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Thursday, February 07, 2013

Ind. Courts - State legislator appears to represent the State of Indiana in lawsuit

Interesting article on a forfeiture action posted this morning on Eagle Country 99.3 FM website. Some quotes:

(Lawrenceburg, Ind.) - A lawsuit seeks to allow the State of Indiana to keep millions of dollars and property seized during an investigation into Acapulco Mexican Restaurants.

The Dearborn County Prosecutor’s Office recently filed the lawsuit on behalf of the State of Indiana against the owners of the southeast Indiana restaurant chain which was raided by Indiana State Excise Police in September. The litigation names Acapulco owners Adolfo and Maria Lopez, Benito Lopez, and others as defendants.

“The defendants have acquired real or personal property purchased with money that is traceable as proceeds of a violation of a criminal statute,” the complaint claims. * * *

In the lawsuit, the state requests that the value of the property be put towards the law enforcement costs with any proceeds beyond that sent to the state’s common school fund.

State Representative Jud McMillin, who works as an attorney in Brookville, is representing the prosecutor’s office in the lawsuit.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Courts

Law - GAO issues report on SORNA implementation issues

The GAO has today issued this report on SORNA, "Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects."

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to General Law Related

Ind. Law - "Dan Carpenter: It's not the little folks the farm-fish-hunt amendment aims to serve"

Dan Carpenter had this Feb. 6th column today in the Indianapolis Star. Some quotes:

The prospect of an animal-rights lawyer robbing Hoosiers of the right to hunt, fish and farm beggars the imagination; but there's no overestimating the political fertility of paranoia, nor the eagerness of demagogues to plow that ground. * * *

Which makes more sense, after all? That the farmer and rod- and gun-bearer of our Hoosier heritage are in danger from sinister vegetarian forces -- or that large corporate-owned livestock operations are using their influence in the Statehouse to ward off complaints and lawsuits from the small farmers who suffer as their neighbors?

Animal-rights activists have had their impact, to be sure; on issues such as puppy mills, canned hunting, inhumane treatment of animals in mass confined breeding. That would seem to square with Hoosier heritage.

More pertinent to the amendment push is a class-action lawsuit brought by family farmers and others, who convinced the Indiana Court of Appeals in 2011 that the Right to Farm Act did not immunize confined animal feeding operations whose waste became a nuisance.

Promoters of the constitutional amendment insist it would not give farming -- or hunting or fishing -- a free pass. What it would do, however, is send a message to government and neighbors alike that they would make trouble for this eminent source of revenue at their political peril.

Big business, not small farmers and not hunters and fishermen, stands to benefit from anti-regulation measures in a state that already ranks among the nation's worst in soil, water and air quality. To portray this special-interest favor as grassroots traditionalism is an insult to town and country folks alike.

See also this Feb. 5th ILB post, headed "Should we pass a constitutional amendment when no one knows what it means?"

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law

Ind. Courts - More on: Gary-based child support court move to Crown Point reignites controversy

Updating this ILB entry from Feb. 2nd, Bill Dolan of the NWI Times reports today:

CROWN POINT | Lake County commissioners are joining a lawsuit to keep a Gary courtroom where thousands of child-support disputes are resolved annually from moving south to Crown Point.

The three-member executive board voted to intervene in litigation filed by the cities of Gary and East Chicago and the NAACP to stop Juvenile Court Judge Mary Beth Bonaventura from consolidating her child support staff, now split between Gary and Crown Point courtrooms. The move would leave vacant a courtroom she has operated in the Justice Robert D. Rucker Courthouse at Fourth Avenue and Broadway in Gary.

Commissioners Roosevelt Allen, D-Gary, and Mike Repay, D-Hammond, said closing the Gary venue would inconvenience thousands, primarily single mothers with children, who use the court. Bonaventura has said the consolidation will make her court more efficient.

Lake Circuit Judge George Paras in Crown Point will hear arguments Friday from both sides about whether to issue a restraining order to block the move.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In State of Indiana v. William Coats, a 13-page, 2-1 opinion, Judge Barnes writes:

The State appeals the trial court’s denial of its motion to commit William Coats to the Indiana Division of Mental Health and Addiction (“DMHA”). We affirm.

