds of millions of dollars and years of research in the creation of soybean seeds that are genetically modified to withstand the herbicide glyphosate, which Monsanto markets as Roundup. The genetically modified seeds, according to the Supreme Court brief Monsanto filed Wednesday, have been such a hit with farmers that more than 90 percent of the U.S. soybean crop begins with Monsanto's Roundup Ready seeds. Given that every soybean plant produces enough seeds to grow 80 more plants -- and that soybeans grown from Roundup Ready seeds contain the genetic modification of glyphosate resistance -- Monsanto has insisted that farmers sign licensing agreements with strict restrictions. Soybean producers are only supposed to use the Roundup Ready seeds they buy to grow crops in a single season, and they're forbidden from planting second-generation seeds harvested from first-generation crops.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Courts in general

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

Updating this ILB entry from Jan. 14th, Tim Evans reports in today's Indianapolis Star in a long story headed "Daughter vows to fight on for her gravely ill Carmel father." It begins:

Susan Rissman vows that the fight to keep her father alive is not over — despite a crushing court ruling Wednesday.

“We’re not going to quit,” Rissman told The Indianapolis Star. “I don’t know what else I can do, but I can’t give up on my dad.”

Her comments came after Hamilton Superior Court Judge Steven Nation refused a request to appoint a guardian or order a review of St. Vincent Indianapolis Hospital’s care of her 88-year-old father, Paul G. Smith, who was removed from a ventilator Jan.7 and had a feeding tube removed the next day.

Rissman went to court to force doctors at St. Vincent’s to resume active treatment of her father. But Nation ruled his care can be guided by a 2004 living will that says he doesn’t want his life prolonged by artificial means, even though Rissman and others insist that Smith — who has asked for food and water — is still capable of making that decision for himself.

It was unclear Wednesday what legal or medical options Rissman might be able to pursue. But the more pressing concern is time.

Smith is gravely ill, and, according to testimony Wednesday from his doctors, the retired attorney and former Hamilton County court magistrate already has outlived their expectations.

Rissman has been her father’s primary caregiver for the past several years, but another daughter, Judith Sly, has been designated his health-care representative based on power of attorney and other directives Smith signed in 2004.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

Steven A. Ballaban v. Bloomington Jewish Community, Inc., a/k/a Congregation Beth Shalom, Paul Eisenberg, Judith Rose, Sarah Wasserman, Lynne Foster Shifriss, and Roberta "Didi" Kerler

In Kyle W. Dixon v. Ara J. Dixon , an 8-page opinion, Judge Kirsch writes:

Kyle W. Dixon (“Father”) appeals the trial court’s order granting the notice of intent to relocate filed by Ara J. Dixon (“Mother”). Father raises the following restated issue for our review: whether the trial court abused its discretion in granting Mother’s notice of intent to relocate because it did not take into account the effect of the move on the best interests of the children. We affirm.
In Daniel Brewington v. State of Indiana, a 44-page opinion, Sr. Judge Darden writes:
Daniel Brewington appeals his convictions for three counts of intimidation, two as Class A misdemeanors and one as a Class D felony, Ind. Code § 35-45-2-1 (2006); one count of attempted obstruction of justice, a Class D felony, Ind. Code §§ 35-44.1-2-2 (2012), 35-41-5-1 (1977); and one count of perjury, a Class D felony, Ind. Code § 35-44.1-2-1 (2012). We affirm in part, reverse in part, and remand with instructions.

Brewington raises five issues, which we expand and restate as:
I. Whether the court abused its discretion by impaneling an anonymous jury.
II. Whether the court erred by admitting a custody evaluation and a divorce decree into evidence.
III. Whether one of Brewington’s convictions for intimidation and his conviction for attempted obstruction of justice violate the Indiana Constitution’s double jeopardy clause.
IV. Whether the evidence is sufficient to sustain Brewington’s convictions.
V. Whether the court’s final jury instructions were erroneous. * * *

For the reasons stated above, Brewington’s convictions and sentences for Count I, intimidation of Dr. Connor, and Count III, intimidation of Heidi Humphrey, must be vacated. We reverse those convictions and remand with instructions to vacate those convictions. Vacatur does not alter Brewington’s aggregate sentence. The trial court’s judgment is in all other respects affirmed.

NFP civil opinions today (1):

Jeff Clade v. Hunt Construction Group, Inc. (NFP)

NFP criminal opinions today (4):

Marilyn Carter v. State of Indiana (NFP)

B.B., Jr. v. State of Indiana (NFP)

Steven Newville v. State of Indiana (NFP)

Garrick P. Twiford, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Ind. App.Ct. Decisions

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

That is the headline to this story dated Jan. 16, by Maureen Hayden, CNHI Statehouse Bureau, here in the Logansport Pharos-Tribune. The worth reading in full story begins:

INDIANAPOLIS — Indiana may join a growing number of states that are reducing penalties for low-level drug crimes while increasing the punishment for violent criminals and sexual predators.

Under legislation filed Monday that rewrites much of the state’s criminal code [SB 601, HB 1006], someone caught near a school with three grams of cocaine would no longer face a harsher penalty than a rapist, for example.

“It’s about restoring some fairness and proportionality to our system of criminal justice,” said Republican state Sen. Brent Steele, a key supporter of the bill and chair of the Senate courts and corrections committee.

The legislation calls for significantly reduced penalties for marijuana possession – though not decriminalization of pot as Steele has advocated for in the past.

Among the other changes: It increases the number of felony levels from the current four to six and spells out new rules for how prisoners could earn “credit time” for early release. It also gives judges more discretion over when to suspend prison sentences for some low-level crimes, but would add more violent crimes to the list of offenses with mandatory prison time.

The bill, more than 400 pages in length, is modeled on recommendations from a legislature-appointed commission that called for overhauling the state’s criminal laws to make punishment more proportionate to the crime. Other states, including neighboring Kentucky, have followed a similar path.

The House bill was heard in the House Committee on Courts and Criminal Code Jan. 17, reported out Do Pass Amended, and referred to Ways and Means.

Dan Carden of the NWI Times had this story yesterday - some quotes:

Five years of bipartisan review, debate and negotiation paid off Wednesday as a House committee unanimously approved the first major overhaul of Indiana's criminal code since 1977.

"It is a big, big deal," said state Rep. Linda Lawson, D-Hammond, a co-sponsor of House Bill 1006. "This is good for Hoosiers, it really is."

The 422-page proposal is a wholesale rethinking of felony crime and punishment with an eye toward improving the proportionality and certainty of prison time, reserving prison for the most serious offenders, and getting drug addicts and low-level offenders into treatment to reduce recidivism.

Under the plan, the current four levels of felonies would be expanded to six. That ensures similar crimes are treated the same way and that the most serious offenses get the toughest penalties, said state Rep. Greg Steuerwald, R-Avon, co-sponsor of the measure. * * *

The budget impact of the proposal has yet to be calculated by the nonpartisan Legislative Services Agency.

Lawson said she expects the state will have to give counties new money to administer corrections programs if the measure becomes law.

"It's going to be a little difficult at first as far as paying for it, but in the long run it's going to be better for all of us," Lawson said.

The proposal is supported by the state associations of prosecutors, defense attorneys, sheriffs and counties, all of whom worked with the state's Criminal Code Evaluation Commission since 2009 to shape the legislation.

It must still be approved by the House Ways and Means Committee before the measure can go to the full House for a vote to send it to the Senate.

If signed into law, the proposal wouldn't take effect until July 1, 2014, to give Hoosiers time to get used to the changes and lawmakers a chance to make additional reforms next year.

Here is a good quick overview of the introduced bill, prepared by Andrew Cullen of Indiana Public Defender Council.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Indiana Law

Ind. Decisions - Pleaded or Plead: Which is More Prevalent in Indiana Appellate Opinions?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The defendant pled guilty or the defendant pleaded guilty? Lawyers and judges disagree, sometimes forcefully, about whether “pleaded” or “pled” is the more correct usage. Two lawyers faced off in this Daily Report post, characterized as part of “a bitter, friend-splitting debate raging among lawyers about whether to use ‘pleaded’ or ‘pled.’”

A Westlaw search of the text of Indiana appellate opinions over the past decade shows a preference for the use of “pled” (2461 cases) over “pleaded” (1973 cases).* This mirrors the Indiana Supreme Court preference for “pled” (149 cases) over “pleaded” (98 cases). Disciplinary cases, which are almost always per curiam, overwhelming used “pled” instead of “pleaded” in recounting the disappointingly large number of lawyers who admitted to criminal charges. Individual justices, however, seem to prefer pleaded.

Over the past decade Justice Rucker and Justice Boehm used “pleaded” religiously while Justice Sullivan steadfastly used “pled.” Justice Massa used “pled” in his only opinion on the issue. The remaining justices used both, with Chief Justice Dickson and Justice David using “pleaded” more than “pled,” and Chief Justice Shepard using “pled” more often. In at least one opinion, both were used.
_____
*The searches were of “OP(pled)” and “OP(pleaded),” which ensures that headnotes, some of which use the opposite terminology, were not included in the results.
=======================================

ILB: The ILB has touched upon this topic in several earlier posts:

The press appears to follow different rules. Here from the official 2011 AP Stylebook:
plead, pleaded, pleading - Do not use the colloquial past tense form, pled.

Posted by Marcia Oddi on Thursday, January 17, 2013
Posted to Indiana Courts | Schumm - Commentary

Wednesday, January 16, 2013

Ind. Law - "Today it just doesn't make sense" to continue to ban switchblade knives

Dan Carden of the NWI Times reports:

If the musical "West Side Story" makes a comeback, with its singing and dancing street gang members wielding switchblade knives, Indiana may be ready.

A Senate committee Tuesday voted 9-0 for Senate Bill 181, legalizing the sale and possession of spring-loaded knives, also known as switchblades.

"Maybe back in the '50s there was a feel-good reason to ban them, but today it just doesn't make sense," said state Sen. Jim Tomes, R-Wadesville, sponsor of the proposal.

Tomes said his legislation will help Hoosiers with arthritis and others, such as paramedics, who'd benefit from being able to quickly open a knife by pressing a button.

See also this story by Richard Grant in Mother Jones.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Law

Courts - "‘Judicial Arbitration’ Is Unconstitutional, Say Newspapers"

Jacob Gershman's post last evening in the WSJ LawBlog began:

Should the nation’s premier forum for corporate litigation have the right to arbitrate business disputes in secret?

Some of the nation’s largest news outlets — taking sides against the Delaware Court of Chancery judges and the pro-business U.S. Chamber of Commerce — don’t think so.

The Wall Street Journal, the New York Times and other major news organizations are urging a federal appeals court to declare unconstitutional a Delaware law granting the state’s influential Court of Chancery the power to arbitrate business disputes in secret. It’s the latest development in a high-stakes constitutional case whose outcome could change the way corporate America settles business disagreements.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Courts in general

Law - New York Legislature Restricts Access to Gun Permit Data"

Recall this ILB entry from Dec. 26th, headed "A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties." The ILB entry pointed out that when several Indiana newspaper in 2010 published some information about gun permits in their circulation areas, but did not include names and addresses, only general information about gun permits by race, gender, age and ZIP Code, the General Assembly responded by passing a law closing off from public access records of permits to carry handguns.

A similar thing has now happened in New York. From a story today in the NY Times, reported by Christine Haughney:

New York State’s new gun law seeks to restrict ownership of certain weapons. But it also restricts something else: access to previously public information about gun permits.

The new law, passed on Tuesday, requires that, for the next 120 days, no information about gun permit holders in a new statewide gun registration database is made available publicly, according to Robert Freeman, the executive director of the State Committee on Open Government. After that, gun permit holders will have the right to have their names and addresses removed from the database by contacting their local county clerks or police departments.

Legislators rushed to include this protection in its gun regulation proposal after the suburban newspaper The Journal News published on Dec. 23 the names and addresses of gun permit holders in Westchester and Rockland Counties, and put online a map showing the locations of the gun permit holders.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to General Law Related

Courts - "It May Float, but a Home Isn’t a Boat, Justices Rule." and some ILB observations

That is the heading to an Adam Liptak column in today's NY Times. A few quotes [ILB emphasis]:

WASHINGTON — A floating home is not a vessel to be regulated under federal admiralty law, the Supreme Court ruled on Tuesday in a colorful decision that featured photographs and the first dissenting opinion in an argued case since the term started in October.

The case was closely watched by businesses that operate floating structures like casinos, restaurants and hotels. Structures deemed to be vessels are subject to federal laws and regulations, including ones concerning safety, employment and taxes.

The case concerned what Justice Stephen G. Breyer, writing for the majority in the 7-to-2 decision, described as “a house-like plywood structure with French doors on three sides.” Inside were a bedroom, sitting room, closet and kitchen. A stairway led to an office on the second floor.

The home could not propel itself, but it was occasionally towed from one Florida marina to another, sometimes over long distances. In 2006, it was docked at a marina owned by the City of Riviera Beach, Fla. A dispute over dockage fees led to a lawsuit under federal admiralty law.

The owner of the structure, Fane Lozman, countered that the court had no jurisdiction because his home was not a vessel. A federal law defines vessels to include “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

ILB: If this sounds somewhat familiar, it is because this or related questions have come up a number of times with Indiana casino boats.

More from Liptak's story today:

The correct inquiry, Justice Breyer went on, was whether “a reasonable observer” would conclude that the structure was “designed to a practical degree for ‘transportation on water.’ ” Mr. Lozman’s home, he said, did not qualify.

In announcing the ruling on Tuesday morning, Justice Breyer noted that the written decision included photographs of the home at issue and of a wharf boat of the sort that the court had ruled was not a vessel in a 1926 decision. “Even though a picture is worth a thousand words,” Justice Breyer said from the bench, “we have written a few words of explanation as well.”

Justice Sonia Sotomayor filed a dissent, which was joined by Justice Anthony M. Kennedy. She said the majority’s approach created a “novel and unnecessary” new standard for deciding what is a vessel. “By importing windows, doors, room style and other aesthetic criteria" into the analysis, she wrote, “the majority gives our vessel test an ‘I know it when I see it’ flavor.” She cited a 1964 concurrence from Justice Potter Stewart in which he made that observation about “hard-core pornography.”

The majority’s standard was not only “opaque and unpredictable” but also “completely malleable,” Justice Sotomayor wrote. She said she could not say why Mr. Lozman had won.

“It is unclear,” she wrote, “why Lozman’s craft is a floating home, why all floating homes are not vessels, or why Lozman’s craft is not a vessel.”

The better course, she said, would have been to return the case to the lower courts for a fuller determination of the facts concerning the structure.

Instead, Justice Sotomayor wrote, “the majority works real damage to what has long been a settled area of maritime law,” bringing uncertainty to businesses that “rely heavily on clear and predictable legal rules.”

ILB: Of course, I went straight to the opinion to see the pictures. But I was disappointed! SCOTUSblog is apparently now linking to their sponsor, Bloomburg Law's version of SCOTUS opinion. I looked in vain for the pictures! Instead, at the end of the majority opinion are these "Editor's Notes":
APPENDIX

[Editor's Note: This graphic is non-transferable.]

Petitioner's floating home. App. 69.

[Editor's Note: This graphic is non-transferable.]

50- by 200-foot wharf boat in Evansville, Indiana, on Nov. 13, 1918. H. R. Doc. No. 1521, 65th Cong., 3d Sess., Illustration No. 13 (1918).

Fortunately I was able to easily find the link to the Supreme Court's version of the opinion, which is familiarly formatted AND contains the two pictures, on pp. 16 and 17, the second photo being of the Evansville wharf boat from 1918.

Finally, here is SCOTUSblog's Lyle Denniston's analysis of the opinion. A few quotes:

Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.

Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures. * * *

Justice Sonia Sotomayor dissented, in an opinion joined by Justice Anthony M. Kennedy. They described the “reasonable observer” test fashioned by the Breyer opinion as based upon notions that have “never appeared in any of our cases.” The majority’s application of it here, the dissenters said, “effectively (and erroneously) introduces a subjective component into the vessel-status inquiry,” even while acting as it was creating an “objective” test. The majority, Justice Sotomayor wrote, “works real damage to what has long been a settled area of maritime law….Numerous maritime industries rely heavily on clear and predictable legal rules for determining which ships are vessels.” That will now be frustrated, the dissenting opinion said, by the majority’s “distorted application of our settled law.”

The dissenters also argued that the Court should have returned the case to lower courts to more extensively examine Lozman’s houseboat — an inquiry that, of course, would have had to be based on what was already known about it, since it no longer exists.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Courts in general

Ind. Decisions - More on: Supreme Court issues five disciplinary rulings

Updating this ILB entry from Jan. 14th, Rebecca S. Green of the Fort Wayne Journal Gazette reports on one of the recent disciplinary actions taken by the Supreme Court, In the Matter of Jon A. Criss.

The story begins:

The Indiana Supreme Court suspended the law license of a Noble County lawyer convicted of possession of methamphetamine.

Last summer, Jon A. Criss, 44, was arrested after going to great lengths to hide from authorities, even submitting his own obituary to a local newspaper to fake his own death.

According to court documents, he was arrested at his own home in the 8800 block of North County Road 550 East in Kendallville after deputies responded to reports he was having a possible heart attack.

Inside the house, a deputy found a white powder substance in a coffee filter in a jewelry case sitting on a bedside table. The substance tested positive for methamphetamine. Marijuana was also found inside the master bedroom, as was a wooden box containing a package of synthetic marijuana.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana, an 8-paage opinion, Judges Barnes writes:

The Domaschkos own approximately 900 acres of land in Ohio County between State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the appropriation of real estate in connection with a project to improve State Road 56. In addition to temporary rights of way, INDOT sought fee simple ownership of certain portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of the real estate INDOT was seeking to appropriate was not related to highway purposes. INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial court conducted an evidentiary hearing on the Domaschkos’ objections. On May 30, 2012, the trial court issued an order of immediate appropriation and appointment of appraisers. * * *

Because the buffer zone and driveway are related to the improvement of State Road 56, INDOT was statutorily authorized to acquire that property. We affirm.

NFP civil opinions today (1):

Douglas Moyer & Irk v. David M. Dugger and Diana Dugger (NFP)

NFP criminal opinions today (2):

Pablo Garcia-Gomez v. State of Indiana (NFP)

Christopher Hudson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Supreme Court, Division of State Court Administration looking for staff attorney

The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for a staff attorney position to manage programs to improve delivery of court services in family law areas. Experience in juvenile, CHINS and family law litigation is a must, although this will be non-litigation position. More here.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Courts

Ind. Courts - Any four-fers or even three-fers in Indiana? [Updated]

Remember this post headline from Dec. 26th: "Ind. Courts - Who will replace Magistrate Graham who replaced Judge Rush who replaced Justice Sullivan on the Supreme Court?" But this was not really a three-fer for Governor Daniels, as he did not select Judge Graham's new magistrate.

This came to mind this morning when I read this post from the State Bar of Michigan Blog, headed "Michigan Supreme Court Vacancy: Has The Game of Dominoes Changed?" that begins:

In the world of filling judicial vacancies, the top play in Michigan has been a four-fer: a Court of Appeals judge appointed to fill a Supreme Court vacancy; a circuit or probate judge appointed to fill that newly-created Court of Appeals vacancy; a district court judge appointed to fill the circuit or probate vacancy; and a brand new judge minted to fill the district court vacancy. Former Gov. John Engler was known for his mastery of this form of dominoes. (Example of a notable three-fer: appointment of Stephen Markman to fill the seat of retiring Justice Jim Brickley; appointment of Donald Owens to fill the Court of Appeals seat thus vacated by Markman; appointment of Richard Garcia to the Ingham Probate Court seat vacated by Owens. Hat tip to the first reader who correctly identifies the appointees of a Michigan four-fer.)

But this MiLW Blog post suggests that the days of high-rolling appointment dominoes may be over.

Can anyone remember any gubernatorial four-fers or even three-fers in Indiana judicial history?

[Update at 11:08 am]
Prof. Joel Schumm writes:
It would have to be someone elevated to the Supreme Court from the Court of Appeals, which in the merit selection era has been only Rucker. I believe he was replaced by Vaidik, and I assume O'Bannon then appointed her trial court replacement.

