Monday, February 25, 2013
Ind. Courts - Do you have to have been a judge to be named a senior judge?
The details of Indiana's senior judge program are set out at the end of this ILB post from Feb. 15th. Administrative Rule 5(B)(3) discusses the qualifications for senior judge status. The answer to whether you have to have been a judge to be named a senior judge is in Rule 5(b)(3) at (a), which provides that the Judicial Nominating Commission is required to certify that the person:
(i) has served in their judicial capacity for at least four (4) years andThis biography from her firm page states that Lisa Traylor-Wolff, the subject of this ILB post from earlier today, "is a former Superior Court Judge for Pulaski County."
(ii) at least one of those years was within five (5) years of the application or, in the event the four years of service was more than five (5) years prior to the application, has served at least thirty (30) days as a senior judge during a calendar year within five (5) years of the application;
except that the Indiana Judicial Nominating Commission may, upon the finding of exceptional circumstances, waive the foregoing criteria and certify a senior judge with less service than specified above;
Ind. Courts - Disciplinary charges filed against senior judge [Updated]
The Supreme Court press office has announced:
The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Lisa Traylor-Wolff, a senior judge serving in Pulaski and Fulton Counties. The charges stem from allegations that Judge Traylor-Wolff had an inappropriate relationship with a criminal defendant she represented.[Updated at 2:50 PM] WRTV6 adds this information about Ms. Traylor-Wolff.
The charges (attached as downloadable PDF document) are filed in the Appellate Clerk’s Office in Indianapolis by the Commission on Judicial Qualifications. The Commission charges that Judge Traylor-Wolff violated the Code of Conduct. The charges are allegations—only the five members of the Supreme Court can determine what, if any, allegations are true. * * *
The charges center on allegations that Judge Traylor-Wolff had a physically intimate relationship with a twenty-six-year-old client that she represented. Traylor-Wolff was appointed to represent a defendant on felony charges. The defendant was eventually convicted and sentenced to the Department of Correction (DOC). Traylor-Wolff continued representing the client on appeal. The Commission alleges she began a romantic relationship with the client while representing him. The Commission also alleges inappropriate conduct occurred when Traylor-Wolff and the client were in an attorney-client visitation room at the Miami Correctional Facility.
Traylor-Wolff, who did not ask to be recertified as a senior judge in 2013, faces a total of three charges of violating the Code of Judicial Conduct. * * *
Judge Traylor-Wolff has the opportunity to file what is called an “Answer” to the charges. That Answer must be filed with the Appellate Clerk within twenty days of receiving notice of the charges. After the Answer is filed, or when twenty days has passed, the Indiana Supreme Court will appoint three Masters to conduct a public hearing.
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
In Jose Maldonado-Morales v. State of Indiana , a 7-page opinion, Sr. Judge Sharpnack writes:
Jose Maldonado-Morales appeals his conviction of domestic battery in the presence of a child, a Class D felony. Ind. Code § 35-42-2-1.3 (2006). We affirm.NFP civil opinions today (5):
The sole issue in this appeal is whether the trial court abused its discretion when it instructed the jury on the doctrine of transferred intent. * * *
In a muddled argument, Maldonado-Morales appears to claim that the transferred intent instruction was improper in this case because domestic battery (the offense he committed by hitting Justo) and battery (the offense he would have committed had he hit Ortega) are distinct offenses that require a different mens rea such that transferred intent cannot apply. * * *
Thus, the two offenses of battery and domestic battery do not require a different mens rea as suggested by Maldonado-Morales; rather, both offenses require a showing beyond a reasonable doubt of a “knowing or intentional” touching in a rude, insolent, or angry manner. The additional elements are facts that the State must prove beyond a reasonable doubt; however, there is no requirement that the state prove that Maldonado-Morales acted knowingly or intentionally as to the status of the victim or the presence of a child.