The State raises one issue, which we restate as whether the trial court properly denied the State’s motion to commit Coats to the DMHA for competency restoration services. * * *

Here, the trial court expressly found that restoration to competency is improbable and unlikely, and the report supports that finding. Although the better practice in most cases is to follow the statutory commitment procedures, given Coats’s progressive dementia and the trial court’s finding that he will not be restored to competency, the purposes of the competency restoration process cannot be met by following those procedures here. It is clear that Coats’s dementia will progress, and there simply is no hope nor medical reason to believe that competency will be restored. The discussion in Curtis informs and instructs us that “the State’s interests cannot be realized if there is a finding that a defendant cannot be restored to competency.” Curtis, 948 N.E.2d at 1154. We conclude that the trial court properly denied the State’s motion to commit Coats.

Conclusion. The trial court properly denied the State’s motion to commit Coats to the DMHA. We affirm.

BAKER, J., concurs.
RILEY, J., dissents with opinion. [which begins, at p. 11] I respectfully dissent from the majority’s decision to affirm the trial court’s denial of the State’s motion to commit Coats to the Department of Mental Health and Addiction (DMHA). The statutory scheme does not allow the trial court discretion over the statutory commitment procedures. If the trial court finds that a defendant lacks the ability to understand the proceedings and assist with the preparation of his defense, “it shall delay or continue the trial and order the defendant committed” to the DMHA. Ind. Code § 35-36-3-1(b) (emphasis added). Consequently, the statute does not give the trial court discretion to decline to order commitment even where it concludes that the defendant could never be returned to competency.

In Terry Smith v. State of Indiana , a 24-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in granting the State’s motion to continue so that the State could procure the testimony of a necessary witness. The trial court also did not abuse its discretion in the admission of the evidence regarding the shots fired and casings found, the evidence obtained during the execution of the search warrant, or the DNA evidence obtained from the buccal swab. Lastly, the State presented evidence sufficient to support the trial court’s determination that Smith was an habitual offender. Affirmed.
In Christina M. Kovats v. State of Indiana , a 13-page opinion, Judge Mathias concludes:
Kovats’s convictions for Class B felony neglect of a dependent, Class D felony criminal recklessness, and Class D felony OWI constituted double jeopardy because all three convictions were based on, or elevated by, the same serious bodily injury. Merging these convictions for purposes of sentencing was insufficient to cure the double jeopardy problems because the trial court had already entered judgments of conviction on all counts. On remand, the trial court is instructed to vacate Kovats’s convictions for Class D felony criminal recklessness and Class D felony OWI, and to enter a judgment of conviction and concurrent sentence on the lesser-included offense of Class A misdemeanor OWI. Lastly, Kovats’s maximum executed sentence of twenty years for her conviction for Class B felony is inappropriate, and we remand with instructions that the trial court enter a sentencing order reflecting our revision of Kovats’s sentence to fifteen years executed on that conviction.
NFP civil opinions today (3):

In Re: The Adoption of T.W.: T.J. v. J.B. (NFP)

In Re: The Paternity of B.H.: S.H. v. B.B. (NFP)

Neff Family Fertilizer, Inc. v. John Jones Chevrolet Buick Cadillac of Salem, Inc. (NFP)

NFP criminal opinions today (10):

Christopher Estridge v. State of Indiana (NFP)

Kenneth L. Robinson v. State of Indiana (NFP)

Charles Day v. State of Indiana (NFP)

Kenny L. Futch v. State of Indiana (NFP)

James Kerner v. State of Indiana (NFP)

Jamie Masterson v. State of Indiana (NFP)

Prince Harris v. State of Indiana (NFP)

Larry R. Dean, Jr. v. State of Indiana (NFP)

Anthony Paul Banks v. State of Indiana (NFP)

Gregory D. Sutton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides four Indiana cases today

In Bernard Hawkins v. U.S. (ND Ind., Moody), a 27-page, 2-1 opinion, Judge Posner writes:

This appeal from the denial of a motion under 28 U.S.C. § 2255 to set aside the sentence in a federal criminal case presents the question whether an error in calculating the applicable guidelines sentencing range can be corrected in a postconviction proceeding, now that the guidelines are merely advisory rather than, as they formerly were, mandatory. * * *

Hawkins was sentenced nine years ago. He has served almost three-quarters of the sentence that he now challenges as illegal. Yet it is “illegal” (his word, but not the right word) in the sense not that it must be nullified, but only that, were he correct in calling it a miscarriage of justice, it would have to be reconsidered. If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that. Indeed we’re surprised that the appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. top of the guidelines range for a violent assault with a weapon by a hardened criminal on two federal officers, inflicting bodily injury, is only 21 or perhaps 30 months, a quarter or less of the statutory maximum. It would be no surprise if a sentencing judge, asked to choose between 21 (or 30) and 151 months, chose the latter.

