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Wednesday, February 06, 2013

Ind. Gov't. - "Juwi Wind Energy sees report denied to public. County attorney: Document created to aid negotiations"

An interesting, quite long Feb. 5th denial of public access story by Scott Smith of the Kokomo Tribune reports that:

Tipton County officials are withholding a consultant’s report on tax abatements from the public, but not from the developers of the Prairie Breeze Wind Farm. * * *

[When consulted, state public access counselor Joseph Hoage] said that since the Indiana Court of Appeals issued the 2003 Indianapolis Star v. Indiana University Board of Trustees decision, it has been generally accepted that once a “deliberative” record has been disclosed to an outside party, the agency can’t deny that record to other parties.

“The court of appeals has said that if an agency provides it to one party, from there on down the line, they can’t deny it to another party, based on a deliberative exception,” Hoage said.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Government

Ind. Law - "Digital billboards grow in favor among Indianapolis leaders"

The ILB has had a number of entries on "digital" or "electronic" billboards (aka "high-tech" billboards). The name has evolved as the years have passed.

Yesterday Jon Murray had this long story in the Indianapolis Star - some quotes:

Marion County’s longtime ban on digital billboards could end under a new push that’s starting to gain traction with city leaders.

A softer stance on billboards with electronic screens — cycling through multiple ads in a minute — could result from a review now under way in the Department of Metropolitan Development, led by new Director Adam Thies.

The assessment came in response to requests from City-County Council members of both parties and the advertising industry. Indianapolis Mayor Greg Ballard has signaled he’s open to allowing digital billboards. * * *

The city’s ban, which was enshrined preemptively in zoning ordinances nearly a decade ago, is rooted in concern that changing images could distract drivers.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 4 of the General Assembly

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

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Environment - "Two companion bills addressing phosphorus pollution served as a bright spot amidst the environmental darkness"

That is a quote from an editorial today in the Fort Wayne Journal Gazette. More:

Senate Bill 546, authored by Sen. Ed Charbonneau, R-Valparaiso, requires lawn care service providers that use and retailers that sell fertilizers containing phosphorus to provide their customers with information about concerns regarding the overuse of the chemical. House Bill 1202, authored by Rep. Sue Errington, D-Muncie, goes one step further by also requiring that retailers and lawn care service companies offer customers fertilizers that don’t contain phosphorus.

Excessive runoff of phosphorus-laden fertilizers used in lawn care and agriculture is the culprit behind the contamination of several Indiana lakes. High levels of phosphorus produce the toxic blue-green algae blooms that cause skin rashes, eye irritation and stomachaches as well as tingling in the fingers and toes. The cyanobacteria algae produce nerve toxins that can easily kill pets and other animals, including fish and water fowl. Contact with contaminated water is especially dangerous for young children, the elderly or people with compromised immune systems.

It was a toxic algae infestation that led to the closure of Grand Lake St. Marys in Ohio a few years ago. That state lost millions of dollars in tourism revenue because of the pollution.

Toxic algae were also linked to the death of two dogs that went for a swim in Salamonie Reservoir in July.

Here is a list of earlier ILB entries re phosphorus.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Environment

Ind. Law - More on "Experts: Recast sex offender bill unconstitutional"

Updating this ILB entry from Jan. 31st, re SB 347, Charles Wilson of the AP reported late yesterday in a story that begins:

INDIANAPOLIS (AP) — Indiana lawmakers rushed Tuesday to narrow the scope of a court-overturned ban on social networking for sex offenders, but it wasn't clear whether the reworked proposal would be able to withstand future legal challenges over free-speech rights.

The bill the Senate Committee on Corrections and Criminal Law unanimously sent to the Senate floor Tuesday rewrites a complete ban dating from 2008 that was overturned by a federal court on Jan. 23. The 7th U.S. Circuit Court of Appeals in Chicago said the old law was too broad and violated freedom of speech.

Two Republican legislators rewrote the ban earlier this session, but critics said it would still 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. The amended version approved Tuesday applies only to offenders convicted of child-related sex crimes who knowingly use social networks, instant messaging or chat rooms to communicate with children below age 16.

"It's much narrower now than it was," said Sen. Randy Head, R-Logansport, the bill's sponsor.

But Larry Landis, executive director of the Indiana Public Defender Council, said he still wasn't sure the bill was narrow enough. For one thing, the bill would penalize offenders who have already finished their time in prison and on probation.

"You're presuming that a person who's been convicted of the offense 20 years ago could not possibly be rehabilitated over it and have a legitimate conversation with somebody below the age of 16," Landis said. "You can meet them face-to-face privately and have a conversation if you want, but you can't do it remotely."

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 those laws don't deal with free speech, Landis said.

Here is a story by Norman Cox that was on last evening's WRTV6 News. One interesting portion of the report:
The Senate Criminal Law Subcommittee put together a new bill last week , but the state's legal counsel advised that the new law would likely also be thrown out by federal judges.
Who would that be? The AG? No, looking back at last week's linked story:
But the state's chief public defender warned members of the Senate Criminal Law Committee that their bill would not satisfy the federal judges who threw out the original law.