What I found most interesting in that post was the planned reduction from 28 to 24 judges.
ILB: Indeed. The long SBMBlog entry continues:
But this MiLW Blog post suggests that the days of high-rolling appointment dominoes may be over. Public Act 40 of 2012 (MCL 600. 303a) reduced the number of Court of Appeals seats from 28 to 24, with the reductions to be triggered by attrition ...
Read it in full here.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: State Board of Accounts raises questions in LaGrange County audit report

Updating this Jan. 9th ILB entry, a special prosecutor has now been named.

It is currently quite difficult to learn news from LaGrange County. Here is the beginning of a story by Matt Getts from KPCNews.com, "serving the NE Indiana Community" - the rest requires a subscription. The snippet:

LAGRANGE — A special prosecutor will look into a State Board of Accounts 2010 audit involving the LaGrange County Commissioners and the county’s attorney.

LaGrange County Prosecuting Attorney Jeff Wible asked for a special prosecutor be named. Superior Court Judge George Brown signed an order Tuesday morning naming former Vandenburgh County Prosecuting Attorney Stan Levco of Evansville to the case....

This story by Tim Murray appeared briefly on the WTHD 105.5 website, which provides a rolling summary of the news:
LAGRANGE – Another special prosecutor will review a state audit that accused LaGrange County Commissioners of misfeasance in their handling of a land transaction.

LaGrange Superior Court George Brown appointed former Vanderburgh County Prosecutor Stan Levco of Evansville to conduct a review of the report and determine if any criminal laws were broken.

With Evansville being as far away from LaGrange County as you can get in Indiana, LaGrange County Prosecutor Jeff Wible says Levco will have no connections to him or anyone else in the county.

The State Board of Accounts audit for 2010 accused the commissioners of failing to get county council approval of transactions involving the Lambright Trust property. County Attorney Kurt Bachman was trustee of the trust, and the audit claims Bachman's conflict of interest disclosure in the matter was deficient.

The county responded with a team of attorneys from Fort Wayne and Indianapolis saying the transactions were between the trust and Bachman, not the county, and so the laws cited by the Board of Accounts did not apply.

Former Steuben County Prosecutor Tom Wilson was appointed as a special prosecutor in 2011 to review the Lambright transaction. Wilson filed a report with LaGrange Circuit Court saying his investigation determined there was no criminal activity in the matter.

Wible sought a second review because the audit report contained additional information not available in 2011.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Government

Ind. Law - "IU McKinney professor recognized for work in courtrooms and classrooms"

Frequent ILB contributor, Indiana University Robert H. McKinney School of Law Professor and 2013 recipient of the W. George Pinnell faculty award, Joel Schumm, is featured today in a story by Marilyn Odendahl in the newest issue of The Indiana Lawyer. The headline, "IU McKinney professor recognized for work in courtrooms and classrooms."

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Law

Tuesday, January 15, 2013

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

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

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

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

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

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

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

Here are some earlier ILB entries on the Rockport project.

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

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

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

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

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

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

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

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

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

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

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

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

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

See the ILB's earlier coverage here.

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

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

For publication opinions today (6):

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

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

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

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

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

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

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

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

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

NFP civil opinions today (5):

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

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

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

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

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

NFP criminal opinions today (2):

Bin Mu v. State of Indiana (NFP)

State of Indiana v. Jason Burkett (NFP)

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

Ind. Decisions - Disciplinary ruling re possession of marijuana

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

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

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

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning February 15, 2013, with 30 days actively served and the remainder stayed subject to completion of at least two years of probation. * * *

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

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

Ind. Decisions - Supreme Court decides one today

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

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

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

Conclusion. We affirm the judgment of the trial court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But the job was eliminated less than two years later.

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

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

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

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

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

They also can kill birds.

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

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

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

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

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

Monday, January 14, 2013

Ind. Gov't. - More on: Here are Gov. Pence's first 15 executive orders

Updating this entry from late this afternoon, I just saw this tweet:

No executive order to reauthorize IEDC or Inspector General? Mitch Daniels Executive Orders Now Void.
The writer, however, gives no authority for the statement.

A number of the 15 Executive Orders issued by Gov. Pence this afternoon are titled "Continuing the ...", as in "Continuing the Office of Faith Based and Community Initiatives and the Indiana Commission on Community Service and Volunteerism."

One is titled "Rescinding Executive Order 11-07." It provides in part:

WHEREAS, the intent of this Order is to reinstate the Indiana Education Employment Relations Board's obligation to report directly to the Governor, which existed from the formation of the Indiana Education Employment Relations Board until Governor Mitchell E. Daniels, Jr. issued Executive Order 11-07 * * * Executive Order 11-07 is rescinded and shall have no effect.
It appears that Gov. Pence is reaffirming some Daniels' orders, and rescinding others, being careful to make his intentions clear.

I examined the question of "Does a governor’s executive order continue in effect when his term is over?" in this 2006 column ("Executive Orders, Signing Statements, and Veto Messages, Part Two," 49 Res Gestae 9 (May 2006), pp. 39-41.) My conclusion:

That an Indiana governor’s executive orders continue to be effective after the governor has left office may be implied from the practices of recent Indiana governors. Governor Daniels’ executive orders issued shortly after he took office in January 2005 show the use of phrases such as “is hereby superseded,” “continuing the office,” “rescinded and declared null and void,” “which continues in effect, is hereby amended to be consistent herewith.” This language supports the continuation of executive orders after the term of office.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Government

Ind. Gov't. - Here are Gov. Pence's first 15 executive orders

Gov. Pence's first 15 executive orders.

The ILB has OCRed EO 13-3, which orders a moratorium on regulations. Access it here.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Government

Ind. Decisions - Supreme Court issues five disciplinary rulings

The Supreme Court has posted five new attorney disciplinary decisions, all filed Jan. 10th:

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Ind. Sup.Ct. Decisions

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

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, January 11, 2013. It is two pages (and 18 cases) long.

Five transfers were granted last week:

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

Deantoine M. Harris v. State of Indiana (NFP)

August Trotter v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Ind. App.Ct. Decisions

Courts - Kentucky Court decides dram shop case, holds club not liable

Jim Hannah wrote this story which appears in several Gannett papers. It begins:

A Kentucky Supreme Court opinion that the Fort Mitchell County Club cannot be held liable for serving a golf cart driver alcohol may make it harder to hold establishments liable for their patrons’ actions.

It is the first time the court has ruled this type of claim cannot proceed unless there is affirmative evidence the server knew the patron was intoxicated, said Louisville lawyer Jeremiah A. Byrne, who wrote a legal analysis of the opinion issued on Dec. 20.

The decision is Fort Mitchell Country Club v. LaMarre. Here is Julie Byrne and D. Christopher Robinson's Jan. 2nd article in Lexology. It begins:
The Kentucky Supreme Court issued a significant opinion on December 20, 2012 that will affect restaurants, bars, country clubs, and other establishments that sell and serve alcohol. In Fort Mitchell Country Club v. LaMarre, 2011-SC-000665-DG, the Supreme Court rejected a personal injury claim by a country club patron after he was seriously injured on a golf cart driven by another member of his dinner party.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Courts in general

Courts - Justice Sonia Sotomayor and her new autobiography

Featured last evening on 60 Minutes:

In her first broadcast interview, Sotomayor talks about her life and career leading up to her appointment to the U.S. Supreme Court, including the role affirmative action played. Scott Pelley reports.
Nina Totenberg of NPR begins this morning with what I believe are a week-long series of interviews with the Justice.

Here is the book
, via Amazon. It will be released tomorrow. I pre-ordered mine last month.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Courts in general

Ind. Gov't. - "Crown Point officials approve '13 pacts with city attorneys"

From the NWI Times:

CROWN POINT | Dollar amounts went unchanged from 2012 agreements with city attorneys David Nicholls, Alex Kutanovski, Mark Gruenhagen and Joseph Irak, under terms of the 2013 contracts approved by the Crown Point Board of Public Works and Safety.

Nicholls, the city attorney, is to be paid an annual retainer fee of $72,333, paid in monthly installments, as well as an hourly rate not to exceed $150 an hour for non-routine legal services such as litigation, issuing municipal bonds and special public works projects, under terms of the contract.

Kutanovski is to paid an annual retainer of $30,000, paid over 12 months. Irak and Gruenhagen each is to be paid $10,049 annually, over 12 months.

Kutanovski, Irak and Gruenhagen, all assistant city attorneys, each is to be paid an hourly fee not to exceed $125 an hour for nonroutine legal services, under terms of the contract.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Government

Ind. Courts - "End-of-life case splits family"

Yesterday and today Tim Evans of the Indianapolis Star has featured an end-of-life battle involving Paul G. Smith of Carmel, a retired attorney and former Hamilton County court magistrate. He is hospitalized at St. Vincent's.

Here is yesterday's lengthy story. A few quotes:

[T]he responses and requests uttered by the gravely ill Smith from his bed at St. Vincent Hospital carry little weight.

That's because hospital officials are following directives in a living will Smith signed nearly a decade ago. It restricts actions medical providers can take to keep him alive and hands decisions about artificially supplied nutrients and fluids to another daughter, Judith Sly.

Last week, doctors removed Smith from the ventilator that helped ease his labored breathing, apparently acting in accordance with the living will and Sly. Hospital staff occasionally moisten Smith's lips with a damp sponge, but a feeding tube that once provided nourishment also was disconnected.

Those moves infuriate [his daughter Susan] Rissman, exacerbating a long-standing family divide that has only deepened since Smith, whose condition deteriorated rapidly, was hospitalized in December with dehydration.

Even though Smith's attorney tried unsuccessfully in November to name Rissman her father's legal guardian, Sly has authority over his care and legal affairs. And her decisions, according to court records, appear to be backed by another sister and a brother.

Rissman has been her father's primary caregiver for the past several years and is against stopping an active treatment regimen for him. She thinks any decision should be left up to Smith because he is able to talk and answer questions.

It is a sad and controversial end for the retired attorney and former Hamilton County court magistrate who is at the middle of a family's fight over control of his care and, ultimately, a significant estate that includes investments and a home in Carmel valued at $241,000.

But the saga underscores broader issues: The importance of keeping health care plans up-to-date, medical ethics and the gut-wrenching dynamics of end-of-life decisions.

Today's story is headed "Daughter seeks hearing in Carmel attorney's end-of-life directives." It begins:
A fight over the medical treatment of a gravely ill 88-year-old man at St. Vincent Indianapolis Hospital was expected to land back in court today, according to a Hamilton County attorney who said he plans to ask a judge to review the condition and care of Paul G. Smith.

Tim Stoesz said he would file an emergency request in Hamilton Superior Court this morning on behalf of Smith's daughter, Susan Rissman, in an effort to learn why hospital staff are following a living will's end-of-life directives cutting off artificially supplied nutrients and fluids to the Carmel man. Smith is conscious and aware, Stoesz said, and the attorney said he believes Smith wants to control his care, rather than have decisions be made by another daughter who has power-of-attorney rights over him.

The Star also provides links to four documents:

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Courts

Ind. Law - Tuesday, Jan. 22 at 4 pm, Legislative Panel at IU Law School, CLE available

Here is the info:

January 22, 2013
Phi Alpha Delta Event
Phi Alpha Delta Legislative Panel

Time: 4-6 pm
Location: Wynne Courtroom and Atrium, Inlow Hall, 530 W. New York Street, Indianapolis, IN
Contact: Erin Radefeld at padindy@iupui.edu

Phi Alpha Delta Law Fraternity and Black Law Students Association are hosting a Legislative Panel on January 22 featuring prominent members of the political process discussing the legal issues that the Indiana legislature will address this year.

CLE applications available for submission.

Confirmed Participants:

  • Moderator: Amos Brown
  • Senate Republican: Luke Kenley
  • Senate Democrat: John Broden
  • House Republican: Brian Bosma, ‘84
  • House Democrat: Cherrish Pryor
  • Superintendent of Public Instruction: Glenda Ritz
Phi Alpha Delta is a legal fraternity and began hosting this event in January 2012. This year the Black Law Students Association at the IU Robert H. McKinney School of Law is co-hosting. The Office of Professional Development is a sponsor of the event.

The event will begin at 4:00 p.m. with a reception in the atrium of the law school, which will give the audience an opportunity to talk with the members of the panel. The panel will begin promptly at 5:00 p.m. and promises to be an informative session in which the panelists will discuss what issues will be important during the upcoming legislative session. An RSVP is not necessary, but is appreciated.

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Indiana Law

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, January 13, 2013:

From Saturday, January 12, 2013:

From late Friday afternoon, September 21, 2012:

Posted by Marcia Oddi on Monday, January 14, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (1/14/13):

Thursday, January 17th

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

Tuesday, January 22nd

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/14/13):

Wednesday, January 16th

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

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 14, 2013
Posted to Upcoming Oral Arguments

Sunday, January 13, 2013

Ind. Decisions - Still more on "Contraception Mandate Faces Justice Sotomayor and Seventh Circuit"

Updating ILB entries from Dec. 29, 2012 and Jan. 2, 2013, Bob Egelko of the San Francisco Chronicle takes a comprehensive look at the issue. The article begins:

In the wake of the U.S. Supreme Court's narrow decision to uphold the federal health care law, another challenge to the mandate for insurance coverage is headed toward the court. This one involves contraception, religion and, most likely, corporate "personhood."

So far, 42 suits have been filed in the nation's courts challenging the law's requirement that workplace health insurance plans cover birth-control pills, IUDs and other female contraceptives, without co-payments.

In the most important ruling to date, a federal appeals court in Chicago has blocked enforcement of the mandate against an employer - not a church or a church-affiliated hospital or university, but an Illinois construction company whose principal owners, a married couple, are devout Catholics.

The owners, Cyril and Jane Korte, "would have to violate their religious beliefs to operate their company in compliance" with the requirement to provide contraception coverage, the Seventh U.S. Circuit Court of Appeals said in a 2-1 ruling Dec. 28.

Posted by Marcia Oddi on Sunday, January 13, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Bills of interest to the judiciary heard in committee during Week 1 of the General Assembly

Here is the first weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Posted by Marcia Oddi on Sunday, January 13, 2013
Posted to Indiana Law

Saturday, January 12, 2013

Ind. Courts - "If drivers refuse a breath test, we’re drawing your blood. And if you refuse that, we’re going to get a warrant. And if you refuse that you’re going to jail."

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

Three more Allen County drivers are cooling their heels in jail after refusing to submit to a court order for a blood draw after being pulled over on suspicion of operating a vehicle while intoxicated.

On Friday, Allen Superior Court Judges John Surbeck and Fran Gull, as well as Magistrate Samuel Keirns, each had a hearing on a civil charge of indirect contempt of court with different drivers who balked at the court order. Indirect contempt involves obstructing court process or refusing a judge’s order outside the presence of the judge. Direct contempt involves misbehavior within the courtroom or in front of the judge.

In September, Allen County Prosecutor Karen Richards announced a shift in how her office handles drunken-driving arrests and suspects who refuse to submit to a certified Breathalyzer test at the jail. Now her office obtains a search warrant from a judge forcing the driver to stick an arm out and get a blood test.

While Indiana law requires anyone who refuses chemical breath tests to have his or her driver’s license suspended for a year, the refusals left prosecutors with little or no evidence to effectively prosecute the case.

The contempt citations bring jail sentences that cannot be reduced by good behavior. Unlike a prison sentence, in which inmates get one day of credit for each day of good behavior, potentially cutting their sentences in half, a person in the jail on the contempt citations serves every day of a sentence. * * *

Richards * * * said she hopes to see the contempt citations drop off as word gets out that the judges are putting people in jail for failing to comply with the court orders.

“If drivers refuse a breath test, we’re drawing your blood,” Richards said. “And if you refuse that, we’re going to get a warrant. And if you refuse that you’re going to jail.

“With every single one, they’ve gotten a jail sentence.”

Posted by Marcia Oddi on Saturday, January 12, 2013
Posted to Indiana Courts

Friday, January 11, 2013

Ind. Decisions - "US-born Taliban fighter John Walker Lindh wins prison prayer lawsuit"

Updating a long list of earlier ILB entries, here is today's 30-page ruling by SD Ind.Judge Jane Magnus-Stinson in the case of John Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana. It concludes:

In passing the Religious Freedom and Restoration Act, the United States Congress restricted the ability of federal prison wardens to substantially burden the sincerely held religious beliefs of inmates. Such burdens can only be imposed to further a compelling governmental interest, and by use of the least restrictive means. Throughout this action, the Warden has argued for deference to his decisions, yet he has not given appropriate deference to the standard imposed by Congress. Accordingly, the Court finds that the Warden’s policy prohibiting daily group prayer by Muslim inmates violates RFRA. The Warden will have 60 days in which to employ a new policy with respect to daily group prayer for Muslims. The Court is issuing today a permanent injunction to take effect in 60 days.
Here is the Indianapolis Star coverage, posted early this evening, written by Kristine Guerra. Some quotes:
A federal judge has ruled in favor of “American Taliban” fighter John Walker Lindh’s challenge to a federal prison in Terre Haute on its restrictions on group prayer.

According to the ruling by U.S. District Judge Jane Magnus Stinson, Lindh and other Muslims housed in the Federal Correctional Institution should be allowed to pray in groups and “the denial of daily group prayer opportunities substantially burdens Mr. Lindh’s religious beliefs.”

Lindh is serving a 20-year sentence at the federal penitentiary in Terra Haute after pleading guilty to supplying services to the Taliban and carrying an a explosive while committing a felony.

During his testimony last August, Lindh said prison procedures on group prayers must change and that they force him to sin because Islam requires him to pray five times a day and with other Muslims, if possible. * * *

Ken Falk, Lindh's attorney and legal director of the American Civil Liberties Union, said the key factor in the court's decision is the government's failure to prove that group prayers pose security threats.

"What we presented to the judge is that it made no sense to have a prison setting where prisoners are free to engage in all sorts of activities and say that they cannot pray together," Falk said. "Law requires that the government present compelling reason why religious practice should be denied and the government failed to do that."

The government is looking at the possibility of filing at an appeal, U.S. Attorney Joseph Hogsett said in a statement.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind Fed D.Ct. Decisions

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

Attorney General Zoeller has just issued a press release headed "Zoeller appoints deputy attorney general to serve in Washington, D.C." Some quotes:

Citing the growth in federal government activity that impacts Indiana government that the state must monitor, Indiana Attorney General Greg Zoeller today announced that he will assign a deputy attorney general to serve in the nation’s capital in Washington, D.C.

Deputy Attorney General Richard M. Bramer will work with members of Indiana’s congressional delegation to monitor and review bills moving through Congress and proposed regulations moving through federal agencies. The deputy AG will advise the Attorney General’s Office of upcoming issues so that the State of Indiana can make its position known and recommend action if necessary. And he will seek opportunities for state government to provide testimony to committees and regulatory agencies.

“Lobbyists and special interest groups live in Washington and have regular access to Congress and they often work to undercut the authority of state governments and centralize the authority of the federal government by claiming the states are only a ‘crazy-quilt patchwork’ of inconsistent jurisdictions. From my own experience I know that a physical presence at the Capitol succeeds better in dealing with the federal government than sending a letter,” Zoeller said.

Also this session two bills, SB 36 and HB 1033, have been introduced to "permit the AG to employ deputies or assistants to review and monitor federal legislation and other actions that may affect Indiana, and provides that the deputies or assistants may take actions that the attorney general finds necessary to address the legislation or other actions. Provides that the deputies or assistants may reside in or around Washington, D.C."

The ILB has commented before on whether it is the Governor, or the Attorney General, who should define the State's legal and policy positions:

July 27, 2009 - "Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?"

March 30, 2010 - "Law - Who is in charge of determining a state's legal position? A governor or an attorney general?"

Aug. 23, 2012 - "Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?"

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Government

Ind. Courts - Marion Superior Court Judicial Vacancy

The ILB would have posted Gary L. Miller's name earlier today, but has been waiting for the official word from the Governor's office. Still waiting ...

Governor Daniels has appointed Gary L. Miller to fill the vacancy on the Marion County Superior Court.

Leslie Shively has been appointed to the Vanderburgh Superior Court.

This marks the last of Governor's Daniels' judicial appointments

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Courts

Ind. Law - "Sen. Head Proposes Legislation to Improve Tests for Intoxication"

That is the heading of a press release today:

State Sen. Randy Head (R-Logansport) today announced he is authoring legislation that would improve tests for intoxication in the event of a drunk driving accident.