The judgment denying the section 2255 motion filed by the defendant is AFFIRMED.

[Judge Rovner's dissent starts at p. 12 and begins] Last year this court reviewed a remarkably similar case but reached the opposite result. The majority’s rationale for a different result here is illusory and for this reason I respectfully dissent.

In U.S. v. Ronald Love (ND Ind., Van Bokkelen), an 18-page opinion, Judge Kanne writes:

A jury convicted Ronald Love of one count of distributing crack cocaine and one count of conspiring to distribute crack cocaine. He appealed, challenging his conviction and sentence on various grounds. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for resentencing.

In U.S. v. Adolfo Wren and Anthony Motion (ND Ind., Lozano and Moody), a 7-page opinion, Chief Judge Easterbrook writes:

After Congress reduced from 100:1 to 18:1 the ratio between crack and powder cocaine for purposes of statutory minimum and maximum sentences, see Dorsey v. United States, 132 S. Ct. 2321 (2012), the Sentencing Commission made corresponding changes to the Guideline ranges for crack. Amendment 750 makes the changes; Amendment 759 authorizes retroactive application. Adolfo Wren and Anthony Moton asked the district court to cut their sentences. The applications went to different judges; both said no. * * *

Only one decision we have found deals with the situation in which Wren and Moton found themselves—an original Guideline range above the statutory floor, a sentence below that floor because of substantial assistance to the prosecutor, and a retroactive change to the Guidelines that (apart from §5G1.1) permits a reduction in the sentence. United States v. Liberse, 688 F.3d 1198 (11th Cir. 2012), holds that in these circumstances the district court may grant a motion under §3582(c)(2) without resetting the Guideline range at the statutory minimum. We agree with that conclusion, for the reasons we have given.

The Sentencing Commission may want to take a close look at the way §1B1.10(b)(1) works when the original sentencing range is at a presumptive statutory minimum. It is difficult to see why prisoners in that situation who received a substantial-assistance or safety-valve sentence should be excluded from a retroactive Guideline reduction, while prisoners whose original ranges were just slightly above the statutory floor are eligible for the benefit of the retroactive change. That is how the Guidelines work as currently written, however. Wren and Moton are entitled to seek relief under §3582(c)(2) as the Guidelines stand, and we remand so that the district judges may exercise the discretion they possess. VACATED AND REMANDED

In Kadamovas v. Stevens, et al (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:
The plaintiff, an inmate of a federal prison, filed a Bivens suit against seven named members of the prison’s staff plus several “John Does” (unnamed defendants—how many is unclear), complaining of varied mistreatment amounting to cruel and unusual punishment and in one respect to infringement of religious liberty. The district judge dismissed the complaint before an answer or other responsive pleading was filed (no defendants have as yet made an appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. * * *

Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than before Twombly and Iqbal. And anyway long before those decisions judges and lawyers had abandoned any effort to keep complaints in federal cases short and plain. Typically complaints are long and complicated. One-hundred page complaints that survive a motion to dismiss are not rarities. The Forms Appendix to the civil rules, with its beautifully brief model complaints, is a fossil remnant of the era of reform that produced the civil rules in 1938. Three quarters of a century later a 28- page complaint pleading seven distinct wrongs is not excessively long. District judges could do more to require that complaints be cut down to size, but it is not apparent what more would be necessary in this case.

Unintelligibility is distinct from length, and often unrelated to it. A one-sentence complaint could be unintelligible. Far from being unintelligible, the complaint in this case, which the plaintiff says he wrote with the assistance of another prisoner (the plaintiff is Lithuanian and claims to be illiterate in English), is not only entirely intelligible; it is clear. * * *

In short the complaint does not violate any principle of federal pleading. The judgment dismissing it for “unintelligibility” must be reversed. But we deny as premature the plaintiff’s further claims that he should have the assistance of counsel in this litigation and that the case should be reassigned to another district judge on the ground that Judge Lawrence is prejudiced against the plaintiff. There has been no showing of prejudice. And until the defendants respond to the complaint, the plaintiff’s need for assistance of counsel (a need asserted for the first time in this appeal) cannot be gauged. * * *


Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Bill would restrict out-of-state college students from voting"

A long report today by Mary Beth Schneider of the Indianapolis Star that begins:

Paying out-of-state tuition could cost students something more under legislation that will be debated Wednesday: their vote.

