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Thursday, February 28, 2013

Ind. Courts - More on: Disciplinary charges filed against senior judge

Updating this ILB entry from Feb. 25th, re the filing of disciplinary charges against Lisa Traylor-Wolff, a senior judge serving in Pulaski and Fulton Counties, the Christian Science Monitor has published a long AP story today.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Indiana Courts

Ind. Decisions - More on: 7th Circuit declares unconstitutional Ind. law prohibiting registered sex offenders from using social networking websites

Updating this ILB entry from Jan. 23rd, the AP is reporting that:

American Civil Liberties Union of Indiana legal director Ken Falk said Thursday that the attorney general's office would not ask the 7th U.S. Circuit Court of Appeals in Chicago to rehear the case.

The court said in January that the 2008 law was too broad and violated freedom of speech.

See also this Feb. 6th ILB entry about efforts to repair the 2008 law in this year's General Assembly.

SB 347, which passed the Senate 49-0, is now in the House Committee on Courts and Criminal Code.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Ind. (7th Cir.) Decisions

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

In U.S. v. Sanders (ND Ind., Vn Bokkelen), a 33-page opinion, Judge Kanne writes:

In January 2008, Lamar E. Sanders and an accomplice abducted Timicka Nobles’s daughter, R.E. The reason: to induce Nobles to rob her own mother. Nobles attempted to comply—she left a bag of cash for Sanders’s accomplice to pick up—but law enforcement authorities were already apprised of the plot. They quickly arrested Sanders’s accomplice, and Sanders turned himself in shortly thereafter. Fortunately, no one was injured, and police recovered the money. After a five-day trial, a jury found Sanders guilty of kidnapping and extortion. He now appeals his conviction and sentence. First, Sanders argues that the district court denied him due process by admitting Nobles’s three identifications of him. Second, Sanders claims that the district court ran afoul of the Confrontation Clause, or, alternatively, abused its discretion, by limiting his cross-examination of Nobles. Finally, Sanders contends that the district court applied the incorrect mandatory minimum sentence. Finding no error, we affirm both the conviction and sentence.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Longtime Allen Superior Court Magistrate Marcia L. Linsky resigned Tuesday."

That is from the FWJG report.

Jeff Neumeyer and Eric Dutkiewicz have much more, including much video, at INCNowTV, reporting:

At least two local attorneys tell 21Alive they have first-hand knowledge that Linsky was escorted from the Charles "Bud" Meeks Justice Center Tuesday afternoon.

Linsky served in the Allen County Superior Court's criminal division since August of 1999, handling misdemeanor and traffic cases.

There were ongoing concerns about Linsky's demeanor in the courtroom, three local attorneys say. Specifically, they add, there were concerns about how Linsky interacted with and treated defendants and others she was in contact with on a regular basis.

The tipping point for Linsky's ouster may have come as a result of complaints being taken directly to Linsky's superiors.

Three superior court judges and two other magistrates will help cover Linsky's caseload until a replacement is chosen. That process could take a few weeks.

The position pays roughly $108,000 annually.

Kevin Leininger of the News-Sentinel reports:
An Allen Superior Court Magistrate has resigned after 14 years on the bench. * * *

Although magistrates have authority similar to judges, they are appointed and are not subject to retention by the public.

A defense attorney, however, suggested Linsky’s “highly inappropriate” conduct on the bench may have contributed to her exit.

“I talked to (Judge) Fran Gull about her conduct several times, and others did, too,” said the attorney, who asked not to be named. The attorney said Linsky would often spend court time berating attorneys – a practice the attorney said shocked and puzzled relatives from another country who were visiting her courtroom.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

ILB: Again today the opinions posted by the COA have all been locked so as to deny readers the ability to copy and paste quotations from the PDF documents. As a result, there can be no ILB summaries without completely retyping any quotations from the opinions. I'm continuing to assume this is some technical glitch the court personnel have not yet resolved, rather than an intentional change in the way this public information is released.

[Update at 10:50 AM] Good news. I've just been told:

We made a technical upgrade and incorrectly loaded a security setting. Thanks for alerting us to the issue! We are changing the setting to allow for cut and paste functionality. The opinions that are “locked” will be replaced. I do not yet have a timeframe on when that may happen.
[Update at 1:16 PM] The opinions I've just checked seemed to be unlocked now.

For publication opinions today (5):

David A. Turner v. Debbie L. Turner

Alexander Nikolayev v. Natalia Nikolayev

Eagle Aircraft, Inc. v. Anthony Trojnar

James E. Mefford v. State of Indiana

Verdyer Clark v. State of Indiana

NFP civil opinions today (6):

Bret Shaw v. Bryan C. Jerman (NFP)

Jennifer Simpson v. Donald Simpson (NFP)

Loren H. Fry v. Terry L. Schroder and Robert C. Schroder, Individually and as beneficiaries and personal representatives of the Estate of David H. Schroder (NFP)

Term. of the Parent-Child Rel. of K.M. and J.H., Jr.: K.M., Mother of K.M. and J.H., Jr.; M.M., Father of K.M.; and J.H., Sr., Father of J.H., Jr. (NFP)

F.E. v. J.E. (NFP)

In Re the Paternity of: B.V.L., S.B. v. B.L. (NFP)

NFP criminal opinions today (8):

Joseph E. Sanders v. State of Indiana (NFP)

Donald W. Campbell v. State of Indiana (NFP)

Anthony Szuch v. State of Indiana (NFP)

Larry Collins, Jr. v. State of Indiana (NFP)

Frederick James Burton v. State of Indiana (NFP)

F.G. v. State of Indiana (NFP)

Danny Clark v. State of Indiana (NFP)

Jeramie Rangel v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Justice Rush: "I'd love to have a filthy house case now"

A story today by Leigh DeNoon of the Public News Service begins:

INDIANAPOLIS, Ind. - Indiana's newest Supreme Court Justice, Loretta Rush, has a long history on the bench in Tippecanoe County of taking action to make the lives of Hoosier kids better. In the 1980s and 1990s when she would get a "Child In Need of Services" case, it was because of a filthy house, Rush said.

"I'd love to have a filthy house case now," she said. "Now you have methamphetamine going on in the home, some untreated mental health issues, violence. With turns in the economy, I see the effect it has on kids with regard to being exposed to domestic violence."

Pointing to horrific cases involving Hoosier children in the last few years, Rush said that is why the legislature is working to create the Commission on the Status of Children.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Indiana Courts

Court - A glimpse at today's SCOTUS in oral argument

Fascinating glimpse of the current Supreme Court personalities in action in this column by Dana Milbank of the Washington Post. A few quotes:

For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.

As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan. * * *

The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.

Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)

Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight. * * *

Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”

At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.

Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.

Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)

But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.

Posted by Marcia Oddi on Thursday, February 28, 2013
Posted to Courts in general

Wednesday, February 27, 2013

Ind. Courts - "Monroe County Attorney Phillip Chamberlain Convicted of Counterfeiting"

You can read the facts in this news release from the Secretary of State. Some quotes:

INDIANAPOLIS (February 27, 2013) – An investigation by Secretary of State Connie Lawson’s Prosecution Assistance Unit and the filing of criminal charges by Monroe County Prosecutor Chris Gaal has led to the conviction of Monroe County attorney Phillip Chamberlain. Today, Chamberlain was convicted of Counterfeiting, a class D felony by Monroe County Judge Teresa Harper. Judge Harper entered the Judgment of Conviction as a class A misdemeanor and ordered Chamberlain to pay the man he victimized $15,000. * * *

Chamberlain abused his position of trust as the victim’s attorney to advance his criminal scheme. He preyed upon that trust to convince Shannon Ramey to loan money to Dwight Hart, whom Ramey had never met, to purchase JROCK Golf Course. Ramey gave Chamberlain a check for $36,750 as an investment in JROCK Golf Course.

Instead of giving the money to Hart for the golf course, Chamberlain took the check and split it into two cashier’s checks. Chamberlain took one of the checks for $10,000 and endorsed the back of the check in the name of JROCK Golf Course even though he didn’t have the authority. Chamberlain deposited the money in his own bank account. Hart never authorized Chamberlain to raise money for the JROCK Golf Course and didn’t provide him with any powers over the company.

Chamberlain’s victims, Hart and Ramey, both testified at the sentencing hearing. Hart, now 72 years old, testified he was financially ruined by Chamberlain and was forced to file for bankruptcy as a result of Chamberlain’s criminal actions. Hart stated, “Financially, he has ruined my life.”

In addition to ordering Chamberlain to make payments to the victim totaling $15,000, Judge Harper ordered Chamberlain to serve a suspended sentence of 504 days on probation and to complete 120 hours of community service.

Posted by Marcia Oddi on Wednesday, February 27, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Prosecutor Terry Curry [still] hasn't decided whether to drop the murder charge against Bei Bei Shuai "

The AP's Charles Wilson is reporting this afternoon that "Prosecutor Terry Curry hasn't decided whether to drop the murder charge against Shuai or ask another pathologist to analyze the baby's December 2010 death," but that he will not appeal "a judge's decision barring a doctor's testimony that the rat poison a woman ate while she was pregnant caused her newborn's death."

That basically tracks this story from Jan. 26th.

Posted by Marcia Oddi on Wednesday, February 27, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

ILB: For some reason the opinions posted today by the COA have all been locked so as to deny any editing, printing, or copying!!! Thus there can be no ILB summaries.

For publication opinions today (4):

Storm Damage Specialists of America d/b/a America's SDS Construction, Inc. v. Melissa A. Johnson and Michael B. Johnson

Midwest Minerals, Inc. v. Fred L. Wilson, Rick Jenkins, Joseph Kenworthy, Michael Tewell, and James Clayton, et al.

In the Matter of the Paternity of G.W., J.W. v. R.M.

Lamont Holloway v. State of Indiana

NFP civil opinions today (0):

NFP criminal opinions today (4):

Paula Tackett v. State of Indiana (NFP)

Michael Chambers v. State of Indiana (NFP)

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

Michael Merriweather v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 27, 2013
Posted to Ind. App.Ct. Decisions

Courts - Sheet metal and AC contractors demand takedown of federally mandated standards posted online

Recalling earlier ILB entries, such as this one from Aug. 7, 2008 ("Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online"), and this one from May 22, 2012 (""Industry Groups Insist on Charging You $1,195 to Read a Public Law""), Mike Masnick of Techdirt reported yesterday that the Sheet Metal and Air Conditioning Contractors are demanding that Carl Malamud's organization, which purchased the federally-mandated 1985 standard on air-duct leakage and posted it online, take it down. More from the story:

Malamud's Public.Resource.Org, with help from the EFF, have filed for declaratory judgment that posting such information does not infringe on SMACNA's copyright.

In the filing, the case is made that since these standards are incorporated into federal regulations, they have the force of law, and thus cannot and must not be held in secret.

Technical manuals like the 1985 manual at issue in this case, explicitly adopted by federal regulation, have the force of law and impose affirmative obligations on citizens. As much as landmark health care acts or Supreme Court civil rights decisions, these technical requirements—for building, electrical, plumbing, transportation—touch the lives of Americans every day. Business owners, workers, and consumers need to know these directives in order to operate their businesses lawfully, to avoid penalties, and to determine whether neighbors, contractors, or competitors are in compliance.
The crux of the argument is that as the standard is incorporated into law, it is no longer infringing to make that work available, as one cannot comply with the law without having that information.
The post includes a copy of the declaratory judgment complaint filed in the ND Calif. on Feb. 22nd.

Posted by Marcia Oddi on Wednesday, February 27, 2013
Posted to Courts in general

Ind. Gov't. - More on: "3 Democrats file suit challenging redistricting plan approved by Mayor Ballard"

Updating this ILB entry from Feb. 13th, Jon Murray reports today in the Indianapolis Star:

The Marion County clerk’s office has selected a Republican judge to replace another who recused himself from a five-judge panel chosen to hear City-County Council Democrats’ redistricting challenge.

Marion Superior Court Judge Robert Altice was chosen to replace Judge Theodore Sosin on Monday through a random electronic process, said Angie Nussmeyer, spokeswoman for Clerk Beth White.

Sosin filed an order of recusal on Friday, removing himself from the case for undisclosed reasons. His order only generally cites an Indiana trial rule that requires recusal or disqualification of a judge based on a range of conflicts of interest. Reached today by email, Sosin declined to discuss his reason for his recusal in more detail.

Altice joins a panel of Marion Superior Court civil judges that has one other Republican, Cynthia Ayers, and three Democrats: Heather Welch, who is presiding over the case; Thomas Carroll; and James Osborn.

All of them have potential conflicts in a case as politically fraught as one concerning council redistricting, but state law governing redistricting challenges in Marion County specifically hands the case to such a panel.

ILB: Here is the applicable provision, IC 36-3-4-3.

Posted by Marcia Oddi on Wednesday, February 27, 2013
Posted to Indiana Government

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

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 and
(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;
This 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."

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts

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.

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.

[Updated at 2:50 PM] WRTV6 adds this information about Ms. Traylor-Wolff.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts

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.

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 civil opinions today (5):

In the Matter of the Term. of the Parent-Child Rel. of: L.M. and M.M. v. The Indiana Dept. of Child Services (NFP)

Tamara Downie, formerly Tamara Reed v. Jason Reed (NFP)

Shawn J. Fuller v. Carrie R. Fuller (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: L.W., M.R. v. Indiana Dept. of Child Services (NFP)

Darrell L. Weightman and Donna Weightman v. Brian A. Nellis (NFP)

NFP criminal opinions today (6):

Steven Bethel v. State of Indiana (NFP)

Juan Beamon v. State of Indiana (NFP)

James Eskridge v. State of Indiana (NFP)

Michael T. Ivy v. State of Indiana (NFP)

Martel D. Cross v. State of Indiana (NFP)

Robert Stokes v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Ind. App.Ct. Decisions

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.

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.

Prof. Joel Schumm recalls a 2010 Supreme Court opinion in a termination case where he co-counseled with Mr. Schuetz, I.B. v. DCS.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts

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.