Senate Bill 168 amends the policy on blood-alcohol content tests to allow any qualified, properly trained individual to take a bodily substance sample and have it used in court. Currently, the law only lets licensed physicians, nurses or advanced emergency medical technicians obtain samples that can be used as evidence.

“This is a loophole that could allow drunk drivers’ fluid samples to be thrown out of court because they weren’t taken by an authorized person,” Head said. “In instances where a victim dies or is seriously injured, that technicality could keep the driver from being held responsible. We must make sure drunk drivers are held accountable in court.”

The bill also specifies that a court is not prohibited from issuing a search warrant to attain a bodily substance sample from an individual suspected of driving while intoxicated.

See this ILB entry from March 21, 2010 about the changes made to subsection (j) in 2010 aimed at "clarifying" the law.

But on Aug. 23, 2010 the ILB posted an entry headed "Blood draw law might benefit from another look by the legislature." It concluded:

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.
My thoughts: I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.
IC 9-30-6-6(j) was amended again in 2012, by PL 77-2012 (HEA 1186-2012), SECTION 3 (p.6)

And 2013's SB 168, if successful, would make additional changes to subsection (j), plus add a new (k).

My view: Rather than limited efforts to clarify and plug loopholes, perhaps IC 9-30-6-6 could benefit from a complete rewrite.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Decisions - More on: Attorney General will appeal Gingerich ruling to Indiana Supreme Court

Updating this ILB entry from last evening, here are some quotes from Robert King's story today in the Indianpolis Star:

If Indiana Attorney General Greg Zoeller gets his way, a boy believed to be the youngest Hoosier ever sent to prison as an adult will stay there, without a chance at a new hearing.

Zoeller said Thursday that his office would appeal an Indiana Court of Appeals ruling last month regarding Paul Henry Gingerich, who was 12 when he pleaded guilty to conspiracy to commit murder in the death of his friend’s stepfather.

Zoeller is asking the state Supreme Court to reverse the ruling, which said the court in Kosciusko County erred by not giving Gingerich’s attorneys more time to prepare arguments that his case should stay in juvenile court. They were given five days; similar cases in Marion County and elsewhere get three months. * * *

Zoeller, in his filing, said the reversal by the appeals court presents a danger: If Gingerich is given a new hearing after pleading guilty, it will upset the plea-bargaining process. * * *

Indianapolis attorney Monica Foster took Gingerich’s case, pro bono, after he was sent to jail. She argued successfully before the appeals court that Gingerich’s case never should have gone to the guilty plea, that at age 12 he was too young to understand the process, and that his attorneys weren’t given time to show that.

After winning at the appeals court, Foster planned for the case to go back to the juvenile court in Kosciusko County, likely in the spring.

If the case reaches the Supreme Court, the process could take another year.

Foster called Zoeller’s appeal a “waste of taxpayers time’ and the resources of the court.”

“In America, you get more than five days to prepare for the most important hearing of your life, and when you don’t, you get a do-over,” Foster said. “I’m very disappointed in the government, yes. I will defend this case to the gates of hell.”

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Confusion over Pence’s approach to tort reform continues"

Eric Bradner of the Evansville Courier & Press, in the paper's blog, Capitol Journal, has posted a roundup of information on Gov.-elect Pence's potential focus on tort reform in his legislative agenda.

Mary Beth Schneider reports today in the Indianapolis Star in a long story headed "Indiana legislature bill would make losers of civil court actions pay all legal costs," that begins:

You won’t find tort reform in Gov.-elect Mike Pence’s “road map,” the agenda he laid out in his campaign.

Nor did Pence spend time as a candidate talking about making the losing side in all civil court actions pay all the legal costs.

But that, apparently, is among the issues he will pursue in the legislature.

State Sen. Mike Delph, R-Carmel, said he filed Senate Bill 88 at the request of the incoming Pence administration.

“A member of Pence’s staff asked me to do it,” said Delph, an attorney. “This was not on my radar till they asked me to do it. I’m just trying to be supportive of the governor-elect. . . . I feel like the governor-elect is the leader of our party, and I wanted to try to do what I could to be of help to him.”

The bill would take away the discretion of judges and juries to decide legal fees and instead says the court must make whichever side loses pay them. * * *

Tort reform has been championed by business groups for years as a way to protect them from frivolous lawsuits, and Pence has supported it as a member of Congress. But he never initiated a “losers pay” bill in Congress, and the only tort reform bills he co-sponsored were in 2003.

Making tort reform part of his legislative agenda as governor would give it a stature far above the myriad of other issues Pence merely supports or opposes. It virtually guarantees it would get at least a hearing in a legislature where Republicans hold supermajorities in both the House and Senate.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Law - More on: Constitutional issues with several judiciary-related bills

Updating this ILB entry from January 9th, the ILB has received this correction from Lesley Stedman Weidenbener, Managing editor, TheStatehouseFile:

A story published by TheStatehouseFile.com on Wednesday should have said that a bill to remove a mandatory retirement age for the state’s appellate court justices would not affect Chief Justice Brent Dickson. The Indiana Constitution requires that appellate judges retire at the age specified by law at the start of their current term.

TheStatehouseFile.com regrets the error.

We are terribly sorry for the mistake but we always want to correct our errors. Please let us know if you ever run across a mistake we need to correct.

Thank you. -Lesley

A straight-up apology from an excellent student newsservice run by Franklin College. Here is a link to the corrected story in TheStatehouseFile (subscription required).

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court grants transfer in KW v. State

In one of the cases argued yesterday before the Supreme Court, K.W. v. State of Indiana (worth watching), the Supreme Court had not decided whether to grant transfer - here is the calendar write-up:

Based on an in-school encounter with a police officer serving as a school liaison officer, K.W. was adjudicated delinquent for an act that would be resisting law enforcement if committed by an adult. The Court of Appeals reversed, holding the officer was not engaged in the execution of the officer’s duties as a law enforcement officer at the time of the encounter. K.W. v. State 976 N.E.2d 61 (Ind. Ct. App. Aug. 28, 2012), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
Today the docket entry shows:
CAUSE NO.: 49S02-1301-JV-00020
LOWER COURT CAUSE NO.: 49D091109JD2341

K.W. V. STATE OF INDIANA

YOU ARE HEREBY NOTIFIED THAT THE SUPREME COURT HAS ON THIS
DAY, 01/10/2013, ORDERED AS FOLLOWS:

APPELLEE'S PETITION FOR TRANSFER IS HEREBY GRANTED.
BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D 01/10/13 AT 3:30 P.M.) ENTERED ON 01/11/13 KJ

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Transfer Lists

Ind. Law - Proposed bill would clean criminal record

Maureen Hayden, CNHI Statehouse Bureau, reported January 9th:

INDIANAPOLIS — Republican State Rep. Jud McMillin calls himself a “do-the-crime, do-the-time kind of guy” but says it’s time for Indiana to build some more forgiveness into the criminal justice system.

McMillin, a former deputy prosecutor from Brookville, plans on filing a bill soon that would allow judges to expunge an old arrest or conviction from someone’s record if that person could show they’ve redeemed themselves.

The goal is to make it easier for people who committed a non-violent crime in the past to erase their criminal history and have a better shot at getting a job or accessing other opportunities often denied to people with a record.

McMillin said his legislation fits with Indiana’s constitutional call for a criminal justice system that is built on “restorative justice.” * * *

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.

McMillin’s bill would go farther: It would create a mechanism that doesn’t currently exist in Indiana by giving judges the authority to remove an arrest or conviction from a criminal record.

While the sealing bill applies to certain misdemeanors and Class D felonies, McMillin’s bill would allow judges to expunge some Class B and Class C felonies from the records.

There are conditions on who would be eligible. There would be 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.

At least 26 states already allow some felonies to be expunged. * * *

One issue that won’t be easily resolved is what to do with criminal information on the Internet. McMillin’s bill would require companies that do employment background screenings to update their records, but can’t force the removal of information in digital archives that can publicly accessed over the Internet.

But McMillin said having a court order that shows a criminal record has been expunged may be helpful to someone seeking a job because that court order can be shown to a potential employer.

“At least it gives someone an argument to say to that employer, ‘I paid my debt to society and shown the state of Indiana that I’ve reformed myself,” McMillin said.

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Jasmine Snow v. Robert Hicks (NFP)

NFP criminal opinions today (1):

Dejuan T. Lowe v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion Superior Court Judicial Vacancy

The ILB has received word of the selection made by Governor Daniels to fill the vacancy on the Marion County Superior Court. Check back for name ...

Posted by Marcia Oddi on Friday, January 11, 2013
Posted to Indiana Courts

Thursday, January 10, 2013

Ind. Decisions - Attorney General will appeal Gingerich ruling to Indiana Supreme Court

Today was the last day for the State to appeal the Court of Appeals decision reversing the trial court in the case of Paul Henry Gingerich. Today the Attorney General filing a petition with the Supreme Court, asking the Court to reverse the COA ruling.

Here is a long list of earlier ILB entries. This Dec. 13, 2012 entry quotes from a Fort Wayne Journal Gazette editorial, including:

The Indiana Court of Appeals judges have determined something advocates for justice already knew: A Kosciusko County boy was deprived of due process rights when a judge rushed through a hearing that sent the 12-year-old to adult court on a murder charge. * * *

Gingerich – an 80-pound sixth-grader when he was accused of helping a friend kill the friend’s stepfather – pleaded guilty to conspiracy to commit murder and was sentenced to 25 years in prison. The appeals court rightly sent the case back to juvenile court for another waiver hearing.

Typically, Indiana’s attorney general would appeal this week’s ruling to the state Supreme Court, particularly if a precedent were at stake. But case law is already clear, and Attorney General Greg Zoeller’s office said his office will study whether to appeal.

“Among the most disheartening cases seen in the criminal justice system are those involving young people charged with extremely violent crimes,” Zoeller said. “For prosecutors and judges, these are among the most difficult cases as well in terms of balancing the rights of the juvenile with the safety of the community. We will carefully review our options after consulting with the county prosecutor and conducting further research.”

Zoeller might appeal, but he could conclude that the ruling is so obviously the right one that justice would be best served by sending Gingerich back to juvenile court for a proper hearing.

Make no mistake, deciding how to treat a 12-year-old who helped kill someone is no easy matter. And regardless of age, the boy helped kill Philip Danner. But Indiana’s constitution emphasizes that the criminal justice system is based on reformation, not vindictive punishment, and that is especially true for a child. Kosciusko officials were wrong to simply send Gingerich to adult court without a true and thorough investigation into the boy’s competency and options for incarceration.

Now, he will finally receive the evaluation justice demands.

Here is the Attorney General's news release today:
Today Indiana Attorney General Greg Zoeller announced that his office will appeal the December 11 ruling of the Indiana Court of Appeals in the Paul Gingerich case to the Indiana Supreme Court. Gingerich is serving a 25-year-sentence after pleading guilty to an adult charge of conspiracy to commit murder. Today’s filing of a Petition to Transfer means that the state’s highest court will ultimately decide whether to uphold Gingerich’s guilty plea and sentence.

The Attorney General’s Office represents the prosecution in appellate court. Zoeller today issued this statement:

“Balancing the interests of justice when an offender is so young is extremely difficult. In working with prosecutors, my office is concerned about not setting a precedent that would allow violent offenders to back out of their plea agreements after pleading guilty. Mindful of the deceased victim in this tragic case, we respectfully request the Indiana Supreme Court consider this appeal and make the final determination,” Zoeller said.

Gingerich had pleaded guilty to an adult charge of conspiracy to commit murder in the 2010 shooting death of Philip Danner. The Indiana Court of Appeals on December 11 reversed the guilty plea and ordered the case sent back to the Kosciusko County courts; and today was the deadline for the Attorney General to appeal that ruling. The State’s Petition to Transfer means the Court of Appeals’ order will be stayed and Gingerich remains in Department of Correction custody pending a ruling by the Indiana Supreme Court.

Here is a copy of the State's 20-page petition to transfer.

What happens next? Gingerich's attorney will have an opportunity to file a response, then the Supreme Court will decide whether to grant transfer and consider the issue(s) itself, or allow the Court of Appeals ruling to stand.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re sex offender registry

In Andre Gonzalez v. State of Indiana, an 11-page, 5-0 opinion, Chief Justice Dickson writes:

After the defendant had fully served his sentence of imprisonment and probation for Child Solicitation, and during the ten-year period of his required registration as a sex offender, the statutory registration requirement was amended to require lifetime registration in certain circumstances. The defendant's offense fell within these circumstances. Upon completion of his ten-year registration requirement, the defendant unsuccessfully sought his removal from the Sex Offender Registry, claiming refuge under the Indiana Constitution's prohibition against ex post facto laws. We hold that, under the facts of this case and as applied to this defendant, the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of the lifetime registration requirement. * * *

We apply the seven Mendoza-Martinez factors to guide our evaluation of the defendant's claim that, as applied to him, the retroactive imposition of a lifetime registration period violates the Ex Post Facto Clause. Our task is not merely to determine whether there are more punitive or non-punitive factors, but to consider them collectively to determine whether the application of the challenged statute's effects upon the defendant are so punitive in nature as to constitute a criminal penalty. See Wallace, 905 N.E.2d 378–79. The underlying conviction of the defendant for Child Solicitation was for a D felony, the lowest class of felony under Indiana's criminal code. Although the defendant was sentenced to the maximum term of three years, eighteen months were suspended to probation. Because of the nature of the offense, the then-prevailing statutes required him to register as a sex offender for ten years, which registration he completed. As we collectively weigh the punitive and non-punitive nature of the seven factors as they apply to this defendant and his circumstances, we find that to apply the 2006 amendments so as to subject this defendant to a lifetime registration requirement violates the Ex Post Facto Clause of the Indiana Constitution.

We reverse the denial of the defendant's petition to remove the lifetime registration requirement and remand for further proceedings consistent with this opinion.

David, Massa, Rush, JJ., concur.
Rucker, J. concurs in result.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Collect DNA from every felony arrestee?

From a press release:

STATEHOUSE (Jan. 10, 2013) — State Sen. Tom Wyss (R-Fort Wayne) today announced legislation aimed at improving criminal prosecution and establishing a statewide DNA database.

Senate Bill 245 would require every person arrested for a felony to submit a DNA sample for inclusion in the Indiana DNA Database. In the event he or she is acquitted of all charges, the charges are reversed or the case is dismissed, the sample may be removed via request.

See this Sept. 18, 2012 National Institute of Justice report - some quotes from the introduction:
Twenty-eight states and the federal government have enacted laws that authorize such collection. Yet despite their widespread adoption, little is known about the investigative utility of collecting DNA from arrestees or how expanded DNA collection laws affect the collecting agencies and state crime laboratories responsible for their implementation.

This article explores the latter issue — how key provisions in arrestee DNA legislation influence the activities associated with DNA collection and analysis. Information in this article was derived from a review of state and federal laws and from interviews with state crime laboratory representatives in 26 of the 28 states that passed legislation authorizing collection of DNA from some subset of arrestees.[4] This data collection is part of an NIJ-funded Urban Institute project examining the collection of DNA from arrestees.

See also the Jan. 6, 2013 ILB entry headed " Laws are needed to remove the [Codis] databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers."

See also this AP story from Sept. 17, 2012 about an ACLU 9th Circuit challenge to a California requirement - a quote:

The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California's Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted. Some 25 other states have enacted similar laws since 62 percent of the California electorate passed the measure in 2004.

The issue of the warrantless swabbing of the cheek with a Q-tip of everyone arrested for a felony has sparked one of the hottest "search and seizure" debates in state and federal courts in decades.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Law

Ind. Gov't. - Rooster captured on The Circle, in the empty, for the season, Soldiers & Sailors Monument fountain

Adding to the ILB's long list of "chicken underground" entries, see this IndyStar story and don't miss video, by Jill Disis and Amy Bartner.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Government

Ind. Decisions - 7th Circuit clarifies some issues re Franks v. Delaware

In a 24-page opinion in an Illinois case, U.S. v. McMurtrey, Circuit Judge Hamilton writes:

If police officers obtain a search warrant by deliberately or recklessly providing the issuing court with false, material information, the search warrant is invalid. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with deliberate or reckless misrepresentations in the warrant affidavit, and where such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid. In this appeal we attempt to clarify some issues concerning the procedures a district court may or must use in evaluating a criminal defendant’s motion to suppress evidence under Franks.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Marc Warren v. State of Indiana (NFP)

Carl E. Bowman v. State of Indiana (NFP)

Miguel Castillo v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court exercises reciprocal discipline over attorney disbarred in Arizona

The Jan. 8, 2013 order is In the Matter of Mark J. Hughes.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Amended order amending parenting time guidelines

The Supreme Court has posted a 33-page order, filed Jan. 7, 2013, titled "Amended Order Amending Indiana Parenting Time Guidelines." This order supersedes the previous order issued on December 18, 2012. The amendments are effective March 1, 2013.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Courts

Courts - More on "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"

Updating this Jan. 7th ILB entry, here is NPR's Nina Totenberg's 5-minute report on the oral argument, headed "Supreme Court Weighs Warrantless Blood Tests In Drunken-Driving Cases."

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Courts in general

Law - "Legal experts dispute Republican's proposal to authorize Indiana to declare federal laws unconstitutional"

That is the headline to this story by Chris Morisse Vizza in the Lafayette Journal Courier. The bill, introduced by Sen. Phil Boots, R-Crawfordsville, is SB 230, and is worth a look. From the story:

[Boots] is also quoted as saying he’ll ask Senate President Pro Tem David Long to give Senate Bill 230 a hearing, even though Long assigned it to the Rules Committee, where it will likely stay.
See also this thorough story by Dan Carden of the NWI Times - some quotes:
INDIANAPOLIS | When the U.S. Supreme Court in 1958 explicitly struck down nullification, the theory that states can declare federal laws unconstitutional and ignore them, the court warned state legislators that endorsing nullification violates their oath to support and defend the U.S. Constitution.

State Sen. Phil Boots, R-Crawfordsville, doesn't care.

"I think our state's rights have been illegitimately violated by the federal government and I think it's something that we need to address," Boots said. "Somebody at some point has to take a stand. We have to stand up for what the Constitution says and right now, no one is doing that."

Boots is sponsor of Senate Bill 230, which authorizes the Indiana General Assembly to declare federal laws unconstitutional. Any person caught implementing or enforcing a federal law declared void by Indiana would be guilty of a Class D felony, punishable by up to three years in prison.

The legislation specifically finds the 2010 Affordable Care Act, also known as Obamacare, exceeds the powers of the federal government and is therefore unenforceable in Indiana.

That contravenes a June 2012 U.S. Supreme Court ruling that Obamacare is constitutional.

"The Supreme Court is misinterpreting the Constitution," Boots said. "We've seen case after case after case of the federal government telling us what to do and I don't think they have the authority to do that."

Boots contends that states created the federal government and gave Congress a list of specific enumerated powers. He said any action taken by Congress is illegitimate if it's not on that list, and the states, not the Supreme Court, have the authority to determine the legitimacy of federal laws.

That argument for nullification has been made several times in U.S. history, most often by southern state lawmakers seeking to protect the institution of slavery prior to the Civil War and trying to prevent racial integration of public schools during the 20th century.

U.S. courts have repeatedly struck down state attempts to nullify federal law.

In the most significant ruling, Cooper v. Aaron (1958), the Supreme Court declared the supremacy clause of the U.S. Constitution makes nullification impossible, as federal law is always superior to state law.

In that decision, the nation's high court also instructed state lawmakers, like Boots, that refusing to accept the supremacy of federal law, and the authority of the Supreme Court to interpret it, is "war against the Constitution" and a violation of their oath to support America's primary governing document.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Indiana Law

Ind. Decisions - More on: Notre Dame sues feds over requirement to provide insurance coverage for contraceptives

Updating this May 21, 2012 ILB entry, which includes a link to the complaint, Tom Moore and Margaret Fosmoe of the South Bend Tribune report in a story filed yesterday afternoon that begins:

A federal judge has dismissed a lawsuit by the University of Notre Dame challenging the constitutionality of the Patient Protection and Affordable Care Act requiring employers to provide birth-control coverage.

The lawsuit, filed last May, challenges federal regulation requiring religious organizations to provide health insurance coverage for contraception and abortion-inducing drugs. The suit argues that such a regulation goes against Catholic Church teachings.

U.S. District Court Judge Robert L. Miller ruled Jan. 2 [sic] that the case lacks jurisdiction because Notre Dame and other “religious employers” were granted a yearlong “safe harbor” from enforcement of the regulations until Aug. 1, meaning Notre Dame’s claims are not ripe.

