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Wednesday, February 20, 2013

Ind. Law - "A clinic that dispenses an abortion-inducing drug would have to meet the same requirements as a surgical clinic" [Updated]

That would be the requirement under a bill that passed out of Senate committee this morning. Mary Beth Schneider of the IndyStar has just posted the story here, although the ILB has been following and retweeting her tweets this morning. Some quotes:

Senate Bill 371 — which passed 7-5 and is now on its way to the full Senate for debate — also requires women getting the pill RU486 to first undergo an ultrasound. Dr. John Stutsman, an Indiana University School of Medicine professor and an ob-gyn physician, said that “most likely” would require an “invasive” ultrasound that would involve a probe being placed in the woman’s vagina.

The bill threatens a Planned Parenthood of Indiana clinic in Lafayette. Of Planned Parenthood’s four clinics that perform abortions, it is the only one that does not do surgical abortions and instead administers the abortion drug RU486.

That means the clinic — though not any physician’s office that also prescribes RU486 — would have to have surgical equipment, sterilization equipment, anethesiology, and specific room and hallway sizes.

Sen. Travis Holdman, the Markle Republican who authored the bill, said the measure is intended to ensure women’s safety. And supporters of the bill, including Indiana Right to Life, argued that the abortion induced by a drug is more dangerous than a surgical abortion — something opponents of the bill disputed. * * *

The committee also passed Senate Bill 489, authored by Sen. Mike Young, R-Indianapolis, which among other things mandates that the clinics give women the already-required informed consent form, including illustrations, in color and not in black and white. The bill also removes a provision in state law that requires women to listen to the fetal heart beat.

[Updated 2/21/13] Here is Mary Beth Schneider's lengthy, updated version of the story in today's Indianapolis Star. Some quotes:
Senate Bill 371, which also would require any clinic that dispenses the drug — known as RU-486 — to meet the same requirements as a clinic that performs surgical abortions, though physicians’ offices would be exempt.

Those requirements, opponents say, potentially would force the Planned Parenthood clinic in Lafayette to close. That clinic offers the abortion pill but does not perform surgical abortions. If the bill passes, the clinic would have to widen hallways and doorways to meet state specifications for surgery and install anesthesia, surgical and sterilization equipment.

Sen. Travis Holdman, the Markle Republican who authored the bill, said the measure is intended to ensure women’s safety. Pushing back against senators who questioned why the heightened standards applied only to RU-486 and not to other prescription medicines dispensed in clinics, Holdman said abortion is different.

It involves “another human life,” he said.

But opponents of the bill said it jeopardizes the lives of Hoosier women by making the drug harder to get, leading some to get unsafe drugs off the Internet. * * *

Dr. Sue Ellen Braunlin, an anesthesiologist, called the bill “a fraud.”

“It creates a health risk in a nearly risk-free treatment, and it does so to exert social control.”

The front-page headline to this AP story by Tom Davies in the Lafayette Journal-Courier this morning is "Lafayette clinic in spotlight as bill for tougher abortion pill law advances in Indiana Senate." Some quotes:
INDIANAPOLIS — Indiana clinics that provide only abortion drugs would face the same requirements as those where surgical abortions are performed under a proposal approved Wednesday by a state legislative committee.

Dr. John Stutsman, the medical director of Planned Parenthood of Indiana, said a clinic the group operates in Lafayette is believed to be the only location that would be affected by the regulation changes.

The bill approved by the Senate’s health committee in a 7-5 vote would also require doctors to have ultrasound examinations conducted on women before providing any drugs to cause abortions.

The provisions covering clinics that provide abortion pills would require them to have surgery facilities and equipment and resuscitation equipment, such as defibrillators, even if surgical abortions aren’t conducted there. The bill exempts physician offices from any extra regulations even if those doctors sometimes prescribe abortion pills. * * *

Republican Sen. Vaneta Becker of Evansville joined committee Democrats in questioning how the additional clinic restrictions would benefit health care for women.

“We have a billion-dollar surplus and we’re not doing anything to increase funding for mental health, we aren’t doing anything to increase funding for more care for low-income women,” Becker said. “This bill definitely limits access to safe and affordable health care for low-income women.”