One transfer grant was vacated, in the case of Quanardel Wells v. State of Indiana. Oral argument was held in the case on March 22, 2012. The vote in the Feb. 21st, 2012 decision to vacate:
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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Transfer Lists

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.”

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.”

In a long story dated Feb. 22nd, and headed "IHRC Cuts Ties with Administrative Judge," Ron Mitchell of BloodHorse.com reported:
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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts | Indiana Government

Ind. Law - More on: Ag-gag bill moves to the full Senate

Updating this ILB entry from Feb. 14th, the Indianapolis Star has this editorial today. A few quotes:

[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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Law

Ind. Courts - New parenting-time guidelines focus on parent cooperation. Update is state’s 1st since 2001"

Rebecca S. Green has a long and useful story in the Feb. 24th Fort Wayne Journal Gazette on the new parenting time guidelines, set to take effect March 1st. Some quotes from the story:

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. * * *

[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.”

There is much more in the story.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana 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.”

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Environment

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 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.

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.

[Update] Here is the ACLU brief.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Ind. App.Ct. Decisions

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.

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.

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."

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Law

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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Government

Ind. Courts - Changes proposed to automated record keeping fee used by the Court to fund JTAC project

HB 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
2001 $2 annually
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 as follows: of:
        (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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Indiana Courts

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, February 24, 2013:

From Saturday, February 23, 2013:

From Friday afternoon, February 22, 2012:

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/25/13):

Next week's oral arguments before the Supreme Court (week of (3/4/13):

Thursday, March 7th

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

Tuesday, February 26th Next week's oral arguments before the Court of Appeals (week of 3/4/13):

Wednesday, March 6th

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.

Posted by Marcia Oddi on Monday, February 25, 2013
Posted to Upcoming Oral Arguments

Sunday, February 24, 2013

Ind. Gov't. - Medicaid expansion ...

Updating this ILB entry from Feb. 21st, Eric Bradner of the Evansville Courier & Press has a long Sunday column headed "Pence, some lawmakers at odds on Medicaid expansion." A few quotes:

Meanwhile, a group of moderate legislative Republicans — especially those who represent communities in which hospitals are key economic drivers — were swayed by the 30,000 jobs and the $10 billion economic injection that an expansion would offer, according to a study commissioned by the Indiana Hospital Association.

Many of those Republicans didn’t support President Barack Obama’s health care law in the first place, but now that it’s in effect, they have little interest in continuing to debate a federal issue. Foremost among them is Ed Clere, R-New Albany, who is trying to persuade fellow members to see it his way.

“Frankly, I think there’s some feeling among some legislators that this debate is about the Affordable Care Act, and it’s not. This debate is about the issue of Medicaid expansion in Indiana, and what that would mean for the state,” he said. * * *

The governor called Clere and three other Republican lawmakers into his office for a meeting to send the message that he doesn’t like House Bill 1591. * * *

The House has scheduled Clere’s bill for a vote on Monday — a key day, because it’s the deadline for the chamber to send bills over to the Senate for consideration. * * *

“The legislative session is finite, so we can’t sit around waiting. We’re going to come to a point in the very near future when we will have to act on this issue, regardless of what has or hasn’t come out of Washington,” Clere said.

“It’s a complex issue, there’s no question. But just because it’s complex doesn’t mean we shouldn’t do everything we can to address it fully.”

HB 1591 is on the House third reading calendar for Monday.

Also today, the Fort Wayne Journal Gazette's lead editorial is headed "Time to join Medicaid expansion." It begins:

Gov. Mike Pence made it crystal clear this month he will not permit the state to expand Medicaid eligibility under the Affordable Care Act. But Florida Gov. Rick Scott said the same thing – until he reversed position last week.

If Scott, a former health care executive, has concluded that he can’t in good conscience deny his constituents access to care that expansion would bring, it’s time for Pence and the GOP-controlled Indiana legislature to follow suit. Across the nation, the roll of Republican officials who have reversed course to support Medicaid expansion grows, and for good reason.

Posted by Marcia Oddi on Sunday, February 24, 2013
Posted to Indiana Government

Ind. Law - Criminal code rewrite up for final passage in 1st house tomorrow

The currently 434-page (not counting committee reports) version of HB 1006 has passed 2nd reading in the House and is eligible for final House passage tomorrow, Feb. 23rd.

Maureen Hayden of CNHI reports this weekend in a story headed "Criminal code rewrite unfunded locally." Some quotes from the story:

The Indiana House is moving forward on legislation that rewrites the state criminal code to make punishment better fit the crime, but a key ingredient is still missing: Money to implement it on the local level.

House Bill 1006 is designed to reserve state prisons for the worst offenders while sending more low-level offenders into county jails, community-based corrections and probation rolls.

The goal is to get those low-level offenders – many of whom are drug abusers – into programs that offer treatment and intensive supervision that reduce the odds they’ll commit another crime.

“We’re adding a ‘smart on crime’ element to our already ‘tough on crime’ elements we have in the code,” said state Rep. Matt Pierce, a Bloomington Democrat and co-sponsor of the bill.

But the bill passed by the House Ways and Means Committee on Monday, on 20-0 vote, doesn’t include a funding mechanism for much of the extra costs that local communities would have to absorb.

A proposed $1.9 million “probation improvement fund” in the original bill has been removed from the legislation. There’s no money in the bill to expand the kind of community-based substance treatment programs that the bill’s supporters say is critical. And no extra dollars to help counties that have no community corrections program – an alternative to jail – create or staff one.

The legislation would bring sweeping changes to Indiana’s criminal code. Among other things, it reduces Indiana’s tough drug penalties. No longer would someone caught with cocaine near a school face a tougher sentence than a rapist. And no longer would someone caught with marijuana automatically lose their driver’s license or face a felony charge if found with more than one ounce of pot.

It would also divert thousands of low-level offenders, most charged with drug and theft crimes, out of the state prisons and back into local communities for treatment, supervision or incarceration.

Both the Indiana Prosecuting Attorneys Council and the Indiana Public Defender Council were involved in crafting the bill and both support its goal of making penalties more proportional to the crime.

But both say that more funding for local treatment programs designed to reduce recidivism is critical. * * *

The rewrite of the criminal code contained in House Bill 1006 was spurred by a failed attempt at sentencing reform in 2010. That earlier effort came after a study showed that Indiana’s prison count had grown by 41 percent between 2000 and 2009 — an increase three times that of neighboring states.

The study also found that the increase had been caused not by violent criminals but by drug addicts and by low-level, nonviolent criminals.

An earlier, Feb. 21st editorial in the Fort Wayne Journal Gazette is headed "The 75 percent solution." Some quotes:
Though the bill makes numerous changes to the state’s criminal code, one Hoosiers will best understand addresses the misleading sentences judges hand to convicted criminals. As countless victims and others who follow the criminal justice process have learned, inmates – unless they grossly misbehave in prison – are generally released after serving half of their time. So a man convicted of child molesting, for example, may receive a sentence of eight years but be released in four.

The bill, advanced to the full House this week by the Ways and Means Committee, would require an inmate to serve at least 75 percent of the sentence – for example, six years of an eight-year term.

Corrections officials have generally supported the policy of giving an inmate two days credit for every “good” day served as a way to help keep order in prisons. An inmate, the reasoning goes, has a major incentive not to commit crimes or engage in unruly behavior behind bars if following the rules gets him out sooner. With this proposal, lawmakers appear to have preserved a still-significant incentive for good behavior while moving closer to making prisoners actually serve the sentence they received.

Standing alone, the provision would have some problems because it is more appropriate for career criminals and those convicted of major crimes. And after all, the intent is to address the state’s rising prison population at a time when other states are reducing the number of prisoners. Fortunately, the truth-in-sentencing language is part of a much broader bill that would beef up probation and other county-level programs to handle more minor offenders in their home counties and keep them out of prison, widely considered a training ground where minor offenders learn to become career criminals.

The proposal also changes a variety of sentences to offer more appropriate proportionality, in which the sentence fits the crime. Judges will still have the authority to sentence convicts to a probationary period after they are released, during which courts can monitor their behavior as they return to society.

Proponents believe the changes will at least slow the number of convicted criminals going to prison. If no changes were made, they say, Indiana would have to build a new prison in just six years. If the law is adopted, it would be a dozen years.

The bill as now written is effective July 1, 2014.

Posted by Marcia Oddi on Sunday, February 24, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 7 of the General Assembly

Here is the seventh weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session. This was the final week for committee consideration of bills in the first house.

Posted by Marcia Oddi on Sunday, February 24, 2013
Posted to Indiana Law

Ind. Gov't. - Allen County to begin charging convicted sex offenders an annual fee to register their addresses

Vivian Sade had this initial report in the Feb. 21st Fort Wayne Journal Gazette. Some quotes:

A state law enacted four years ago allows counties to set up their own policies and charge a maximum of $50 a year for registration and $5 for each change of address, Commissioner Therese Brown said Wednesday.

The new administrative fund will allow the Allen County Sheriff’s Department to retain and use 90 percent of the money, while 10 percent will go to the state, Brown said.

In 2012, that 90 percent would have amounted to about $21,000 for 441 registered sex offenders, Sheriff Ken Fries said.

Fries said his department has three full-time employees who deal with tracking and registering convicted sex offenders. In Indiana, convicted sex offenders must register for either 10 years or life.

“The fees would help recover some of the costs, and why shouldn’t those guys help pay?” Fries said.

A story Feb. 23rd confirms that "Sex offenders in Allen County will have to pay an annual fee to register their addresses starting April 1."

Posted by Marcia Oddi on Sunday, February 24, 2013
Posted to Indiana Government

Ind. Gov't. - Pre-Civil War "epic partisan battles" in Indiana and Illinois

From the Opinionator page of the online NYTimes this weekend, an article by Stephen E. Towne is an associate university archivist at Indiana University-Purdue University Indianapolis about anti-war Democrats in Illinois and Indiana, and their their governors, Republicans Richard Yates and Oliver P. Morton, on the eve of the Civil War. A few quotes:

Springfield and Indianapolis were the scenes of epic partisan battles. At the Indiana State House, animosities quickly boiled over when Republican members “bolted” out of town, thus denying a quorum. This first bolt prompted a feud over Governor Morton’s message to the joint session. When Morton sent written copies of his speech to each chamber, Democrats refused to accept it and passed a resolution substituting that of Gov. Horatio Seymour, a New York Democrat. * * *

[Indiana Governor Morton] took extraordinary steps to combat Democratic legislators with a powerful tool at his disposal: the Union Army. In late January, cooperative army commanders in Indianapolis deployed an artillery battery near the State House, running exercises with them in an effort to intimidate the legislators. Anticipating that legislators aimed to seize state-owned arms, late one night the governor signed over ownership of the contents of the state arsenal to the local commander. * * *

In Indiana, Republicans in the legislature again bolted to prevent passage of Democratic bills, running out the legislative clock. Refusing to call a special session, Morton went on to govern Indiana illegally without legislative appropriation, borrowing funds from the War Department and taking out personal loans from New York bankers and Republican-controlled county governments to cover state expenses. Like in Illinois, during spring and summer Indiana faced a rising tide of organized violence in opposition to the war.

Posted by Marcia Oddi on Sunday, February 24, 2013
Posted to Indiana Government

Saturday, February 23, 2013

Courts - 10th Circuit: "No Second Amendment guarantee for concealed carry"

Yesterday the ILB reported that the 7th Circuit, by a vote of 5-4, had denied rehearing in Michael Moore v. Lisa Madigan, AG, its opinion striking down a statewide ban on carrying concealed weapons.

However, also in an opinion filed yesterday, the 10th Circuit, in Peterson v. Martinez, decided, per this story by Karen Auge in the Denver Post:

The Second Amendment's guarantee of a right to bear arms does not extend to the right to carry a concealed weapon in public, a federal appeals court in Denver has ruled.

"We conclude that the carrying of concealed firearms is not protected by the Second Amendment . . ." Justice Carlos Lucero wrote on behalf of a three-judge panel of the 10th U.S. Circuit Court of Appeals.

Later in the story:
The 10th Circuit's ruling comes on the same day gun rights activists were celebrating a victory, as a federal appeals court in Chicago said it won't reconsider an earlier ruling that Illinois' concealed-carry ban is unconstitutional.

Posted by Marcia Oddi on Saturday, February 23, 2013
Posted to Courts in general

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

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

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

Tuesday, February 19, 2013

Ind. Decisions - More on: Petition to transfer filed in Brewington, along with amicus brief with many signatories

Updating this ILB entry from yesterday, those following the Brewington case may be interested in Dan Brewington's blog.

Among other things, it includes a link to Brewington's petition to transfer.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. App.Ct. Decisions

Law - Still more on "NCAA calls misconduct on itself for University of Miami investigation"

Updating this most recent ILB entry on the topic, from January 24th, here are three Stories:

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to General News

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of S.K.W. and D.L.W.J.: D.W. v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate (NFP)

Metropolitan Property & Casualty Ins. Co. v. Gary Darland (NFP)

NFP criminal opinions today (11):

Ernesto Roberto Ramirez v. State of Indiana (NFP)

Brandon E. Klein v. State of Indiana (NFP)

Thomas Clements v. State of Indiana (NFP)

Olie McNeal v. State of Indiana (NFP)

Megan Parker v. State of Indiana (NFP)

Bradley Franks v. State of Indiana (NFP)

Daniel Miller v. State of Indiana (NFP)

Tyrone Frazier v. State of Indiana (NFP)

Ricky L. Flake v. State of Indiana (NFP)

Luke White v. State of Indiana (NFP)

Anthony E. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Ronald B. Hawkins v. State of Indiana, an 11-page, 5-0 opinion, Justicve David writes:

When a criminal defendant fails to appear at trial, it is appropriate to consider whether or not the absence waives his right to counsel and right to be present at trial before trying that defendant in absentia. Such was the case here, where a defendant who lived in North Carolina arrived late for trial in Elkhart, Indiana, only to discover that he had already been convicted. Based on the particular facts and circumstances of this case, however, we conclude that trying the defendant in absentia, without counsel, was not the proper course of action for the trial judge to take. Accordingly, we vacate the defendant’s convictions and remand for a new trial. * * *

[B]ased on the facts and circumstances of this particular case, we find that Hawkins’s failure to appear at trial was not a waiver of his right to counsel and it was inappropriate to try him in absentia without representation. We therefore vacate his convictions and sentence and remand for a new trial. * * *

Because we reverse the trial court’s decision to try Hawkins in absentia and remand for a new trial, the issues he raises with respect to his sentence are necessarily moot. However, we write briefly on them just to highlight two points. * * *

We think the State’s proposed interpretation of “personally present” would effectively render Rule 14(A)(2)(c) meaningless. If a defendant could be “personally present” at sentencing via video conference and satisfy § 35-38-1-4(a), there would be no reason for the Administrative Rules to explicitly require the defendant to give “a written waiver of his or her right to be present in person” before that video conference could be held.