ILB: Here is a copy of the Dec. 31, 2012 ruling.

Posted by Marcia Oddi on Thursday, January 10, 2013
Posted to Ind Fed D.Ct. Decisions

Wednesday, January 09, 2013

Law - After 8 years, Michigan courts are still litigating the meaning of the November 2004 constitutional amendment

After 8 years, Michigan courts are still litigating the meaning of the November 2004 amendment to the Michigan Constitution stating that “one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” This post today in the State Bar of Michigan SBMBlog begins:

An unpublished opinion (PDF) of the Court of Appeals released today upholds a circuit court decision rejecting Attorney General Bill Schuette's challenge to the Civil Service Commission's extension of health plan benefits to “other eligible adult individuals” who are "co-residents of state employees" -- in other words, to domestic partners. The Attorney General said that the extension, which was the product of negotiations with state employee unions, violates the state constitution's Marriage Amendment and equal protection.
See also this ILB post from Feb. 2, 2007.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to General Law Related

Courts - Important Twomby/Iqbal (Twiqbal) cert denial

See Alison Frankel's On the Case article, headed "Supreme Court declines to halt 2nd Circuit's Twiqbal pushback."

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Courts in general

Ind. Law - Constitutional issues with several judiciary-related bills

"Bill would eliminate mandatory retirement age for Indiana appellate judges" is the headline to a story in the Evansville Courier & Press. Some quotes:

INDIANAPOLIS — Indiana Chief Justice Brent Dickson and other appellate court judges may get more time in their positions if a proposed Senate bill is adopted during this General Assembly.

Indiana Supreme Court Justice Brent Dickson - shown here after his election to chief justice - could serve beyond 75 under legislation introduced in the Senate. The bill would eliminate a mandatory retirement age of 75 for all appellate judges. * * *

Senate Bill 124 could enable 71-year-old Chief Justice Brent Dickson to keep his position past 2016 – if he wanted to. Dickson – who only became chief justice last year – didn’t request the legislation and Senator Buck said he didn’t offer it with Dickson in mind.

ILB: But that is incorrect. [H/T: Joel Schumm] The law, if enacted, would not impact sitting appellate judges/justices. The Ind. Const., Art. 7, Sec. 11 reads in part:
Sec. 11. * * * Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.
[More] Another problem with the bill is it simply strikes out entirely the language "Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age." Apparently the intent was to leave no limitation. But again, the Constitution requires that an age to be specified by statute.

Another bill, SB 123, authored by Senator Delph, would limit the salary of state and local public officers and employees, including the judiciary, to the salary paid to the governor. Again, this would not impact current judges and justices because of the Ind. Constitution, which provides at Art. 7, Section 19:

Section 19. Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office.
In addition, this bill does not take into account the compromise measure on judges' pay passed in 2007, linking judges' and legislators' salaries.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Indiana Law

Ind. Courts - Some reassignments for Marion County Courts, effective Jan. 1st

The following Marion County court room assignments were approved by the Executive Committee at its meeting 11-16-2012. They were effective Jan. 1, 2013. The new Superior Court judge, awaiting appointment by Gov. Daniels, will presumably fill the vacancy at G-21, the Protective Order Court.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Indiana Courts

Ind. Gov't. - "Lt. Gov-elect Sue Ellspermann says the first order of business in the Pence administration is a moratorium on new business regulations"

Indy Politics has the story.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Indiana Government

Ind. Gov't. - State Board of Accounts raises questions in LaGrange County audit report

Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, writes today:

A State Board of Accounts audit of the LaGrange County commissioners for 2010 focused heavily on a trust, the trust’s ownership of land LaGrange County was to eventually receive as a future beneficiary and the role of the county attorney, Kurt Bachman.

The audit, in unusually direct language, said the commissioners’ failure to seek County Council approval to dispose of its land interest “constitutes misfeasance on the part of the County Commissioners.” It also said that though Bachman filed a required conflict of interest statement, “there was not a full and adequate disclosure as required.”

The audit said the county did not keep required records of the trust and the land appraisals, and that an agreement between Bachman – who oversaw the trust – and the county “required that the County Commissioners not disclose any documents or information that would disclose the identity of Kurt Bachman.”

State auditors also cited the county for not having a contract with county attorney Bachman, who was paid $20,000 in 2010, or his law firm, Beers, Mallers, Backs and Salin, which was paid $140,631 in 2010.

The commissioners have criticized the field auditor for the State Board of Accounts and contend neither they nor Bachman did anything wrong because the commissioners didn’t own the land at issue. The commissioners hired another attorney, Tim Claxton of Burt, Blee, Dixon, Sutton and Blume to take “over as County Attorney for dealings with the Trust.”

The report, filed Dec. 27, was forwarded to LaGrange County Prosecutor Jeff Wible. In 2011, a special prosecutor who looked into the trust and land deal found no criminal activity, but the State Board of Accounts audit could spur a new investigation, particularly because of its direct accusations.

Here is a link to the SBA Audit.

WTHD 105.5 had this story by Tim Murray on Jan. 4, headed "LaGrange County and state at odds over audit report." Some quotes:

LaGrange County Commissioners are disputing the findings of a State Board of Accounts audit report that calls into question the county's handling of two property transactions.

The audit report released last Thursday accused county officials of misfeasance in the way they handled the transactions relating to the 516 acre Lambright Trust of which County Attorney Kurt Bachman was trustee.

State auditors claim the commissioners and county council failed to treat the transfer of property from the trust to Kurt Bachman as a sale of real property. State law prescribes how government entities must handle such sales and includes a requirement for the county council to approve. They also disapprove of a license agreement to farm the ground which they say should have required the commissioners to take bids.

The audit report also took Bachman to task for what it said was an insufficient conflict of interest statement that lacked specific details of his interest in the real estate transaction and an easement to Oliver Lake.

But a team of lawyers for the county that included Ice Miller of Indianapolis argues the transaction was a transfer of personal property, not real property, and was done legally. They also claim the transactions questioned by the auditors occurred between the trust and Bachman, not between the county and Bachman and do not trigger the statutes cited by the auditors.

Former Steuben County Prosecutor Tom Wilson was appointed as a special prosecutor in 2011 to review the Lambright transaction. Wilson filed a report with LaGrange Circuit Court saying his investigation determined there was no criminal activity in the matter. * * *

Former County Commissioner George Bachman, who was president of the commission at the time and is not related to Kurt Bachman, said Friday the State Board of Accounts violated the law itself by publishing its report without the county's written response.

You can access the * * * County's audit response [here].

Wanda Yoder of the Sturgis Michigan Journal had a brief story Jan. 7.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Indiana Government

Ind. Decisions - 7th Circuit denies rehearing en banc in one Indiana case today

In U.S. v. Weir (SD Ind., Magnus-Stinson), a 6-page opinion, the panel writes:

On December 14, 2012, defendant-appellant filed a petition for rehearing and petition for rehearing en banc. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore DENIED.

ROVNER, Circuit Judge, concurring in the denial of rehearing. Michael D. Weir complains that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop. Because his trial counsel never objected to the seizure or to the introduction of evidence obtained as a result of the seizure, our review is for plain error. United States v. Kelly, 519 F.3d 355, 361 n.1 (7th Cir. 2008). * * *

So even if the seizure of the cash was error, it was not plain error. Before we will reverse for plain error, we must find (1) that there is error, (2) that it is plain, and (3) that it affects substantial rights. United States v. Thornton, 642 F.3d 599, 605 (7th Cir. 2011). “Once these three conditions have been met, we may exercise our discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. James, 464 F.3d 699, 709 (7th Cir. 2006). The defendant bears the burden of establishing that the error affected substantial rights by demonstrating that the outcome probably would have been different without the error. Id. As I have just demonstrated, the outcome would have been the same whether or not the officer seized the cash. Once the cash was legitimately discovered, alea iacta est. I therefore concur in the denial of the petition for rehearing, but I do not endorse the rationale used in the opinion to justify the seizure.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Jeffrey A. Hanauer v. Colleen T. Hanauer , a 6-page opinion, Judge Bailey writes:

Jeffrey Hanauer (“Husband”) appeals the trial court’s issuance of a protective order against him. He raises for our review the single issue of whether there was sufficient evidence to support the trial court’s issuance of a protective order. We affirm. * * *

Husband has failed to establish that the findings are clearly erroneous. Furthermore, these findings support the trial court’s conclusion that Wife was a victim of domestic violence. Therefore, the issuance of a protective order was not in error.

NFP civil opinions today (0):

NFP criminal opinions today (7):

Aaron Johnson v. State of Indiana (NFP)

Marty L. Armes v. State of Indiana (NFP)

Brian E. Green v. State of Indiana (NFP)

Jack Lee v. State of Indiana (NFP)

Troy Crim v. State of Indiana (NFP)

Gerald Mickens v. State of Indiana (NFP)

Juan C. Duarte-Lopez v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Are the Commissioners and County Council legally authorized to bind the elected officers to the terms of a collective bargaining agreement?"

From a Jan. 7th story by Stuart Hirsch of the Anderson Herald Bulletin. Some quotes:

ANDERSON, Ind. — Government workers in Madison County could be subject to five different sets of employment rules depending on which elected official they work for under a ruling issued by a Grant County judge.

“What we have is a nightmare right now,” County Attorney James Wilson said of the 13-page New Year’s Day order issued by Judge Warren Haas. * * *

At issue is a lawsuit filed by United Auto Workers Local 1963 in 2011, shortly after Larry Davis and Angela Shelton took office as assessor and recorder, respectively.

Davis and Shelton did not retain longtime employees, or chose to fire some. In addition, they said they were not bound by terms of a collective bargaining agreement reached between the Board of County Commissioners and the union in 2009.

“The question before the court,” wrote Haas, “is whether the Commissioners and County Council are legally authorized to bind the elected officers to the terms of a collective bargaining agreement.”

Based on his findings of fact and legal cases cited by both sides in the dispute, Haas concluded that the assessor, recorder and, by extension, other elected officers (even though they weren’t part of the suit), are independent of the commissioners and County Council in the appointment, discipline, removal and work of their deputies and employees. * * *

When all the statutes cited in the case are taken together, Haas said, the framers of the Indiana constitution and the General Assembly intended for elected officers to be able to perform the functions of their office free from interference.

The collective bargaining agreement “usurps and impairs the elected officers’ authority and independence with respect to their deputies and employees,” Haas wrote. “Therefore, the statutes, to the extent they might be read to conflict, must be construed to forbid such impairment.”

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Gov't. - More on: "Support for gay-marriage ban wavering: Powerful Indiana Republican Kenley changes his stance"

Updating this ILB entry from Dec. 15th, Maureen Hayden, CNHI Statehouse Bureau, expands on her earlier story today in the Logansport Pharos Tribune. The story begins:

INDIANAPOLIS — Some Republican state legislators are calling for the Indiana General Assembly to slow down on the constitutional ban on same-sex marriage, offering a variety of reasons why the effort shouldn’t go ahead.

Both publicly and privately, GOP lawmakers are expressing doubts about a measure that saw wide support in past sessions and they cite changing public opinion on whether the state’s current ban on same-sex marriage should be locked into the state’s constitution.

Republican State Rep. Jud McMillin, a Brookville lawyer who sits on the House committee expected to hear the measure, thinks it needs to be put on hold this session. He cites the U.S. Supreme Court’s decision to take up the issue of whether state constitutional bans on same-sex marriage are legal and wants the Indiana legislature to wait on the court’s ruling.

“I just think it would be irresponsible for us to be putting something in the public hands when we know the Supreme Court may come down and rule on something that may alter our ability to do that,” McMillin said.

Republican State Rep. Ron Bacon of Boonville, who voted for the constitutional ban two years ago said he wouldn’t vote for it again this time.

Bacon’s reasons are two-fold: He agrees with McMillin that the legislature needs to wait for the court ruling, but he also objects to the language in the measure that would create a constitutional ban on civil unions as well as same-sex marriages.

“That’s a step too far,” Bacon said.

Their concerns are significant, given that Republicans control the Indiana legislature and that the amendment faced almost no GOP opposition in the past.

On the Senate side, both state Sen. Pete Miller of Avon and his fellow Republican state Sen. Luke Kenley of Noblesville have gone public with their opposition.

Neither are supporters of legalizing same-sex marriage, but both say a sweeping constitutional ban isn’t needed.

“It’s already illegal,” Miller said. “What’s to be gained other than ostracizing a whole section the population?”

Miller echoed the concerns expressed by Republican state Rep. Ed Clair of New Albany. Both Miller and Clere cite the opposition coming from some of Indiana’s biggest employers, such as Columbus, Ind.-based engine maker Cummins, Inc., that say such a ban would hurt their efforts to recruit top talent.

“If we’re trying to attract the best and brightest people to work in Indiana, this doesn’t help,”Miller said. “It’s not just putting out a sign to gays and lesbians saying, ‘You’re not welcome.’ It sends a signal to a lot of talented young people that we’re not a welcoming place.”

Last month, Kenley – an influential, conservative lawmaker who holds the powerful position of Senate appropriations chairman – cited what he called the “rapidly evolving” shift in public opinion on the issue as one of the reasons for his opposition.

Putting a constitutional ban on same-sex marriage and civil unions would handcuff future legislators from altering the current law through the legislative process. Kenley also said he opposed putting what he called “bigoted” language in the state constitution.

Privately, several key Republican lawmakers have told their colleagues that they won’t vote for the measure, which is part of a two-step process that would put the issue to a public referendum in 2014.

Related today, Indianapolis Star writer Matt Tully's column, which is headed "Amendment to ban same-sex marriage is among worst of bad ideas." Some quotes:
This is the time of year, these early days before the General Assembly gets down to work, when reports come out almost daily about some misguided idea advanced by some misguided lawmaker in a misguided attempt to legislate his or her vision of Indiana. * * *

The worst of these bills usually don’t make it very far. They land in the legislative garbage can, killed off by common sense. But some misguided ideas survive like weeds, regardless of the damage they threaten to inflict on the state, and no matter how bad or counterproductive or mean-spirited of a message they send.

This brings me to the drama over perhaps the worst piece of public policy the legislature has considered this century: a proposed amendment to the state constitution to ban same-sex marriage. Put bluntly, this amendment would put into the sacred state constitution a public endorsement of discrimination.

Now, same-sex couples are already prohibited by law from getting married in Indiana. And as wrong as that law is, slipping the measure into the more concrete constitution would be worse, and it would be contrary to the fundamental spirit behind the existence of constitutions in this country: to protect and guarantee freedom.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Indiana Government

Environment - "What happens if the water in Lake Michigan keeps disappearing?"

The subhead to this lengthy, illustrated (and with audio) Jan. 7 report by Lewis Wallace of Chicago Public Media WBEZ91.4 reads: "Great Lake humbled by record low water levels. Without a turnaround, shipping, fishing, and whole towns are at risk."

One section is headed "Indiana's not immune" and discusses Indiana Harbor. A quote:

“If we had another summer like we had this summer, you know, lord help us,” said Dan Cornellie of ArcelorMittal steel.

For every inch of water the lake loses, the ships supplying two large steel plants here have to lighten their loads by hundreds of tons. Right now freighters are coming into the harbor with two and a half feet less draft than just a few years ago, so for every six trips a ship makes, ArcelorMittal pays for a seventh to make up the difference. The result is a pricier bottom line for the thin, high-quality steel used to make everything from refrigerators to coffee machines.

Cornellie has been in the industry for a long time, and he remembers the low lake levels of 1964, but he said this time it doesn’t feel the same.

“Well, in '64 nobody talked about climate change,” he said. “There’s no mystery what’s going on. It’s a question of whether any of those temperature or precipitation trends reverse.”

Another story from the same reporter, dated Dec. 17, 2012, is headed "Drought could lead Chicago River to reverse course (again): The U.S. Army Corps of Engineers warns low water in Lake Michigan could cause the river to flow back into the lake."

And what of the Mississippi? This morning on NPR's Morning Edition, Clay Masters' story, headed "Mississippi River Level Disrupts Supply Chain," begins:

The Mississippi River is at historically low levels. The Army Corps of Engineers says the river will likely be able to stay open through the month, but soon it may be too shallow in parts for barge traffic. There have been calls for the corps to release water from reservoirs along the Mississippi.

Posted by Marcia Oddi on Wednesday, January 09, 2013
Posted to Environment

Tuesday, January 08, 2013

Law - "False rape accusations are exceedingly rare"

"[T]he Enliven Project using data from Department of Justice’s National Crime Victimization Survey and FBI reports[,] drives home extremely well the fact that false rape accusations are exceedingly rare," writes Dylan Matthews in this Jan. 7th Washington Post "WonkBlog" entry.

A reader wrote the ILB: "Wow...I didn't see the sadness of the graph until I got to the bottom. Shocking!!!"

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General Law Related

Courts - More on: "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"

Updating this ILB entry from Jan. 7th, Jacob Gershman of the WSJ Law Blog has this post this afternoon headed "SCOTUS Case Not For the Faint of Heart." He writes:

One of the more interesting arguments against warrantless tests has to do with the actual dangers — not just the intrusiveness — of extracting blood.

In an amicus brief in support of more controls over collecting blood evidence, a group of criminal law and procedure professors from Duke University, Arizona State University and other schools cite several studies that point to the health risks of getting blood drawn.

Talk of blood draw issues of course brings to mind the Indiana Bisard case and particularly the "certified phlebotomist" question.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Courts in general

Ind. Gov't. - Rules of the new Environmental Rules Board

The new Indiana Environmental Rules Board commenced operations on January 1, 2013. It replaced the three long-time environmental boards, the Air Pollution Control Board (rules of this board are located at Article 326 of the Indiana Administrative Code (IAC)), the Water Pollution Control Board (327 IAC), and the Solid Waste Management Board (329 IAC).

The ILB remarked on the 2012 legislation (HEA 1002) during the last session, and on April 10, 2012 posted this ILB commentary pointing out problems with the coming changes.

Today I write about the rules of the new board.

The main function of the environmental boards, since the creation of IDEM in the mid-1980s, has been to adopt, amend, or repeal Indiana's environmental rules. This power to make rules, which have the force and effect of laws, is delegated to the boards by the General Assembly. The General Assembly has placed a number of statutory constraints on this environmental rulemaking power, constrains much more stringent than those which apply to other state entities with rulemaking authority.

The existence of the boards themselves is the biggest constraint. The General Assembly could have given rulemaking authority directly to the Commissioner of the Department of Environmental Management. It elected not to do so, instead creating a system where boards made up of representatives of those affected by the rules have the responsibility to consider and act on rulemaking proposals offered by IDEM, and occasionally others, after a long deliberative process designed to insure input from all the affected parties.

I go through this detail to emphasize the point that these are not the rules of IDEM, or the rules of IDEM's air, water, or waste divisions. These are the rules of the three environmental boards or, as of January 11, 2013, the Indiana Environmental Rules Board. The new law states this correctly at, for example, IC 13-13-8-2(d)(1):

The rules adopted before January 1, 2013, by the air pollution control board abolished under subsection (a)(1):
(A) shall be treated as though the rules were adopted by the environmental rules board; and
(B) shall be administered and implemented by the air pollution control division of the department described in IC 13-13-8-2(1).
It is important, I believe, to clearly maintain this distinction between the roles of IDEM and its divisions, on the one hand, and the new environmental rulemaking board, on the other.

And what is my point?

The ILB has learned that the rules of the Indiana Air Pollution Control Board, the Water Pollution Control Board, and the Solid Waste Management Board are being redesignated by the staff of the IAC/Ind.Register as the rules of the “Air Pollution Control Division”, “Water Pollution Control Division” and “Solid Waste Management Division.” In my opinion, this is incorrect and will only continue confusion in the roles of the various entities.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Environment | Indiana Government

Stage Collapse - Isn't this the same $6 million we heard about last summer?

There were a number of stories the end of 2012 about $6 million more in aid for the state fair victims. For example, this one Dec. 20, 2012 by Charles Wilson of the AP that began:

INDIANAPOLIS — The Indiana attorney general’s office sent out $6 million in checks Thursday to 59 victims of 2011’s deadly Indiana State Fair stage collapse.

The payments bring to $11 million the amount the state has paid to stage collapse victims. It had already paid $5 million, the limit for tort claims under Indiana law. The supplemental payments were approved by the General Assembly this year.

