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Friday, February 22, 2013

Courts - "Judges Urged to Think Before ‘Liking’"

Per an ABA guideline, via this post by Jacob Gershman at the apparently now subscription only WSJ Law Blog. A quote:

[J]udges shouldn’t get too cozy online, advises the American Bar Association.

Using social media “can be beneficial to judges to prevent them from being thought of as isolated or out of touch,” the ABA stated in code-of-conduct guidelines issued Thursday. But the association urged judges to think before “friending,” “liking,” or “following” someone.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Courts in general

Ind. Law - General Assembly adds new, improved word search tool, plus a look at future plans

New Search Tool. Access it from the General Assembly's main page, choose "Advanced Search." It allows very sophisticated searches across the entire Indiana Code and other documents.

Future Plans for GA Website. Recall this ILB post from Dec. 4, 2012, re the General Assembly's (LSA's) plans to replace existing legislative information systems.

The ILB has learned from the LSA of its plans to replace the existing site's API (application programming interface). Here is a notice LSA is sending out to those who may be affected - I've volunteered to post it here on the ILB:

Beginning December 2013, the Indiana General Assembly will have a redesigned website.

As part of this redesign, third party developers will be provided information on how to access legislative information using a RESTian API. The API will be published in June, 2013, and will provide a platform for testing sample documents.

If you would like to be notified when the API is available please send a request to bamos@iga.in.gov.

(ILB: Re what is a "RESTian API," it is a web API that facilitates sharing content and data between communities and applications. See Wikipedia entries on API and REST.)

The ILB plans to write next week on how these changes potentially may affect you and I as end users. For instance, as of now it is likely the new API will not be designed to preserve or redirect to existing links. So links to bills, Code cites, and the like in past posts of the ILB, as well as links in court opinions, briefs, and other documents, will be broken. There may be other ramifications; these are the first that come to mind. Thoughts?

Another change I'm told is being considered is dropping the HTML version of bills and perhaps the HTML version of the Indiana Code, leaving only PDF. The ILB has some problems with the impact of this change, which I will spell out next week. Again, thoughts from readers? LSA is giving us an opportunity to point out potential issues before the fact.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Indiana Law

Ind. Gov't. - "Outgoing juvenile court judge needs additional weeks to tie up loose ends"

Updating earlier ILB posts on Judge Bonaventura's appointment by Gov. Pence as the new Department of Child Services (DCS), Bill Dolan of the NWI Times reports today:

CROWN POINT | Lake Juvenile Court Judge Mary Beth Bonaventura said Friday she is delaying her departure from the bench, but only for a few weeks.

"Some people told me they think I'm not retiring and were getting excited about that, but I only need a little more time. There are no hidden agendas," Bonaventura said with a laugh Friday on her way into court where she had to personally preside over a case that she said was taking longer to wrap up that she first expected. * * *

"The governor's chief of staff said they really need me to start as soon as I can. I told them March would be pushing it for me, but in my excitement to start my new job right away I said March 1, thinking that would work.

"I am sad at leaving, but I thought it would be easier. I never realized how many cases I have out there and am still wrapping up after 31 years on this job. I have a hearing this morning in a special judge case I cannot hand off to my magistrates, so I asked the governor's office if I could take a week or two longer and they said yes."

Bonaventura's extended stay will also delay Lake Superior Court, County Division Judge Nicholas Schiralli transfer to become the new Lake Juvenile judge.

Once Schiralli transfers and no other Superior Court judge changes courtrooms, the Lake County Judicial Nominating Commission will meet to fill a Superior Court judicial vacancy by accepting applications from county attorneys. The commission will chose three finalists whose names will be forwarded to Gov. Mike Pence for his appointment later this spring.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Second opinion today from Supreme Court

In Sickels v. State, a 6-page, 5-0 opinion, Justice Rush writes:

In this case, the trial court determined that the custodial parent was the “victim” for purposes of criminal restitution for the noncustodial parent’s failure to support his dependent children. At the time the trial court ordered restitution, the children were adults and emancipated.

On direct appeal, the Court of Appeals, sua sponte, held that it was “erroneous” for the trial court to order the noncustodial parent to make restitution to the custodial parent. Specifically, the Court of Appeals held that the custodial parent was not a “victim” of the noncustodial parent’s crimes and that restitution was payable to only the children.