Posted by Marcia Oddi on Wednesday, February 20, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court issues two today

In Joey Jennings v. State of Indiana, a 10-page, 5-0 opinion, Justice Massa writes:

This case presents a question of statutory interpretation: does the phrase “term of imprisonment,” as it is used in Indiana’s misdemeanor sentencing statute, include time suspended from a sentence? We hold it does not. * * *

In contrast, Jennings argues that “term of imprisonment” must include both executed and suspended time, and a “term of imprisonment” plus probation cannot exceed one year. If we adopted Jennings’s interpretation, we would have to apply it to the entire chapter and all levels of misdemeanors, with results that would frustrate legislative intent and undermine accountability measures that encourage reflection, remorse, and rehabilitation. Thus, we reject it. * * *

For the purpose of Indiana Code § 35-50-3-1, “term of imprisonment” means the total amount of time a misdemeanant is incarcerated. Further, regardless of the maximum sentence available under Indiana Code §§ 35-50-3-2, 35-50-3-3, and 35-50-3-4, the combined term of imprisonment and probation for a misdemeanor may not exceed one year. We therefore remand this case to the trial court for imposition of a probationary period consistent with this opinion, not to exceed 335 days—the difference between one year (365 days) and the 30 days Jennings was ordered to serve in prison

In Kathleen Peterink v. State of Indiana, a 2-page opinion, Justice Massa concludes:
Our decision today in Jennings v. State, No. 53S01-1209-CR-526, slip op. (Ind. February 20, 2013), dictates that the trial court be affirmed in this regard. We thus uphold the suspended sentence, with probation, but remand with instructions to allow for credit time for home detention.
ILB comments: Prof. Schumm called Jennings "the most important misdemeanor sentencing case in memory" in this Jan. 28th ILB entry.

Posted by Marcia Oddi on Wednesday, February 20, 2013
Posted to Ind. Sup.Ct. Decisions

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

In Columbus Regional Hospital v. FEMA (SD Ind., Barker), a 13-page opinion, Chief Judge Easterbrook writes:

After a flood on June 6, 2008, in southern Indiana, the President authorized the Federal Emergency Management Agency to provide disaster relief. The Stafford Act, 42 U.S.C. §§ 5121–5207, establishes the terms on which financial aid is available. Columbus Regional Hospital was awarded approximately $70 million. It contends in this suit that it is entitled to about $20 million more. The district judge thought not and granted FEMA’s motion for summary judgment. * * *

[T]he district court dismissed the FTCA theory because the Hospital had yet to make a proper administrative claim, which is essential before suit can be filed. See McNeil v. United States, 508 U.S. 106 (1993). The Hospital tells us that it now has pursued its administrative remedies and filed a second suit under the FTCA. We expect it to be met with a defense of claim preclusion (res judicata) as well as the observation that the suit is substantively feeble, but we leave that to the court where the FTCA litigation is pending.

Posted by Marcia Oddi on Wednesday, February 20, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tim Durham suspended from law practice

In an Order posted today, filed Feb. 14th, the Supreme Court orders:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), has filed a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon careful consideration of all materials submitted, now finds that Respondent was adjudicated guilty based on jury verdicts of ten counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire and securities fraud, all of which are felonies under federal law.

IT IS THEREFORE ORDERED that Respondent is suspended pendente lite from the practice of law in this State, effective immediately. Respondent is already under a suspension for dues nonpayment. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

Posted by Marcia Oddi on Wednesday, February 20, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In State Farm Fire and Casualty Company v. Riddell National Bank , a 7-page opinion, Chief Judge Robb writes:

After the owners of a home went through bankruptcy, they executed a deed in lieu of foreclosure to Riddell National Bank, the mortgagee. Riddell discovered extensive damage in the home and filed a claim with State Farm Fire and Casualty Insurance Company. State Farm denied coverage, and Riddell brought suit. State Farm moved to dismiss, and the trial court denied its motion. State Farm raises one issue in this interlocutory appeal: whether the parties’ insurance policy, as limited by Indiana Code section 27-1-13-17, creates a two-year statute of limitations. Concluding the parties’ policy does not create a two-year statute of limitations, and thus the ten year statute of limitations provided in Indiana Code section 34-11-2-11 applies, we affirm.
In In Re: The Matter of: David Woodward Cook v. Beth Ann Cook , a 6-page opinion, Judge Bailey writes:
David Woodward Cook (“Cook”) appeals the denial of his motion to correct error, wherein he challenged an order for protection and requested the deletion of his name and information from the Judicial Technology and Automatic Committee (“JTAC”) website and law enforcement databases. We reverse and remand for a hearing on the merits of Cook’s motion to correct error. * * *

On June 15, 2012, Cook filed in the civil court a motion to correct error and a motion for a hearing. He requested vacation of any protective order and removal of public postings from electronic databases. * * *

Cook filed a notice of appeal on July 23, 2012. Four days later, Wife filed a motion to dismiss the petition for a protective order, pursuant to Indiana Code Section 34-26-5-12, and the civil court “terminated the Order for Protection issued on May 17, 2012.”