A better interpretation—and one that gives force to both provisions—is that “personally present” and “present in person,” as used in Indiana Code § 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. Thus, a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.

ILB: Here is the vacated July 3, 2012 2-1 COA opinion (5th case).

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Allen County Judicial Nomination Commission to meet to choose new judge for the first time since 2000

An editorial today in the Fort Wayne Journal Gazette, written by Tracy Warner, supplements this announcement from last Friday. Here it is in full, as it adds to our trove of judicial selection lore:

Judge Stephen Sims’ retirement announcement last week didn’t exactly shock the local legal community – he had been discussing his plans for months.

Now, his departure will initiate a procedure not used in Allen County for more than a dozen years – selecting three finalists, one of whom Gov. Mike Pence will appoint to the bench.

For the first time since the Allen County Judicial Nomination Commission chose three finalists in 2000 to succeed Judge Paul Mathias, who was appointed to the state Court of Appeals, the commission will meet to again select three names to give to the governor. Two of them may well be local officials who have privately expressed interest in the position: Circuit Court Magistrate Craig Bobay and Michael McAlexander, chief deputy prosecutor. More applicants are expected.

By law, the chairman of the seven-member commission is Indiana Chief Justice Brent Dickson or his designee, and Dickson has named Justice Steven David to head the panel. Pence will appoint three non-attorney members; no more than two can be from the same party. Every four years, Allen County attorneys elect three attorneys as members of the commission. The current members are Ed Beck, Susan Rutz and James O’Connor. The seven members will review the applications and select three finalists based on criteria specified in the law.

Sims’ position is arguably the most work-intensive of the nine Superior Court judges. Unlike his eight colleagues, Sims works not in the Courthouse but the Allen County Juvenile Detention Center, which he ultimately oversees and where he hears Family Division cases, most involving juvenile delinquency. And, in some ways, Sims also oversees a school for juveniles held in the center.

Last year, Sims and Superior Court Judge Wendy Davis spoke about the possibility of Davis’ moving into Sims’ position, but she ultimately decided against it. Davis was elected to a criminal court slot in 2010 and decided to stay in that position. The law would have allowed her – or any other Superior Court judge – to transfer to the court’s Family Division. The commission then would have selected finalists for the open spot.

Retiring mid-term

Superior Court judges were elected on a partisan basis until a 1971 reorganization that changed the selection process to appointment by the governor, with judges later facing retention votes. But the law changed again, to non-partisan elections, in 1982.

Despite the move to elections, it was common for judges to leave the bench mid-term to allow the governor to appoint their successor. Republican-leaning judges tended to retire when a Republican governor was in office; while judges leaning toward the Democratic Party left during the administrations of Govs. Evan Bayh and Frank O’Bannon.

The last judge to retire in mid-term was Vernon Sheldon in 1998, and O’Bannon appointed Stan Levine to replace him. Two years later, Judge Paul Mathias was appointed to the state Court of Appeals, and O’Bannon selected David Avery for the bench.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Courts

Ind. Law - "Criminal code revamp passes: Could end 50% ‘good time credit’"

Well, HB 1006 hasn't passed, it has passed out of House Ways & Means, to which it had been refer by Committee on Courts and Criminal Code because of fiscal impact issues.

Niki Kelly reports today in the Fort Wayne Journal Gazette:

The House Ways and Means Committee on Monday unanimously approved a bill overhauling the state’s criminal code, with some slight amendments.

The goal of House Bill 1006 is to make punishment more proportional to the crime, make the most serious offenders serve longer sentences and divert drug addicts and low-level offenders from state prisons to local treatment and supervision programs to reduce recidivism.

The bill increases the number of felony levels from the current four to six and spells out new rules for how prisoners could earn “credit time” for early release.

All felons would have to serve 75 percent of their sentences. Under current law “good time credit” automatically cuts sentences in half and then educational credit can reduce that further.

Chairman Tim Brown, R-Crawfordsville, initially offered an amendment to reduce this percentage out of concern that it might increase the state prison population in future years.

Rep. Greg Steuerwald, R-Danville, said the bill’s parts all work together, noting the 75 percent requirement needs to be considered along with judges receiving more discretion to suspend sentences altogether for low-level crimes and the overall rearrangement of the crimes and possible length of sentence.

He said under current law the Indiana Department of Correction expects to have to build a new prison in 2019. The estimate with these changes is 2025.

Brown withdrew his amendment, but the committee did restore the ability of an offender to earn back credit time that has been taken away because of bad behavior.

The DOC was concerned about not having that leverage to encourage good conduct.

The bill also lowers some drug penalties, including reducing the size of the “drug-free zones” around schools. And it recalibrates theft charges to allow more misdemeanor charges.

The legislation now moves to the full House.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Law

Ind. Gov't. - "Richard Feldman: Indiana should expand Medicaid"

Richard Feldman, director of medical education and family medicine residency at Franciscan St. Francis Health and is a former state health commissioner, makes a strong case for Medicaid expansion in this opinion piece this morning in the Indianapolis Star. He concludes:

If Indiana rejects expansion, Indiana tax dollars, rather than benefiting Hoosiers, will go to other states to support their expansion programs.

Gov. Mike Pence and most Republican lawmakers are loath to expand traditional-styled Medicaid. Two bills have been introduced with alternative expansion models that would provide for greater state autonomy and the patient accountability and cost-sharing characteristics of the Healthy Indiana Plan. But so far HIP has been rejected by the federal government as a Medicaid alternative. If the state and the feds remain uncompromising, Indiana’s expansion opportunity could be lost.

Existing money has been identified as possible funding sources for Medicaid expansion, including redirected money from the anticipated dissolution of the state high-risk insurance program.

To pass on this opportunity would be fiscally imprudent and morally wrong.

Some may say it is unfortunate lawmakers are not held to a fiduciary standard with respect to the citizens they represent.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Government

About this Blog - Problems with ILB host server

Readers: I'm sorry to say I am having serious problems with service from the site that has hosted the ILB for over 10 years. I am working to resolve them.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to About the Indiana Law Blog

Ind. Law - Bills of interest to the judiciary heard in committee during Week 6 of the General Assembly

Here is the sixth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Posted by Marcia Oddi on Tuesday, February 19, 2013
Posted to Indiana Law

Monday, February 18, 2013

Ind. Decisions - Transfer list for week ending February 15, 2013

[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 15, 2013. It is two pages (and 17 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 4 NFP)

For publication opinions today (4):

Alex Carrillo v. State of Indiana

Alex Carrillo v. State of Indiana

Michael R. Sudberry v. State of Indiana

In Jim A. Edsall v. State of Indiana , a pro se appeal, Judge Crone concludes:

We find Green applicable here, where the trial court ordered Edsall to repay over $19,000 that the drug task force spent during the course of the undercover criminal investigation of Edsall, including for the purchase of over 10,000 pseudoe*phedrine pills and the wages and expenses of law enforcement from various agencies. Although Edsall argues that the restitution amount was excessive, we make no finding today on the amount of the restitution. Rather, we hold that under the facts of this case the State was not a victim as contemplated by the restitution statute, and the trial court’s order of restitution was not proper. Compare Ault v. State, 705 N.E.2d 1078, 1082-83 (Ind. Ct. App. 1999) (where State was entitled to restitution for Medicaid payments that it paid on behalf of infant victim shaken and injured by defendant because it stood in shoes of victim and assumed cost of victim’s care).
NFP civil opinions today (2):

Nancie Hale, as Next Friend of John Doe v. Randolph County Kids, Inc. d/b/a Camp Yale, Randolph County Department of Community Corrections, Camp Kidz-Kan-Du, et al. (NFP)

Jerome Scott Mattingly v. Juan William Smith and Julie Ann Smith and Sharon O'Connell and Daniel E. Richards, Vernuse Mings and Meredity Mings, Glen H. Macphee and Carol S. Macphee, et al. (NFP)

NFP criminal opinions today (2):

Dennis L. Lloyd, Jr. v. State of Indiana (NFP)

Robert D. Bowen v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Ind. App.Ct. Decisions

Courts - Tomorrow: "Indiana Farmer's Fight With Monsanto Reaches The Supreme Court"

Updating a number of earlier ILB entries, oral argument in the case in which "Vernon Hugh Bowman, an Indiana farmer, is challenging Monsanto, the world's largest seed company, over genetically modified crops," is tomorrow. A few quotes from Andrew Pollack's long, Feb. 15th NY Times story:

[T]he 75-year-old farmer from southwestern Indiana will face off Tuesday against the world’s largest seed company, Monsanto, in a Supreme Court case that could have a huge impact on the future of genetically modified crops, and also affect other fields from medical research to software.

At stake in Mr. Bowman’s case is whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products.

It is one of two cases before the Supreme Court related to the patenting of living organisms, a practice that has helped give rise to the biotechnology industry but which critics have long considered immoral. The other case, involving a breast cancer risk test from Myriad Genetics, will determine whether human genes can be patented. It is scheduled to be heard April 15.

Monsanto says that a victory for Mr. Bowman would allow farmers to essentially save seeds from one year’s crop to plant the next year, eviscerating patent protection. In Mr. Bowman’s part of Indiana, it says, a single acre of soybeans can produce enough seeds to plant 26 acres the next year.

Here is NPR's Morning Edition story this morning by Dan Charles. Some quotes, the whole story is quite interesting:
But here's where Bowman got into trouble: He also likes to plant a second crop of soybeans, later in the year, in fields where he just harvested wheat.

Those late-season soybeans are risky. The yield is smaller. Bowman decided that for this crop, he didn't want to pay top dollar for Monsanto's seed. "What I wanted was a cheap source of seed," he says.

Starting in 1999, he bought some ordinary soybeans from a small grain elevator where local farmers drop off their harvest. "They made sure they didn't sell it as seed. Their ticket said, 'Outbound grain," says Bowman.

He knew that these beans probably had Monsanto's Roundup Ready gene in them, because that's mainly what farmers plant these days. But Bowman didn't think Monsanto controlled these soybeans anymore, and in any case, he was getting a motley collection of different varieties, hardly a threat to Monsanto's seed business. "I couldn't imagine that they'd give a rat's behind," he snorts.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Courts in general

Ind. Courts - "Status of law professor at issue in William Hurt trial"

A few quotes from Mark Wilson's long, Feb. 16th story in the Evansville Courier & Press:

The legal director for Northwestern University School of Law’s Center for Wrongful Convictions is among the witnesses slated to testify in the murder trial of 18-year-old William Hurt this week.

However, defense attorney Conor O’Daniel must first overcome a legal challenge from prosecuting attorney Mike Perry. * * *

[B]efore the trial starts Magistrate Kelli Fink will hear arguments on whether Steven Drizin, a clinical professor of law at Northwestern University School of Law, should be allowed to testify as an expert witness and whether to admit records of Hurt’s mental health history. Perry, who is the Vanderburgh County Prosecutor’s Office’s chief trial deputy, is objecting to both.

According to the Center for Wrongful Convictions’ website, Drizin is an authority on police interrogations, coerced confessions and juvenile justice issues.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Indiana Courts

Ind. Decisions - Petition to transfer filed in Brewington, along with amicus brief with many signatories

Updating this ILB entry from Jan. 31st, and several earlier ILB entries posted under the heading "Blogger Jailed; Allegedly Threatened Dearborn Judge", EagleCountry 99.3FM, which has been closely following this story from the beginning, posts today:

(Rising Sun, Ind.) – A man convicted of intimidating a judge in Dearborn County is trying to take his case to the Indiana Supreme Court.

Dan Brewington is serving a five-year prison sentence following his conviction on Intimidation of a Judge, two counts of Intimidation, Obstruction of Justice, and Perjury in a 2011 jury trial. Prosecutors persuaded jurors that the Internet blogger threatened Dearborn Circuit Court Judge James Humphrey and others in his online writings.

Last month, the Indiana Court of Appeals overturned part of Brewington’s conviction. However, his convictions for Intimidation of a Judge, Obstruction of Justice, and Perjury were upheld along with the five-year prison sentence.

On Thursday, Brewington’s attorney filed a petition to get the case in front of the Indiana Supreme Court.

In the briefing, the jailed blogger’s attorney, Michael K. Sutherland, alleges that his first amendment rights were violated.

“For these reasons, Brewington respectfully requests the Court grant transfer, vacate the decision of the Court of Appeals, reverse his convictions for intimidation, attempted obstruction of justice and perjury, and enter verdicts of acquittal. Alternatively, Brewington asks for a new trial on the charges of intimidation and attempted obstruction of justice at which his federal and state constitutional rights will be given full protection,” Sutherland wrote.

Sutherland also claims that Brewington’s Perjury conviction should be thrown out because it related to a Dearborn County Grand Jury proceeding in which Prosecutor Aaron Negangard asked Brewington a question. Brewington’s answer was interrupted by the prosecutor.

“The State should not be able to prosecute a witness for perjury based on an incomplete statement when the State is responsible for it being incomplete,” Sutherland said.