We hold that the trial court was well within its discretion to find that the custodial parent was the “victim.” * * *

Importantly, we do not hold that a custodial parent whose children are now emancipated is the only possible “victim” under these circumstances but that a custodial parent is entitled to a presumption that he or she has suffered an “injury, harm or loss” as a direct result of the noncustodial parent’s failure to pay child support. As a result, and barring an unusual circumstance, the custodial parent will be the recipient of criminal restitution for child-support arrearage in cases where the children have been emancipated. Furthermore, given the Court of Appeals’ broad language in its opinion, we must stress that this principle applies with even greater force when dependent children are involved—in those cases, criminal restitution for a support arrearage is payable only to the custodial parent.

Sound public policy and established legal precedent support these conclusions. Remitting restitution awards directly to a child could create concerns regarding the enforcement of orders. In the event the noncustodial parent does not follow the order, a dependent child would possibly be placed in the untenable position of having to figure out enforcement procedures or hiring a lawyer to do so. Furthermore, neither an emancipated nor a dependent child should be placed in an adversarial (and likely awkward) role against his or her noncustodial parent. Having the custodial parent as the “payee” in these instances eliminates these potential unnecessary hardships and recognizes that a custodial parent should be compensated for assuming the costs of supporting the children.

Conclusion. We summarily affirm the Court of Appeals on all issues but one: whether Kathy, as the custodial parent, was a “victim” of Sickels’ crimes and is thus entitled to the court-ordered restitution for child-support arrearage. We hold that the trial court was within its discretion to determine that restitution was payable to the custodial parent, despite the fact that the children were emancipated, and thus affirm the trial court on this issue. As consistent with the Court of Appeals opinion, the case is remanded to the trial court to clarify the amount of the restitution award and correct any court documents that refer to a civil judgment.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit denies rehearing en banc petition in gun case

Updating this ILB entry from Dec. 16, 2012, re Michael Moore v. Lisa Madigan, AG, its opinion striking down a statewide ban on carrying concealed weapons, the Circuit Court today, by a 5-4 vote, denies a petition to grant rehearing en banc. Here is the denial, including Judge David F. Hamilton’s dissent from the denial of rehearing en banc, joined by Judges Rovner, Wood and Williams. The dissent begins:

I respectfully dissent from the denial of rehearing en banc in these cases. The Supreme Court has not yet decided whether the post- Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home. The panel’s split decision in these cases goes farther than the Supreme Court has gone and is the first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public. Until the Supreme Court faces the issue, the state of the law affecting people in Illinois, Wisconsin, and Indiana is an important question worthy of en banc consideration to decide whether to affirm, reverse, or remand for further factual development. Without undue repetition of Judge Williams’ persuasive panel dissent, three points deserve emphasis at this en banc stage of the proceedings.

First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. (7th Cir.) Decisions

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

In Northeastern Rural Electric v. Wabash Valley Power (SD Ind., Barker), a 30-page ruling, Judge Hamilton writes:

This appeal tests the boundaries of federal-question subject matter jurisdiction. The issue is whether a claim for breach of a longterm requirements contract for wholesale electricity arises under federal law or state law. We conclude that the claim arises under state law, that the district court therefore lacked jurisdiction to enter its preliminary injunction, and that the case should be remanded to state court. * * *

Northeastern has pled a state law breach of contract claim that does not arise under federal law. The claim does not seek to enforce or challenge any duty or liability created by a federally-filed tariff, nor does the claim necessarily arise under federal law through complete preemption. In light of this conclusion, we also of course reject Wabash Valley’s request for sanctions on the theory that the appeal was frivolous. Because the district court lacked jurisdiction to issue its preliminary injunction, we VACATE the preliminary injunction and REMAND the case so that the district court may remand it to state court.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Clematine Hollingsworth v. State of Indiana , a 6-page opinion, Judge Friedlander writes:

Following a bench trial, Clematine Hollingsworth was convicted of Public Intoxication, a class B misdemeanor. Hollingsworth appeals and argues that the failure to retroactively apply a recent amendment to the public intoxication statute to her offense constituted fundamental error. We affirm. * * *

