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Thursday, February 21, 2013

Ind. Gov't. - The "bill pending rule"

The "bill pending rule" was used this afternoon to prevent the insertion of Gov. Pence's tax cut into the budget bill on 2nd reading in the House.

The Rule is #118, in the House Rules on p. 13.

For more on this topic, see this March 2, 2005 ILB post headed "Ind. Law - So, how "dead" are these bills, really?"

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Government

Ind. Courts - Some general principles regarding Indiana grand juries

Re grand jury transcripts, as referenced today in this post, I asked Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law for a little information about grand juries.

Prof. Schumm responded that the Indiana Supreme Court has summarized general principles regarding grand juries (in Hinojosa v. State, 2003) as follows:

At the outset, we note that the general rule regarding grand jury transcripts is that they be kept secret. Ind. Code § 35-34-2-4(i) (1998). See footnote Indiana does not even recognize an absolute right of the accused to the pre-trial examination of grand jury minutes. Blackburn v. State, 260 Ind. 5, 291 N.E.2d 686 (1973), cert. denied, Blackburn v. Indiana, 412 U.S. 925, 93 S. Ct. 2755 (1973); Mahoney v. State, 245 Ind. 581, 201 N.E.2d 271 (1964), overruled on other grounds by Antrobus v. State, 253 N.E.2d 873 (Ind. 1970). In fact, it is a criminal offense to “knowingly and intentionally” disclose information acquired in a grand jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a) (1998).

However, the Legislature has created an exception to the general rule of secrecy by granting trial judges the discretion to release evidence in certain circumstances where a “particularized need” can be shown. See Ind. Code § 35-34-2-10(b) (1998).

He continued: I don't know about other counties, but the Local Rules in Marion County require the prosecutor to disclose:
(3) A transcript of those portions of grand jury minutes containing testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Courts

Ind. Gov't. - More on "Lawmakers could leave key decisions about the future of the $2.6 billion Rockport coal-to-gas plant in the hands of the Indiana Supreme Court"

Updating this ILB post from this morning, Chris Sikich's story this afternoon in the IndyStar is headed "Senate committee rejects new Rockport ratepayer safeguards." It begins:

The Indiana Senate Utilities Committee today declined to add ratepayer protections to a controversial $2.8 billion coal gasification plant to be built in Rockport on the banks of the Ohio River in Spencer County.

Now, the full Senate will debate the bill. If the bill passes the Senate as written, ratepayers throughout Indiana would have to make up financial loses by the plant.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Government

Ind. Gov't. - "The price for autopsies at the Tippecanoe County coroner’s office increased Tuesday"

The Lafayette Journal Courier reported Feb. 19th:

Coroner Donna Avolt asked the county commissioners to increase the fee charged to 11 outside counties that perform autopsies at the office on Sixth Street. The fee pays for consumables — the gloves, masks, aprons, footies. The price for these items have risen, Avolt said, noting the last time the fees were increased was 2007.

The commission approved increasing the fee from $200 to $300 for regular autopsies. The commissioners also approved a new fee for families that want to remove organs during an autopsy for transplant.

“If a family member chooses to have their loved one go for organ donations, primarily long bone and skin, they can use our facility because it’s a sterile environment,” Avolt said.

That fee is $500. * * *

Counties that use the Tippecanoe County coroner’s office for autopsies must arrange for a pathologist and pay the doctor’s fees.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Government

Ind. Decisions - More on the Brewington appeal, plus links to certain grand jury transcripts

Supplementing this ILB post of Feb 18th, and this one from Feb. 19th, the Fort Wayne Journal Gazette plays catch-up to SE Ind's EagleCountry 99.3FM with this editorial column today.

Dan Brewington's Blog today has a post titled "Looking at the Grand Jury Process in Indiana through Dan Brewington's Case," with links to certain Grand Jury Transcripts for his case.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Former Lake County Coroner and Clerk Thomas Philpot sentenced to 18 months for public corruption"

Bill Dolan of the NWI Times has the story this afternoon. The story begins:

HAMMOND | Senior U.S. District Court Judge James T. Moody sentenced former Lake County Clerk Thomas Philpot to 18 months in prison for pocketing more than $24,000 from child support incentive funds he controlled while in public office.

Philpot, who also served as Lake County coroner, was ordered to surrender to a federal correctional institution in Pekin, Ill., on April 3. Federal defendants usually serve at least 85 percent of there sentence, which means Philpot likely will spend at least 15 months in prison.

Philpot served 10 years as Lake County coroner and six years as county clerk between 1992 and 2012.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Ind Fed D.Ct. Decisions

Law - "What (Legally) Happens to Our Social Media Accounts When We Die?"

This new post on The Volokh Conspiracy, authored by Kenneth Anderson, points to this 67-page student Comment, “What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Postmortem,” by Kristina Sherry, appears in the December 2012 Pepperdine Law Review (40 Pepp. L. Rev. 185 (2012).

BTW, Part I is headed "(Don't) friend) the reaper: An introduction to digital death's complexities."

And under "State legislative responses," Indiana's provisions re electronic access rights and the custodian are discussed on p. 34 of the document.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Curtis Tyrell Cutler v. State of Indiana, an 8-page opinion, Sr. Judge Shepard writes:

A few weeks after the effective date of Indiana’s new rule requiring that custodial interrogations be recorded as a condition of admissibility, appellant Curtis Tyrell Cutler broke into Tymesha Coleman’s home and stole her television, her computer, and the like.