NFP criminal opinions today (6):
Ind. Law - Daniel Schuetz, public defender and attorney with Franklin law firm, dies at 38
The Franklin Daily Journal has a brief story here. Some quotes:
An attorney with a Franklin law firm died over the weekend died of a heart attack, according to Bartholomew County Coroner Larry Fisher.Prof. Joel Schumm recalls a 2010 Supreme Court opinion in a termination case where he co-counseled with Mr. Schuetz, I.B. v. DCS.
Daniel Schuetz, 38, collapsed late Saturday morning while exercising at a fitness center in Columbus. Efforts to revive the attorney at the fitness center were unsuccessful. Schuetz was taken to Columbus Regional Hospital where he was pronounced dead an hour after his collapse.
Schuetz was an attorney with the Eggers Woods law firm. * * *
While the attorney joined the Eggers Woods law firm in Franklin a few years ago, [Columbus attorney R. Kent Witte] said the Schuetz family, which includes young daughters, Gretta and Gabby, lived in Columbus.
Schuetz has served as a public defender in Bartholomew County for more than six years.
Funeral services are pending through Barkes, Weaver & Glick Funeral Home in Columbus.
Ind. Decisions - Transfer list for week ending February 22, 2013 [Updated]
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the January 11, 2013 list.]
Here is the Clerk's transfer list for the week ending Friday, February 22, 2013. It is two pages (and 18 cases) long.
One transfer was granted last week, with opinion.
- Kathleen Peterink v. State of Indiana - see the ILB summary here.
Transfer Vacated and Denied - David, Massa, and Rush, JJ., concur. Rucker, J., dissents with separate opinion in which Dickson, C.J., concurs.[More] Here is the order in Wells. A quote: "[T]he Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals not-for-publication memorandum decision, Wells v. State, No. 49A05-1012-CR-731 (Ind. Ct. App. Sept. 22, 2011), should be reinstated as a memorandum decision."
[Updated 2/27/13] Attached to the order is an 11-page dissent ("Rucker, J., dissents with separate opinion in which Dickson, C. J., concurs.") It begins:
Defendant seeks interlocutory review of the trial court’s order denying his motion for severance of offenses pursuant to Indiana Code section 35-34-1-11. Passing on the opportunity to provide guidance and clarity on an area of the law in need of both, the majority declines to address the defendant’s arguments. I would grant transfer and do so. Therefore I dissent from today’s order denying the defendant’s Petition to Transfer. * * *
[O]ur traditional approach is in need of reconsideration. Therefore, based on the foregoing discussion of the interplay between statutory severance and the Indiana Rules of Evidence I would grant transfer and remand this cause to the trial court for a hearing to determine (1) whether the offenses with respect to each alleged victim are of the same or similar character; (2) whether evidence of each of the offenses is relevant to some material issue at trial of all the other offenses under Indiana Evidence Rule 404(b); and (3) whether the evidence of the other offenses even though relevant should be excluded under Indiana Evidence Rule 403.10 If the hearing reveals that evidence of the offenses for which Wells is charged would be inadmissible in separate trials of the same offenses, then he would be entitled to severance as a matter of right under Indiana Code section 35-34-1-1. Otherwise Wells would not be so entitled.
Ind. Gov't. - Indiana Horse Racing Commission unhappy with ALJ contract
Indiana Gaming Insight's (subscription only, quoted with permission) newsletter for the week of Feb. 25, 2013, which subscribers received last Thursday, Feb. 21st, had a front-page story reporting that "horsemen are not happy with the contract of IHRC Administrative Law Judge Kathryn Janeway Hostetter." More from the story:
[Indiana Breeder & Owner Protection, Inc. (IBOP) Vice president Jim Hartman] notes that both of Judge Hostetter’s contracts have a provision in which “The Contractor warrants that it has no current, pending or outstanding criminal, civil, or enforcement actions initiated by the State, and agrees that it will immediately notify the State of any such actions.”In a long story dated Feb. 22nd, and headed "IHRC Cuts Ties with Administrative Judge," Ron Mitchell of BloodHorse.com reported:
However, Hartman explains, “Unless the commission has a different definition of ‘no current, pending or outstanding criminal’ actions, given her February 24, 2012 conviction for operating a vehicle while intoxicated endangering a person, she could not warrant any such thing.”