In addition, as posted earlier, UCLA Law Prof Eugene Volokh of The Volokh Conspiracy has filed an amicus brief in the case. In this Feb. 15th post he writes:
Last month I blogged about State v. Brewington, an Indiana Court of Appeals decisions that I thought was inconsistent with the First Amendment. I’m pleased to say that today (with the help of local counsel Jim Bopp and Justin McAdam) I filed a pro bono amicus brief urging the Indiana Supreme Court to consider the case.

The brief was filed on behalf of Eagle Forum, the Hoosier State Press Association Foundation, the Indianapolis Star, the Indiana Association Of Scholars, the Indiana Coalition for Open Government, the James Madison Center for Free Speech, Nuvo (Indy’s Alternative Voice), and Professors James W. Brown, Anthony Fargo, Sheila S. Kennedy — all Indiana professors of journalism or public policy — as well as myself.

Many thanks to all the others for agreeing to sign on, to Jim and Justin for their pro bono help, and to Mayer Brown LLP, the firm with which I’m a part-part-part-part-time academic affiliate, for paying the various filing and printing costs.

That's right, Jim Bopp AND Sheila Kennedy! Volokh then proceeds to writes: "In any event, I thought I’d blog the amicus brief, in parts, since it discusses some questions that I think are of broader interest."

Here are the lengthy posts: Part 1; Part 2; and Part 3, titled, respectively:

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Ind. App.Ct. Decisions

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, February 17, 2013:

From Saturday, February 16, 2013:

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/18/13):

Next week's oral arguments before the Supreme Court (week of (2/25/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/18/13):

Monday, February 18th

Tuesday, February 19th

Wednesday, February 20th

Next week's oral arguments before the Court of Appeals (week of 2/25/13):

Monday, February 25th

Tuesday, February 26th

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.

Posted by Marcia Oddi on Monday, February 18, 2013
Posted to Upcoming Oral Arguments

Sunday, February 17, 2013

Ind. Courts - Les Shively, the latest appointee to the Vanderburgh Superior Court bench

Updating this brief mention from Jan. 11th, see Mark Wilson's feature article today in the Evansville Courier & Press. Some quotes:

EVANSVILLE — Beyond the sharp suits, crisp white dress shirts and animated opinions for which he is well known, Les Shively has built a solid career over three-decades as a tenacious, hardworking lawyer specializing in property rights and real estate law. * * *

On Jan. 10, shortly before leaving office, former Indiana Gov. Mitch Daniels appointed Shively, 58, to serve the two years remaining of Superior Court Judge David Kiely's term after Kiely was elected to the position of Circuit Court judge. Tentative plans are for him to be sworn in as a judge in early March, Shively said.Shively was one of seven local attorneys who sought the Superior Court appointment. His legal qualifications include having served as a hearing officer in attorney disciplinary proceedings for the past 12 years and as a member of the Indiana State Board of Law Examiners for 10 years, two of which he was board president. He served as general counsel for the Evansville Area Association of Realtors from 1982-2000. He has represented several local government bodies in Vanderburgh and Warrick counties, including the Vanderburgh County Election Board, Warrick Area Plan Commission and the Town of Chandler.

A frequent donor to Republican political campaigns, Shively donated, both through his law firm and individually, a total of $4,500 directly to Daniels' campaigns between 2004 and 2007, according to the Indiana Secretary of State's Office.

His appointment was an affirmation of Shively's life motto: Work hard, have faith, have patience, and it will all work out.

Patience, Shively said, is the hardest part for him. Superior Court was not the first state court appointment Shively had sought during his 32-year career, having made unsuccessful bids for seats on the Indiana Supreme Court and Court of Appeals.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Indiana Courts

Ind. Decisions - "Indiana Court of Appeals upholds Evansville smoking ban"

Thursday's NFP opinions in the case of VFW Post 2953, et al. v. City of Evansville and Evansville Common Council (NFP) and in the case of Paul Stieler Enterprises, Inc. d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council (NFP) are featured in this story this weekend in the Evansville Courier & Press. A brief quote:

The Indiana Court of Appeals said Friday that a Vanderburgh County judge correctly denied injunctions requested by a group of tavern owners and private clubs against Evansville's smoking ban, which took effect last April.
Neither of these opinions was designated for publication by the COA under the criteria for publication set out in Appellate Rule 65(A):
A. Criteria for Publication. * * * A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication [NFP] memorandum decision.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Squad cars adding cameras, license plate readers"

Jeff Wiehe reports in the FWJG - some quotes:

FORT WAYNE – While on patrol at the state fairgrounds a few years ago, 1st Sgt. Brian Olehy of the Indiana State Police listened as continual dings sounded off in his squad car.

Every parked car or truck he passed created another alert: ding … ding … ding.

Mounted on the outside of Olehy’s car were cameras and sensors called automatic license plate readers, and each ding meant they had scanned the license plate of a vehicle he passed.

In turn, these readers stored that information in a database and then cross-checked it against a database of license plates belonging to reported stolen vehicles.

“They’re a very useful tool, specifically for stolen vehicles,” said Olehy, who added that the dings would’ve turned to a different sound if he had actually found a stolen vehicle.

Automatic license plate readers are becoming more and more popular with law enforcement agencies, and in May there will be a set of them deployed on two Fort Wayne police squad cars.

Law enforcement officials say they not only help in finding stolen vehicles but can also quickly find license plates registered to suspended drivers, those who owe money on parking tickets or those involved in an Amber Alert situation. * * *

But some critics say the plate readers can be abused and question what police are doing with the voluminous data the readers record daily.

The American Civil Liberties Union specifically questions whether police will use the readers to track law-abiding citizens who are going about their day, having their location recorded without their knowledge.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Indiana Government

Ind. Gov't. - "We shouldn't base Indiana energy policy on soothsaying designed to protect a monopoly."

That is a quote from a "Behind Closed Doors" item (scroll to final item in article) in Sunday's Indy Star. A few quotes:

More than a month into the Indiana General Assembly's session, the future of the controversial Rockport coal-gasification is still unclear. * * *

Evansville-based Vectren Corp., which provides natural gas to most customers in Central Indiana outside Marion County, has estimated that the deal would cost ratepayers $1 billion during the plant's first eight years of operation under current market conditions.

Vectren is leading a group fighting to stop the plan from ever operating.

Mark Lubbers, the project manager for Indiana Gasification, the group behind the project, countered that Vectren has produced consumer losses of $628 million in the past five years, by using the same methodology.

"Vectren's predictions are based on assumed natural gas prices between 2018 and 2028; a fortune teller at the State Fair has a better chance of being right. We shouldn't base Indiana energy policy on soothsaying designed to protect a monopoly."

ILB: Actually many might also consider the Rockport plant deal, which holds the Indiana natural gas ratepayers captive for the next 30 years, monopolistic.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Indiana Government

Courts - A decision on the issue of whether atorneys may copyright their briefs

Here is a story reported by Jessica Dye of ThompsonReuters that begins:

NEW YORK, Feb 11 (Reuters) - A federal judge in Manhattan has thrown out a copyright lawsuit brought by an attorney who sued legal research companies Westlaw and LexisNexis, claiming they had unlawfully profited from his copyrighted legal filings.

In a brief ruling issued Friday, U.S. District Judge Jed Rakoff dismissed Edward White's lawsuit. White, who specializes in intellectual property law, had alleged that Westlaw, owned by Thomson Reuters Corp, and LexisNexis, owned by Reed Elsevier Plc, profited by selling his copyrighted legal briefs in their databases.

Rakoff said that his reasoning for dismissing the lawsuit would be laid out in a subsequent opinion.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Courts in general

Environment - Pipelines in the news this weekend: crude oil, tar sands, and natural gas

From the South Bend Tribune, this story by Lou Mumford on the Enbridge crude oil pipline, which cuts across northwest Indiana. A few quotes:

Canada-based Enbridge Energy seek a connection, between Sarnia, Ontario, in Canada and Griffith, Ind., some 285 miles away. Already, a pipeline is in place, but a new one adjacent to the current buried structure began taking shape last year largely so Enbridge can transport greater quantities of crude oil to refineries.

The new pipeline, like the current one, cuts through less than an acre of the 11-acre farm Theri Niemier and her husband, John, bought in 1996. In a stance similar to Bertrand Farm's, Enbridge says on its website that it "takes seriously" its relationship with fossil fuels, adding that it "invests heavily in renewable and alternative energy technologies" such as wind farms and solar applications.

But Theri Niemier is leery, arguing Enbridge's track record when it comes to environmental responsibility leaves a lot to be desired.

"The irony is unbelievable," she said. "We're exactly the opposite of what the pipeline is doing to us."

From the Chicago Tribune today, this story by Mitch Smith on the controversial Keystone XL Pipeline, which would transport tar sands from Canada to refineries on the Gulf coast. A quote:
More than 200 opponents to the Keystone XL Pipeline gathered Sunday in Chicago’s Grant Park, about halfway between Washington, D.C.—where thousands more marched against the proposed pipeline – and the route that would carry Canadian oil sands across the Great Plains to American oil refineries.

The Chicago demonstrators, many of them college students, said the pipeline poses an environmental threat to the entire nation at a time when America should be investing in renewable energy sources. They urged President Barack Obama to deny permits to TransCanada, the oil company that has for years tried to assuage concerns and get permission to build the pipeline.

See also today's NYT's storty by John Broder, Clifford Krauss and Ian Austen, headed "Pipeline Call Gives Obama New Problems Either Way."

Finally, the GAO has put out a 44-page report on natural gas pipeline permitting.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Environment

Ind. Courts - "Longtime Allen Superior Court Judge Stephen M. Sims will be retiring at the end of April"

So reported Rebecca S. Green in the FWJG last Friday. More:

Sims, who is in his late 60s, has served as judge in the family relations division of Superior Court since 1997, handling juvenile cases at the Allen County Juvenile Justice Center.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Indiana Courts

Ind. Courts - Former Clerk of the Indiana Supreme and Appellate Courts Dwayne Brown, dies at 50

Here is the obituary from the Feb. 15, 2013 Indianapolis Star.

Posted by Marcia Oddi on Sunday, February 17, 2013
Posted to Indiana Courts

Friday, February 15, 2013

Ind. Courts - "Senior judge program sparks many objections"

That is a headline from a 2007 story in the Louisville Courier Journal, about Kentucky senior judges, reported by Andrew Wolfson and Jason Riley. Most of the story is now only available from the paper's paid archive, but the beginning is still accessible:

Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court.

But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload.

To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges. ...

Later in the story, as reproduced in this ILB post from Jan. 14, 2007:
Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year.

In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice."

In Indiana, IC 33-27-4 deals with the appointment of senior judges, as does IC 33-23-3, and IC 33-24-3-7:
Sec. 7. (a) The supreme court may appoint a judge who is certified as a senior judge by the judicial nominating commission to serve a circuit court, a superior court, a probate court, the tax court, or the court of appeals if the court requests the services of a senior judge.
(b) The supreme court may adopt rules concerning:
(1) certification by the judicial nominating commission; and
(2) appointment by the supreme court;
of senior judges.
As added by P.L.98-2004, SEC.3. Amended by P.L.32-2005, SEC.4; P.L.201-2011, SEC.21.
Here is the Senior Judge Handbook. And here is Administrative Rule 5 (B)(3), which discusses the qualifications for senior judge status.

However, despite the screening process in Indiana, several county judges who were defeated by the voters, and at least one who was disciplined by the Supreme Court, are on the 2013 Order Appointing and Continuing Senior Judges.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Amy Jean Kristoff v. Centier Bank , a 9-page opinion, Judge Mathias writes:

Amy Jean Kristoff (“Amy”) appeals the Lake Circuit Court’s grant of summary judgment in favor of Centier Bank (“the Bank”), the trustee of the Amy Jean Kristoff Exempt Trust, in Amy’s action to modify the terms of a trust established by her late mother. We affirm. * * *

The terms of the trust document are clear and unambiguous, and the primary purpose of the trust was not for the benefit of the beneficiaries’ children. Nor was the beneficiaries’ failure to have children an unforeseen circumstance. Amy has identified no genuine issue of material fact, and the Bank has demonstrated that it is entitled to judgment as a matter of law.

In South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus , a 14-page opinion, Judge Bradford writes:
On May 23, 2009, Juanita DeJesus was injured when she was hit on the head by a foul ball at a Gary South Shore Railcats minor league professional baseball game. DeJesus subsequently filed suit against South Shore Baseball, LLC d/b/a Gary South Shore Railcats and Northwest Sports Venture, LLC (collectively, “Appellants”), alleging that the Appellants were liable for her injuries under a theory of premises liability and for negligently failing to place protective screening continuously from first to third base. Appellants filed a motion for summary judgment, claiming that, under both Indiana law and the nationwide majority rule, they could not be held liable for DeJesus’s injuries. The trial court denied the Appellants’ motion for summary judgment. Soon thereafter, Appellants sought and were granted permission to bring this interlocutory appeal. Concluding that, as a matter of law, Appellants cannot be held liable for DeJesus’s injuries, we reverse the judgment of the trial court and remand with instructions for the trial court to issue an order granting summary judgment in favor of the Appellants. * * *

With respect to DeJesus’s claim that Appellants were liable for her injuries under the theory of premises liability, we apply the Indiana Supreme Court’s holding in Pfenning to the instant matter and conclude that the undisputed designated evidence conclusively establishes that crucial aspects of two of the elements of premises liability are not satisfied. Pfenning, 947 N.E.2d at 407. There is no showing that (a) the Appellants should have reasonably expected that their invitees would fail to discover or realize the danger of foul balls entering the stands, and (b) the risk of being struck by a foul ball involved an unreasonable risk of harm. With respect to DeJesus’s negligence claim, we adopt the majority rule that the operator of a baseball stadium does not have a duty to place protective screening continuously from first to third base, but rather only in the most dangerous area, i.e., the area directly behind home plate. For these reasons, we conclude that DeJesus cannot prevail on her claims against the Appellants. As such, we reverse the judgment of the trial court and remand with instructions for the trial court to grant the Appellants’ motion for summary judgment.