Hollingsworth also argues that “this would not be the first case where the issue of retroactive application of a remedial statute was raised for the first time on appeal.” In support of this assertion, Hollingsworth cites Martin v. State, 774 N.E.2d 43 (Ind. 2002) and Palmer v. State, 774 N.E.2d 46 (2002). In both of those cases, however, the relevant statutory amendments at issue took place while the defendant’s appeal was pending. In this case, the General Assembly approved the amendment to the public intoxication nearly two months before Hollingsworth committed the instant offense, and the amendment took effect the day before Hollingsworth’s trial. Unlike the defendants in Martin v. State and Palmer v. State, Hollingsworth had the opportunity to raise the issue of retroactivity before the trial court and failed to do so. The purpose of the contemporaneous objection rule is “to promote a fair trial by precluding a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him.” Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied. The rule serves this purpose by requiring parties to timely raise objections “so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id. We decline to abandon the contemporaneous objection rule here.

In Nathan Carl Gilbert v. State of Indiana , a 10-page opinion, Judge May concludes:
Gilbert’s return to Kentucky following his guilty plea hearing but before his sentencing hearing did not violate the IAD anti-shuffling provision because sentencing is not included in those parts of criminal proceedings protected as part of the IAD; we therefore affirm Gilbert’s convictions of four counts of Class B felony burglary. However, Gilbert’s due process rights were violated because he did not have enough time to examine his pre-sentence investigation report, call witnesses, or otherwise prepare for his sentencing hearing. We accordingly reverse his sentences and remand to the trial court for resentencing.
InJoshua King v. State of Indiana , an 8-page opinion, Judge May writes:
Joshua King appeals his convictions of Class C felony battery, Class A misdemeanor battery, and Class D felony strangulation. He submits four issues for our review, which we consolidate and restate as:
1. Whether the trial court violated King’s rights under the Confrontation Clause when it admitted testimony by Officer Philip Rossman;
2. Whether the trial court abused its discretion when it admitted recordings of calls King made to the victim from jail; and
3. Whether the trial court erroneously listed one of King’s convictions as a Class C felony instead of a Class A misdemeanor.
We affirm and remand. * * *

The trial court did not abuse its discretion when it admitted Officer Rossman’s testimony. Further, any error in admission of evidence from Carpenter and Nurse Anderson was harmless as cumulative of Officer Rossman’s testimony. Finally, the trial court did not abuse its discretion when it admitted the recordings of calls King made to C.M. from jail. However, the Abstract of Judgment incorrectly lists King’s second battery conviction as a Class C felony, and we remand for correction of the Abstract of Judgment.

NFP civil opinions today (2):

Shawn W. Nicosin v. William J. Mesaeh and Loretta D. Mesaeh (NFP)

Pablo C. Gallo v. Sandra Moira Hyland (NFP)

NFP criminal opinions today (3):

John Kennendy v. State of Indiana (NFP)

Kelvin Hampton v. State of Indiana (NFP)

Kevin Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on Supreme Court decision today in K.W.

As mentioned in this Jan. 11th ILB post, the oral argument in K.W. v. State is definitely worth watching. The justices are very engaged. Prof. Schumm argues on behalf of K.W. In addition, there is discussion of a brief video of the school encounter.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

And it is Justice Rush's first opinion as a Supreme Court justice.

In KW v. State, a 5-page, 5-0 opinion, Justice Rush writes:

A school liaison officer intervened in a hallway scuffle between K.W. and another student. K.W. turned away from the officer’s effort to handcuff him, and was adjudicated delinquent for resisting law enforcement. We granted transfer, and now reverse because there is insufficient evi-dence that K.W. acted “forcibly,” as the offense of resisting law enforcement requires.

