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Tuesday, February 26, 2013

Ind. Law - "Senate approves Rockport measure"

Eric Bradner reports in the Evansville Courier & Press this afternoon that "Senate Bill 510 passed on a 47-3 vote and now heads to the House, where Leucadia and its opponents – chiefly, Vectren Corp. – will continue to grapple." The lede:

After the Indiana Supreme Court has its say, the Rockport coal-to-gas project could head back to state utility regulators for another round of reviews under a measure the Senate approved Tuesday.

It’s a watered-down version of a bill that originally would have left the plant dead in its tracks by forcing major changes to the Indiana Finance Authority’s 30-year contract with the plant’s developers, Leucadia National Corp., to buy and then resell its product.

ILB: My question - Isn't that now exactly what would have happened absent this bill?

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Law

Ind. Law - Another expensive state lawsuit, this one re drug test for welfare applicants?

Today the WSJ Law Blog is reporting that the 11th Circuit has " blocked Florida’s efforts to test welfare applicants for drug use." More:

Without striking down the drug-testing requirement, the 11th Circuit U.S. Court of Appeals held that Florida had not shown a “special need” that justified suspending Fourth Amendment protections against unreasonable searches.

The ruling casts doubt on a handful of similar laws passed by Republican-controlled legislatures since 2011. * * *

The 11th Circuit, based in Atlanta, said the state failed to show a direct threat to public safety that would justify testing without suspicion of wrongdoing.

“The answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is ‘no,’” wrote Judge Rosemary Barkett, an appointee of President Bill Clinton. Judge James R. Hall and Judge Kent A. Jordan, both appointees of President George W. Bush, joined Judge Barkett in the ruling.

Here is the 38-page opinion in Lebron v. Florida Dept. of Children and Families.

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Law

Ind. Law - "Abortion bill wins Senate’s approval"

Here is Eric Bradner's description of today's debate on SB 371, via the Evansville Courier & Press.

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Law

Ind. Gov't. - More on: Replace "Regulated Occupations Evaluation Committee" (ROEC) with "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER)?

Updating this ILB post from Jan. 28th, SB 520, the so-called the ERASER bill, has passed the Senate and been assigned to the House Select Committee on Government Reduction, per this story by Dana Hunsinger Benbow in today's Indianapolis Star.

Not explained is the rationale behind creating a new statutory committee to replace a very similar (and quite active) statutory committee created in 2010, the "Regulated Occupations Evaluation Committee" (ROEC).

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Government

Ind. Law - Geek alert: The third-reading amendment

Niki Kelly has a post at the FWJB Political Notebook that will interest fascinate geeks. It begins:

A rarity on the House floor became all too common Monday night – third reading amendments.

House Speaker Brian Bosma likes to wax poetic about how committees are the workhorse of the legislature, and that is where the real work on bills needs to be done.

Small amendments on second reading are expected, too.

But third-reading amendments require unanimous consent for the body to hear, and usually are only technical in nature.

On Monday night – the last night to pass bills from the House to the Senate – Republicans needed not one, not two, but three substantive third-reading amendments to try to get bills passed.

That’s pretty shocking when you consider Republicans have 69 members and only 51 are needed to pass a bill.

The post goes on to describe the efforts; they all involve making changes to bills at the last minute to try to garner enough votes for passage. For example:
One tax bill by Rep. Eric Turner, R-Cicero, failed to reach a constitutional majority of 51 to either approve or defeat it. So he came back late that evening with a third-reading amendment stripping out the local tax language that many didn’t like.

Rep. Robert Behning, R-Indianapolis, was in jeopardy of not being able to pass a bill affecting turnaround academies and rewriting the state’s accountability rankings. So he offered a third-reading amendment that stripped out massive portions of the bill and left many confused about what was left. It was ultimately defeated even in a pared-down form.

ILB: I was the majority Senate attorney for a number of sessions and in my experience third reading amendments were hardly ever used, and then it was for a technical correction or some such. Otherwise, you would see just this sort of fiddling with the bill's content on third reading.