He said the new bill would still be an unconstitutional restriction on sex offenders' rights of free speech.

Instead of limiting the number of sex offenders who could use social media, he recommended limiting how they could use it.

"Just limiting the list of offenses that it applies to doesn’t satisfy the problem," said Larry Landis, public defender council. "So I urge you, re-read that 7th Circuit case and I think you will see that some of those amendments don’t address the problems, and none of us are in favor of passing an unconstitutional provision."

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Ind. Decisions - Gingerich's attorney asks Supreme Court to let COA decision stand

Updating this ILB entry from Jan. 11, quoting an IndyStar story that Attorney General "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," Charles Wilson of the AP reported late yesterday that begins:

A northern Indiana boy convicted in adult court at age 12 in the killing of a friend's stepfather should not be denied a new trial just because he signed a plea agreement, his lawyer says in documents filed with the state Supreme Court.

Attorney Monica Foster said Paul Henry Gingerich's case didn't belong in adult court in the first place. Foster filed a brief Monday asking the high court to let stand an Indiana Court of Appeals decision in December that ordered a Kosciusko County judge to hold a fresh juvenile court hearing to determine whether the boy should be tried as an adult.

That appeals ruling threw out Gingerich's guilty plea and 25-year prison sentence, saying the local court rushed to judgment.

Last month, the attorney general's office asked the state Supreme Court to hear the case, arguing that Gingerich signed a plea agreement and waived his right to appeal.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Pekin Insurance Company v. Jose and Carol Hanquier and Joseph Hall , a 7-page opinion, Judge Kirsch writes:

Pekin Insurance Company (“Pekin”) appeals the trial court’s order denying Pekin’s motion to correct error. Pekin raises the following restated issue on appeal: whether the trial court erred in failing to enforce the arbitration provision of the Pekin insurance policy as mandated by Indiana Code section 34-57-2-3. We reverse and remand with instructions. * * *

We conclude that the trial court erred in failing to issue a stay of the proceedings as to Pekin pending arbitration. We reverse the trial court’s order and remand with instructions to enter an order compelling arbitration and staying the proceedings as to claims against Pekin until the completion of arbitration.

In Walter E. Smith, Jr. v. State of Indiana , a 19-page opinion, Judge Kirsch writes:
Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine1 as a Class A felony. On appeal, Smith raises the following restated issues:
I. Whether the trial court committed reversible error when it refused to give Smith’s tendered jury instruction.
II. Whether the trial court’s scheduling of Smith’s trial entitled Smith to discharge under Indiana Rule of Criminal Procedure 4(B).
III. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop.
We affirm. * * *

[Re III] We agree with the trial court’s sound reasoning. Here, Officer Long’s testimony during the telephonic hearing revealed that he stopped Smith for unsafe lane movement. See Navarro v. State, 855 N.E.2d 671, 673 (Ind. Ct. App. 2006) (Navarro was stopped for unsafe lane movement). While still completing the warning, fellow officers arrived at the scene. While Officer Ralston was completing the written warning, Officer Long took Shadow, a trained narcotics dog, around the U-Haul truck. See Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005), cert denied, 126 S. Ct. 2295 (2006) (dog sniffs are not “searches” requiring probable cause under the Fourth Amendment). Shadow made an indication to the presence of drugs in the vehicle. Finding probable cause for the search, Judge Bolk issued a warrant. At the suppression hearing, Smith did not dispute the validity of the stop; instead, he argued that the length of the stop was unconstitutional, and therefore, the evidence seized following that stop should be suppressed. The trial court was unconvinced and denied Smith’s motion to suppress. At trial, Smith again objected to the introduction of the cocaine evidence, to which the trial court responded, “All right, I’m going to show continuing objection by defense counsel, and incorporate previous arguments made in proceedings before this court. Show the objection overruled . . . .” Jury Tr. at 185. Other than the arguments made at the suppression hearing, Smith has offered no evidence to suggest that the stop was unreasonable, the length of the stop was unreasonable or that the search warrant was not supported by probable cause. The trial court did not abuse its discretion in admitting at trial the cocaine evidence that was seized pursuant to a valid search warrant.

NFP civil opinions today (7):

David Edmonds v. Menards, Inc. (NFP)

James Newman v. Review Board of the Indiana Dept. of Workforce Development and Gagan LLC (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: D.T., and A.M. v. The Indiana Dept. of Child Services (NFP)

Jason Tye Myers v. Stason L. Wiete, Unknown Party, and W. Lafayette Police Department (NFP)

Term. of the Parent-Child Rel. of C.D., and A.D., minor children, and S.D., the mother: S.D. v. Indiana Dept. of Child Services, and Lake County C.A.S.A. (NFP)

Shaun L. Steele v. Correctional Industrial Facility (NFP)

Term. of the Parent-Child Rel. of J.D., J.D., J.D.,L.D., and La.D., (Minor Children), and J.D. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Joshua D. Preston v. State of Indiana (NFP)

Roman Lawson v. State of Indiana (NFP)

Amber D. Courtney v. State of Indiana (NFP)

Jarrell Marcell Ballard v. State of Indiana (NFP)

Shannon N. Maiden v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Ind. App.Ct. Decisions