She was arrested in February 2012 in Hendricks County on charges of Operating a Vehicle While Intoxicated Endangering a Person; Following too Closely; and Speeding (School Zone) according to court records. In a case that required a special prosecutor and a special judge from another county.
Why the need for a special prosecutor and special judge? Her day job at the time. IBOP tells commissioners that she was immediately terminated from her role as a Deputy Prosecutor for Hendricks County (Ind.) upon her first arrest on February 8, 2012 [and], is not eligible for rehire. * * *
She received a one-year jail sentence with credit for two days and 363 days suspended while she served probation. She also enrolled in a treatment program at IU Health at Methodist Hospital after her arrest.
With this knowledge, and finding that she was “in full compliance with [IU Health’s] recommended treatment program” the Indiana Supreme Court on January 28, 2013 approved a “Statement of Circumstances and Conditional Agreement for Discipline” which included a Public Reprimand of Hostetter for her conduct. * * *
Unfortunately, local court records again find that on December 3, 2012, Judge Hostetter was slapped with five new charges, including a pair of class D felony charges for Operating Vehicle While Intoxicated; Prior Conviction, as well as two new class A misdemeanors: Operating A Vehicle While Intoxicated; Endangering A Person, and “Oper Veh w/ Alcohol Concentration Equivalent to .15 or More. She was also hit with two more infractions for Following too Closely and Speeding; Speed Unreasonable Under Conditions/Too Fast to Avoid Collision. A “Petition to Revoke Probation” was filed on February 12, and a criminal summons was issued.
In light of all this, IBOP’s Hartman questions the ALJ’s behavior in the high-profile matter of owner-trainer Janey Adams after a three-day hearing.
He alleges that Judge “Hostetter’s indifference was very evident. Other than not understanding that the severity of Ms. Adams’ proposed penalty was at issue, which is egregious enough, after months of being involved in the case, Mrs. Hostetter had to ask (page 591 of the transcript) if a stay had been granted Ms. Adams. Yet, Mrs. Hostetter was the ALJ who denied Ms. Adams’ petition for a stay in the first place. In my opinion, and none of this is the opinion of the IBOP Board, Mrs. Hostetter should have never been in that position.”
Hartman added that “I’m also frustrated in the fact that the Indiana Supreme Court Disciplinary Committee feels that operating a vehicle while intoxicated endangering a person, apparently through a school zone, meets with only a public reprimand and no suspension of a license and the State sentenced her to a one year probation. Yet, Mrs. Hostetter could somehow support a loss of a license for 10 years for mistreatment of an animal which in Indiana’s criminal code is a lesser offense than what she has committed herself.” He adds, “My guess is that the Indiana Supreme Court Disciplinary Committee and the State of Indiana will look differently on Mrs. Hostetter’s second arrest for operating a vehicle while intoxicated endangering a person in December, 2012.”
An administrative law judge recently charged with her second offense for driving while intoxicated within a year will no longer do work for the Indiana Horse Racing Commission.
The judge, Kathryn Janeway Hostetter, is one of three people who have been handling disciplinary cases for the IHRC. Hostetter was appointed in 2008 to a four-year term as an administrative law judge for the commission. That contract expired in early 2012 and was renewed in mid-2012. * * *
Lea Ellingwood, general counsel for the IHRC, said Feb. 22 that the commission has contacted the state Supreme Court's disciplinary commission about the second arrest and will no longer be assigning any cases to Hostetter, although she remains under contract.
"We have taken action and are contemplating additional action," Ellingwood said. "She does not have any cases pending and, for all intents and purposes, she will not be conducting any more work for the horse racing commission."
Unlike Hostetter's first arrest, she failed to inform the commission of the second offense, as required under her contract, Ellingwood said.
