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Wednesday, February 13, 2013

Ind. Gov't. - "3 Democrats file suit challenging redistricting plan approved by Mayor Ballard"

Tim Evans and Jon Murray report today in the Indianapolis Star:

Three Democratic members of the City-County Council filed a lawsuit Tuesday seeking to overturn a redistricting plan passed by the former Republican council majority and signed by Indianapolis Mayor Greg Ballard.

Council President Maggie Lewis, Vice President John Barth and Majority Leader Vernon Brown are the plaintiffs in the suit.

Democrats took control of the council following the 2011 election, and Tuesday’s lawsuit long had been expected in their escalating battle with Ballard and his fellow Republicans over redistricting.

The lawsuit names the three members of the Marion County Election Board — Clerk Beth White and members Mark K. Sullivan and Patrick J. Dietrick — as defendants. It seeks to have the GOP redistricting plan revoked on the contention that the work was not done in 2012, as required by Indiana law. White and Sullivan are Democrats. Dietrick is a Republican.

The lawsuit asks Marion Superior Court to declare the Republican-passed maps improper and to draw a new set of boundaries. The case likely will end up in the Indiana Supreme Court. * * *

After the lawsuit was filed Tuesday, the Marion County clerk’s office selected a five-judge panel that will hear the redistricting case, as required by Indiana law.

The judges — three Democrats and two Republicans — were chosen randomly through an electronic process, spokeswoman Angie Nussmeyer said.

The presiding judge on the case is Heather Welch, a Democrat. She will be joined by Democrats James Osborn and Thomas Carroll and Republicans Theodore Sosin and Cynthia Ayers.

State law prohibits the judicial panel assigned to the redistricting case from recusing the court from the matter. * * *

Ballard signed the current maps into law on January 1, 2012, the same day Democrats gained their new council majority.

State law required the council to redraw district boundaries during 2012, using 2010 census data. The Ballard administration views his signing of the GOP’s 2011-passed redistricting plan at the start of 2012 as satisfying the law, since that constituted the adoption date.

Here, via the Indianapolis Star, is the 5-page lawsuit.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Courts | Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Jesus Uribe (SD Ind., Magnus-Stinson), a 15-page opinion, Judge Williams writes:

Early one morning, Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated. Nor is there evidence that Uribe’s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana’s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe’s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.

Uribe filed a motion to suppress the evidence obtained following the stop, contending that the seizure violated the Fourth Amendment because the deputy had no reasonable suspicion or probable cause to detain him. Although the government offered no evidence to support its objection to the motion, it argued that there was reasonable suspicion that the car was stolen and that its driver was violating Indiana law by operating a vehicle displaying a different car’s registration number. The district court granted Uribe’s motion, finding the government’s explanations insufficient to establish that at the time of the stop the deputy had a reasonable, articulable suspicion that Uribe was engaged in criminal activity.

In this interlocutory appeal, we must determine whether one lawful act in isolation—driving a car of one color with a registration number attached to a car of a different color—gives rise to reasonable suspicion that a driver is engaged in criminal activity. Because on this record, investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion, we affirm.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Constitutional issues with proposed special license plates plan?

This morning Dan Carden reported in the NWI Times:

INDIANAPOLIS | It took an extra year, but the Indiana House on Tuesday voted 92-6 for a plan by state Rep. Ed Soliday, R-Valparaiso, intended to bring order to the state's special group license plates.

House Bill 1297, which now goes to the Senate, sets new standards for obtaining a group license plate, caps the total number of plates at 150 and requires groups with plates disclose their financial records.

Under the plan, a panel of four Republicans and four Democrats from the House and Senate would review applications for group plates and advise the Bureau of Motor Vehicles on whether to issue a new plate.

While the BMV would not be required to follow the committee's recommendation, it couldn't create a new plate until the committee weighed in.

Here, from the most recent version of HB 1279, is the operative provision:
Sec. 2.5. (a) The license plate committee shall meet at least two (2) times a year at the call of the chairperson to review applications for special group recognition license plates that have been forwarded to the license plate committee by the bureau under section 2.3(b) of this chapter.
(b) After reviewing the applications, the license plate committee shall:
(1) compile a list recommending new special group recognition license plates; and
(2) forward to the bureau by written means the list of recommended special groups that meet the suitability for issuance of a special group recognition license plate.
The license plate committee may not recommend more than five (5) new special group recognition license plates to the bureau under this subsection in a calendar year.
(c) After receiving the list forwarded under subsection (b)(2), the bureau shall conduct an independent review of the applications, taking into consideration the recommendations of the license plate committee. The bureau may issue a special group recognition license plate in the absence of a positive recommendation from the license plate committee. However, the bureau may not issue a special group recognition license plate, unless the license plate has first been reviewed by the license plate committee and has been given a positive or negative recommendation to the bureau regarding that special group.
(d) The bureau may not issue more than five (5) special group recognition license plates for the first time in a year.
In other words, the action of the BMV is contingent upon the review of the legislative license plate committee.