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Curves for Women Angola An Indiana Partnership, Dan Cole, and Lori Cole v. Flying Cat, LLC , a 12-page opinion, Judge Mathias writes:

Dan Cole (“Dan”) appeals the judgment of the Steuben Circuit Court in favor of
Flying Cat, LLC (“Flying Cat”), in Flying Cat’s breach-of-contract claim against Dan and his ex-wife Lori Atkison f/k/a Lori Cole (“Lori”) arising out of a lease agreement between the Coles and Flying Cat for the operation of a business owned and operated by the Coles. On appeal, Dan presents three issues, which we consolidate and restate as: (1) whether the trial court clearly erred in finding that Dan and Lori were in a business partnership, and (2) whether the trial court clearly erred in finding that a lease extension signed by Lori could bind Dan and make him liable for a breach of the lease. We affirm.
In Paul M. Brock v. State of Indiana , a 12-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in considering Brock’s behavior while incarcerated as an aggravating factor, and even if it did abuse its discretion, any error was harmless. Nor did the trial court subject Brock to impermissible double enhancement when it ordered his elevated sentence for auto theft to be served consecutively to the sentence for intimidation that was enhanced under the general habitual offender statute. Lastly, Brock’s sentence of twelve years, with one year suspended to probation, is not inappropriate in light of the nature of the offenses and the character of the offender. Affirmed.
In Dennis Ray Smith v. State of Indiana, an 11-page opinion, Judge Baker writes:
In the instant case, appellant-defendant Dennis Smith claims that his recorded statement to police, during which he admitted to inappropriately touching his stepdaughter, who was about five years old at the time, should not have been admitted into evidence at trial because it was obtained in violation of the Fifth Amendment to the United States Constitution. Accordingly, Smith requests that we reverse his four convictions for class A felony Child Molesting.

Additionally, both the State and Smith maintain that Smith’s convictions violate the prohibition against double jeopardy found in Article I, Section 14 of the Indiana Constitution. Insofar as the State was pleading in the alternative in Counts III and IV,rather than alleging four separate counts of child molesting, but finding no other error, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate Smith’s convictions on Counts III and IV.

In Pedro Alvarez v. State of Indiana , a 5-page opinion, Judge Pyle concludes:
“When we find an irregularity in the trial court’s sentencing decision [“stacking” the individual counts], we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E2d at 669. We elect to impose a proper sentence pursuant to Beno; Alvarez’s sentences shall run concurrently and not consecutively. All other aspects of the sentence are affirmed. We remand to the trial court with instructions to enter a new sentencing order and abstract of judgment consistent with this opinion.
In Paul Sparks v. State of Indiana, an 8-page opinion, Chief Judge Robb writes:
Paul B. Sparks’s probation was revoked and he was ordered to serve the entirety of his previously-suspended sentence at the Department of Correction after he admitted to violating a condition of his probation. He now appeals, raising two issues, one of which we restate and find dispositive: whether the trial court violated Sparks’s due process rights in its handling of his probation revocation hearing. Concluding that Sparks’s due process rights were violated, we reverse and remand for a new probation revocation hearing. * * *

Like the court in Sims, we do not decide the issue of whether a probation violation admission must be made voluntarily, knowingly, and intelligently in Indiana. Rather, we base our decision on the cumulative effect of the lack of an evidentiary hearing, the unknowing nature of Sparks’s admission, and the trial court’s comment. Thus, while an evidentiary hearing is not required if the defendant admits to the probation violation, the lack of an evidentiary hearing in this case in light of the trial court’s comment and the suspect quality of Sparks’s admission constitutes fundamental error. Accordingly, we reverse and remand for a new probation revocation hearing consistent with the requirements of due process.

NFP civil opinions today (3):

In Re: The Paternity of J.P.; J.H. v. P.P. (NFP)

Term. of the Parent-Child Rel. of: B.H., (Minor Child) and K.H.L. (Mother) v. Indiana Dept. of Child Services (NFP)

In Re: The Matter of A.R., et al., Alleged Children in Need of Services: T.M. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Joseph K. Strong v. State of Indiana (NFP)

Edgar Duncan v. State of Indiana (NFP)

Jose Morales v. State of Indiana (NFP)

Jerry L. Moore v. State of Indiana (NFP)

Stanley Short v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Ind. criminal code rewrite wins House approval"

Dan Carden reports in the NWI Times:

INDIANAPOLIS | A five-year project to rethink and reform how Indiana sentences its felony criminals won approval by the House late Monday night.