Attorney General Greg Zoeller announced the payments at a Statehouse news conference, saying the second round of checks would take care of medical expenses for victims whose injuries weren’t permanent.

In answer to the question posed in the heading of today's post, yes, this is the same $6 million that last summer was offered to the victims as part of a deal described in the Aug. 16th AP story quoted in this ILB entry:
Attorney General Greg Zoeller had proposed the joint settlement, which asked victims to agree to settle their claims for shares of $6 million from the state and $7.2 million from Mid-America and the stage’s manufacturer, James Thomas Engineering. In exchange, the victims would agree not to seek additional compensation.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Stage Collapse

Law - "What Gun Regulations Will the Supreme Court Allow?"

Michael C. Dorf, a Justia columnist and the Robert S. Stevens Professor of Law at Cornell University Law School, has a fascinating Jan 2nd article, "Originalism and the Second Amendment," that is Part Two of a two-part series, "What Gun Regulations Will the Supreme Court Allow?" A few quotes:

So-called “old” originalists construe the Constitution in accordance with original intent. Does the Eighth Amendment’s Cruel and Unusual Punishments Clause permit capital punishment? An old originalist asks whether the framers intended it to forbid the death penalty. Does the Commerce Clause permit Congress to require people to purchase health insurance? An old originalist asks whether the framers intended to authorize mandates.

Old originalism retains considerable force among politicians, some judges, and the general public, but these days, most scholars who call themselves originalists reject it, because critics of old originalism have successfully argued that it is flawed in various ways, including these two: (1) because constitutional change is usually the product of contentious political disagreement, it will often be impossible to locate a determinate intent that was shared by all, or even a majority, of the people who were responsible for adopting any given provision; and (2) the framers and ratifiers of the Constitution enacted language, not whatever intentions or expectations they may have had for that language, so even when a generally-shared intent can be identified, basic principles of legality point away from giving effect to that intent, apart from the meaning of the language.

Accordingly, “new” originalists argue that a modern interpreter should give effect to the original meaning of the words that the framers and ratifiers adopted, but disregard their additional intentions and expectations. * * *

Most constitutional scholars (myself included) believe that new originalism avoids some of the worst pitfalls of old originalism, but it is not clear that new originalism differs in any substantial way from living constitutionalism. * * *

[N]ew originalism leaves modern readers of the Constitution with nearly the same amount of room to maneuver as do more conventional versions of living constitutionalism.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General Law Related

Ind. Decisions - 7th Circuit decides one Indiana case today

In West Bend Mutual Ins. v. Arbor Homes (SD Ind., Baker, MJ), a 12-page opinion, Circuit Judge Rovner writes:

A plumber hired by homebuilder Arbor Homes, LLC, (“Arbor”) made one of the biggest mistakes a plumber can make: he forgot to connect the home’s drainage system to the city’s sewer. The question here is whether Arbor or the plumber’s insurer is liable for the resulting damages to the newly built home. Although Arbor behaved very admirably in addressing the problem for the new homeowners, it failed to protect its own interests, and we must affirm the judgment in favor of the insurer. * * *

Although Arbor’s quick and decisive aid to the Lorches was laudable, the failure of Arbor (or Willmez) to obtain West Bend’s consent to the settlement relieves the insurer of any obligation to pay for the damages caused by the plumber’s negligence. AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Ind. (7th Cir.) Decisions

Not Law - Looking for a job in DC?

Check out the new POWERJobs.com. From "About Us":

Three of Washington’s leading news organizations, POLITICO, ABC7/WJLA and WTOP Radio, have partnered to create an innovative career website, POWERJobs.com, tailored to employers and employees in the influential industries that make up Washington’s workforce.

POWERJobs will showcase high-level, industry-specific careers in the Washington metro area to provide an ultimate destination for those looking for opportunities in their fields, including the defense, education, energy, finance, government, health care and technology industries as well as the nonprofit arena. With partners in print, television, radio and online — each boasting a coveted audience of Washington professionals — the site is uniquely positioned to reach active and passive candidates everywhere they consume news.

This is an interesting new approach by media companies, a far step from the newspaper want ads of old.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to General News

Ind. Gov't. - More on "Show us the IPS numbers"

Recall this ILB entry from August 28, 2010 quoting from an IndyStar editorial:

Longtime member Kelly Bentley, a past president of the board and a well-regarded leader in the community, objected last year to a lack of transparency in how the budget was put together and reviewed. IPS Superintendent Eugene White dismissed Bentley's concerns.

White was similarly dismissive this year after Annie Roof, who took office July 1, asked for the district's entire budget to be posted online so the public could review it ahead of the board's vote. Instead, a four-page summary was posted.

"A board member can ask for it, but I work for the whole board," White said. "The whole board didn't ask for it."

Today in the IndyStar Tim Swarens has commentary headed "New blood could give Indianapolis Public Schools a needed jolt." Some quotes:
A longtime Indianapolis Public School Board member had the audacity a few years ago to ask Superintendent Eugene White for more details about the district's annual budget. She was rebuffed.

A couple of years later, a few board members raised objections about White's plan to reshuffle school administrators. White threatened to resign if his plan was rejected. The board backed down.

It has been a familiar pattern. White made almost all of the big decisions, and often the not-so-big decisions, and he bristled when his authority was challenged. Most of the board compliantly followed his lead.

But those days came to an end Monday, when three new reform-minded members were added to the board.

The new members -- Gayle Cosby, Caitlin Hannon and Sam Odle -- join three holdovers who have shown independence but lacked a majority of votes in the past.

Now, the reformers have the numbers to drive deep change in a district that has failed for decades to meet the enormous challenge of adequately educating children in our city.

I'm optimistic about where the new board will lead the district, with or without White in tow. Odle, in particular, has the type of business and leadership experience that the board has long needed.

Yet, I also remember the optimism many of us felt when White was hired as superintendent nearly eight years ago.

Later in the story, this paragraph that with a little rewriting also could be applicable to many others in leadership positions:
In time, however, White fell into the same trap that ensnared his predecessors. There's too much denial of the many problems that still exist, and a tendency to oversell, for public relations purposes, the academic gains that have been made. There's been an unwillingness to reconfigure top administrative ranks to the extent needed. White also has long refused to accept offers of outside help to analyze the district's organizational chart and budget. All of that has combined in recent years to erase White's image as the engine of change in IPS. He now owns, and increasingly defends, the status quo.
[More] The news report from the Star, by Scott Elliot, headed "Indianapolis Public Schools power shift on school board signals change."

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Indiana Government

Ind. Law - "Senate bill would let college students carry guns on campus"

That is the heading to Mary Beth Schneider's lengthy, front-page Indianapolis Star story this morning. Some quotes:

Should citizens be allowed to carry firearms on Indiana’s public university campuses?

It’s a question that’s arisen in the Indiana General Assembly through legislation filed by Sen. Jim Banks, who wants public college students to be able to have guns at school for their personal protection. * * *

Banks, a Columbia City Republican, said the measure, Senate Bill 97, * * * said, it’s the result of concerns by college students who want the protection a gun provides from more common menaces as they walk on campus and to parking lots at night.

The measure would simply prevent public universities from banning firearms in most instances — reversing policies that Indiana’s largest colleges have had on the books for years.

“Many female students who want to carry for their own protection, some of them have personal situations that they have told me about that cause them to take a very personal and emotional stance on this issue,” Banks said. “It’s a matter of protecting themselves, and I take that very seriously.”

Banks said he filed the bill in the 2012 session, only to see it die without a hearing. The same could happen this year, as Senate President Pro Tempore David Long, R-Fort Wayne, has sent the bill to the legislative cemetery, the rules committee.

Long said the bill has “an uncertain future.” * * *

Guns on campuses remain rare. In 2011, according to the National Conference of State Legislatures, Wisconsin and Mississippi both passed laws allowing those with concealed-carry permits to bring them on campuses, with some caveats.

In Mississippi, only those who have taken a voluntary course on safe gun handling can bring them and in Wisconsin, campuses can continue to ban guns by posting signs at every building entrance.

Only Utah has a statute specifically prohibiting public colleges and universities from barring guns. In all, 21 states ban carrying a concealed weapon on campus while 23 states — including Indiana — leave the decision up to each university.

Pelosi said the legislative push to arm campuses has for the most part has failed. In 2012, he said, bills were rejected in 14 states — including Michigan, where Gov. Rick Snyder vetoed a bill that would have allowed people with a concealed-carry permit to bring guns into schools, college campuses, day-care centers, hospitals, churches and stadiums.

That bill had been approved by the Michigan legislature one day before the Newtown, Ct., tragedy, and Snyder referred to that disaster in his veto statement, saying: “You can’t have it not impact you.”

Here is the Michigan governor's veto message, via this Dec. 18, 2012 State Bar of Michigan Blog post.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Indiana Law

Courts - More on Michigan, Pennsylvania Supreme Courts

Updating yesterday's ILB entry, Eugene Volokh also has a post on the Michigan resignation, plus this note on Pennsylvania:

For another controversy involving a state supreme court judge, see the forthcoming trial of Pennsylvania Supreme Court Justice Orie Melvin for illegally using her state employees in her campaign for her office.
See also this March 3, 2011 ILB post headed "Ray Charles could see that signature was doctored," along with a link to my all-time favorite photo.

Posted by Marcia Oddi on Tuesday, January 08, 2013
Posted to Courts in general

Monday, January 07, 2013

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

This ILB post January 3rd quoted a report in the Detroit Free Press that:

Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state's top court, much of that time in the minority responding to opinions set by the conservative majority. * * *

Kelly, 74, is not hanging up her black robe by choice. The state Constitution bars judicial candidates over the age of 70 from running for office. * * *

University of Michigan law professor Bridget McCormack, who was endorsed by Democrats, won a seat in the Nov. 6 election and will replace Kelly on Tuesday.

It's not Tuesday yet, but this afternoon we learn, per this story by Paul Eagan in the Free Press, that:
Michigan Supreme Court Justice Diane Hathaway announced today she will retire 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.” * * *

Hathaway’s pending retirement means Gov. Rick Snyder will be able to name her replacement, increasing the GOP majority on the court to 5-2 from 4-3. * * *

The Hathaway scandal is the biggest controversy to rock the state’s highest court since 1975, when former Michigan Supreme Court Justice John Swainson was indicted by a federal grand jury and later convicted of perjury.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Courts in general

Courts "Do police need a court order to get a blood sample from an individual suspected of drunk driving?"

That is the issue in the case of Missouri v. McNeely; the oral argument before the SCOTUS is this Wednesday at 10:00. Lyle Denniston of SCOTUSBlog has just posted a lengthy argument preview.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Courts in general

Ind. Courts - Even more on: "ACLU of Indiana Challenges Marion County Judicial Election System"

Updating this ILB entry from Dec. 29th, re Common Cause Indiana v. Indiana Secretary of State, which included links to the complaint and the motion to dismiss, an amended complaint was filed Jan. 3rd, expanding the suit to include the State Election Commission and the Governor.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Indiana Courts

Ind. Law - "Rep. Turner urges Indiana House to vote on gay marriage amendment"

Eric Bradner of the Evansville Courier & Press takes a comprehensive look this afternoon at the status of the pending constitutional amendment prohibiting same-sex marriage and similar arrangements.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending Jan. 4, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, Jan. 4, 2012. It is one page (and 26 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

Term. of the Parent-Child Rel. of: C.A. & Z.A. (Minor Children), and H.A. (Father) v. The Indiana Dept. of Child Services (NFP) - "DCS established by clear and convincing evidence the requisite elements to support the termination of parental rights."

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS To Hear Gay-Marriage Cases March 26-27

See WSJ Law Blog entry here.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Courts in general

Ind. Gov't. - Profiles of Speaker Bosma, Governor-elect Pence

"With new power, House Speaker Brian Bosma's challenge is to channel it," a long profile in today's Indianapolis Star, written by Chris Sikich.

"Mike Pence - How the governor-elect found his conservative voice and a strategy for winning the race: keep it quiet." A 5,000-word profile by Craig Fehrman for Indianapolis Monthly.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Indiana Government

Ind. Decisions - "Durham won't have to pay to appeal $200M fraud conviction"

From the Indianapolis Star:

A federal judge says a former Indiana financier doesn't have to pay to appeal his conviction for swindling investors out of more than $200 million.

U.S. District Judge Jane Magnus-Stinson issued an order Thursday granting Timothy Durham's request to proceed with his case as an indigent.

Durham said last month that he had no money to file an appeal with the 7th U.S. Circuit of Appeals in Chicago because his multimillion-dollar home is in foreclosure and his financial assets are tied up in bankruptcy proceedings of the companies he used to control.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - "Fight over mandatory retirement for PA judges moves to federal court"

See How Appealing entry here.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Courts in general

Ind. Gov't. - "Changes coming for Porter gun permit applicants"

Phil Wieland reports in the NWI Times:

VALPARAISO | Beginning next Monday, the Porter County Sheriff's Department will no longer do fingerprinting for gun permits.

Residents of unincorporated Porter County must go to L-1 Identity Solutions at any of its area locations, including 2323 Willowcreek Road, Portage, to have their fingerprints taken and sent electronically to the state for approval. Residents must first fill out the permit application online with the state.

After filling out the application, residents have 30 days to schedule an appointment with L-1 online. No walk-ins are allowed, and L-1 charges $9.95 for the service and collects the state's application fee for the type of permit being sought.

Applicants also must go to the sheriff's department between 8:30 a.m. and 3:30 p.m. weekdays, except holidays, with a money order payable to the Porter County Sheriff's Department (no cash, checks or credit cards accepted) for the local fee and to sign the application.

Residents should bring their Indiana's driver's license or a photo ID showing their current address, along with their current gun permit, if applicable. * * *

Residents of the incorporated areas of Valparaiso, Portage, Chesterton, Porter, Hebron, Ogden Dunes, Burns Harbor or Beverly Shores must contact their city or town police departments for gun permit instructions.

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Indiana Government

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, January 6, 2013:

From Saturday, January 5, 2013:

From Friday afternoon, January 4, 2013:

Posted by Marcia Oddi on Monday, January 07, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (1/7/13):

Thursday, January 10th

Next week's oral arguments before the Supreme Court (week of (1/14/13):

Thursday, January 17th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/7/13):

Wednesday, January 9th

Next week's oral arguments before the Court of Appeals (week of 1/14/13):

Wednesday, January 16th

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 07, 2013
Posted to Upcoming Oral Arguments

Sunday, January 06, 2013

Law - More on: "A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties"

Supplementing this ILB entry from Dec. 26th, Slate's "Political Gabfest" podcast on Friday, Jan. 4, has an excellent, balenced segment discussing the pros and cons of the decision by the White Plains NY Journal News to publish a map of gun permit owners. It starts at 24:30 into the program.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. Courts - Indiana attorneys plead guilty ...

"Elkhart attorney pleads guilty to theft" is the heading to this story by Sharon Hernandez in the Jan. 4th Elkhart Truth. Some quotes:

ELKHART — A local attorney pleaded guilty to theft, admitting he stole from a former client’s fund.

Juan Garcia, Jr. pleaded to the charge, a Class D felony, on Dec. 27. He faces a sentence of up to three years in prison as part of the agreement, according to a press release from the Elkhart County Prosecutor’s Office.

The state agreed to dismiss two charges of bribery in exchange for his plea to felony theft. He admitted he stole funds from a client between 2007 and 2012, depleting a personal injury settlement account that was set up for the benefit of a child. * * *

Garcia is scheduled to appear for his sentencing hearing Jan. 18 at 10:30 a.m. A copy of the court order reflecting his conviction was forwarded to the Indiana Supreme Court Disciplinary Commission.

[BTW, Mr. Garcia's photo bears an amazing resemblance to another Indiana attorney recently in the news.]

"One-time Carl Brizzi business partner to plead guilty in scheme to defraud bank, state" is the heading to this Jan. 4th Indianapolis Star story by Tim Evans and Carrie Ritchie that begins:

Indianapolis attorney and real estate developer Paul J. Page will cooperate in an undisclosed federal investigation after pleading guilty Friday to wire fraud in what prosecutors called a scheme to defraud a bank and the state.

Page, 48, entered the guilty plea after reaching an agreement with federal prosecutors in the case involving the purchase of an Elkhart office building that was leased to the Indiana Department of Child Services.

Page, a one-time business partner of former Marion County Prosecutor Carl Brizzi, was one of three Central Indiana men indicted on more than a dozen federal charges — including conspiracy to defraud, bank fraud, mail fraud and wire fraud. The case was filed in 2011 in U.S. District Court for the Northern District of Indiana in South Bend.

The two other defendants, John M. Bales II of Indianapolis and William E. Spencer of Carmel, have entered not guilty pleas and face a Jan. 28 trial.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Law - " Laws are needed to remove the [Codis] databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers"

Some quotes from a front-page NY Times story Friday headed "Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data," reported by Ethan Bronner:

If proceedings go as his lawyers hope, Mr. Buffey’s story will be one more in the several hundred exonerations nationwide brought about partly by new DNA techniques, many involving false confessions. But it took 18 months of litigation to get the state to test the DNA against its database of felons, and Mr. Buffey’s lawyers say his case is therefore something more: proof that laws are needed to remove the databases from the exclusive grip of prosecutors and law enforcement to make them available to defense lawyers.

“There is incredible exculpatory power in the databases that the government has spent hundreds of millions of dollars on over the years,” said Nina Morrison, a senior lawyer in the case. “But law enforcement runs the databases, and even when you go to court to force their hand, they throw up roadblocks. And judges say they don’t have the power to force them.”

Steven Benjamin, president of the National Association of Criminal Defense Lawyers, said getting access to these databases was a major concern and one that is on the agenda of his group’s winter meeting next month in Washington.

“This is a national problem, a huge and recurring one,” he said. “Juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Almost every state has a law permitting some post-conviction DNA testing (although the Supreme Court has ruled that it is not a constitutional right). But only nine — Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas — have laws granting defendants access to the DNA databases, known as the Combined DNA Index System, or Codis.

Many legal experts, even some prosecutors, think that number needs to be greatly expanded as states and the federal government increase the size of the databases.

“You’d think there would be a federal rule or a statute in every state creating the clear obligation to do a Codis search in any case where the defense wants it,” said Brandon L. Garrett, a professor of law at the University of Virginia.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. Courts - "Indy woman's suicide attempt, baby's death spark national cause"

Providing useful additions to this very long list of ILB entries on the Bei Bei Shuai case, Carrie Richie of the Indianapolis Star has written a lengthy (2 full interior pages), front-page feature recapping the entire case, plus a supplemental story on Ms. Shaui. A sample from the main story:

Now, two years after Angel’s death, the case of Bei Bei Shuai continues to raise provocative legal and moral questions.

For one, there is debate over whether Shuai’s actions were criminal, in part because there are issues of intent — hers and the law’s — but also because it’s not certain Angel’s death resulted from the rat poison.

But more broadly, the decision by Marion County Prosecutor Terry Curry to charge Shuai has thrust the case into the center of one of the most highly charged debates of our time — the rights of women vs. the rights of the unborn children they carry. * * *

Pence has tried to get the charges dropped, arguing that Shuai didn’t intend to kill her baby — she meant to kill herself — so the murder charge is inappropriate. And, she said, the attempted feticide charge is meant for people who attack pregnant women, causing the loss of their babies. It wasn’t supposed to be used against mothers who might do something that hurts their babies while they’re in the womb.

[Defense attorney Linda] Pence cited a case in which the Indiana Supreme Court ruled that a woman couldn’t be charged with neglect for ingesting cocaine while she was pregnant.

But Curry, a Democrat, said his hands were tied because he thinks Shuai’s actions fit the definitions of murder and feticide as the laws are written.

According to Indiana law, it is murder to “knowingly or intentionally kill a fetus that has attained viability.” And, “a person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a class B felony.” * * *

The Indiana Court of Appeals allowed Shuai to bond out of jail — a rarity in murder cases — because Pence raised doubt about whether the rat poison caused Angel’s death.

The chemical in the rat poison Shuai ate does not cross into the placenta easily because of its molecular structure, according to research cited in court documents. And in the only similar documented case Pence could find, both the mother and the baby lived, Pence said.

Pence also cited other potential causes of death, including the indomethacin that was given to Shuai to prevent her from having contractions. The drug can cause hemorrhages in babies.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Law - "Pa. home sellers can keep murders, suicides secret" But what about Indiana?