The judgment of the trial court is reversed and the matter remanded with instructions.

In Amanda Vaughn v. State of Indiana , a 10-page, 2-1 opinion, Judge Barnes writes:
Amanda Vaughn appeals the trial court’s sentence for her conviction of Class A misdemeanor criminal trespass. We reverse and remand.

Vaughn raises one issue, which we restate as whether the trial court abused its discretion when it ordered her to serve forty hours of community service in lieu of fines and costs. * * *

Given the lack of statutory authority for the trial court to impose a community service requirement in lieu of costs and fees, we must reverse the trial court’s order. We remand for the trial court to address the imposition of costs and fees in this case. In doing so, we note that, our supreme court has held, “when fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.” Whedon, 765 N.E.2d at 1279. * * *

RILEY, J., concurs.
BAKER, J., dissents with opinion. [that begins] I respectfully dissent and part ways with the majority’s determination that the trial court erred in ordering Vaughn to serve forty hours of community service in lieu of paying fines and costs.

First, I would note that a trial court may exercise its discretion by suspending fines and costs, and “may impose any reasonable condition it deems appropriate when it does so.” Campbell v. State, 551 N.E.2d 1164, 1169 (Ind. Ct. App. 1990). In my view, ordering Vaughn to perform community service in lieu of fines and costs was reasonable.

NFP civil opinions today (5):

VFW Post 2953, et al. v. City of Evansville and Evansville Common Council (NFP)

Larry J. Briski v. Peoples Bank (NFP)

In Re: The Paternity of K.D.; M.G. v. S.D. (NFP)

Pie Kitchen, LLC d/b/a Homemade Ice Cream and Pie Kitchen v. Merchant, LLC (NFP)

Paul Stieler Enterprises, Inc. d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council (NFP)

NFP criminal opinions today (8):

Shawn J. Lee v. State of Indiana (NFP)

Misty DeMoss v. State of Indiana (NFP)

Tasha Parsons v. State of Indiana (NFP)

Courtney A. Wuethrich v. State of Indiana (NFP)

Dennis White v. State of Indiana (NFP)

Clarence E. Smith v. State of Indiana (NFP)

Brian Williams v. State of Indiana (NFP)

Jesse L. Rose v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Ind. App.Ct. Decisions

Law - "After ‘Anonymous’ Attack, Sentencing Body Seeks Blogger’s Help"

Really, this post at the WSJ Law Blog left me shaking my head in wonder!

The short version: (1) official U.S. Sentencing Commission website hacked by the group Anonymous three weeks ago; (2) the site has been unavailable since; (3) now the Commission is asking a law professor to post its most recent thousands of pages long report on his blog, the Sentencing Law Blog.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to General Law Related

Ind. Courts - Fort Wayne "Divorce attorneys come up with unique concept to handle divorces"

WANE.com Ft. Wayne has this story today about:

Destination Divorces ... a new way to go through a divorce. Skipping the court proceedings, this process goes straight to the mediation part of it, but the unique part about it is you can go on a vacation resort with your soon-to-be ex-spouse, in separate rooms, to hammer out the details.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts

Ind. Decisions - "Judge rules against Purdue on hiding report from former IPFW Chancellor Michael Wartell"

Interesting story by Rebecca S. Green of the Fort Wayne Journal Gazette. Some quotes:

Purdue University cannot claim attorney-client privilege as a reason to prevent disclosure of information related to a complaint filed by former IPFW Chancellor Michael Wartell.

In an order issued late last month, Tippecanoe Circuit Judge Donald Daniel said Purdue University cannot claim that information uncovered by John C. Trimble was exempt from public disclosure because it was protected by attorney-client privilege or work product.

Wartell was forced out at IPFW in 2011 because Purdue University requires university executives to retire at age 65. Requests from IPFW that he be allowed to stay were denied.

Wartell filed a complaint against the university, claiming discrimination and harassment. Purdue hired Trimble as an independent investigator. The investigation was completed last February and reported to a group of Purdue board members, which found no discrimination had taken place.

But nothing was ever made public, not even to Wartell, who filed requests with Purdue officials and the state’s public access counselor to see the report. * * *

Purdue claimed Trimble served appropriately as both the school’s attorney and third-party investigator. * * *

After dueling motions and multiple hearings, Judge Daniel’s ruling ordered Purdue to answer questions asked of Trimble and Alyssa Rollock, the school’s vice president for ethics and compliance.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Legislature great at dealing with problems we don't have"

NWI Times columnist Phil Wieland writes today about the proposed hunt/fish/farm amendment.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Law

Ind. Courts - Bisard trial moving to Fort Wayne, Judge Hawkins withdraws

Tim Evans reports in the Indianapolis Star:

[At a hearing Thursday morning] Marion Superior Court Judge Grant Hawkins announced Bisard’s trial is being moved to Allen County. It was a move, the judge said, that was necessitated by the extensive publicity that continues to swirl around the case 30 months after the crash.

Hawkins and attorneys involved in the case hope Allen County — about 120 miles northeast of Indianapolis — will provide a pool of potential jurors who know nothing about the allegation that Bisard was driving drunk or the controversy surrounding the blood test. * * *

The new trial location announced Thursday was expected.

In December, Hawkins approved a defense request to move the trial because extensive media coverage could make it difficult to find jurors in Marion County unfamiliar with the controversial case.

“It appears clear,” Hawkins wrote in an order issued Thursday, “this case must be brought to trial a distance away from the Marion County media ‘footprint.’”

But there was a bit of a surprise at the hearing. Hawkins announced that he is withdrawing from the case and has selected Allen Superior Court Judge John Surbeck Jr. to take jurisdiction.

Hawkins noted in his order that “it is not feasible to be away from Marion County for the time necessary to preside over this trial,” which is expected to last three to four weeks. * * *

The first hearing in Allen County will be a case conference in front of Surbeck at 1:30 p.m. March 8. Deputy Prosecutor Denise Robinson said she hopes a trial date will be set at that time.

[More] Charles Wilson of the AP has a long story today, here in the Fort Wayne Journal Gazette, about the move.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts

Thursday, February 14, 2013

Ind. law - More on: Issue of a county’s right to apply health code regulations on sewage disposal systems

Updating this Feb. 10th ILB entry, today's FWJG has an editorial on the same topic. Some quotes:

Discharging raw sewage onto your neighbor’s property or into a community’s rivers and streams is not exercising property rights or religious freedom; it is endangering public health and safety. Lawmakers need to support proposed legislation that will clarify state law regarding septic tanks and help local government regulate building and sanitation systems. * * *

Amish residents have long used an exemption in building codes, called the log-cabin rule, in constructing their homes. The log-cabin rule allows people to build – without permits – their own home on their own land in an unincorporated area. Some people claim the law also grants an exemption to health and sanitation rules.

Senate Bill 159, authored by Sen. Tom Wyss, R-Fort Wayne, has already passed in that chamber. Rep. Kathy Heuer, R-Columbia City, is sponsoring the bill in the House. It would clarify that the log-cabin rule does not extend to regulations from health departments governing sanitation – reflecting court rulings.

Some state lawmakers, including Sen. Dennis Kruse, R-Auburn, and Rep. David Wolkins, R-Winona Lake, oppose the legislation because they believe it infringes on the religious beliefs of the Amish.

“It has nothing to do with property rights or religious freedom,” said Mindy Waldron, health department administrator. “Sewage leaves the property, and so it becomes a problem for your neighbors and the community as a whole.” * * *

Septic systems are expensive. It’s not fair to force some people to spend the money to ensure their sewage is being treated properly while others are allowed to pollute.

The county took several cases to court and won each time, but the local health department turned to state lawmakers because the health department was depleting its limited resources by fighting the same cases in the courts over and over.

The legislation would make it clear that everyone needs to get permits for sewage systems, to allow the septic systems to be inspected and to make repairs when needed.

Waldron said it’s a very clear issue of public health and that the claim of its being a religious-rights issue is a distracting side story. “I have yet to hear a valid reason why it’s OK to pollute the water when it causes disease,” she said.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - More on: Federal judge denies Joseph Corcoran’s request for relief in his 1999 death sentence

Updating this ILB entry from Jan. 15, 2013, Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a long story headed: "New appeal in Corcoran killings: Case heading to 7th Circuit for fourth time."

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Manufacturers, farm bureau oppose Rockport deal"

Eric Bradner writes for the Evansville Courier & Press:

Two heavyweight organizations in Hoosier politics – the Indiana Manufacturers Association and the Indiana Farm Bureau – say they oppose the state’s current 30-year contract with the Rockport coal-to-gas plant. * * *

Patrick Bennett, the Indiana Manufacturers Association’s vice president of environment, energy and infrastructure, said his organization is afraid its small and medium-sized clients will face higher prices as a result, although large industrial companies are excluded.

“Really, the message is going to be that it’s not the role of the state to subsidize the cash flow of a company or to attempt to hedge the commodity price. This project should stand on its own within the current economic development, like the state does with other companies,” Bennett told the Courier & Press.

He said he supports a bill [SB 510] by Sen. Doug Eckerty, R-Yorktown – the one that’s the topic of Thursday’s hearing – to beef up the ratepayer protections in the deal by requiring the plant’s developers, Leucadia National Corp., to reimburse those ratepayers every three years if the plant’s prices top open market rates.

That would be a departure from the current contract, which requires Leucadia to set aside $150 million that would only go to ratepayers at the end of the contract. Leucadia’s top Indiana official, former Gov. Mitch Daniels aide Mark Lubbers, said Eckerty’s bill would kill the plant.

IndyStar reporter Tim Evans writes on Twitter: "Update on bill to kill Rockport coal-gas plant: Senate utility chairman says there will be vote next week."

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Government

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

For publication opinions today (3):

In American Acceptance Co., LLC., as Assignee of Washington Mutual Finance v. Melissa Willis, a 5-page opinion, Judge Barnes writes:

American Acceptance Co., LLC, as assignee of Washington Mutual Finance (“American Acceptance”), appeals the trial court’s denial of its motion for a garnishment order against Melissa Willis. We affirm.

American Acceptance raises one issue, which we restate as whether the trial court properly denied its motion for a garnishment order against Willis. * * *

Thus, the trial court “may order” the garnishment of the debtor’s income to be applied to satisfy the judgment. I.C. § 34-55-8-7(a). The trial court here was not required to order garnishment of Willis’s income. Instead, it was within the trial court’s discretion to do so. The trial court chose to order that the Clerk of the Knox Circuit/Superior Court “not to release the bond in Cause Number 42D01-1010-FB-139, State vs. Todd Willis, until a hearing can be held in this cause of action for purposes of settlement.” Given Willis’s circumstances, the trial court did not abuse its discretion. Consequently, the trial court did not err when it denied American Acceptance’s motion for a garnishment order.

In James Roberson v. State of Indiana , a 17-page opinion, Judge Barnes reverses for ineffective assistance of counsel, concluding:
Roberson received ineffective assistance of trial counsel with respect to failing to ensure that the jury was properly instructed regarding the elements of murder, voluntary manslaughter, and the State’s burden of proof regarding sudden heat. We reverse the denial of Roberson’s PCR petition and remand for further proceedings consistent with this opinion.
In Daquan Whitener v. State of Indiana , a 24-page opinion, Judge Brown writes:
Daquan Whitener appeals his conviction for burglary as a class A felony and the trial court’s determination that he register as a sex offender as a condition of probation. Whitener raises two issues which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction for burglary as a class A felony; and
II. Whether the court erred in ordering that he register as a sex offender as a condition of probation.
Additionally, the State raises an issue on cross-appeal, namely, whether the court properly declined to enter a judgment of conviction for rape as a class B felony based upon double jeopardy principles. We affirm.
NFP civil opinions today (2):

David Garden and Star Homes, Inc. d/b/a Garden Homes Realty v. Lucas International, LLC and Wade Lucas (NFP)

Charles L. Myers v. Glen L. Williams (NFP)

NFP criminal opinions today (3):

Omar G. Burton v. State of Indiana (NFP)

James N. Arnold v. State of Indiana (NFP)

Kevin Pendleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Ind. App.Ct. Decisions

Courts - "When judges, jurors and the Internet collide" What is different about the internet?

An article by Nicole L. Black at LLRX.com explores this question. It begins:

In the past, I've described misguided attempts by judges to excessively penalize jurors for using social media or the Internet during the pendency of trials. In fact, over the last year, judges have gone so far as to fine or jail jurors who have used social media during trial, and legislators have proposed laws that would criminalize such conduct. This despite the fact that jurors have been violating judges' orders not to research or discuss pending cases since the dawn of jury trials.

But for some reason, the use of social media and the Internet by jurors really bothers some judges. In fact, it just gets their goat. The question is: why?

Perhaps it's because many judges don't understand social media so they find it to be more threatening than traditional methods of violating their orders, such as reading about a case in the newspaper, researching issues using encyclopedias, or discussing the case with their spouses over dinner. Or perhaps it's because use of the Internet leaves a digital trail, making violation of judicial orders easier to prove.

Or maybe it's because jurors these days aren't as smart as they used to be and can barely restrain themselves from rushing out immediately after a verdict is handed down and blabbing to reporters all about the different ways that they've used the Internet to violate judicial orders.

I'm not exactly sure what the answer is, but I' do think that it was a combination of the three theories above that lead to the latest brouhaha stemming from a juror allegedly using the Internet during a trial to research issues raised during trial.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Courts - "Eli Lilly CEO warns Canadian court rulings put jobs at risk"

From the Toronto Globe & Mail, a long story by Jeff Gray and Tavia Grant that begins:

The head of U.S. drug giant Eli Lilly and Co. warns that recent Canadian court rulings favouring generic drug producers are driving his company, and the research and development jobs it provides, right out of the country.