There are two obvious issues: (1) What if the legislative group just sits on an application? Then the BMV cannot act, because the statute requires that it receive a positive or negative recommendation. (2) How likely is it that the BMV will act when this 8-member legislative group, which represents the power of the branch of government that controls both its statutes and its funding, gives a negative recommendation? Perhaps to prevent this kind of conundrum, the doctrine separation of powers is set out in our Constitution.

In a case, Book v. State Office Building Commission (1958), the Indiana Supreme Court looked at the question of whether the act creating the State Office Building Commission, to be made up of both executive and legislative members, violated Article 3, Section 1 because it permitted persons charged with official duties under one department of state government to exercise functions of another.

The Court wrote that Article 3, section 1 “is the keystone of our form of government and to maintain the division of powers as provided therein, its provisions will be strictly construed.” Further, “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement,” and continued:

The Legislature may enact, but it cannot execute laws. That is the duty of the executive department. The Legislature here has at-tempted to confer executive power upon a Commission, the majority of which is composed of its own members, and to impose upon the legislative members thereof duties which they cannot constitutionally exercise. … If members of the Legislature may be appointed as members of Boards which exercise functions within the executive-administrative department of government, the door is then open for the Legislature to enter and assume complete control thereof.
For more, see p. 14 of this 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," The Indiana Law Blog (2003) [background here].

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In In the Matter of the Estate of Samuel L. Tolley, Deceased; First Merchants Bank, N.A. v. Duane Earl Tolley, and Betty June Tolley, an 18-page opinion, Judge Brown writes:

First Merchants Bank, N.A., (“First Merchants”) appeals the trial court’s order granting summary judgment to the Estate of Samuel Tolley (the “Estate”). First Merchants raises one issue which we revise and restate as whether the court erred in granting the Estate’s motion for summary judgment and in denying its motion for summary judgment. We reverse and remand. * * *

This case requires us to interpret the statutes relating to notice requirements in the Probate Code. * * *

We begin with a discussion of the difference between a nonclaim statute and a statute of limitation as well as the difference between nonclaim statutes that are self-executing and those that are not self-executing. * * *

Based upon the designated evidence, we cannot say that First Merchants received proper notice. Accordingly, First Merchants’ claims filed on July 26, 2011 which occurred within nine months of Samuel’s death were timely filed.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to the Estate and denial of First Merchants’ motion for summary judgment. We remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Term. of the Parent-Child Rel. of: A.C., Minor Child, K.W., Mother, and J.C., Father v. Indiana Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of: T.B., M.B., and L.B., (Minor Children), and J.B., (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Robert Powell v. State of Indiana (NFP)

Julia Patterson v. State of Indiana (NFP)

Lee Ross v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - How to change retirement age for appellate court justices and judges?

Art. 7, Section 11 of the Constitution of the State of Indiana reads in part:

Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals. * * *

Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.

Currently IC 33-38-13-8 reads:
Sec. 8. (a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.

(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.

As added by P.L.98-2004, SEC.17.

SB 124, which has passed the Indiana Senate and is now in the House, would amend the statute requiring retirement at age 75. However, it would do so not by specifying a different age by statute, as contemplated in Art. 7, Sec. 11, but rather by completely striking out the age-setting language:
SECTION 1. IC 33-38-13-8 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8. (a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
    (b) Notwithstanding subsection (a), The supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.
In other words, if the current version of SB 124 becomes law, there will be NO retirement age specified by statute, as is contemplated in the Constitution ...

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit grants petition for rehearing en banc in ND Ind. case

The case is U.S. v. Christopher Spears, decided by the 7th Circuit on Sept. 24, 2012 - ILB post here.

Last evening this Order was posted on the 7th Circuit site (oddly, it is dated Jan. 14, 2013)- it begins:

The petition for rehearing en banc is GRANTED. The panel’s opinion and judgment are VACATED. The parties shall file new briefs addressing the following question:
Does the crime of aggravated identity theft as defined in 18 U.S.C. § 1028A(a)(1) require a theft or other misappropriation of another person’s identifying information when the prosecution relies only on the “knowing transfer” part of the statute?
In addition to any other statutory language that bears on the question, the parties should specifically address the meaning of the phrases “without lawful authority” and “means of identification of another person.” The parties should also address the effect, if any, of the Supreme Court’s decision in Flores‐Figueroa v. United States, 556 U.S. 646 (2009), on this question.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. (7th Cir.) Decisions