The question Cutler’s appeal presents is whether the State may impeach a testifying defendant by using a prior custodial statement that was indeed recorded but was not “available at trial” as required by Evidence Rule 617 because neither defense counsel nor the prosecutor knew of its existence until trial was under way.

We conclude that the trial court did not err in permitting use of the statement for impeachment, and affirm the conviction. * * *

The trial court overruled Cutler’s objection, noting that even a statement taken in violation of Miranda v. Arizona may be used at trial against a testifying defendant. “The theory being,” said the trial judge, “that if a defendant chooses to take the stand he can’t be insulated from his prior statements and that those statements can be used for impeachment purposes only.” Tr. p. 96. The Indiana Supreme Court has recognized this principle, citing the U.S. Supreme Court. Page v. State, 689 N.E.2d 707, 710 (Ind. 1997) (citing Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46, 28 L. Ed. 2d 1, 4-5 (1971)) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances.”). In accord with these authorities, the trial court promptly instructed the jury that the statements from Cutler’s interrogation could be considered “if at all, solely in evaluating his credibility as a witness.”

NFP civil opinions today (0):

NFP criminal opinions today (2):

Robert A. Carmer v. State of Indiana (NFP)


David Purlee v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Lawmakers could leave key decisions about the future of the $2.6 billion Rockport coal-to-gas plant in the hands of the Indiana Supreme Court"

So begins the lede to this long story today by Eric Bradner in the Evansville Courier & Press:

INDIANAPOLIS — Lawmakers could leave key decisions about the future of the $2.6 billion Rockport coal-to-gas plant in the hands of the Indiana Supreme Court under legislation set to receive a vote Thursday in the Senate Utility Committee.

The proposal is the latest wrinkle in this year’s wrangling over whether the state should try to get out of its 30-year contract with the plant’s developers. It would have the Indiana Utility Regulatory Commission re-examine the deal if – and only if – courts ultimately declare it invalid.

The committee’s chairman, Sen. Jim Merritt, R-Indianapolis, authored the measure as an amendment to a bill that would have left the plant dead in its tracks. If courts kick the issue back to utility regulators, Merritt's proposal would instruct them to consider whether the project and the rates associated with it are in the "public interest."

Compared to the original bill, it’s a victory for Leucadia National Corp., which is financing the plant, and a set-back for a coalition of opponents led by Vectren Corp. and including several natural gas companies and consumer advocates.

“All the air is out of the balloon, but I really believe the IURC should be making these decisions, rather than the legislature. They are experts – they do this 24/7,” Merritt told the Courier & Press.

The Indiana Court of Appeals last year voided the contract, citing a specific provision that developers and the state quickly sought to remedy. Last week, the court turned down Vectren’s push to vet other portions of the deal.

That leaves the contract’s status in doubt. Leucadia officials insist that after the quick fix it’s now valid and just needs the IURC to green-light the tweak, and Vectren argues it’s not. That could make the Indiana Supreme Court the ultimate arbiter.

There is much more to the story.

See also this Feb. 14th story by Bradner, headed "Court of Appeals declines further review of proposed Rockport coal-to-gas plant."

See also this Feb. 14th ILB entry.

Here is the bill at issue, SB 510.

ILB: Several random points come to mind:

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Government

Ind. Gov't. - More on: "Indiana should expand Medicaid"

Updating this ILB entry from Feb. 19th, Jason Millman of Politico.com reports this morning:

Florida Gov. Rick Scott — a fierce foe of Obamacare who fought it all the way to the Supreme Court — on Wednesday announced that he would accept the Medicaid expansion under the health law.

He is the seventh GOP governor to do so — and arguably the biggest political symbol of grudging Republican acceptance that Obamacare is the law of the land.

Scott had campaigned against the health legislation even before he began running for office, and Florida led the 26 states that fought it in court. * * *

“While the federal government is committed to paying 100 percent of the cost of new people in Medicaid, I cannot in good conscience deny the uninsured access to care,” he explained in a speech late Wednesday. * * *

The road from Obamacare foe to Medicaid expander was a long and strange journey for Scott, a former hospital executive who spent millions four years ago in a failed attempt to derail the health care bill in Congress.

From there, he launched a gubernatorial bid in Florida, took office in 2011 and quickly aligned himself with Govs. Rick Perry of Texas and Bobby Jindal of Louisiana — outspoken conservatives who have refused to lift a finger to implement Obamacare.

A second Politico story this morning begins:
The next stage of Obamacare is shaping up into a fight between two camps of Republican governors sure to duke it out in the 2016 presidential primary — ideologues versus pragmatists.

The ideological purists are big-name Southern governors — like Bobby Jindal, Nikki Haley, Bob McDonnell and Rick Perry — who have all said “hell no” to major pieces of the law, even turning down free federal cash to expand Medicaid in their states.

The more pragmatic governors are rising Republican stars in the rest of the country — like Chris Christie, John Kasich and Susana Martinez — who’ve embraced pieces of the law or left the door open to doing so if there seems to be a political upside in their state.

And on Wednesday, they won a big convert to their side: Florida's Rick Scott, the governor of the state that launched the lawsuit against Obamacare, announced he’s going to expand Medicaid under the law — at least for three years.

Posted by Marcia Oddi on Thursday, February 21, 2013
Posted to Indiana Government