Thanks to How Appealing (which links to the opinion), here is a Jan. 5th story by Sam Wood of the Philadelphia Inquirer - some quotes:

Planning on buying a house this year?

If you're even slightly squeamish, get ready to do some extra detective work.

If the property was the site of a bloody crime, the seller does not have to divulge that scrap of information.

In a decision handed down last week, a panel of Pennsylvania Superior Court judges reaffirmed that the sordid reputation of a home - no matter how gruesome - does not count as a "material defect" and does not have to be disclosed to a buyer.

"The fact that a murder once occurred in a house falls into that category of home-buyer concerns best left to caveat emptor" - let the buyer beware - the appeals court wrote.

For those shopping on the other side of the Delaware, the same applies in New Jersey. * * *

According to the court decision, the Jaconos and their real estate agents, Re/Max, knew about the home's history. They called the state Real Estate Commission, which assured them that they were not required to disclose that information.

Milliken sued, arguing that she never would have bought the house had she been aware of the grisly events.

Brokers often consider "stigmatized" the houses that have been the scenes of murders or suicides. The term also encompasses the belief that a house might be haunted. * * *

The upshot to Milliken v. Jacono et al? If living in a former crime scene would keep you from a night's sleep, real estate experts say, ask for a written warranty in the agreement of sale that states the home was never the site of a murder, suicide, or other felony.

What about Indiana? Recall this July 2, 2007 ILB entry headed "Woman didn't know rental house was murder scene." From the Fort Wayne Journal Gazette story quoted:
State law does not require an agent to tell a prospective homebuyer or renter if a death occurred in the house unless the agent is specifically asked. Mitchell said her parents thought the house was the site of one of the city’s most gruesome homicides in recent years, but when she asked her landlord whether anything had happened in the house, she said he said no.
The end of the lengthy entry quotes from the 2002 Indiana statute, "Psychologically Affected Properties." Some provisions of the Indiana law:
IC 32-21-6-5 Disclosure not required
Sec. 5. An owner or agent is not required to disclose to a transferee any knowledge of a psychologically affected property in a real estate transaction.

IC 32-21-6-6 Refusal to disclose; misrepresentation
Sec. 6. An owner or agent is not liable for the refusal to disclose to a transferee:
(1) that a dwelling or real estate is a psychologically affected property; or
(2) details concerning the psychologically affected nature of the dwelling or real estate.
However, an owner or agent may not intentionally misrepresent a fact concerning a psychologically affected property in response to a direct inquiry from a transferee.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to General Law Related

Ind. courts - "Judge Alevizos tells bank robbery suspect he's to blame for his heroin addiction"

Stan Maddux reports in the NWI Times in a story that begins:

LAPORTE | A LaPorte bank robbery suspect on Friday blamed the judicial system for not curing his heroin addiction during a previous stint behind bars.

Ryan Mounts, 32, was arraigned on a Class C felony robbery charge linked to a Dec. 27 robbery at the Fifth Third Bank in the 800 block of Monroe Street. His bond was set at $100,000.

Mounts seemed to be arguing for a reduction in his bond when he claimed not enough was done during his previous incarceration to help him get a handle on his heroin addiction.

“I failed three drug tests for heroin. I was asking for help,” said Mounts, who served time in prison for robbing a LaPorte tobacco store at gunpoint in 2008.

LaPorte Circuit Judge Tom Alevizos interrupted, telling Mounts that blame rests with himself.

“I think people are responsible for their own actions, and when I sit here I get really sick and tired of people trying to blame other people for their actions,” Alevizos said. “I would stop talking if I were you."

The judge granted Mounts' request for a speedy trial and scheduled the case to go before a jury starting Feb. 4.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Ind. Courts - Two significant trial court school rulings in December

The NWI Times had this Dec. 31st story by Carmen McCollum that began:

The Indiana Department of Education intends to appeal a recent Marion County court ruling that calls into question student counting procedures.

Marion County Superior Court Judge Patrick McCarty ruled against the Indiana State Board of Education in early December. The judge said the state improperly counted about 1,500 Indianapolis Public Schools students as registered at four schools that were taken over by the state, even though those students had transferred to other IPS schools before the current school year began.

The Indianapolis Star reported then that the ruling means more than $6 million in student funding transferred from IPS to the schools' private operators should not have been taken away. * * *

IDOE spokeswoman Stephanie Sample said Monday that while nothing is happening right now, the state intends to file an appeal. She said the judgment applies to the section of law governing the entire state, meaning "it applies beyond just IPS."

Updating this Dec. 19th ILB entry headed "Judge OKs sale of 2 vacant public schools," a FWJG editorial dated Dec. 26th and headed "A sensible ruling for public schools," began:
Allen Superior Court Judge Nancy Boyer restored some common sense to the state’s misguided and conflicting policy affecting how traditional public school districts treat closed school buildings. The policy had conflicted with other state laws, was bad for taxpayers and – in at least one case involving East Allen County Schools – had the opposite effect of its goal of broadening school choice for parents.

Boyer ruled that state law does not prevent EACS from selling its vacant Monroeville Elementary School to the area Catholic diocese for use as a parochial school. The district sought clarity from the court after the Indiana Public Charter Schools Association sued Fort Wayne Community Schools to block its sale of the shuttered Pleasant Center Elementary School to the airport authority, owner of nearby Fort Wayne International Airport.

Both lawsuits centered on a 2011 law that requires traditional public school corporations to sell or lease any unused building to a charter school for $1. The law appears to require – and the charter schools group argued – that public school corporations must wait four years to dispose of any building, in case a charter school wants it.

Earlier, on Nov. 23rd, the Supreme Court heard oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al, the school voucher challenge.

Posted by Marcia Oddi on Sunday, January 06, 2013
Posted to Indiana Courts

Saturday, January 05, 2013

Law - "The End of a Decade of Uncertainty Over Gift and Estate Taxes"

That is the headline to this long "Wealth Matters" NY Times column today by Paul Sullivan. It begins:

FOR many of the wealthy, the American Taxpayer Relief Act, passed this week by Congress, is aptly named.

For estate and gift taxes in particular, all but the richest of the rich will probably be able to protect their holdings from taxes, now that Congress has permanently set the estate and gift tax exemptions at $5 million (a level that will rise with inflation).

“You could say this eliminates the estate tax for 99 percent of the population, though I’ve seen figures that say 99.7 or 99.8,” said Richard A. Behrendt, director of estate planning at the financial services firm Baird and a former inspector for the Internal Revenue Service. “From a policy point of view, the estate tax is not there for raising revenue. It’s there for a check on the massive concentration of wealth in a few hands, and it will still accomplish that.”

Posted by Marcia Oddi on Saturday, January 05, 2013
Posted to General Law Related

Friday, January 04, 2013

Ind. Courts - "Skadden attorneys may face sanctions for failing to cite Wigod in TPP case"

Recall this March 11, 2012 ILB entry, headed "7th Circuit gives Chicago homeowner OK to sue lender over HAMP denial." The focus was a March 7, 2012 7th Circuit opinion by Judge Hamilton, Lori Wigod v. Wells Fargo Bank. From the Chicago Tribune story: "The ruling is likely to send shivers through the banking industry, which up until now has largely been shielded from HAMP-related lawsuits."

This afternoon I received a copy of an email originating with the National Housing Law Project, forwarded by IU McKinney Law Professor Florence Wagman Roisman to faculty members, and enclosing a copy of Jan. 2, 2013 ruling by Judge Matthew F. Kennelly, ND Ill., Eastern Div., in the case of Thul v. OneWest Bank. Prof. Roisman's message: "This should be of interest to all with regard to professional responsibility." From the opinion:

This argument flies in the face of a recent and controlling Seventh Circuit decision that OneWest did not bother to address or even mention until after the Thuls cited it in their response to the motion to dismiss: Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012). The Seventh Circuit squarely rejected in Wigod the argument that OneWest makes here. Id. at 561-65. The same discussion in Wigod also dooms OneWest’s argument that there is no sufficiently unambiguous promise to give rise to a viable promissory estoppel claim. The Seventh Circuit also rejected in Wigod the defendant’s argument, likewise repeated by OneWest in its motion to dismiss, that a plaintiff may not pursue a promissory estoppel claim where a claim for breach of a written contract claim has also been alleged. Id. at 566 n.8.

The attorneys who submitted OneWest’s opening brief, John Beisner and Jessica Miller of the Washington, D.C. office of Skadden, Arps, Slate, Meagher & Flom, LLP, and Andrew Fuchs of the Chicago office of that firm, ought to have brought Wigod to the Court’s attention in their opening brief. Their failure to do so almost certainly ran afoul of their obligation of candor under ABA Model Rule of Professional Conduct 3.3(a)(2) and the corresponding District of Columbia (D.C. RPC 3.3(a)(3)) and Illinois rules (Ill. RPC 3.3(a)(2)), and it likely amounted to conduct sanctionable under Federal Rule of Civil Procedure 11(b)(2) and 28 U.S.C. § 1927. The Court will address this point further at the end of this decision. * * *

For the reasons stated above, the Court denies defendant’s motion to dismiss [docket no. 29]. The Court also directs each of the attorneys who submitted the motion to dismiss and supporting briefs, John Beisner, Jessica Miller, and Andrew Fuchs of the law firm of Skadden, Arps, Slate, Meagher & Flom, LLP, to show cause in writing, by no later than January 10, 2013, why they should not be sanctioned in one or more of the following ways: (a) payment of plaintiffs’ reasonable attorney’s fees and expenses caused by advancing arguments contrary to the Seventh Circuit’s Wigod decision without bringing that case to the Court’s attention; (b) revocation of the pro hac vice status of Mr. Beisner and Ms. Miller; (c) a written and/or oral reprimand; (d) any other sanction that may be appropriate. The ruling date of January 3, 2013 is vacated. The case is set for a status hearing in open court on January 17, 2013 at 9:30 a.m. Mr. Beisner, Ms. Miller, and Mr. Fuchs are all directed to appear in person.

Prof. Joel Schumm, who forwarded the information to the ILB, recalls that Indiana had what appears to be a somewhat similar case, albeit with a different outcome - see this June 22, 2010 ILB entry headed "Supreme Court agrees with hearing officer that attorney who cited vacated opinion did not engage in professional misconduct."

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Courts - More on: Judicial Qualifications Commission Files Misconduct Charges Against St. Joseph Probate Court Judge Peter J. Nemeth

Updating this ILB entry from Aug. 14, 2012, referencing disciplinary charges filed that day against then-St. Joseph Probate Court Judge Peter J. Nemeth, the South Bend Tribune, in a story today by Madeline Buckley, reports:

The Indiana Supreme Court accepted an agreement Dec. 14 between Nemeth and the Indiana Commission on Judicial Qualifications that Nemeth would be sanctioned with the private reprimand, according to court documents.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - More reactions from attorneys on the Court's 3-phase pilot project

Here is a response from another Central Indiana practitioner:

I hate the idea of a video transcript. First, I can read the transcript much more quickly then I can watch an entire trial. Secondly, when I review the transcript citations relied upon by opposing counsel, if I use a hard copy/digital copy, I can flip right to a page. I would guess appeals using a video record will have to cite to a timer position and that will take longer to locate. Third, if I want to cite to more then one or two lines of testimony, I will have to sit there and take dictation. With a digital version, all I have to do is copy and paste.

As acknowledged by another commenter, use of a video transcript means more time. I do not know that I will be able to afford to do appeals for the public defender at the very low rate I am currently being paid if I also have to play transcriptionist for video records - my head spins when thinking about working to organize a video record for a week long trial. Also, as a sole practitioner with low overhead, I am currently able to provide appellate services at a much lower cost then the big firms and there is certainly a need for my type of service. I will now have to raise the cost of doing an appeal and I do not know how many individuals will be able to afford that cost. I certainly am going to have to stop doing appellate pro bono work because of the additional time. Quite honestly, I cannot help but think that whoever came-up with this idea is not an appellate practitioner.

Now having said that, I also do trial work and as a trial attorney, it would be great to have a recording of that day's testimony to prepare for the following day, closing arguments, directed verdicts, etc.

As regards electronic filing, I say it is high time that our filing system move into the 21st century both at the trial court and appellate levels. And, just as importantly, that the cost of accessing electronically filed documents be reasonable. The cost to view online dockets, etc. in Marion County is ridiculous.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - More on "Price of justice for David Camm: $3.3 million and rising fast"

Re my post yesterday, a reader writes:

Very interesting indeed, but I think the State is still just seeking LWOP--not the death penalty.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - Some reactions from attorneys on the Court's 3-phase pilot project

The ILB yesterday asked for attorney comments on the Court's 3-phrase pilot project to speed-up and modernize the appellate process. Here are some responses.

From an appellate defense attorney:

Regarding the audio/visual recording being the official record as opposed to a paper transcript:

This would impact my practice in a number of positive ways. Many appellate attorneys, including myself, do not live or work in the counties in which they handle appeals. So getting the paper transcript is often difficult. It has been my experience that one of three things happens.

First, I am sent the original transcript through the mail (which is expensive), and then I file it with the Court of Appeals when I file my brief. I have recently been told that the Appellate Clerk's office disfavors attorneys filing the original transcript, so many trial court clerks are now refusing to send me the original transcript.

Second, the trial court clerk mails the original transcript to the Appellate Clerk, and then I travel to the Appellate Clerk's office to pick it up. This is very problematic because the entire process can take 10, 15, sometimes even 20 days. All that time reduces the amount of my 30-day window I have to draft the brief.

Third, the court reporter sends me an electronic copy of the transcript. I prefer this option best because I then have an electronic copy of the transcript that I can highlight, attach electronic sticky notes to, etc., and that I can reference later when drafting my reply brief. But the major downside is that I cannot view the exhibits.

A visual recording of the proceedings would really improve the efficiency of my practice because it would eliminate the time I lose in obtaining either the original transcript or a copy, and it would provide me with an electronic copy that I can reference later. Also, if the exhibits are viewable on the recording, I can see those easily without having to obtain the original transcript.

It would also make our appellate courts even more efficient in administering justice because it would not take 90 days for preparation of the paper transcript. Recently I asked a court reporter to send me an audio recording of a hearing in one of my cases. I received the audio file by email in less than a day.

As for the third phase of the pilot project, which involves having the parties submit documents electronically, this also would greatly improve the efficiency of my practice. It is expensive to copy and bind the required number of briefs (usually 13-14) in each case.

Also, for the reasons set forth above, a paper transcript is cumbersome. After I have prepared my initial brief, I never know whether I will need to review the transcript again to prepare my reply brief. So with a paper transcript, I must either create my own electronic copy (by scanning each page), make my own paper copy, or request an electronic copy from the court reporter (which I don't always get).

One final thing, Marcia. When the Court is considering all of this, I think it is important for them to also consider the electronic form they wish for these documents to be sent in. I have court reporters all the time send me transcripts generated by WordPerfect. If I open them in Word, the page numbers are almost always wrong, which makes the transcript unusable to me. So I have had to purchase a copy of WordPerfect. It would seem this could be easily remedied by requiring court reporters and the parties to submit the documents in PDF format, which can be opened on any computer or mobile device.

ILB: I certainly second the Word vs. WordPerfect point. Re the PDFs, I think it is also important that the documents submitted not be scanned documents which can't be digitally manipulated. Even the Supreme Court still does this, as with its two orders on use of exhibits in oral arguments filed this week.

Another Indiana attorney writes:

I don't have a personal story, but can share one told by [deleted] when he spoke to the Fulton County Bar Association last August. He had a trial in New Jersey as I recall, a several week murder trial, and daily they got the video DVD of the days proceedings about 20 minutes after court adjourned. That was the record for appeals, and for counsel. He claimed he loved it.
This from an Indianapolis attorney who does many criminal appeals:
I’m both excited and concerned about the pilot projects. The current deadline of ninety days to prepare a transcript is ridiculously long, especially when many transcripts are quite short. In so-called expedited appeals under Appellate Rule 21(A), a ruling from the Court of Appeals within six months of the filing of the notice of appeal is nearly impossible if three months is spent preparing a transcript. Anything that shortens that ninety-day period (with the availability of extensions for lengthy trials, of course) is a big step in the right direction.

The availability of video transcripts from courtrooms across the state would overall be a positive development. Trial lawyers would be able to incorporate testimony excerpts into closing argument or perhaps even cross-examination. Appellate lawyer would be able to secure the record within minutes, which would ideal especially when seeking an emergency stay or appealing something especially time-sensitive, like a contempt finding or denial of bail. Finally, I imagine the Judicial Qualifications Commission would appreciate the opportunity to review the demeanor of judges on the bench in evaluating complaints.

My concern, though, is the significant increase of time it takes to review a video transcript versus a paper transcript. I was recently assigned one of the Marion County Criminal 6 video transcripts. I could read a transcript of a two and a half-day trial in a few hours. Watching the video will take two and a half days, and citing to the record is more difficult. If I want to quote something, I need to watch it several times to come up with the precise verbatim quotation, which I could have far more easily copied and pasted from a conventional transcript.

Time usually means money. A video transcript may save the cost of preparing a transcript, but it considerably increases the amount of lawyer time involved. If an appellate public defender making only $60/hour spends an extra fifteen hours dealing with the transcript, the county will pay $900 in additional lawyer time, which may well be less than the cost of a traditional transcript. But the costs continue throughout the appeal. (Some counties pay a flat rate per case to appellate lawyers, which would probably need to be adjusted upward.) The Attorney General’s Office would not be able to process the same high volume of appeals with the same number of lawyers if required to watch a video transcript of every case. I suspect the Court of Appeals might also find it difficult to keep pace without additional staff if every transcript was a video. For a company or individual pursuing a civil appeal, the cost will be considerably higher because lawyer time is billed at a much higher rate.

Some sort of change in this realm is inevitable and even desirable, and the three pilot projects should provide plenty of feedback as those changes are discussed in the future.

ILB: Although this is a pilot project, I have some concerns about public access to the record (and court imposed limitations on use) now, and in the future.

Additional comments welcome, now or as the projects progress.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Law - "Now THAT Is A Signing Statement!"

The ILB has had a number of entries on the use of signing statements by various Presidents (and Governors).

Jan. 2 President Obama issued a signing statement worthy of note, re "H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013,” according to this NY Times story yesterday by Charlie Savage, who has written much on the topic over the past few years.

Also yesterday, this post at The Volokh Conspiracy by John Elwood, headed "Now THAT Is A Signing Statement!"

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to General Law Related

Law - More on "Highlights From Pa. Gov. Corbett’s Suit Against the NCAA"

Updating this ILB entry from yesterday, National Journal has an analysis today by Naureen Khan, headed "Why is Pennsylvania's Governor Suing the NCAA?"

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In State of Indiana v. Daniel E. Riley, a 7-page opinion, Chief Judge Robb writes:

The State appeals the trial court’s dismissal of Class B misdemeanor battery charges against Daniel Riley. The State raises one issue on appeal, which we restate as whether the trial court abused its discretion in granting Riley’s motion to dismiss. Concluding that the trial court did abuse its discretion, we reverse. * * *

While there may be several possible grounds for dismissal of an information, we can find no support for the proposition that Smoot [Audrey Smoot, an Indiana Gaming Agent] acting as affiant would be one of them. Nor has any other basis been alleged. While it may be more common to have a law enforcement officer or prosecutor affirm the information, it is not required by the plain language of the statute, nor by any case law that we can find or that the parties cite. * * *

Because the information was proper even with Smoot as an affiant, and because there appears to have been no other basis for the dismissal (other than possibly a mistaken belief that an unauthorized investigation would affect the information), the trial court abused its discretion in granting the dismissal.

NFP civil opinions today (1):

Rori Property Holdings, LLC, et al. v. McCullough Construction Company, Inc. (NFP)

NFP criminal opinions today (2):

Sherry K. Kohues v. State of Indiana (NFP)

Ricky J. Gellinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion Superior Court Judicial Vacancy

Updating this ILB entry from Dec. 3rd, we are still waiting to learn of Governor's selection to fill Judge Moberly's vacancy on the Marion County Superior Court. The Vanderburgh Superior Court Judicial vacancy, created by Judge Kiely's election to the Circuit Court, also remains.