John Lechleiter, chief executive officer of Indianapolis-based Lilly, said recent court rulings striking down Canadian patents on three of the company’s top drugs have cost it more than $1-billion in revenue and forced it to shed about 280 jobs since 2006, leaving it with about 500 staff in Canada.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Courts - A look at the states filing amicus briefs in the same-sex marriage cases

In this post yesterday at SCOTUSblog, Marty Lederman takes a look at the amicus briefs filed in the same sex marriage cases:

By my count, forty-two “topside” amicus briefs have been filed in the California Proposition 8 case, Hollingsworth v. Perry, and twenty-six topside amicus briefs (not including that of the Court-appointed amica) have been filed in the DOMA case, United States v. Windsor. That’s about fifty-eight briefs total, since at least ten of them are “joint” briefs filed in both of the cases. * * *

The briefs contain many things of interest. Perhaps the single most important feature of the topside amicus briefs, however, is a dog that didn’t bark — or not as loudly as might have been expected, in any event.

Forty-one states prohibit same-sex marriage. But only twenty of those forty-one states have filed briefs in support of the constitutionality of Proposition 8: Indiana is the lead party on a brief for nineteen states, and Michigan filed a brief of its own. Compare this level of state participation with, for example, the amicus brief filed by all forty-nine other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense. * * *

It is further significant, I think, that in twelve of those twenty-one non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process. All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law (2002: Arkansas, Nevada; 2004: Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oregon; 2006: Tennessee; 2008: California, Florida; 2012: North Carolina). In some of those states, the decision of state officials not to file in Perry might be explained, at least in part, by a judgment that the constitutional amendments that govern marriage in those states no longer reflect the views of their constituents.

[More] 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). Here is the background on Windsor.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Courts in general

Ind. Law - Ag-gag bill moves to the full Senate

Updating this ILB entry from Feb. 12th, Niki Kelly reports in the Fort Wayne Journal Gazette:

INDIANAPOLIS – Agricultural and industrial businesses tired of embarrassing – and sometimes damaging – photos and videos of their operations want legislative protection.

And a Senate panel voted 7-2 Tuesday to give it to them, making it a crime to take such photos and videos on private property without permission of the owner.

Proponents called Senate Bill 373 a boon for private-property rights while opponents said it erodes whistleblower protections.

Sen. Travis Holdman, R-Markle, said he offered the bill to get at “vigilantes” who are getting into the private facilities with the sole intent of taking these types of photos or videos. He said many of them are animal activists looking for evidence of possible animal abuse.

Examples given during the hearing included people who take tours of the facility or who even work at the businesses for several weeks to obtain photos and videos of questionable activities. The documentation is often posted online and sometimes causes harm to the business.

“These people are trespassers,” said Ed Roberts of the Indiana Manufacturers Association. “They are doing something they are not supposed to be doing.”

The bill does not affect photos or videos taken while on public property.

Opponents, though, pointed to times in history when similar documentation led to improvements in the meat industry, rules about child labor laws and other examples.

Erin Huang, state director for the Humane Society of the United States, said taking away whistleblower protections related to the country’s food supply is dangerous. She also said animal abuse has been uncovered and prosecuted in other states with similar photos and videos.

She also noted a number of criminal charges that could already apply, such as trespassing or fraud, as well as civil remedies through libel or defamation lawsuits. * * *

And there also were concerns that journalists might not be able to conduct undercover investigations without running afoul of the law.

Sen. Mark Stoops, D-Bloomington, said the bill reminded him of a visit to Communist Romania where he wasn’t allowed to take photos.

“This makes the law a little more messy. We already have laws to deal with this issue. We don’t need another one,” he said.

The bill now moves to the full Senate.

Posted by Marcia Oddi on Thursday, February 14, 2013
Posted to Indiana Law

Wednesday, February 13, 2013

Ind. Gov't. - "3 Democrats file suit challenging redistricting plan approved by Mayor Ballard"

Tim Evans and Jon Murray report today in the Indianapolis Star:

Three Democratic members of the City-County Council filed a lawsuit Tuesday seeking to overturn a redistricting plan passed by the former Republican council majority and signed by Indianapolis Mayor Greg Ballard.

Council President Maggie Lewis, Vice President John Barth and Majority Leader Vernon Brown are the plaintiffs in the suit.

Democrats took control of the council following the 2011 election, and Tuesday’s lawsuit long had been expected in their escalating battle with Ballard and his fellow Republicans over redistricting.

The lawsuit names the three members of the Marion County Election Board — Clerk Beth White and members Mark K. Sullivan and Patrick J. Dietrick — as defendants. It seeks to have the GOP redistricting plan revoked on the contention that the work was not done in 2012, as required by Indiana law. White and Sullivan are Democrats. Dietrick is a Republican.

The lawsuit asks Marion Superior Court to declare the Republican-passed maps improper and to draw a new set of boundaries. The case likely will end up in the Indiana Supreme Court. * * *

After the lawsuit was filed Tuesday, the Marion County clerk’s office selected a five-judge panel that will hear the redistricting case, as required by Indiana law.

The judges — three Democrats and two Republicans — were chosen randomly through an electronic process, spokeswoman Angie Nussmeyer said.

The presiding judge on the case is Heather Welch, a Democrat. She will be joined by Democrats James Osborn and Thomas Carroll and Republicans Theodore Sosin and Cynthia Ayers.

State law prohibits the judicial panel assigned to the redistricting case from recusing the court from the matter. * * *

Ballard signed the current maps into law on January 1, 2012, the same day Democrats gained their new council majority.

State law required the council to redraw district boundaries during 2012, using 2010 census data. The Ballard administration views his signing of the GOP’s 2011-passed redistricting plan at the start of 2012 as satisfying the law, since that constituted the adoption date.

Here, via the Indianapolis Star, is the 5-page lawsuit.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Courts | Indiana Government

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

In U.S. v. Jesus Uribe (SD Ind., Magnus-Stinson), a 15-page opinion, Judge Williams writes:

Early one morning, Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated. Nor is there evidence that Uribe’s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana’s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe’s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.

Uribe filed a motion to suppress the evidence obtained following the stop, contending that the seizure violated the Fourth Amendment because the deputy had no reasonable suspicion or probable cause to detain him. Although the government offered no evidence to support its objection to the motion, it argued that there was reasonable suspicion that the car was stolen and that its driver was violating Indiana law by operating a vehicle displaying a different car’s registration number. The district court granted Uribe’s motion, finding the government’s explanations insufficient to establish that at the time of the stop the deputy had a reasonable, articulable suspicion that Uribe was engaged in criminal activity.

In this interlocutory appeal, we must determine whether one lawful act in isolation—driving a car of one color with a registration number attached to a car of a different color—gives rise to reasonable suspicion that a driver is engaged in criminal activity. Because on this record, investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion, we affirm.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Constitutional issues with proposed special license plates plan?

This morning Dan Carden reported in the NWI Times:

INDIANAPOLIS | It took an extra year, but the Indiana House on Tuesday voted 92-6 for a plan by state Rep. Ed Soliday, R-Valparaiso, intended to bring order to the state's special group license plates.

House Bill 1297, which now goes to the Senate, sets new standards for obtaining a group license plate, caps the total number of plates at 150 and requires groups with plates disclose their financial records.

Under the plan, a panel of four Republicans and four Democrats from the House and Senate would review applications for group plates and advise the Bureau of Motor Vehicles on whether to issue a new plate.

While the BMV would not be required to follow the committee's recommendation, it couldn't create a new plate until the committee weighed in.

Here, from the most recent version of HB 1279, is the operative provision:
Sec. 2.5. (a) The license plate committee shall meet at least two (2) times a year at the call of the chairperson to review applications for special group recognition license plates that have been forwarded to the license plate committee by the bureau under section 2.3(b) of this chapter.
(b) After reviewing the applications, the license plate committee shall:
(1) compile a list recommending new special group recognition license plates; and
(2) forward to the bureau by written means the list of recommended special groups that meet the suitability for issuance of a special group recognition license plate.
The license plate committee may not recommend more than five (5) new special group recognition license plates to the bureau under this subsection in a calendar year.
(c) After receiving the list forwarded under subsection (b)(2), the bureau shall conduct an independent review of the applications, taking into consideration the recommendations of the license plate committee. The bureau may issue a special group recognition license plate in the absence of a positive recommendation from the license plate committee. However, the bureau may not issue a special group recognition license plate, unless the license plate has first been reviewed by the license plate committee and has been given a positive or negative recommendation to the bureau regarding that special group.
(d) The bureau may not issue more than five (5) special group recognition license plates for the first time in a year.
In other words, the action of the BMV is contingent upon the review of the legislative license plate committee.

There are two obvious issues: (1) What if the legislative group just sits on an application? Then the BMV cannot act, because the statute requires that it receive a positive or negative recommendation. (2) How likely is it that the BMV will act when this 8-member legislative group, which represents the power of the branch of government that controls both its statutes and its funding, gives a negative recommendation? Perhaps to prevent this kind of conundrum, the doctrine separation of powers is set out in our Constitution.

In a case, Book v. State Office Building Commission (1958), the Indiana Supreme Court looked at the question of whether the act creating the State Office Building Commission, to be made up of both executive and legislative members, violated Article 3, Section 1 because it permitted persons charged with official duties under one department of state government to exercise functions of another.

The Court wrote that Article 3, section 1 “is the keystone of our form of government and to maintain the division of powers as provided therein, its provisions will be strictly construed.” Further, “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement,” and continued:

The Legislature may enact, but it cannot execute laws. That is the duty of the executive department. The Legislature here has at-tempted to confer executive power upon a Commission, the majority of which is composed of its own members, and to impose upon the legislative members thereof duties which they cannot constitutionally exercise. … If members of the Legislature may be appointed as members of Boards which exercise functions within the executive-administrative department of government, the door is then open for the Legislature to enter and assume complete control thereof.
For more, see p. 14 of this 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," The Indiana Law Blog (2003) [background here].

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In In the Matter of the Estate of Samuel L. Tolley, Deceased; First Merchants Bank, N.A. v. Duane Earl Tolley, and Betty June Tolley, an 18-page opinion, Judge Brown writes:

First Merchants Bank, N.A., (“First Merchants”) appeals the trial court’s order granting summary judgment to the Estate of Samuel Tolley (the “Estate”). First Merchants raises one issue which we revise and restate as whether the court erred in granting the Estate’s motion for summary judgment and in denying its motion for summary judgment. We reverse and remand. * * *

This case requires us to interpret the statutes relating to notice requirements in the Probate Code. * * *

We begin with a discussion of the difference between a nonclaim statute and a statute of limitation as well as the difference between nonclaim statutes that are self-executing and those that are not self-executing. * * *

Based upon the designated evidence, we cannot say that First Merchants received proper notice. Accordingly, First Merchants’ claims filed on July 26, 2011 which occurred within nine months of Samuel’s death were timely filed.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment to the Estate and denial of First Merchants’ motion for summary judgment. We remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Term. of the Parent-Child Rel. of: A.C., Minor Child, K.W., Mother, and J.C., Father v. Indiana Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of: T.B., M.B., and L.B., (Minor Children), and J.B., (Father) v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Robert Powell v. State of Indiana (NFP)

Julia Patterson v. State of Indiana (NFP)

Lee Ross v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - How to change retirement age for appellate court justices and judges?

Art. 7, Section 11 of the Constitution of the State of Indiana reads in part:

Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals. * * *

Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.

Currently IC 33-38-13-8 reads:
Sec. 8. (a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.

(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.

As added by P.L.98-2004, SEC.17.

SB 124, which has passed the Indiana Senate and is now in the House, would amend the statute requiring retirement at age 75. However, it would do so not by specifying a different age by statute, as contemplated in Art. 7, Sec. 11, but rather by completely striking out the age-setting language:
SECTION 1. IC 33-38-13-8 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8. (a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.
    (b) Notwithstanding subsection (a), The supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.
In other words, if the current version of SB 124 becomes law, there will be NO retirement age specified by statute, as is contemplated in the Constitution ...

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit grants petition for rehearing en banc in ND Ind. case

The case is U.S. v. Christopher Spears, decided by the 7th Circuit on Sept. 24, 2012 - ILB post here.

Last evening this Order was posted on the 7th Circuit site (oddly, it is dated Jan. 14, 2013)- it begins:

The petition for rehearing en banc is GRANTED. The panel’s opinion and judgment are VACATED. The parties shall file new briefs addressing the following question:
Does the crime of aggravated identity theft as defined in 18 U.S.C. § 1028A(a)(1) require a theft or other misappropriation of another person’s identifying information when the prosecution relies only on the “knowing transfer” part of the statute?
In addition to any other statutory language that bears on the question, the parties should specifically address the meaning of the phrases “without lawful authority” and “means of identification of another person.” The parties should also address the effect, if any, of the Supreme Court’s decision in Flores‐Figueroa v. United States, 556 U.S. 646 (2009), on this question.

Posted by Marcia Oddi on Wednesday, February 13, 2013
Posted to Ind. (7th Cir.) Decisions

Tuesday, February 12, 2013

Ind. Decisions - Supreme Court declines to compel mediation in legislative fines case

From the docket today in Berry v. Crawford (most recent ILB entry here and here, including the "call for compromise")

DATE TEXT
1/10/13 APPELLEES' MOTION FOR APPELLATE ALTERNATIVE DISPUTE RESOLUTION
(6) CERTIFICATE OF SERVICE (6) BY MAIL 01/10/13.
ENTERED ON 01/10/13 MC
1/25/13 APPELLANTS' OPPOSITION TO MOTION FOR APPELLATE ALTERNATIVE
DISPUTE RESOLUTION (6) CERTIFICATE OF SERVICE (6) MAIL
01/25/13 ENTERED ON 01/25/13 MS
2/11/13 THE COURT HAS ISSUED THE ATTACHED ORDER:
2/11/13 BEING DULY ADVISED, THE COURT DECLINES TO COMPEL MEDIATION
OF THIS DISPUTE AND WE DENY THE MOTION, BUT THIS DOES NOT
PRECLUDE THE PARTIES FROM VOLUNTARILY ENGAGING IN MEDIATION ON
THEIR OWN MUTUALLY AGREEABLE TERMS.
BRENT E. DICKSON, CHIEF JUSTICE
ALL JUSTICES CONCUR.
(ORDER REC'D. 2/11/13 AT 3:30 PM) ENTERED 2/12/13 KM
2/12/13 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Rockport hearing Thursday, vote next week"

Updating this ILB entry from Feb. 7th, Eric Bradner of the Evansville Courier & Press is reporting:

The Senate Utility Committee will hold what’s expected to be an intense hearing on the future of the Rockport coal-to-gas plant at 9:15 a.m. Thursday.