Because Cook alleged on appeal that electronic posting of a protective order without a hearing violated his due process rights under the Indiana Constitution, this Court ordered the Indiana Attorney General to enter an appearance and provide briefing on the matter. * * *

Cook no longer seeks an evidentiary hearing, but instead asks this Court to directly order removal of his name from the JTAC website and law enforcement databases. He provides no authority to support our issuance of such an order. Essentially, his complaint is that the Act contains no expungement provision and that this court should sua sponte correct the omission.

We are not in a position to afford Cook the immediate relief he seeks. We agree with the State that Cook was entitled to a hearing in the civil court and was, by the sequence of transfers, conflicting orders, and dismissal, denied his statutory right. However, if Cook wishes to assert that the Act is unconstitutional as applied to him because of its injury to his reputation and negative impact upon his employability, it is incumbent upon him to develop a factual record.

Therefore, we reverse the denial of Cook’s motion to correct error and remand for a hearing.

In In the Matter of: Am.K., A Child In Need of Services and A.M. v. Marion County Department of Child Services and Child Advocates, Inc. , a 14-page opinion, Judge Baker writes:
A.M. (Mother) was involuntarily committed for emergency mental health treatment, and the Indiana Department of Child Services (DCS) filed a petition alleging that each of Mother’s two children was a child in need of services (CHINS). The juvenile court determined that A.M.-K. was a CHINS, and Mother was ordered to participate in various services and to abide by the recommendations of mental health professionals, including taking all medications as prescribed.

Mother challenges the propriety of the parental participation order. More particularly, Mother claims that because the DCS failed to file a parental participation petition, the juvenile court lacked the authority to order her participation in any services or treatment. Mother also claims that the order directing her to take any medications as prescribed violates her constitutional right to decide her own mental health treatment.

We conclude that Mother was adequately notified of the DCS’s recommended plan of participation and that Mother acquiesced to the trial court’s authority to enter a parental participation order. However, we also conclude that the DCS failed to present sufficient evidence to overcome Mother’s liberty interest in deciding her own treatment when Mother objected to the order and presented evidence of her concerns. Accordingly, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

In Fredrick Allen Laux v. State of Indiana , a 29-page opinion, Judge Baker writes:
In this case, the appellant-petitioner, Fredrick Laux, challenges the denial of his petition for post-conviction relief after he was convicted of murdering his wife and receiving a sentence of life without parole (LWOP). Laux claims that his trial counsel was ineffective for failing to: 1) properly question a juror regarding bias; 2) object to alleged victim impact evidence; and 3) object to instances of prosecutorial misconduct. Laux also contends that his trial counsel did not adequately prepare for the penalty phase of the trial. Finally, Laux maintains that his appellate counsel was ineffective for failing to present these alleged errors on direct appeal.

Concluding that Laux has failed to show that he received the ineffective assistance of either trial or appellate counsel, we affirm the denial of Laux’s request for post-conviction relief.

In Ralph Pipkin v. State of Indiana , a 4-page opinion, Judge Bailey writes: "Because the trial court failed to find good cause for belatedly pursuing an interlocutory appeal from the first motion to dismiss, Pipkin’s appeal was not properly perfected. We therefore lack jurisdiction over this matter, and must dismiss his appeal."

NFP civil opinions today (2):

Kathy J. Ragla v. Review Board of the Indiana Department of Workforce Development and Wendy's of Fort Wayne, Inc. (NFP)

Bradley J. Oskey v. Review Board of the Indiana Department of Workforce Development and CL Schust Company, Inc. (NFP)

NFP criminal opinions today (4):

Efren Radillo Diaz v. State of Indiana (NFP)

Charles James Popp v. State of Indiana (NFP)

Jeannie A. Dickman v. State of Indiana (NFP)

Jason A. Mejia v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 20, 2013
Posted to Ind. App.Ct. Decisions