With all the news of Daniel's move to Purdue, some may be unaware that he is still Governor and has quite a bit more time to act. The Indiana Constitution:

Art. 4 Section 9. The official term of the Governor and Lieutenant
Governor shall commence on the second Monday of January, in the
year one thousand eight hundred and fifty-three; and on the same day
every fourth year thereafter.
That would be January 14th in 2013.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - Briefs in the Berry v. Crawford legislative fines case

IMHO, yesterday's oral argument in Berry v. Crawford is not to be missed. Watch it here. And the ILB is pleased to report that last evening I obtained the briefs in the case - here they are:

[More] See also Charles Wilson's AP story on yesterday's events. A quote:
The justices prodded both attorneys with questions throughout the hearing, asking repeatedly whether they believed there were any limits on the Legislature’s power over its members and how they thought the fines ought to be collected. The power to levy the fines wasn’t in dispute, but the degree to which the Legislature could go to collect them was.

Justice Loretta Rush asked Fisher if the House had the power to seize members’ cars or homes if they don’t follow the rules. “Is there any limit to the collective power?” she asked.

“No, I don’t think there is,” Fisher answered. He cited a case where another state’s Legislature seized a member’s house over an unpaid fine.

GiaQuinta said House leaders hadn’t followed due process in collecting the fines. He suggested that officials should have filed a lawsuit and asked a judge to garnish the legislators’ wages.

“How is that materially different from what happened here?” Justice Robert Rucker said. “The end is the same.”

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Thursday, January 03, 2013

Ind. Courts - Here is how CJ Dickson closed the oral argument this morning

As I promised this morning, I now have Chief Justice Dickson's closing words at the conclusion of the oral argument in Berry v. Crawford:

If it would be at all possible for the political parties in Indiana to set a national example of cooperation this might be an ideal opportunity for you, both sides, to solve this matter by compromise and we encourage that to be considered.
Earlier I posted the response of House Speaker Bosma (here). I thought I'd also posted the response of Rep. Pelath, but apparently I didn't. Here it is:
Indiana House Democratic Leader Scott Pelath from Michigan City has issued the following statement on today's events in the Indiana Supreme Court:

"We're always open to discussing what is best for the institution not just for today, but for twenty years in the future or a hundred years in the future. The structure of government and limitations of its power must endure the political winds and transcend the passions of the moment."

See also Mary Beth Schneider's nearly instantaneous IndyStar summary.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Even more on: Supreme Court hears legislative pay case this morning

In addition to this official response from House Speaker Bosma, Indiana House Democratic Leader Scott Pelath from Michigan City has issued the following statement on today's events in the Indiana Supreme Court:

"We're always open to discussing what is best for the institution not just for today, but for twenty years in the future or a hundred years in the future. The structure of government and limitations of its power must endure the political winds and transcend the passions of the moment."
See this ILB post from immediately after this morning's oral argument.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Still more on: Details about the video transcripts project; ILB call for attorney reactions

I've received several good responses already from attorneys who have had experience with one of the three approaches either here or in other states. When I get a couple more, I'll post them.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Law - "Highlights From Pa. Gov. Corbett’s Suit Against the NCAA"

Jacob Gershman of the WSJ Law Blog has not only highlights, but a link to the 43-page complaint.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to General Law Related

Ind. Courts - "Price of justice for David Camm: $3.3 million and rising fast"

Really eye-opening story today, illustrating the high costs of the death penalty to one Indiana county, by Grace Schneider of the Louisville Courier-Journal. The lengthy story begins:

The cost of trying David Camm in the murders of his wife and two children already totals $3.3 million — and Floyd County officials estimate a third trial, planned in 2013, could bump up that price tag by another $1 million.

It’s a commitment, they say, that has exacted a heavy toll on the cash-strapped county.

“You lay out a hundred thousand here and a hundred thousand there ... and it’s gone over $3 million plus,” said Ted Heavrin, Floyd’s police chief and the county council president who left office Monday. “That’s a big impact.”

Already, the county, which has a $15.3 million annual budget, has been unable to give raises to employees, except police and firefighters, for six years. And every bridge and road repair “has to be done on an emergency basis,” Heavrin said.

To pay the steady stream of bills, Heavrin said the county has drawn money from riverboat revenue sharing, economic-development income taxes and a rainy-day fund, where $1 million in reserves has been drained to nothing in the last year.

Despite receiving an average of $210,000 annually in payments since 2002 from a state program that reimburses counties for public-defender costs, including Camm-related expenses, it’s nothing compared with the costs incurred through Camm and all of the other criminal cases.

County Commissioner President Steve Bush said this month that his panel may approach Special Judge Jonathan Dartt, who is overseeing the case, to ask for help keeping costs in line.

“You can track back to when this county started to go downhill” financially, Heavrin said. “It started with the Camm trials.”

Later in the story:
With each trial, the price has ticked higher. Floyd spent about $900,000 for the first trial and $1 million for Camm’s second trial. Boney’s trial cost about $80,100, according to county auditor’s records.

The total surged beyond $3 million because of appeals by Camm and Boney and a successful effort in 2011 by Camm’s defense team, led by Indianapolis-based Richard Kammen, to have Henderson removed from the case, according to Floyd records.

The state appeals court ruled that Henderson’s decision to sign a book deal about the case before the appeals were exhausted posed a conflict of interest that warranted his removal. That will only add to the tab for Floyd taxpayers.

For example, the county has paid $27,500 to Indianapolis law firm Frost Brown Todd to defend Henderson against a state ethics complaint filed by Camm’s defense team. Floyd’s commissioners have defended the expense, saying the complaint was a tactic by Camm’s lawyers to remove Henderson.

There is much, much more. Great story.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Ramirez-Fuentes (ND Ind., Simon), a 22-page opinion, Circuit Judge Flaum writes:

In August 2010, Juan Ramirez- Fuentes confessed to being responsible for a bag containing 3.1 kilograms of methamphetamine and for two firearms agents found in his brother’s apartment. Ramirez-Fuentes was charged with one count of possession with the intent to distribute five hundred grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of possessing firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). A jury convicted Ramirez-Fuentes of committing the charged crimes, and the district court sentenced him to 295 months’ imprisonment. On appeal, Ramirez-Fuentes argues that the district court erred in admitting testimony from a government expert witness who described the recovered substance as “Mexican methamphetamine,” which he noted is produced by “Mexican nationals,” and who addressed the violence associated with drug trafficking. Ramirez- Fuentes also argues that the district court did not meaningfully consider his argument at sentencing that he would be deported after his release from prison and that the sentence imposed by the district court is substantively unreasonable. For the reasons set forth below, we affirm.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Details about the video transcripts project; ILB call for attorney reactions

This ILB entry from Sept. 27, 2012 compiled all the information then available to the ILB on the Supreme Court's video transcript pilot project.

Now we have some more information, via this Dec. 20, 2012 article by James Maguire in Indiana Court Times.

The article reports that a study has been conducted:

... to determine the time that transpired between filing of notices of appeal at the trial court level and submission of appellate briefs and transcripts with the appellate courts clerk’s office.

In 2010, there were 2,276 appeals in which a transcript was filed. In those cases, the average number of days was 151 between the filing of a notice of appeal locally and the filing of the briefs and transcript with the appellate clerk. The fewest number of days was 86, and the longest was 229.

Procedures used in other states to help expedite the appellate process and improve record-keeping were reviewed and and three approaches were selected for pilot projects:
  1. in selected courtrooms, use audio/visual recordings on appeal as the record of trial court proceedings in lieu of paper transcripts;
  2. in selected counties, use outside transcript preparation services to expedite transcript preparation for appeals; and
  3. in limited cases, require parties on appeal to file in digital format only their appellate briefs and transcript of proceedings.
Phase 1 is currently being implemented, via the court order discussed in this Sept. 27th ILB entry. From the Court Times article:
All three judges involved in this project have reported favorable responses on this technology from the lawyers appearing before them.

Judge Nancy Boyer presided over a 5-day medical malpractice trial and both plaintiff and defense counsel downloaded each day’s proceedings onto their flash drives. This process took about fifteen minutes. Defense counsel even included parts of their doctor’s videotaped testimony in the presentation software used in final argument.

Judge Mark Stoner also gave high marks on the use of the equipment in his courtroom, with the Public Defender’s Office considering the potential use of the recorded court proceedings for attorney training purposes. Judge Stoner was the first to issue a Notice of Designation of Case as an Audio/Visual Recording Pilot Project Case on September 21, 2012 when a Notice of Appeal was filed in his court.

Justice Loretta Rush reports that none of the attorneys who appeared before her have complained about the system interfering with either their trial preparation or courtroom conduct. She and her court staff are happy with the equipment, and she assigned the primary responsibility to her court administrator for exercising control over the A/V equipment.

Phase 2 of the pilot projects:
The Supreme Court on November 8, 2012 issued its second Order of this three-phase pilot project. The second phase of the pilot project involves using professional transcription providers to prepare expedited (within thirty days) transcripts. AVTRANZ and eScribers are two firms that provide transcription services for courts in Connecticut, Florida, New Hampshire, New York and Vermont. Representatives from these two firms made presentations to Appellate Court Judges, Appellate Court and Clerk staff, and Division staff. Those involved made a unanimous recommendation to use the services of both companies, in selected counties, and in a limited number of cases.

The counties chosen to participate in this phase of the pilot project are Hamilton, Lake, Madison, Tippecanoe, and Vanderburgh. The judges in these counties, or their court administrators, working with the Division, will select four (4) cases on appeal and will assign two (2) cases to each firm for expedited transcript preparation. This effort was designated as the Indiana Court Reporting Pilot Project by Using Professional Transcription Experts on Appeal.

Here is the Nov. 8, 2012 Order.

Phase 3 of the pilot projects:

The third phase of the pilot project concerns reducing the amount of paper involved in each appeal. This will be accomplished by requiring: 1) court reporters to submit transcripts electronically or on CD; 2) parties to submit briefs electronically or on CD; and 3) Clerks to submit records electronically or on CD. The Division will select a trial court from which a small number of appeals will be digitally transmitted to the Indiana Court of Appeals.
The ILB would like to post reactions from attorneys actually impacted by one of these pilot projects. What do you like and what could be improved? I won't post your names, but you will need to let me know who you are. Here is one I've received, for starters:
I love the [proposed] changes. I somehow found myself on the CJA panel in federal court on the [stricken] case, so I am learning all about electronic filing. And I love it.

I just spent $13 and way too much time collating, copying, and sending out a Notice of Appeal that would have taken 15 minutes and zero money to file electronically.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Still more on: Supreme Court hears legislative pay case this morning

Apparently Rep. Bosma is not considering compomise. Here is his news release:

Speaker Brian C. Bosma (R-Indianapolis) sent out the following statement today regarding the Indiana Supreme Court hearing the arguments of the legislative fines case.

STATEHOUSE – “I appreciate the Attorney General’s continued defense of the separation of powers doctrine clearly mandated by our state’s Constitution, and continue to hold that our court system has no jurisdiction to review or overturn the internal workings of the Indiana General Assembly. While some of our Democrat colleagues remain focused on defending their actions in absenting themselves from their constitutional obligations in 2011 and 2012, I am fully focused on the priorities that lie before us in 2013: continued budget integrity, workforce development for 21st century jobs and strong education opportunities for every Hoosier family.

“I look forward to the Supreme Court confirming the limitation of judicial authority over the legislative branch, and to getting the activities of the 2013 session underway.”

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

A teaching moment - Even more on: "Is it usual to use 'big poster/charts' in oral arguments?"

Updating the ILB entry from earlier this morning noting that the buckets had been used as physical exhibits in this morning's argument, here now is the answer.

The Supreme Court issued a second order on the buckets, dated Jan. 2, 2013. The order provides:

Oral argument is sct in this appeal for January 3, 20 13. On December 27, 20 12, the appellee, Terex-Telelect, Inc., fi led "Appellee's Motion To Prevent Use of Oversized Exhibits at Oral Argumenl." On December 31, 20l2, the Court issued an order granting that motion and directing the parties not to bring any physical exhibits to the oral argument.

After the issuance of that order, the appellant, Anthony Wade, filed his "Appellant's Response to Motion to Prevent Use of Oversized Exhibits." Pursuant to Appellate Rule 34(8 ), "A response filed after ruling on the motion will automatically be treated as a motion to reconsider[.]"

After further consideration, including review of the appellant's response, which the Court treats as a motion to reconsider, the Court GRANTS reconsideration and DENIES "Appellee's Motion To Prevent Use of Oversized Exhibits at Oral Argument." The Court makes this ruling out of deference to the allegation made in the appellant's reshponse that a complete understanding or the inter-relationship between the exhibits is "absolutely critical to resolution of the specific legal issues before this Court." (Response, p. 2.)

The parties may use physical exhibits during oral argument, consistent with Appellate Rule 53(F), so long as their set-up and removal does not interfere with the other oral arguments being heard on January 3, 2013.

Indeed, a teaching moment.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to A teaching moment

Ind. Decisions - Still more on: District Court issues decision following bench trial in 8th Amendment case

Updating earlier ILB entries, Charles Wilson of the AP reports in a long story that begins:

Indiana has been “deliberately indifferent” to the plight of mentally ill inmates in its state prisons, who amount to nearly a quarter of the system’s population, a federal judge has ruled.

U.S. District Judge Tanya Walton Pratt ruled that the Indiana Department of Correction violated mentally ill prisoners’ constitutional right against cruel and unusual punishment by keeping them separate from other inmates and failing to provide them with adequate treatment.

“The court finds that mentally ill prisoners within the IDOC segregation units are not receiving minimally adequate mental health care in terms of scope, intensity, and duration and the IDOC has been deliberately indifferent,” Pratt wrote.

Pratt did not mandate a remedy in her ruling Monday. Lawyers for both sides are supposed to meet within 45 days to discuss how to correct the problem.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: Supreme Court hears legislative pay case this morning

Updating this ILB entry from earlier this morning re CJ Dickson's call for compromise, Mary Beth Schneider of the Indianapolis Star has now filed a story headed "Chief justice asks compromise in pay fight over Indiana House Democrats' walkout." Some quotes:

After 45 minutes of listening to attorneys argue whether the legislature had the power to seize the pay of lawmakers to collect fines, Chief Justice Brent Dickson had a suggestion: Compromise. * * *

This morning, Solicitor General Tom Fisher began the state’s case by saying that “this case is about hardball politics, pure and simple.”

But Dickson concluded the hearing by saying that if this is about politics, the court is not a political institution.

He suggested that this “might be an ideal opportunity for both sides to get their heads together and resolve this matter” by finding compromise.

Afterward, Mark GiaQuinta, the Fort Wayne attorney representing the House Democratic lawmakers, said that may happen.

“I would never fail to take the advice of the chief justice of the Supreme Court of the State of Indiana,” GiaQuinta said after the hearing.

“I’m going to go right now to discuss with my clients what Chief Justice Dickson just said and I expect I’ll be calling my colleague Mr. Fisher or perhaps (Indiana Attorney General Greg) Zoeller to see if they are of a mind to take Chief Justice Dickson up on his suggestion,” GiaQuinta said. “I didn’t see it coming but I think it was a very appropriate thing for the chief justice to say.”

Fisher said there is “always hope” that the two sides will come together to compromise.

“Certainly you want your elected officials to work together and courts always have an interest in getting parties to come together to resolve their issues amicably,” he said.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Environment - "Head of state's environmental agency faces criticism for relationship with coal industry"

That is the headline of a story this morning in the Indianapolis Star, reported by Ryan Sabalow. Some quotes from the very long story:

The top official at Indiana's environmental regulatory agency is again facing criticism for being too chummy with the industry groups he is responsible for policing.

This time, the criticism of Indiana Department of Environmental Management Commissioner Thomas Easterly stems from a presentation he gave in November in Washington, D.C., to policymakers at a conservative lobbying group's forum heavily sponsored by the coal industry.

During his talk, Easterly decried federal air-quality regulations as being overly expensive, impractical and ineffective and said they would all but block the creation of new coal-fired power plants. Environmentalist critics say that during his talk he also appeared to offer pointers on how to sway public opinion, draft legislation and file legal challenges to combat the regulations.

Easterly has defended his actions as being in the best interest of Hoosiers and the environment, but both Indiana and national environmentalists say they are appalled he would advocate so fiercely against the very laws his office is tasked to enforce. * * *

The Indianapolis Star requested an interview with Easterly to discuss his presentation to the American Legislative Exchange Council's "States and Nation Policy Summit." Instead, IDEM forwarded a response Easterly provided to a citizen who contacted the agency, concerned about the speech.

"I want to assure you that whenever I speak on an issue it is to protect both Hoosiers and our environment," Easterly wrote. "In this case, I was talking about three current regulatory efforts that do virtually nothing for the environment but will add a lot of cost to electricity that people use. This cost will reduce people's ability to use their income for important Indiana issues such as education and health care." * * *

Easterly's PowerPoint became fodder for critics last month when it was posted along with other handouts from the presentation on Greenpeace's blog and later on The Nation's website. The Nation is a liberal national news magazine.

Greenpeace described the ALEC forum as an "anti-environmental jamboree" that had been "inundated with coal money."

"Easterly's suggestion of burdening EPA with tasks beyond its responsibility is concerning," Greenpeace wrote, "as is his ongoing campaign to discredit the science of global warming -- something he doesn't have the scientific qualifications to do. To this end, the Indiana regulator fits nicely into the coal industry's long history of denying problems they don't want to be held accountable for and delaying solutions to those problems."

The story links to the ALEC PowerPoint presentation and to this Greenpeace press release. Gov. Pence recently reappointed Easterly to head IDEM, a position he has held for 8 years under Gov. Daniels. Here is a list of earlier ILB entries re ALEC.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Environment | Indiana Government

Courts - "Forced out by age, Justice Marilyn Kelly retiring from Michigan Supreme Court"

Ed White of the AP had this story Dec. 31 in the Detroit Free Press. Several items caught my eye re the differences between the Michigan and Indiana courts:

Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state's top court, much of that time in the minority responding to opinions set by the conservative majority. * * *

Kelly, 74, is not hanging up her black robe by choice. The state Constitution bars judicial candidates over the age of 70 from running for office. That rule was part of the 1908 document and was retained in 1963.

"I would have run again because I'm in good health and I love the job," said Kelly, who was elected in 1996 and re-elected in 2004. "I don't know what conversations took place at the (1961-62) constitutional convention. There wasn't the keen awareness then as there is today about age discrimination."

Indiana appellate judges and justices must retire when they attain the age of 75. All age limits on Indiana trial court judges have been eliminated by the General Assembly in recent years.

Michigan appears to be a political court. For instance, this quote from the story:

Kelly was chief justice from 2009 through 2010, a two-year period when election results temporarily put conservative Republicans in the minority. During that stretch, the court opened the door for more lawsuits by people who were injured in car accidents.

She also was in the majority when the court threw out a 2004 decision that had greatly restricted lawsuits in environmental disputes. But that ruling stood for only four months; Republican justices regained control in the 2010 election and restored the earlier ruling. The GOP still maintains a 4-3 edge.

Of related interest is this article available on SSRN, titled "The Politics of Judicial Selection: The Case of the Michigan Supreme Court." The abstract:
As the debate rages between those who argue that judicial elections are bad for legal justice vis-a-vis those who argue that they are good for democracy, there remains the singularly unique system of judicial selection in Michigan. For its Supreme Court justices, Michigan employs a hybrid electoral system, where candidates are first nominated at political party conventions, after which those candidates run in non-partisan general elections. Moreover, vacancies are filled by interim appointments made by the governor with no outside input or oversight. How did Michigan come to utilize this system which is different from all other states in the country?

In this study we discuss the history behind Michigan’s judicial selection system. We show how Michigan transformed from an appointive system to one that employed partisan elections, and finally to the current hybrid system. The accounts behind the manner in which Michigan selects its Supreme Court justices provide a glimpse into the political forces among political and legal elites, interest groups, and the electorate that have shaped judicial politics within the state. We thus illustrate how the form of judicial selection that is unique to Michigan evolved and has been sustained over time.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Courts in general

A teaching moment - Still more on: "Is it usual to use 'big poster/charts' in oral arguments?"