But the committee’s chairman, Sen. Jim Merritt, R-Indianapolis, says there won’t be an amendment and a vote on whether to advance the bill [SB 510] on to the full chamber until the following week.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court decides one today

In Dennis Jack Horner v. Marcia (Horner) Carter, a 4-page, 5-0 opinion, Chief Justice Dickson writes:

When the parties' marriage was dissolved in 2005, the trial court approved a settlement agreement reached by the parties following mediation. In 2011, the husband initiated the present proceeding, seeking in part "to modify the maintenance provision in the Settlement Agreement," in order to terminate his liability for monthly housing payments to the wife after her remarriage. At the evidentiary hearing the trial court excluded from evidence the husband’s testimony regarding statements he claimed to have made to the mediator during the mediation process, and thereafter denied the husband’s request for modification of his monthly housing payment obligation. The Court of Appeals affirmed the denial of relief, but opined that the trial court’s exclusion of the husband’s testimony was in error, albeit harmless error. Horner v. Carter, 969 N.E.2d 111, 118 (Ind. Ct. App. 2012). We granted transfer thereby vacating the Court of Appeals opinion, except for those portions that are summarily affirmed herein. Ind. Appellate Rule 58(A)(2). * * *

The Court of Appeals concluded that the husband's statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement. We disagree. Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation.[1] The benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue. * * *
__________________
[1] The decision of the Court of Appeals, which we have vacated, expressed approval of a different approach presented in the Uniform Mediation Act ("UMA") drafted by the National Conference of Commissioners on Uniform State Laws. For the purpose of preserving traditional contract defenses, the UMA would permit disclosure and discovery of conduct and statements during mediation if not otherwise available, and subject to a cautious balancing to ascertain whether the need for such evidence substantially outweighs the interest in protecting confidentiality. * * * Indiana has not adopted the UMA, and we decline to follow its approach to mediation confidentiality at this time. The Court acknowledges that efforts are presently underway by the Alternative Dispute Resolution Section of the Indiana State Bar Association and the Alternative Dispute Resolution Committee of the Judicial Conference of Indiana to review and possibly propose modifications to the Indiana Rules for Alternative Dispute Resolution.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Changes to merit selection commissions advance in Indiana & South Dakota"

The blog Gavel to Gavel, which reviews state legislation affecting the courts, reported today:

Merit selection commissions may very well be changed in both Indiana and South Dakota in the coming days, but the South Dakota measure change may have little to do with animus

Indiana’s SB 103 changes that state’s Judicial Nominating Commission. Presently, the Commission is made up

  • the Chief Justice (as chair)
  • 3 nonattorneys picked by the governor (1 per Court of Appeals district)
  • 3 attorney elected by the attorneys of the state (1 per Court of Appeals District)
Under SB 103 the governor would no longer be free to pick any nonattorney from a given Court of Appeals District. Instead, the 4 legislative leaders (House: Speaker & Minority leader; Senate: President pro tempore & minority leader) would provide the governor a list of at least 2 candidates.

SB 103 was approved by the Senate Judiciary Committee on February 7 and is currently on the Senate’s Second Reading Calendar.

ILB: Here is SB 103. It passed second reading yesterday and is eligible for 3rd reading today in the Senate.

The ILB wonders if it is constitutional. Here is Art. 7, Sec. 9:

Section 9. Judicial Nominating Commission. There shall be one
judicial nominating commission for the Supreme Court and Court of
Appeals. This commission shall, in addition, be the commission on
judicial qualifications for the Supreme Court and Court of Appeals.
The judicial nominating commission shall consist of seven
members, a majority of whom shall form a quorum, one of whom shall
be the Chief Justice of the State or a Justice of the Supreme Court
whom he may designate, who shall act as chairman. Those admitted to
the practice of law shall elect three of their number to serve as
members of said commission. All elections shall be in such manner as
the General Assembly may provide. The Governor shall appoint to the
commission three citizens, not admitted to the practice of law. The
terms of office and compensation for members of a judicial nominating
commission shall be fixed by the General Assembly.
No member of a
judicial nominating commission other than the Chief Justice or his
designee shall hold any other salaried public office. No member shall
hold an office in a political party or organization. No member of the
judicial nominating commission shall be eligible for appointment to a
judicial office so long as he is a member of the commission and for a
period of three years thereafter.
(History: As Amended November 8, 1960; November 3, 1970).
The question is whether SB 103 would impose additional requirements on the selection by the Governor of the citizen members of the commission, beyond those outlined in the Constitution.

SB 103 would require the Governor to make his selection from "a list of recommended candidates" submitted by the House and Senate leadership.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides two Indiana cases today

Actually, make that one. Grote v. Sebelius, posted by the Court today, was released in typescript Jan. 30th and posted by the ILB here under the heading "7th Circuit 2-1 panel reverses Judge Barker in Grote and consolidates Grote with Korte."

In Lock Realty v. U.S. Health (ND Ind., Miller), a 21-page opinion, Judge Wood writes:

These appeals represent the end of the line for a long-running dispute over a nursinghome lease between Lock Realty Corporation IX (the lessor) and U.S. Health (the lessee) and Americare (the lessee’s assignee). For simplicity, we refer to the defendants as Americare unless the context requires otherwise. Between Americare’s appeal and Lock’s crossappeal, we are presented with a potpourri of issues covering everything from the propriety of a partial summary judgment in Lock’s favor to the district court’s attorneys’ fee decision. The most complex question, however, relates to our appellate jurisdiction—a subject on which we requested supplemental briefing after oral argument. After reviewing the parties’ submissions, we are satisfied that our jurisdiction is secure. On the merits, we find no reversible error in the various rulings of the district court that the parties have highlighted, and so we affirm. * * *

It is unfortunate that this litigation spun so far out of control. The long delays that punctuated the course of proceedings, even if motivated by hopes of reaching settlement or at least an agreed way to move forward, in the end helped no one. As we said at the outset, the issues before us now represent the end of the line. The district court did not abuse its discretion in the rulings brought before us for review. We therefore AFFIRM the judgments of the district court in all three appeals. Costs are to be taxed against U.S. Health and Americare. 2

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Interesting commentary on SB 280 by 2 Indiana blogger/attorneys

Doug Masson points to SB 280, which permits an individual legislator to intervene as a party in an action where the constitutionality or enforcement of a state statute he authored is being challenged if he finds finds that the statute is not being adequately defended. Masson writes:

A member of the General Assembly, acting alone, is just an ordinary citizen. Absent the legislative process and requisite votes, the laws he writes are just words on a page. There is nothing magic about them absent the consent of the body. And, furthermore, there is nothing magic about the fact that an individual legislator came up with the idea and wrote those words on the page. He or she has no individual ownership in the legislation such that he or she should have standing to take control of the litigation beyond the right given to the rest of us citizens.

Acting in concert with the rest of the body, the legislator is entitled to exercise power. Outside of that body, he or she is just another person. This bill would undermine that notion.

Paul Ogden points to the same proposal and writes in part:
It is easy to get distracted by the underlying immigration issue and miss the bigger issue involved, an issue that extends far beyond this particular case. Attorney General Zoeller has consistently taken the position that the Attorney General position is "unique" because of the need to "harmonize the law" among the several agencies and entities. In doing so, he has claimed he has absolute authority when it comes to deciding how legal issues involving the State of Indiana are handled. Thus, it doesn't matter if a state agency wants to settle a case, or whether the Governor wants to take a certain legal position or the General Assembly wants a law defended, the Attorney General, and only the Attorney General, gets to decide, on behalf of the State, what position will be taken. This is a position that essentially makes the Attorney General not only the attorney for the State of Indiana, but also the client.

Zoeller's position regarding the authority of the Attorney General is certainly not shared by everyone. In addition to the State Senators in this case, most of the attorneys I've talked to do not agree that the Attorney General has an unfettered right to decide the State of Indiana's legal position. Rather they see the Attorney General as the attorney for the State of Indiana with a duty to follow his state client's wishes as long as they are within the ethical boundaries of legal representation. As far as multiple state agencies creating a mishmash of legal approaches, there is a singular boss of those agencies, the Governor of the State of Indiana. The AG could always appeal to the Governor to bring a consistent approach to how the agencies approach litigation.

A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.

Ogden then points to the ILB post of Jan. 11th on SB 36.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Hoffco/Comet Industries, Inc., John A. Bratt v. Arnold Boyd, Alan J. Cox, Richard D. Martin and Gary Weilenman (NFP)

Phillip Rumley, Sr. v. Laurie Ferguson (NFP)

NFP criminal opinions today (6):

Christopher Stark v. State of Indiana (NFP)

Daniel Peters v. State of Indiana (NFP)

Christopher E. Wooten v. State of Indiana (NFP)

Wesley Allen Thompson, Jr. v. State of Indiana (NFP)

Tarrence Lee v. State of Indiana (NFP)

Reginald Spinks v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Still more on "Bill would restrict out-of-state college students from voting"

Updating this ILB entry from Feb. 10th, here is another editorial against HB 1311, this one in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 5 of the General Assembly

Here is the fifth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Particularly interesting to the ILB is the discussion, near the end of the Judicial Administration section, of HB 1393 which would, inter alia, raise the judicial technology fee from $5 to $10 (see p. 5 of bill). Here are some ILB observations:

What is the fee (the automated recordkeeping fee) used for?

The fee is used to finance the projects of the Court's Judicial Technology and Automation Committee (“JTAC”). These projects include not only the Odyssey case management system, but a number of other projects including the electronic Citation and Warning System (eCWS), a Protection Order Registry, the INcite Marriage License system, JTAC’s Jury Management System (JMS), etc.

Who are the Indiana citizens who pay the fee that finances all these different JTAC projects?

This amount is paid out of "all civil, criminal, infraction, or ordinance actions."

But is it really "all"? Who actually pays the fee that finances all these programs?

Here is what the ILB has been able to determine. The government never pays the fee. The bulk of the automated recordkeeping fees collected come primarily those who commit traffic infractions.

Indigent defendants who are sent to prison are often not assessed court costs. Those put on probation are, and many people pay them as part of monthly fees assessed on probation.

Also assessed the fee are you and I when we go to court to enforce a contract, get a divorce or adoption, probate a will.

Here are a number of earlier ILB entries on the automated recordkeeping fee.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Courts

Ind. Gov't. - "Hospital Ass'n: Billions from Indiana Medicaid on table"

An AP story by Tom LoBianco begins:

INDIANAPOLIS (AP) — A study released Monday by the Indiana Hospital Association estimates that expanding Medicaid would generate billions of dollars in economic growth for the state, a stark contrast from the budget-busting projections cited by former Gov. Mitch Daniels.

The hospital association's study estimates that using the federal expansion to cover an additional 406,000 residents would cost Indiana less than $500,000 but pump several times that amount back into the economy over the next seven years.

An actuary hired by former Gov. Mitch Daniels' administration found the expansion would cost a budget-busting $2.6 billion over the same time frame.

Using those two vividly different analyses as markers, lawmakers in the Indiana House and Senate were set to consider measures this week on how to implement the federal health care law. Senate Health Chairwoman Pat Miller, R-Indianapolis, will be pushing a proposal to expand Medicaid using the state's health savings account programs, the Healthy Indiana Plan, while Democrats will be pushing for the full expansion under the federal law.

Democrats and supporters of an expansion, including the IHA, have argued the reports Milliman Inc. issued for the state ignore major benefits from covering more uninsured. The IHA study, conducted by researchers at the University of Nebraska Medical Center, found that the could generate $108 million in new tax collections as up to $3.4 billion is pumped into the economy each year.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Government

Ind. Law - Constitutional right to "hunt, fish, farm" passes Senate; "Ag-gag" bill to be heard in Senate committee this morning

"Fishing, hunting [farming] shields advance: Await House passage, ballot vote." Here is Niki Kelly's brief story in the Fort Wayne Journal Gazette. Here is Eric Bradner's story in the Evansville Courier & Press. Here is Brandon Smith's story in Indiana Public Media. A quote:

“Senator Steele, I respect your need to wanting to hunt and fish,” [Senator Greg Taylor] says. “But nothing you’ve said in your presentation makes me think the United States is ever going to take away that right.”

And Taylor says he’s worried the amendment will make it harder for the General Assembly to easily regulate hunting, fishing and farming in the future.

But [Senator Brent Steele] says his amendment does not rule out rules or regulations passed by the General Assembly or state agencies.

“So IDEM is still in control of such things as fertilizer and sewage from CAFOs. The Department of Natural Resources still controls all wildlife and hunting seasons of what game may be hunted,” he says.

ILB: SJR 7 passed 38-10. The voting record has not been posted.

"Senate committee to hear 'Ag gag' bill" is the heading to this story by Jason Aubry of ABC 57 News. The story begins:

SOUTH BEND, Ind. – New legislation targeting what happens on Indiana farms could have a big impact on people all across the state. The bill would prevent people from taking pictures or video of farming and industrial operations from the inside.

Those who support the bill say, it will protect their livelihoods while those who oppose it say the bill would prevent people from exposing the truth.

According to the committee schedule, the bill, SB 373, is being heard at 9:30 this morning in Room 125. It appears that there is no video stream available from Room 125.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Indiana Law

Ind. Decisions - "Prosecutors ask judge to force former Indiana Secretary of State Charlie White to serve his home-detention sentence"

Carrie Ritchie reports today in the Indianapolis Star in a story that begins:

Prosecutors are asking a Hamilton County judge to force former Indiana Secretary of State Charlie White to start serving his home-detention sentence.