Ind. Law - More on: Ag-gag bill moves to the full Senate
[SB 373] is unnecessary and the cost is too great, not only to investigative journalists, animal rights activists and other keenly interested parties, but also to the general public. * * *
Responding to concerns about the broadness of the legislation, the author, Sen. Travis Holdman, R-Markle, amended it to exempt from prosecution those who turn their photos or videos over to law enforcement or a state regulatory agency within 48 hours. Critics point out, however, that some exposes have been undertaken precisely because the authorities failed to do their job. Sometimes, they have spotlighted conditions that were not illegal but were disturbing enough to inspire new laws.
When government fails to fulfill its watchdog duty, citizens, especially but not exclusively in the news media, must take on that role. A law that preemptively criminalizes that process does a disservice to the public as a whole by blocking the flow of information that may be vital to health and safety. The First Amendment guarantee of press and speech freedom exists to maintain that flow. Senate Bill 373 would do the opposite, in pursuit of a goal that can be met without it.
Ind. Courts - New parenting-time guidelines focus on parent cooperation. Update is state’s 1st since 2001"
The new guidelines came after years of collecting comments from judges, lawyers, custodial rights advocates, other experts and the public. The 33-page document clears up some murky areas in the old guidelines and put front and center a “spirit of cooperation” between parents and attorneys in carving out what is best for children, according to additions to its preamble. * * *There is much more in the story.
[T]hey are meant to be guidelines, not a one-size-fits-all solution to child-custody arrangements in divorce or other split-parenting situations.
According to 2010 census data, fewer than half of Indiana households are intact families with a husband and a wife. More than 12 percent are women with no husband present and nearly 6 percent are men with no wife present.
“(The guidelines) are not the same for everybody,” said Suzanne M. Wagner, a Fort Wayne family law attorney with Haller & Colvin.
The new guidelines are also more child-focused, adding provisions outlining children’s basic needs and extra commentary to explain the legal and behavioral reasons behind certain changes, according to the document. * * *
The shift now is to recognize the time parents spend with their children as more than just “visitation” and rather as “parenting.”
Ind. Courts - More on: Changes proposed to automated record keeping fee used by the Court to fund JTAC project
Updating this ILB entry from earlier today, the Courthouse News Service had an interesting story on Feb. 22nd, reported by Maria Dinzeo, an update on California's efforts to install a single case management system in its courts. The long story begins:
(CN) - Rising out of the ashes of a failed IT system for California's trial courts, three private companies have been chosen as premier providers in the lucrative business of selling software to the far-flung courts of the biggest state in the nation.
The move to private vendors comes in the aftermath of the crash-and-burn of a half-billion-dollar, publically funded software project driven by the Administrative Office of the Courts, the central bureaucracy that sits above the trial courts.
Called the Court Case Management System, the software was abandoned last year after a host of courts rejected it as cumbersome, labor intensive and crash-prone. In addition, state legislators were highly critical of the project's daily drain of hundreds of thousands of dollars from public coffers.
Sacramento Superior Court -- one of the few courts that installed CCMS only to became a leading critic of the software -- announced last week that three private companies have qualified to sell what is likely to be many millions of dollars-worth of case management programming to California's 58 trial courts.
Environment - "Regulations aimed at keeping fertilizer, manure out of stream"
From yesterday's Lafayette Journal Courier, an article by Chris Morisse Vizza; some quotes:
When farmers and fertilizer applicators head into fields this year they have to comply with new rules designed to protect waterways.
Getting the word out to crop producers and distributors of those nutrients is the job of Matt Pearson, of the Office of the Indiana State Chemist.
“The biggest difference is the rules now apply to everyone who uses manure or fertilizer to produce an agricultural crop,” Pearson said.
The OISC, based at Purdue University, wrote the rules as directed by the 2011 General Assembly.
“These are not new rules, but it extends the water protection rules already in place at the Indiana Department of Environmental Management,” Pearson said. * * *
Operations will not change much at Anderson’s Fertilizers Service in Romney, according to Doug Anderson.
“We already make application plans, we pull soil tests, and we already keep records of where we apply fertilizer,” Anderson said. “The rules do give us specific setbacks from water wells and streams, but we already tried to do that.”