We also invite the Legislature to consider whether to bring school-resource officers — police officers privately employed by schools for school security and disciplinary purposes — within the ambit of the resisting-law-enforcement statute. The current statute applies to law-enforcement officers only when they are engaged in law-enforcement duties, which does not always apply to the different, though important, duties of a school officer. A common-law resolution of that question would risk unintended consequences, but a narrower legislative approach may be appropriate. * * *

We recognize it is somewhat anomalous that two uniformed law-enforcement officers responding to the same school incident could be treated differently for purposes of resisting law enforcement, if one was purely an “outside” officer while the other was a school-resource officer. School-resource officers serve a vitally important role in maintaining school safety and order against a growing range of discipline problems and threats, and we in no way diminish the value of their work. Yet we are also reluctant to risk blurring the already-fine Fourth Amendment line between school-discipline and law-enforcement duties by allowing the same officer to invisibly “switch hats” — taking a disciplinary role to conduct a warrantless search in one moment, then in the next taking a law-enforcement role to make an arrest based on the fruits of that search. * * *

Because there is insufficient evidence that K.W. forcibly resisted Sergeant Smith, we reverse the trial court and vacate K.W.’s delinquency adjudication.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Ind. Sup.Ct. Decisions

Law - TIME report "reveals the shocking degree to which we enrich pharmaceutical companies, medical device makers, hospital administrators, laboratories and medical suppliers with lavish profits at the expense of patients"

The daily POLITICO Playbook yesterday included this recommendation:

CLICK DU JOUR – TIME cover story, “BITTER PILL: Why medical bills are killing us”: “TIME Contributor Steven Brill ... spent seven months analyzing bills from hospitals, doctors, drug companies and every other player in the American healthcare ecosystem ... He writes, ‘With Obamacare we've changed the rules related to who pays for what, but we haven't done much to change the prices we pay.’ ... The 36-page investigation, the longest single piece ever published by a single writer in TIME, reveals the shocking degree to which we enrich pharmaceutical companies, medical device makers, hospital administrators, laboratories and medical suppliers with lavish profits at the expense of patients. Brill explains that hospitals arbitrarily set prices based on inconsistent and subjective lists known as ‘chargemasters.’ These prices vary from hospital to hospital and are often marked up as much as 10,000% the actual cost of an item.”

--TIME Managing Editor Rick Stengel:
“If the piece has a hero, it’s ... Medicare, [which] by law can pay hospitals only the approximate costs of care. It’s Medicare, not Obamacare, that is bending the curve in terms of costs and efficiency. Brill ... argues that lowering the age of Medicare entry, not raising it, would lower costs. And that allowing Medicare to competitively price and assess drugs would save billions ... Asking wealthy Medicare recipients for higher co-pays would make sense.” Story and cover

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to General Law Related

Courts - "Pa. Supreme Court Justice Joan Orie Melvin, sister Janine Orie found guilty on almost all counts"

That is the headline to this long story this morning, reported by Adam Brandolph and Bobby Kerlik, in Western Pennsylvania's TribLive. A few quotes:

“This jury, having sat in a court of law, heard the truth about the defendant's conduct and has made it absolutely clear that no one is above the law irrespective of title or status,” said District Attorney Stephen A. Zappala Jr.

His office accused the sisters of conspiring to use Melvin's then-Superior Court employees and the employees of a third sister, former state Sen. Jane Orie, for political work. The former senator is serving 2 1/2 to 10 years in prison on similar charges.

This story, by Paula Reed Ward and Karen Langley of the Pittsburgh Post-Gazette, looks at the legal details of removal from office.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Courts in general

Ind. Law - "Indiana's debate over ultrasounds the most recent in national trend"

That is the headline to a long story this morning in the Lafayette Journal Courier, reported by Hayleigh Colombo, accompanied by a map showing the company Indiana will keep if the bill becomes law. A few quotes from the story:

Indiana is the most recent state whose legislature will play out the fight over abortions on a fuzzy, black-and-white ultrasound screen.

What started as a debate last year about the legality of Planned Parenthood’s Lafayette Health Center to offer nonsurgical abortions to women in the form of a pill has turned into a plan in the Republican-controlled Indiana Senate to broaden the definition of an “abortion clinic.”

The bill, as it turns out, also requires women seeking a nonsurgical procedure to end her pregnancy, to undergo two ultrasounds, one before and one after.

If the bill — passed Wednesday by a Senate committee — became law, Indiana would shoot near the top of the list of states with strict ultrasound requirements in states across the U.S.

Posted by Marcia Oddi on Friday, February 22, 2013
Posted to Indiana Law