Updating yesterday's ILB entry, which quoted the Supreme Court's Dec. 31st order:

Both parties are directed not to bring any physical exhibits to the oral argument.
I'm watching the oral argument in Wade v. Terex-Telelect right now. Surprisingly it began with attorney Scott Montross displaying a large chart, and then directing the Court's attention to his law partner Mr. Townsend, who was at the side of the chamber with the actual large bucket liners. Montross explains that for 15 years he has been trying to explain how this bucket setup works.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to A teaching moment

Ind. Courts - Supreme Court hears legislative pay case this morning

At the close of oral argument this morning in the case of Tim Berry, et al. v. William Crawford, re the walkout fines levied on Democrats in 2011 and 2012, where the question involves the separation of powers, Chief Justice Dickson encouraged compromise to the parties, in lieu of pursing hardball politics. I'll try to get his exact words once the archived argument has been posted.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind. Sup.Ct. Decisions

Wednesday, January 02, 2013

Courts - "Courtroom sketching is starting to disappear"

"As cameras begin to proliferate at trials, courtroom artists see themselves getting the brush: 'We've been becoming extinct for a decade,' one says," is the headline to this long story today in the Chicago Tribune by Barbara Brotman. A few quotes:

Cameras are making their way into Illinois courtrooms. Twenty-four counties are participating in a pilot that the Illinois Supreme Court authorized last year permitting cameras in trial courtrooms. In December, the Illinois Supreme Court announced that McLean County has become the latest. In Cook County, Chief Judge Timothy Evans has strongly endorsed cameras in courtrooms.

The first use of cameras in a Chicago-area courtroom came Nov. 21 in DuPage County, where a photographer and a TV cameraman provided pool coverage of the arraignment of a Naperville woman accused of killing two children.

Though federal courts still prohibit cameras, and Chicago's small band of sketch artists is still working, they consider their courtroom drawing days numbered.

"We've been becoming extinct for a decade, and I would like it to slow down just a little," said Lou Chukman, a courtroom artist for 37 years. "We'll become the same curiosity as the Civil War battle artists." * * *

Courtroom sketching is "starting to disappear," said Craig Orr, associate curator in the Archives Center of the Smithsonian Institution's National Museum of American History.

Orr recently acquired for the center 38 sketches that New York courtroom artist Marilyn Church completed at trials, including the 1993 World Trade Center bombing, the Karen Ann Quinlan right-to-die case and the racketeering and securities fraud trial of Michael Milken.

"Courtroom art captures a moment of time that is not capturable in any other way because cameras are not allowed," Orr said.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Courts in general

Courts - SCOTUS's building is undergoing restoration and is wrapped in fabric from a Carmel IND company

According to the Architect of the Capitol:

Scaffolding was installed during the summer of 2012 across the entire west elevation of the building. The scaffold is wrapped in a scrim enclosure printed with a full-size photograph of the building’s façade – a practice that is used extensively in Europe. As work is completed on the north and south portions of the façade, the scaffold will be partially removed.
And that mesh wrapper, printed with a full-scale image of the building, was produced in Carmel, Indiana, according to this news release:
Carmel, Ind. -- Top Value Fabrics' mesh banner media has been selected for use in a prominent project for the United States Supreme Court Building in Washington, D.C.

The media has been installed as a building wrap for the Supreme Court Building while a comprehensive restoration is completed to the facade. The media was printed with a full-scale image of the building's exterior and the installation was completed over scaffolding to provide the restoration crew with the needed functionality and ease of access for the duration of the project.

"The United States Supreme Court mesh installation allows this iconic building to remain recognizable throughout the restoration for tourists and local residents alike," explained Chris Fredericks, President of Top Value Fabrics. "As a company, Top Value Fabrics and our partners are proud to play a small part in the renovation of this National Historic Landmark."

Renovations to the 77-year-old building include a detailed cleaning of the facade, replacement of mortar and sealants, and a conservation treatment. The work is ongoing and as restoration is completed, the scaffolding will be removed.

The Top Value Fabrics media was chosen for this project after an extensive selection process. In addition to building wraps, the company's printable banner media is used for stadium wraps, event banners and murals.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Courts in general

Ind. Decisions - More on: District Court issues decision following bench trial in 8th Amendment case

Updating this ILB post from this morning, which included a link to the opinion, here is the ACLU media advisory, issued this afternoon.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Indianapolis attorney J.B. King, 82, dies

J.B. King, long-time Baker & Daniels attorney, advisor to Governor Otis R. Bowen, and Vice President and General Counsel of Eli Lilly and Company, has died. Here is the Indianapolis Star obituary.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Indiana Law

A teaching moment - More on: "Is it usual to use 'big poster/charts' in oral arguments?"

Recall this lengthy and informative January 18, 2011 ILB entry on the use of big posters and charts in oral arguments before our Supreme Court?

Well, what about bringing exhibits including a "double man utility bucket," a bucket liner, and an exemplar bucket liner to the oral argument?

That is the issue addressed in this Supreme Court Order filed Dec. 31, 2012, in the case of Wade v. Terex-Telelect:

Oral argument is set in this appeal for January 3,2013. On December 27,2012, the appellee, Terex-Telelect, Inc. ("Terex"), filed "Appellee's Motion To Prevent Use of Oversized Exhibits at Oral Argument."

Apparently, the appellant, Anthony Wade, intends to bring certain exhibits to the oral argument. These exhibits include a "double man utility bucket," a bucket liner, and an exemplar bucket liner. Each of these items is approximately four feet wide by four feet tall by two feet deep. Terex objects to these items being brought to the oral argument on grounds the size of the exhibits will improperly emphasize them and will be distracting. In addition, Terex notes that photos of the exhibits are already in the appendix. Wade has not filed a written response to this motion, but a paralegal has confirmed in a telephone conversation with the Administration Office that Wade does intend to bring the exhibits to the oral argument.

Appellate Rule 53(F) contemplates that physical exhibits might be used at oral argument, but in this instance, we are persuaded that the size of these items will be disruptive to the proceedings and, because photographs of the items are in the appendix, the presence of the items themselves is not necessary for Wade to present an effective appellate argument. Being duly advised, the motion is GRANTED. Both parties are directed not to bring any physical exhibits to the oral argument.

ILB: The oral argument is tomorrow at 9:45 AM.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to A teaching moment

Ind. Decisions - Transfer list for week ending Dec. 30, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

There was no transfer list for the week ending Friday, Dec. 30, 2012.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - More on: District Court issues decision following bench trial in 8th Amendment case

Updating this ILB entry from earlier this morning, Tim Evans of the Indianapolis Star now has this preliminary story, headed "State violated rights of mentally ill inmates at New Castle."

Star reporter Evans writes on Twitter this morning: "I have a new gig at The Star covering courts & the law." ILB: That is good news for readers!

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on "Justices weigh walkout fines levied on Democrats"

Re this ILB entry from Dec. 31st, quoting a Fort Wayne Journal Gazette editorial, Rochester attorney Ted Waggoner (who blogs at "Lawyers with Troubles") writes:

The FWJG's statement is wrong that "For example, a debtor cannot simply tell an employer to withhold money from a check; the debtor must go to court and obtain an order to garnishee wages."

Of course a debtor can assign wages, but a creditor cannot. But does an employer have to go to court for a wage setoff? Is the State an employer of the legislators?

There are good questions, but the one quoted does not fit in the "good question" catagory.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Upcoming Oral Arguments

Ind. Decisions - District Court issues decision following bench trial in 8th Amendment case

The ACLU has issued this notice this morning:

ACLU of Indiana to Address U.S. District Court Decision Regarding Inhumane Treatment of Prisoners

Who: American Civil Liberties Union of Indiana, Indiana Protection and Advocacy Services

What: Media availability to discuss U.S. District Court Southern District of Indiana decision, case No. 1:08-cv-01317-TWP-MJD

When: 2:30 p.m. TODAY, Wednesday, January 2, 2013

Why: The U.S. District Court ruled that "The treatment of mentally ill prisoners housed in [Indiana Department of Correction] IDOC segregation units and the New Castle Psychiatric Unit, and the failure to provide adequate treatment for such prisoners, violates the Eighth Amendment's proscription against the imposition of cruel and unusual punishment."

Here is a copy of Judge Tanya Walton Pratt's 37-page, Dec. 31st ruling in Ind. Protection and Advocacy Services Commission v. Commission, IDOC. A quote:
The relief to which the Plaintiffs are entitled is the delivery of mental health care which is within the bounds of the Eighth Amendment. The remedy may be as complex as the evidence of the violation, and Plata is again instructive, just as it was in addressing the merits of the Eighth Amendment claim.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Ind Fed D.Ct. Decisions

About the ILB: This is the optimal time to begin supporting the ILB!

Maybe it was already one of your New Year's resolutions!

It is easy to become an annual ILB supporter. Simply fill out this supporter agreement and mail it to the ILB, along with your check. You may elect to pay quarterly or annually. You will be listed here along with a link to your website, if you so elect.

If your firm would like to be listed on the front page (top right) of the Indiana Law Blog, alongside the ISBA, Doxpop, and the ISBA Litigation section, the $$ requirements are listed on the bottom of the supporter agreement.

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks. Thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - More on "Contraception Mandate Faces Justice Sotomayor and Seventh Circuit"

Updating this ILB entry from Dec. 29, 2012, re the Dec. 27th decision in Grote Industries v. Sebelius by Indiana district court Judge Sarah Evans Barker, and the Dec. 28th 2-1 ruling by a 7th Circuit panel in the case of Korte v. Sebelius, both involving the issue of whether "the new federal health care law’s requirement that companies with more than 50 employees provide free health insurance coverage for birth control drugs and methods for their female workers" -- In Grote, Judge Barker denied an injunction; in Korte, the 7th Circuit granted an injunction. And in Hobby Lobby, where the Tenth Circuit denied Hobby Lobby’s motion for an injunction pending appeal, Justice Sotomeyer on Dec. 26th denied an emergency application for a stay. Here is some additional commentary.

Andrea Neal, of The Indiana Policy Institute, has this commentary in the Indianapolis Star, headed "Business' beliefs held hostage: To avoid huge fines, Grote Industries gives in." Some quotes:

When the officers of Grote Industries sat down to discuss a possible legal challenge to the contraceptive mandate in the national health-care law, the vote was immediate and unanimous.

"We decided that it was definitely against our beliefs," says chairman and CEO William Grote III.

The company filed a complaint in U.S. District Court in Southern Indiana seeking to block implementation of that provision in the Patient Protection and Affordable Care Act of 2010. * * *

As of Jan. 1, the company had no choice in the matter. It either covers such services or faces steep daily fines imposed by the federal government.

"The penalty is absolutely onerous," Grote says. "It would easily destroy the company should we not do it."

The Affordable Care Act has generated many lawsuits since its passage, but few of its provisions have been as controversial as the one forcing employers to subsidize medical services to which they object on moral grounds.

The law guarantees most workers free access to preventive health care. Federal rules say this includes "contraceptive methods and sterilization methods" approved by the Food and Drug Administration, such as Plan B and "ella," known as the "morning after" and "week after" pills because they can prevent fertilized eggs from attaching to the uterus. Related counseling and education are also covered.

Employers who fail to finance these things can be fined $100 per employee per day. With 1,150 employees worldwide, Grote Industries could be looking at $4 million a year.

The Grote complaint is one of more than 40 lawsuits filed around the country by Catholic and evangelical plaintiffs including hospitals, universities and for-profit businesses.

Religious nonprofits are exempt from the mandate until Aug. 1 while the Obama administration considers changes to address their objections. For-profit businesses like Grote were required to comply by August 2012, or whenever their updated health plans took effect, in most cases Jan. 1.

The underlying issue -- whether the mandate violates religious freedom and free speech concerns of private employers -- has yet to be addressed by the Supreme Court. Efforts to block the law's enforcement pending resolution of the legal challenges have been mostly unsuccessful.

On Dec. 26, Supreme Court Justice Sonia Sotomayor refused to stop the Department of Health and Human Services from enforcing the mandate against Hobby Lobby, an arts and crafts chain with 13,000 employees. The next day, U.S. District Judge Sarah Evans Barker denied a similar motion from Grote Industries, finding that "the burden the mandate imposes on plaintiffs here is likely too remote and attenuated to be considered substantial." Hobby Lobby has announced it will defy the law while Grote intends to comply.

Lyle Denniston writes today in Constitution Daily in an article headed "Do profit-making corporations have religious rights?" Some quotes:
One of the big issues not settled by the 2012 presidential campaign is whether “corporations are people” and, like people, have constitutional rights. The issue continues in a new form: does the First Amendment’s right to the free exercise of religion protect profit-making corporations? The courts are just beginning to provide answers, and the answers so far are mixed.

Last week, using different legal analyses, a Supreme Court justice on one day made it clear that the question remained open and unsettled, while a federal appeals court panel’s majority two days later gave at least a temporary answer: Yes. Those were the most significant statements so far as federal courts work their work through more than 40 lawsuits challenging the new Affordable Care Act’s requirement for free birth-control services for millions of working women. * * *

The key dispute in this context thus appears to turn on whether the faith preferences of the owners of a profit-making corporation can be transferred to the business entity so that it is not an independent entity but rather, for constitutional purposes, is an alter ego. The Kortes argue that, since the couple owns 88 percent of the construction company, they do treat it as an alter ego to express their faith. And it appears that, at least for the time being, that claim has prevailed in the courts in their case.

However, other judges on other federal courts have disagreed, and have concluded flatly that a secular corporation cannot exercise religion, and have warned that the contrary conclusion could raise the prospect of scuttling many laws that protect employees’ workplace rights.

Justice Sotomayor herself noted the conflicting results that have been emerging in the contraceptives mandate cases. And she also commented that the challengers, once they have had their day in the lower courts, will be free to bring the issue back to the Supreme Court. Given the intensity of the courthouse controversy over the mandate, such an appeal is all but certain, thus posing at some point a profound new twist on whether “corporations are people.”

Posted by Marcia Oddi on Wednesday, January 02, 2013
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Tuesday, January 01, 2013

Ind. Law - "Marriage licenses reflect changing attitudes toward matrimony"

Reporting today in the Louisville Courier Journal, Harold J. Adams writes:

Just as wedding photographs tell a lot about the time period in which the couple were wed, so also do marriage licenses tell a story about views on race, religion, mental health and more.

Take the four Indiana marriage licenses from the family of New Albany Mayor Jeff Gahan. The license completed by his parents William Gahan and the former Joyce Stromire in 1946 asked for “the full christian and surname” of each party.

The question left no room for the possibility that the bride or groom’s faith might be other than Christian. * * *

[B]y the time Gahan’s sister, the former Linda Gahan, married Steven Bonifer in 1973 the reference to “christian and surname” was gone, replaced with a request for the first, middle and last name of each party.

Race and ethnicity are two other marriage license questions that have changed in the past 66 years. The second question on the 1946 Indiana marriage license asked the “color” of each person. * * *

Miscegenation laws across most of the country at the time generally made it illegal for whites to marry non-whites. Kentucky marriage licenses of 1946 did not document the race of brides and grooms, but a glance at the marriage index volumes at the Jefferson County Clerk’s Office shows marriages of racial minorities segregated into separate volumes each year into the 1960s. * * *

With mixed races legal, the Indiana form that recorded the 1973 Gahan-Bonifer nuptials asked for “color or race” and offered check boxes for white, negro and other. And by the time the mayor himself married the former Susanne Keeler in 1987 there was nothing at all about race or ethnicity on their marriage license.

But Gahan’s daughter Abigail Gahan, set to marry Christopher Gardner in February 2013, will face a marriage license that offers six different race choices along with the option to choose “unknown.” On ethnicity they will be asked whether they are or are not Hispanic or Latino along with the choice of unknown.

A similar progression of societal attitudes on mental health can also be traced through marriage licenses.

The mayor’s parents were each asked whether they were “an imbecile, feeble-minded, idiotic or insane” or under guardianship “as a person of unsound mind.” His daughter and future son-in-law will get a pass on mental health questions, which are absent from the present form.

Posted by Marcia Oddi on Tuesday, January 01, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 on Dec. 31 (and 27 NFP)

For publication opinions today (4):

In Indiana Public Employee Retirement Fund v. Paul Bryson, a 3-page opinion on a petition for a rehearing, Chief Judge Robb writes:

We grant rehearing for the purpose of addressing an issue raised by PERF in its petition, but we affirm our original opinion.
In Lisa Svenstrup v. Thomas Svenstrup, a 14-page opinion, Judge Brown concludes:
For the foregoing reasons, we affirm the trial court’s order denying Mother’s petition for allocation of college expenses, which order may be modified upon the requisite showing of changed circumstances so substantial and continuing as to make the terms of the existing order unreasonable.
In Damon Ray Bowers v. State of Indiana , a 6-page opinion, Judge May writes:
Damon Ray Bowers brings an interlocutory appeal of the denial of his motion to suppress the evidence gathered from a traffic stop. He asserts the stop occurred without reasonable suspicion, in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm and remand.
In Israel Cruz v. State of Indiana , a 9-page opinion, Judge Crone writes:
Israel Cruz has never held an Indiana driver’s license, and he has multiple convictions of operating a vehicle having never received a license. In 2011, the BMV determined that Cruz was a habitual traffic violator (“HTV”) and sent notice of an HTV suspension to 3518 Steer Street in Indianapolis. Cruz was subsequently pulled over for speeding while the HTV suspension was in effect. Cruz was charged with operating a vehicle while suspended as an HTV. At Cruz’s bench trial, a Bureau of Motor Vehicles (“BMV”) employee testified that when a person who has never been licensed commits a traffic offense, the BMV obtains the person’s address from court records. However, the 3518 Steer Street address does not appear in any of the court records that were submitted into evidence; on the contrary, the court records contained three different addresses for Cruz. The BMV employee was not able to testify as to how the BMV determined that Cruz’s address was 3518 Steer Street. Cruz testified that he does not live at 3518 Steer Street and did not know that he was suspended. At the conclusion of the trial, the court found Cruz guilty and entered judgment as a class A misdemeanor.

On appeal, Cruz raises several issues, but we find one of them dispositive: whether there was sufficient evidence that Cruz knew that he was suspended. Given the complete lack of evidence regarding how the BMV determined that notice should be mailed to 3518 Steer Street, we must conclude that the State failed to establish the statutory presumption that a person has knowledge of a suspension if notice is sent to the person’s “last address shown.” See Ind. Code § 9-30-10-16. Nor has the State argued that the record contains direct evidence that Cruz knew he was suspended. Therefore, we reverse Cruz’s conviction.

NFP civil opinions today (9):

In Re the Paternity of Z.H.; S.E. v. C.H. (NFP)

In the Matter of the Term. of the Parent-Child Rel. of A.D.; and M.D. v. Indiana Dept. of Child Services (NFP)

In Re the Paternity of K.H., S.E. v. C.H. (NFP)

Francis McDonnell, M.D. v. Stacy Wissel, as Trustee of the Bankruptcy Estate of Roy L. Harris and Anita K. Harris (NFP)

Kimberly A. Harrison and Christine G. Portell v. Yale Rice, III, as Trustee of the Yale Rice, Jr. Living Trust, et al. (NFP)

Paulette Petkovich, et al. v. Prime Contractors Co., Inc. (NFP)

Job Steel Corp, and Lisco, Inc. v. Board of Zoning Appeals of the Town of Burns Harbor and the Plan Commission of the Town of Burns Harbor (NFP)

Demaris Snyder Wehr, Timothy John Snyder, Terence Glen Snyder and Daniel Owen Snyder v. Thomas Price, II, individually and as the named executor of the estate of Nilah Snyder, et al. (NFP)

Townsend H. Porter, Jr., Townsend Porter Revocable Trust, and Brian H. Merritt v. 1st Source Bank (NFP)

NFP criminal opinions today (18):

Albert Jackson Counce v. State of Indiana (NFP)

Dandre Matlock v. State of Indiana (NFP)

Roy G. Lewis v. State of Indiana (NFP)

Damon Gee v. State of Indiana (NFP)

Micha Seymour v. State of Indiana (NFP)

Arthur J. Bryant v. State of Indiana (NFP)

Roy Bessler v. State of Indiana (NFP)

George R. Clark v. State of Indiana (NFP)

James L. Morgan v. State of Indiana (NFP)

Joseph Ward v. State of Indiana (NFP)

Joseph Rushing v. State of Indiana (NFP)

Marvin Dewayne Davey v. State of Indiana (NFP)

Joseph Laich, III v. State of Indiana (NFP)

T.S. v. State of Indiana (NFP)

Ronald Rostochak v. State of Indiana (NFP)

Jason Castillo v. State of Indiana (NFP)

Bradley C. Taylor v. State of Indiana (NFP)

Shawn D. Jaco v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 01, 2013
Posted to Ind. App.Ct. Decisions