GPS mapping and electronic records allow Anderson’s employees to pinpoint soil types and the amount of fertilizer applied.
Fertilizer and manure applications must be coordinated so the soil chemistry stays in balance, and so farmers don’t waste money.
“You have to have sound science to determine what goes into the field,” Anderson said. “It has to be agriculturally sound and economically sound.”
Pearson has spent the past year traveling the state and explaining the rules.
“Fifteen-thousand private applicators and dealers most likely know about it,” Pearson said. “But 30,000 to 40,000 farmers around the state may not know about it.”
Ind. Decisions - "Wide range of free speech advocates ask Supreme Court to review jailed blogger's case" [Updated]
Updating a long list of ILB entries, going back two years to March 11, 2011, Tim Evans of the Indianapolis Star has a long front-page story today headed "Wide range of free speech advocates ask Supreme Court to review jailed blogger's case." Some quotes:
[Daniel] Brewington was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury.The ILB has posted links to Brewington's petition for transfer, and the Volokh brief in support. I'm also attempting to obtain the ACLU brief, and will link to it here.
The Indiana Court of Appeals last month upheld the most serious of his convictions.
Now, an unlikely coalition — a mix of conservatives, liberals, academics and media advocates including The Indianapolis Star — has asked the Indiana Supreme Court to review the case of the 39-year-old blogger from Cincinnati.
The groups who signed onto a friend of the court brief aren’t interested in the minutia of Brewington’s divorce and custody fight. Their concern extends to a broader issue: A belief that Indiana’s intimidation law — particularly as interpreted by the Court of Appeals in Brewington’s case — violates the First Amendment of the U.S. Constitution. * * *
The attorney general’s office has not filed a brief with the Supreme Court but will do so by a March 11 deadline, said spokesman Bryan Corbin.
“The state’s brief will defend the jury’s decision to find Brewington guilty,” Corbin said, “and explain to the Indiana Supreme Court why his underlying convictions are constitutional.”
In the appellate case, the attorney general’s office successfully argued Brewington’s free speech rights were not violated, contending his comments were “unprotected” and “fighting words” that constituted criminal conduct. * * *
The Court of Appeals decision poses a serious threat that extends far beyond Brewington, said attorney Gavin Rose of the ACLU of Indiana, which also filed a request for a review.
The ruling in Brewington’s case has the potential to affect all Hoosiers, he said, because it criminalizes protected speech, including criticism of the actions of public officials.
“Dan Brewington spoke out — as more and more people do with the advent of the Internet — and, quite frankly, it’s disappointing and a little surprising that charges were even brought, let alone that they were upheld at the appellate level,” Rose said.
Volokh, the UCLA law professor, said Indiana’s intimidation law is too broad and must be refined.
The law correctly bars threats of blackmail and physical violence that are made face-to-face or likely to be carried out, he said. The problem is that it also prohibits statements that threaten to “expose the person threatened to hatred, contempt, disgrace, or ridicule,” Volokh said.
That’s the part that landed Brewington in prison.
[Update] Here is the ACLU brief.
Ind. Law - Status of marijuana legislation in General Assembly
Maureen Hayden, chief of the CNHI Statehouse Bureau, reports this weekend in the Mt. Vernon Register News:
INDIANAPOLIS — In the flurry of activity at the Statehouse in recent weeks, I missed reporting some sad news for stoners: The legislation to decriminalize marijuana is dead.Here is Dan Carden's Feb. 16th story in the NWI Times, headed "Tallian's pot decriminalization bill likely won't be heard in Senate."
State Sen. Karen Tallian’s bill to make possession of 2 ounces of marijuana into an infraction, like a speeding ticket, died when it didn’t get a hearing in the Committee on Corrections and Criminal Law before a critical deadline passed.
Tallian’s response was anything but mellow. The Democratic grandmother from Ogden Dunes told The Times of Northwest Indiana reporter Dan Carden: “I don’t understand why they refused to even hear it. We have certainly heard some really idiotic bills in that committee.”