Under House Bill 1311, students who pay out-of-state tuition would not be able to vote in Indiana.

Rep. Peggy Mayfield, the Martinsville Republican who filed the bill, said she's trying to resolve an issue about determining who is an Indiana resident.

"We're having people who are not necessarily residents voting in our elections," she said.

But legal experts, as well as lawmakers in both parties whose districts include some of Indiana's public universities, say there's a big problem with the bill, which will be debated in the House Elections and Apportionment Committee today: It's unconstitutional.

"I hope that's a quick hearing," said Lee Rowland, counsel at the Brennan Center for Justice at the New York University School of Law, which monitors voting rights issues across the nation. "Because, frankly, conditioning voting rights on a 12-month residency is so clearly unconstitutional that it would be an utter waste of the legislature's time to consider such a bill." * * *

Mayfield said lawmakers may have to work on some issues with the bill -- including the fact that it treats public university students differently from those at private colleges, which don't distinguish between in-state and out-of-state students when it comes to tuition.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law

Ind. Gov't. - Dual roles of current and past legislators employed by Ivy Tech explored

The Fort Wayne Journal Gazette had this brief editorial item yesterday (supplementing its Sunday feature on lucrative offices), headed "Ivy Tech taps its legislative pipeline again":

The Indiana General Assembly/Ivy Tech Community College connection grew closer last week with the appointment of former Republican lawmaker Tim Harris to Ivy Tech’s Corporate College.

The two-term state legislator from Marion was named associate vice president of sales and marketing for the Corporate College. He will earn $125,000 a year. Most recently, Harris was chief of staff for Rep. Marlin Stutzman, a former colleague in the General Assembly.

“Tim Harris was hired because of his business background and experience,” said Jeff Fanter, vice president of communications and marketing for Ivy Tech. “He brings a wealth of contacts and relationships to this position – which are the keys to success in Corporate College.”

The president of Ivy Tech’s Corporate College is former legislator Matt Bell, who earns $250,000 a year. Fanter said the Corporate College operation is self-sustaining.

Former state lawmaker Craig Fry is executive director of apprenticeship studies for the Corporate College.

Ivy Tech’s employee roster also includes current lawmakers Patrick Bauer, vice president of external partnerships; and Mike Karickhoff, executive director of facilities.

Christopher Ruhl, budget director for former Gov. Mitch Daniels, recently joined Ivy Tech as senior vice president and chief financial officer.

Indiana's Transparency Portal is "designed to give you, the Indiana taxpayer, an inside look into Indiana State Government spending and operations." The bottom part of this page "allows you to view salary information for employees and elected officials of the State of Indiana."

A search for "Patrick Bauer" will be unsuccessful, but "B Bauer" (as in "B. Patrick") reveals "B BAUER -- HOUSE OF REPRESENTATIVES -- $57,330.86". Also this annotation: "Please note, for state legislators the results are total compensation from the previous calendar year. For all other employees, the results are annualized salaries from the most-recent payroll cycle."

The transparency portal does not include information about state college and university salaries. However, the Lafayette Journal Courier has a database of Ivy Tech salaries, 2011-12. It shows: "B. Pat Bauer --Vice Pres External Ptnrshps -- $96,465.00".

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Government

Ind. Law - "Indiana legislature seeks taxpayer safeguard on Rockport coal-gas plant" [Updated]

Tony Cook reports today in the Indianapolis Star in a long story that begins:

A controversial coal-gas plant in Rockport is facing growing opposition heading into a state Senate committee hearing today on a bill that could kill the deal.

More than 20 lawmakers have signed on to Senate Bill 510, which would force the project's developer, Indiana Gasification, to refund once every three years any losses the state incurs as part of an agreement to purchase gas from the plant. Two other groups, the Indiana Farm Bureau and the AARP, also announced support for the bill this week.

The building resistance to the project comes on the heels of recent comments from the top two lawmakers in the House and Senate calling for a fresh review of the deal.

The Senate Committee on Utilities will hold a hearing on the bill at 8:30 a.m.

The hearing is scheduled for Room 233. Check to view it in progress here.

[Updated almost immediately] Eric Bradner of the Evansville C&P just tweeted:

"Merritt cancels Thursday's Rockport hearing. A lot of grumbling this a.m. from opponents of the plant."
Here is Bradner's comprehensive story, posted at 7:30 am this morning.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law