House Bill 1006, which next goes to the Senate, is intended to improve the proportionality and certainty of prison time, reserve prison for the most serious offenders, and get drug addicts and low-level offenders into treatment to reduce recidivism.

Under the bill, the current four levels of felonies would be expanded to six. That ensures similar crimes are treated the same way and that the most serious offenses get the toughest penalties, said state Rep. Greg Steuerwald, R-Avon, co-sponsor of the measure.

Sentencing ranges for each of the six felony levels haven't been set, but lawmakers said the additional levels of felony classification will result in more precise sentences.

The legislation also requires felons serve 75 percent of their sentences instead of receiving day-for-day good behavior credit, which often cuts sentences in half.

Low-level felons, currently Class C or D, which would become Level 5 or 6 under the proposal, would be less likely to go to prison and instead serve their time in county jails or under intensive supervision in a community corrections program.

State Rep. Linda Lawson, D-Hammond, a co-sponsor of the proposal, said she will fight to ensure counties get the financial resources they need to carry out their new duties.

If enacted, the sentencing changes would take effect July 1, 2014.

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Indiana Law

Courts - "Republicans Sign Brief in Support of Gay Marriage" (but not Indiana, which is leading the opposition)

Sheryl Gay Stolberg reports today in a long story the NY Times:

WASHINGTON — Dozens of prominent Republicans — including top advisers to former President George W. Bush, four former governors and two members of Congress — have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election. * * *

The Proposition 8 case already has a powerful conservative supporter: Theodore B. Olson, the former solicitor general under Mr. Bush and one of the suit’s two lead lawyers. The amicus, or friend-of-the-court, brief is being filed with Mr. Olson’s blessing. It argues, as he does, that same-sex marriage promotes family values by allowing children of gay couples to grow up in two-parent homes, and that it advances conservative values of “limited government and maximizing individual freedom.”

Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.

Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress.

Ms. Pryce said Monday: “Like a lot of the country, my views have evolved on this from the first day I set foot in Congress. I think it’s just the right thing, and I think it’s on solid legal footing, too.”

What about Indiana? Indiana, through Attorney General Zoeller, is the lead counsel on a brief for nineteen states in support of the constitutionality of Proposition 8; Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA). See this ILB post from Feb. 14th for more information.

In addition, see this ILB post from Aug. 23, 2012 headed "Who should decide Indiana's position on national legal issues? Who should know?"

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Courts in general

Ind. Decisions - "Federal panel opens GOP computers in Wisconsin redistricting case"

From the Milwaukee Journal Sentinel this morning, a story by Patrick Marley (h/t @AppellateDaily). A few quotes:

A federal court gave groups suing the state broad access Monday to three computers used by the Legislature to develop Republican-friendly voting maps.

The Legislature "must make these three computers available in their entirety immediately" to the groups suing the state, the three judges wrote.

"The computers are extremely likely to contain relevant and responsive materials that should have been disclosed during pretrial discovery. Moreover, Plaintiffs have established that substantial numbers of documents were not disclosed, which satisfies the court that some form of 'fraud, misrepresentation, or misconduct' likely occurred," the unanimous opinion said, quoting from a procedural rule. * * *

The Legislature hired the law firm Michael Best & Friedrich to help draw the maps, and the three state computers were housed in the law firm's Madison office to do that work.

Michael Best repeatedly tried to block releasing documents in the case, and in early 2012 was fined about $17,500 for filing frivolous motions to try to prevent their release. * * *

Federal redistricting cases are unique in that they go to special three-judge panels. Appeals go directly to the U.S. Supreme Court.

The judicial panel consists of J.P. Stadtmueller of the Eastern District of Wisconsin, Diane P. Wood of the 7th Circuit Court of Appeals and Robert M. Dow Jr. of the Northern District of Illinois. Stadtmueller was appointed by Republican President Ronald Reagan; Wood was appointed by Democratic President Bill Clinton; and Dow was appointed by Republican President George W. Bush.

Posted by Marcia Oddi on Tuesday, February 26, 2013
Posted to Ind. (7th Cir.) Decisions