Setting aside the question of idiocy in the General Assembly, here’s news that may hearten those who’ve been following the pot debate: Legislation that would roll back Indiana’s marijuana laws — some of the toughest in the nation — is still very much alive.
Tucked inside a 400-plus page bill to overhaul Indiana’s criminal code is language that would turn most felony-level marijuana crimes into mere misdemeanors. It puts an end to the reefer madness of a past General Assembly that made possession of marijuana a felony if you’d been caught once before or had more than 1 ounce.
So it would still be a crime to get caught with cannabis, but no longer a crime that could land you in prison or make you automatically lose your driver’s license. * * *
Tallian’s bill was a pipe dream — no way is this current General Assembly ready to join the 14 states that have decriminalized possession (or the handful of other states that have started down that path.)
But it wasn’t without some hope: Late last year, the Senate Judiciary Committee Chairman Brent Steele — a rock-ribbed, law-and-order guy if there ever was one — came out in support of Tallian’s proposal. He likened Indiana’s marijuana laws to “smashing an ant with a sledgehammer.”
Steele backed off after he decided the idea wasn’t politically palatable to his conservative colleagues — at least not yet.
Remember that committee chairman who wouldn’t give Tallian’s bill a hearing? He’s promised Tallian that he’ll research the issue before next year’s session. Maybe that’s a sign that decriminalization isn’t dead, just dormant.
Ind. Gov't. - "Avon faces lawsuit over costumed mascots"
Kristine Guerra reports today in the Indianapolis Star in a long story including video and photos:
You see them along thoroughfares and outside shopping centers. Dressed in character — Uncle Sam, Lady Liberty, maybe the Grim Reaper — they often dance and wave at passing drivers, trying to draw them to their nearby business.
But not in Avon. Planners in the Hendricks County town say “wavers’’ distract drivers and pose risks to public safety. A , local franchise specializing in tax services has responded by challenging Avon’s zoning laws in a civil lawsuit alleging violation of the First Amendment right to free commercial speech.
“We want to have the ability to use those wavers because it’s part of our business model” said Victor Ruthig, who owns two franchises of Liberty Tax Service in Avon. “Our costumed wavers are like the golden arches to McDonald’s. “It’s an icon during tax season that equates to getting your taxes done.”
The suit filed in November in Hendricks County Court claims that the town’s safety concerns are unfounded, and that there had never been any accidents caused by wavers since a Liberty Tax Service franchise opened in 2006 along U.S. 36. * * *
At issue is whether wavers should be considered signs. Town officials think so, saying wavers are “moving signs” prohibited under the current zoning ordinance.
Liberty Tax disagrees.
Matt Price, an Indianapolis-based land use and zoning attorney representing Liberty Tax, said the term “sign” does not apply to wavers or mascots, and Avon should identify them as something more specific.
The town, however, did attempt to specifically classify — and prohibit — wavers.
In 2008, Avon initiated amendments to its zoning laws to refer to wavers as “living signs,” including company mascots whose purpose is to promote an organization or business. The amendment aimed to prohibit such signs except as an expression of political opinion. The Town Council sent the amendment back to the planning commission where it eventually died, [Joe Smoker, assistant planner in Avon] said.
Ind. Courts - Changes proposed to automated record keeping fee used by the Court to fund JTAC projectHB 1393, proposing to increase the automated record keeping fee, is on third reading in the House on Monday. Here is some background information.
|Annual Automated Record Keeping Fee Through the 21st Century|
|2002||$5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.|
|2004||$7 annually until 7-1-09, then $4 annually thereafter.|
|2007||$7 annually until 7-1-11, then $4 annually thereafter.|
|2009||$7 annually until 7-1-11, then $4 annually thereafter.||2011||$7 annually until 7-1-11, then $5 annually thereafter.||2013||$7 annually until 7-1-11, then ...|
[See also this ILB post from May 2, 2011.]
Proposed changes to automated record keeping fee in current version of HB 1393:
SECTION 5. IC 33-37-5-21, AS AMENDED BY P.L.229-2011, SECTION 258, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee
(1) seven dollars ($7) after June 30,
2003,2013, and before July 1, 2011.2015, in all actions except actions described in subdivision (2);
(2) five dollars ($5) after June 30, 2013, and before July 1, 2015, with respect to actions resulting in the accused person entering into a:
(A) pretrial diversion program agreement under IC 33-39-1-8; or
(B) deferral program agreement under IC 34-28-5-1; and
(2)(3) five dollars ($5) after June 30, 2011.2015.
The most recent LSA Fiscal Impact Statement on HB 1393 contains a wealth of information; it is 5 pages long.
Also of interest is the Indiana Judicial Center's summary re what happened at the Ways & Means Committee meeting:
The House Ways and Means Committee considered HB 1393 on the Judicial Technology and Automation Committee (JTAC). An amendment increases the JTAC oversight committee membership from seven to nine, by adding a court clerk from a non-Odyssey county and a member affiliated with a taxpayer organization, both appointed by the governor. Another amendment increases the “automatic recordkeeping fee” from $5 to $7, $3 less than the $10 in the introduced version of the bill. Pursuant to the amendment, all of the $2 fee increase imposed in Odyssey counties will go to JTAC, but in non-Odyssey counties $1 of the increase will go to JTAC and the remaining $1 will go to the county. The amendment also provides that the fee increase sunsets at the end of the biennium following implementation based on the proposition that the expenses necessitating the fee increase are one-time Odyssey or INcite program installation costs, so that after extension of Odyssey to counties awaiting it and completion of current INcite projects the increase will no longer be needed. Rep. Dermody inquired about reports that there is a very large balance in the JTAC fund. Rep. Braun said that the budget has been in the $7 million range, and the fee increase under the amended bill would provide an increase of $1.3 million. Rep. Thompson asked for a list of the counties (approximately 20) waiting for Odyssey installation. Rep. Leonard observed that, while he supports JTAC, he has heard there is a 10 million dollar balance in their funds and cannot support a fee increase with that kind of balance. Rep. Steuerwald said that a number of counties are getting ready to come on with Odyssey and that may explain a significant balance. Rep. Huston said he does not like the fee increase, but approves of the bill’s addition of an oversight board; he observed he does not think it is good from a “competitive” standpoint to have fee money going to JTAC from non-Odyssey counties. Rep. Braun replied that the fee increase is only for the biennium, noted the frustration in counties which have decided to go with Odyssey at having to wait and pointing out the fee increase will help with the conversion of the “backlog” of courts wanting Odyssey. He also noted that the INcite programs are critical for “cross information” between government agencies. The bill passed as amended, 14-7.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 24, 2013:
- Ind. Gov't. - Medicaid expansion ...
- Ind. Law - Criminal code rewrite up for final passage in 1st house tomorrow
- Ind. Law - Bills of interest to the judiciary heard in committee during Week 7 of the General Assembly
- Ind. Gov't. - Allen County to begin charging convicted sex offenders an annual fee to register their addresses
- Ind. Gov't. - Pre-Civil War "epic partisan battles" in Indiana and Illinois
From Saturday, February 23, 2013:
From Friday afternoon, February 22, 2012:
- Courts - "Judges Urged to Think Before ‘Liking’"
- Ind. Law - General Assembly adds new, improved word search tool, plus a look at future plans
- Ind. Gov't. - "Outgoing juvenile court judge needs additional weeks to tie up loose ends"
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/25/13):
- No arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of (3/4/13):
Thursday, March 7th
- 9:00 AM - Andrew J. Humphreys v. State of Indiana (79S04-1212-CR-670) - In the Tippecanoe Superior Court, Humphreys was convicted of conspiracy to manufacture methamphetamine, dealing in methamphetamine, and possession of substances with intent to manufacture methamphetamine. He was also found to be an habitual offender. Citing Owens v. State, 929 N.E.2d 754 (Ind. 2010), the Court of Appeals rejected Humphreys’s argument that Indiana Code section 35-50-2-8(b)(3), which limits application of the general habitual offender rule when the instant offense is a “drug offense,” applied to him. The Court of Appeals addressed other arguments, and in a memorandum decision, affirmed the trial court in part and reversed in part. Humphreys v. State, No. 79A04-1112-CR-677, slip op. (Ind. Ct. App. Sept. 24, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a Sept. 24, 2012 NFP COA opinion.
- 9:45 AM - Jamar M. Washington v. State of Indiana (49S02-1212-CR-669) - Washington’s tendered instructions on self-defense, based on French v. State, 403 N.E.2d 821 (Ind. 1980), were refused by the Marion Superior Court, and Washington was convicted of battery of a law enforcement officer and other offenses. The Court of Appeals affirmed in Washington v. State, 973 N.E.2d 91 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an August 28, 2012 COA opinion.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/25/13):
Monday, February 25th
- 10:00 AM - Thomas Overton v. State of Indiana ( 35A02-1206-CR-530) The State charged Overton with Class A felony child molesting, but after a bench trial, the trial court found Overton guilty of Class C felony child molesting. Overton filed a motion to correct error, arguing that the statute of limitations for a Class C felony charge had run by the time the State filed the charge here, but the trial court denied the motion to correct error. On appeal, Overton argues that the Class C felony conviction was improper because the statute of limitations had run. The State argues that the statute of limitations was tolled by Overton’s concealment of his crime through threats to the victim. The Scheduled Panel Members are: Judges Vaidik, Barnes and Crone. [Where: Indiana University-South Bend]
- 10:30 AM - State Farm Fire Casualty v. Joseph Martin Radcliff, et al (29A04-1110-CT-571) On April 14, 2006, central Indiana suffered a hailstorm that caused millions of dollars in property damage and generated thousands of insurance claims. Following the storm, Joseph Radcliff created Coastal Property Management LLC (CPM) to assist homeowners in identifying storm damage, repairing that damage, and working with insurance companies to pay for repairs. Many State Farm & Casualty Co. policyholders’ claims were denied, and some of them complained to the Indiana Department of Insurance. Radcliff was retained by a number of State Farm policyholders. Two State Farm employees began investigating Radcliff for insurance fraud and forwarded their files to the authorities. The Marion County Prosecutor’s Office filed charges against Radcliff, but those charges were later dismissed. State Farm sued Radcliff and CPM for racketeering and insurance fraud in Hamilton Superior Court. State Farm alleged that Radcliff, through CPM, had a fraudulent scheme of intentionally damaging homes to simulate hail and wind damage and submitting false insurance claims. Radcliff and CPM counterclaimed alleging that State Farm defamed Radcliff by falsely accusing him of criminal conduct In June 2011, after a six-week jury trial at which forty witnesses testified, the jury found in favor of Radcliff and CPM on their defamation counterclaim and awarded them $14.5 million. After the verdict, State Farm filed a motion to correct errors in which it moved for judgment on the evidence, argued that it was entitled to a new trial under the “Thirteenth Juror Rule,” and argued that the damage award was excessive. The trial court denied State Farm’s motion. State Farm now appeals the defamation judgment arguing that its communications were protected by statutory immunity and a common-law qualified privilege for crime reporting, Radcliff failed to prove by clear and convincing evidence that State Farm acted with actual malice, and the damages are excessive. The Scheduled Panel Members are: Judges Vaidik, Barnes and Crone. [Where: Supreme Court Courtroom (WEBCAST)]
Wednesday, March 6th
- 1:30 PM - Gayle Fischer v. Michael and Noel Heymann ( 49A02-1204-PL-340) On remand from this court’s decision in Fischer v. Heymann, 943 N.E.2d 896 (Ind. Ct. App. 2011), trans. denied, the trial court held an evidentiary hearing to determine the damages the Heymanns owed to Fischer for their 2006 breach of an agreement to purchase Fischer’s condominium. After finding that Fischer failed to mitigate her damages, the trial court entered a damage award for Fischer in the total amount of $93,972.18. Both parties appeal the trial court’s award of damages to Fischer. The Scheduled Panel Members are: Judges Najam, Friedlander and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.