White has remained free since he was convicted of six felonies, including theft and voter fraud, last February. He has been sentenced to a year of home detention, but Hamilton Superior Court Judge Steven Nation allowed White to postpone serving his sentence until after he appealed his case.

But last fall, White asked to halt proceedings on his appeal and pursue post-conviction relief in the trial court.

Attorney Dan Sigler, one of the special prosecutors who handled the case, said his team filed a motion last week to enforce White’s sentence. Sigler said White no longer has a right to delay serving his sentence because he has stopped his appeal.

Prosecutors said nothing significant has happened in the case since the Indiana Court of Appeals granted White’s request to stop his appeal last September.

“We assumed he was going to file the post-conviction relief petition right away,” Sigler said. “As long as it was litigated right away, I didn’t have a problem with that. Now it’s going into the fifth month and nothing has been filed.”

ILB: Many earlier ILB Charlie White entries, here.

Posted by Marcia Oddi on Tuesday, February 12, 2013
Posted to Ind. Trial Ct. Decisions

Monday, February 11, 2013

Law - "Chicago dropping red-light camera firm as probe heats up"

David Kidwell reported in the Chicago Tribune this weekend in a story that began:

Mayor Rahm Emanuel announced today he will axe the city’s embattled red-light camera vendor when its contract expires in July, citing new investigative findings that the company gave thousands of dollars in free trips to the former city official who oversaw the decade-long program.

Emanuel announced the action against Redflex Traffic Systems Inc. following the Chicago Tribune’s report today that the chairman of Redflex’s Australian parent company resigned this week and trading in the company's stock was suspended amid an intensifying investigation into allegations of corruption in its Chicago contract. * * *

The internal probe found that company executives systematically courted former city transportation official John Bills with thousands of dollars in free trips to the Super Bowl and other sporting events, sources familiar with the investigation told the Tribune.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to General Law Related

Law - "A Call for Drastic Changes in Educating New Lawyers"

From the NY Times, a long story by Ethan Bronner about an ABA task force chaired by Randall T. Shepard. Some quotes:

DALLAS — Faced with profound and seemingly irreversible shifts, the legal profession is contemplating radical changes to its educational system, including cutting the curriculum, requiring far more on-the-ground training and licensing technicians who are not full lawyers.

The proposals are a result of numerous factors, including a sharp drop in law school applications, the outsourcing of research over the Internet, a glut of underemployed and indebted law school graduates and a high percentage of the legal needs of Americans going unmet. * * *

While a few schools are freezing tuition and others are increasing hands-on learning, critics are increasingly saying that the legal academy cannot solve its own problems, partly because of the vested interests of tenured professors tied to an antiquated system. Effective solutions, they insist, will have to be imposed from the outside.

Since law schools are regulated by state courts, that means convincing top state judges of the necessity of major change. * * *

The task force was set up last summer and was given 24 months to issue its recommendations. But its chairman, Randall T. Shepard, a former chief justice of the Indiana Supreme Court, said a sense of crisis was driving the group to do so this fall. * * *

As the meeting ended, one task force member, Michael P. Downey of St. Louis, summed it up. “The house is on fire,” he said. “We don’t want a report that sits on a shelf.”

The article also points out that the State of Washington is not waiting:
It has established a board to create a program for limited-license legal technicians, the first in the country. Within a year, the board is expected to lay out the educational and professional framework for the technicians. They will have more training and responsibility than paralegals but will not appear in court or negotiate on their clients’ behalf.

“The consuming public cannot afford lawyers, and the profession needs to figure that out and own it,” Ms. Littlewood said. “Our hope is to provide more access. The second point is that you have these folks out there doing unauthorized practice, which is harming the public. The hope is to bring them under the tent.”

Here is a related quote from the SBM Blog (quoting this post from Slaw, Canada's online legal magazine):
If lawyers want to improve their image, we can start by improving reality. Make the justice system swifter, more transparent and more even-handed. Find ways to make the price of lawyers' talents and efforts affordable to more than 20% of the population. Push harder for principled conduct rules and fewer obstructive tactics in litigation. And stop trying to put out of business lower-cost competitors who might be able to serve the very people who think so poorly of us in the first place. Think more and do more about the reality of clients than about the image of lawyers.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to General Law Related

Ind. Decisions - Transfer list for week ending February 8, 2013

[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 8, 2013. It is one page (and 8 cases) long.

No transfers were granted last week.

One earlier transfer grant, in Lawrence v. State, was vacated after oral argument. See this Feb. 5th ILB post for details and links.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Indiana Transfer Lists

Courts - "Michigan Supreme Court Justice Hathaway's quick resignation helps colleagues skirt a disciplinary thicket"

Interesting article in the Detroit Free Press, reported by Brian Dickerson, on Justice Hathaway's resignation. A sample:

She announced her resignation just weeks before pleading guilty last month to federal charges stemming from a short sale in which she fraudulently concealed her net worth. She faces up to 18 months in prison when U.S. District Judge John Corbett O'Meara sentences her on May 28.

But the federal investigation that culminated in Hathaway's plea deal might never have gained traction if Michigan's Judicial Tenure Commission hadn't responded aggressively to the allegations against her.

The tenure commission was established under Michigan's 1963 Constitution to supervise the ethical conduct of Michigan's 600-plus judges. But whether its jurisdiction extended to justices of the state's highest court was an open question until December, when the JTC laid out its case against Hathaway in a 19-page complaint and asked her Supreme Court colleagues to remove her. * * *

Hathaway's case is the first instance in which the JTC has sought to remove a sitting state Supreme Court justice. And because neither the Constitution nor operating rules ordained by the state Supreme Court explicitly establish its jurisdiction over justices, the JTC's assertion that it had the authority to seek Hathaway's removal is precedent-setting.

See also Jan. 23rd ILB entry.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Edwin Jones v. State of Indiana , a 31-page opinion including a concurring opinion, Judge Brown writes:

Edwin Jones appeals his conviction and sentence for operating a vehicle while intoxicated as a class A misdemeanor. Jones raises three issues which we revise and restate as:

I. Whether the trial court abused its discretion and violated Jones’s confrontation rights by admitting a certificate of inspection asserting the accuracy of police testing equipment;
II. Whether the court abused its discretion in ruling on certain evidentiary matters; and
III. Whether the court erred in sentencing him. * * *

[I] Thus, based upon Williams and other recent statements from the U.S. Supreme Court, we reframe the third rationale articulated in Ramirez to provide that although certificates of inspection are kept on file by the court clerk and may be duplicated for use in court, their primary purpose is to ensure that certain breath test equipment is in good operating condition in compliance with Ind. Code § 9-30-6-5. However, we reaffirm our prior precedents and conclude that the Certification was nontestimonial and that the court did not err in admitting it.

Moreover, we agree with the State that any such error regarding the admission of the Certification and the attendant breath analysis was harmless. * * *

For the foregoing reasons, we affirm Jones’s conviction and sentence for operating while intoxicated as a class A misdemeanor. Affirmed.

BAILEY, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [which includes] Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez.

Despite this difference, I still agree with the majority that the Certification is non-testimonial and therefore not subject to confrontation under Crawford v. Washington, 541 U.S. 36, 68-69 (2004).

In Michael Gray v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Michael Gray was convicted of Class D felony possession of cocaine and received a four-year sentence. On appeal, Gray contends that the trial court erred in refusing to allow him to play portions of an audio recording of a police officer’s deposition for impeachment purposes. We find that the trial court did err in refusing to allow Gray to play a part of the audio recording that was inconsistent with the officer’s testimony on direct examination, but this error was harmless. We affirm. * * *

Although we conclude that Gray was entitled to use a specific portion of the tape, he went about doing so in the wrong way. Gray played the tape without any notice to the court. The court was well within its discretion in refusing to allow Gray to play the tape when the court had no knowledge of its content. However, Gray explained that he intended to use only a specific portion of the tape and made it available to the court. The court should have examined the portion of the tape Gray wished to use and determined whether it was inconsistent with Officer Morgan’s testimony. Given that the portions Gray wished to play were in fact inconsistent with the officer’s testimony, it was error to prevent Gray from playing the relevant portions of the tape.

We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray’s impeachment attempt complete—though jurors likely found this admission less persuasive than an audio recording of the officer’s inconsistent statement.

NFP civil opinions today (3):

Ernestine Waldon, Christine Hampshire, and Vergie Small v. Donna Wilkins, MD, Joshua Williams, and Rodney Barber, and Carl Barber, Jr. (NFP)

AT&T v. Atlas Excavating, Inc. (NFP)

Tammy Syers v. JKL Construction & Home Maintenance (NFP)

NFP criminal opinions today (2):

Thomas Oakley v. State of Indiana (NFP)

Manuel Lloyd Jamersen v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on the "hunt, fish, farm" amendment

Updating some recent ILB entries (Feb. 8, Feb. 7, Feb. 5) on the proposed "hunt, fish, farm" constitutional amendment that if passed this session would be on the ballot in our next general election, Tracy Warner, editorial page editorial for the Fort Wayne Journal Gazette, yesterday had this article, headed "Constitutional clutter." Some quotes:

Perhaps inspired by the tea party, legislators are lining up to throw into the constitution statements that do not belong there. Amending property tax formulas into the constitution in 2010 – the year the tea party hit its peak – may have been the point at which Indiana lawmakers decided that amendments are a better way to institutionalize partisan policies because they take longer to change than laws.

Before Indiana was ever a state, residents of the area hunted, fished and farmed, and nothing in the state’s laws has changed that despite lack of constitutional language bestowing such a right.

But now, 162 years after Indiana’s constitution was adopted, some lawmakers have found an urgent need to amend common sense into the constitution.

This rush to change the constitution that forms the basis of Indiana’s approach to government – and the rights of its citizens – only serves to water down and even trivialize the bedrock rights already there. Do we really want to put the right to hunt and fish up there with free speech and freedom of religion? * * *

[I]f various Hoosier lawmakers had their way, a dozen or so amendments would advance just this year. One would unwisely shift the balance in the separation of powers, restricting court authority to order a county to follow the law and constitution if it cost money. One would launch another attack on unions, requiring a secret ballot for private union votes. Yet even the misnamed right-to-work law is just a law, not a part of the state constitution. Others would give state senators more power to choose state Supreme Court justices and court of appeals judges. Another (abandoned for the year on Thursday) would ban gay marriage, civil unions and – maybe or maybe not – the ability of companies to choose to offer domestic partner benefits.

Hoosier lawmakers need to answer hard questions about the right to hunt and fish amendment.

How might the “right to farm” affect laws that regulate pollution from chicken farms or zoning of hog farms or chemicals sprayed on crops? What about the constitutional requirement that “Hunting and fishing shall be the preferred means of managing and controlling wildlife”? Would that not make it unconstitutional for a pond owner to paint goose eggs to “control” the geese population? Wouldn’t cities that capture and euthanize stray dogs and cats be violating the constitution?

We don’t know what Will Rogers would say today about a constitutional right to go fishin’, but we do know what he said about the nation’s misguided rush to constitutionally ban liquor:

“Why don’t they pass a constitutional amendment preventing anybody from learning anything?” he asked. “If it works as well as Prohibition did, in five years Americans would be the smartest race of people on earth.”

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Indiana Law

Law - "America's prison boom is starting to fizzle"

Sentencing Law Blog quotes from the WSJ.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to General Law Related

Law - "What if Crim Law was taught by cartoons?"

See the post from the ABA Journal. Leaf through the Self Defense (including stand your ground) chapter. Per the Boston Globe:

Well, this is one of the best things I've seen in ages -- the the Illustrated Guide to Criminal Law, by Nathaniel Burney, an accomplished prosecutor who also happens to be a talented cartoonist.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to General Law Related

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, February 10, 2013:

From Saturday, February 9, 2013:

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (2/11/13):

Thursday, February 14th

Next week's oral arguments before the Supreme Court (week of 2/18/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/11/13):

Wednesday, February 13th

Next week's oral arguments before the Court of Appeals (week of 2/18/13):

Monday, February 18th

Tuesday, February 19th

Wednesday, February 20th

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.

Posted by Marcia Oddi on Monday, February 11, 2013
Posted to Upcoming Oral Arguments

Sunday, February 10, 2013

Ind. law - Issue of a county’s right to apply health code regulations on sewage disposal systems

Niki Kelly has a long story today in the Fort Wayne Journal Gazette, headed "Statehouse gets county septic fight: Bill on permits would narrow exemptions for Amish." Here is the first part of the long story:

INDIANAPOLIS – An Allen County fight over waste disposal has hit the Indiana Statehouse, pitting lawmakers concerned about health and safety against those defending the religious beliefs of the Amish.

“Their way of life is to take care of themselves without government interference,” said Sen. Dennis Kruse, R-Auburn. “Not one Amish person wants a failing septic system. They live off the land so they take care of it.”

The battle began about 10 years ago when the Fort Wayne-Allen County Department of Health started seeing more Amish installing their own septic systems and receiving complaints from neighbors about sewage and waste on their property.

Mindy Waldron, health department administrator, said the department tried to work through administrative avenues and many of the Amish complied.

But a small group of about 75 homeowners have fought every step of the way, including not getting permits to build septic systems and refusing inspections.

Allen County eventually took several cases to court and has won every time.

“I believe it is an important issue to my constituents in both Allen and Whitley Counties, both as a health issue and a monetary one in that their tax dollars are being spent in litigation trying to provide a healthy environment for their families and mine,” said Rep. Kathy Heuer, R-Columbia City.

Heuer is sponsoring a Senate bill (SB 159) on the issue that was written by Sen. Tom Wyss, R-Fort Wayne, and already passed that chamber.

At issue is the “log-cabin rule,” which dates back to the turn of the century. It generally says people can build their own house on their land in an unincorporated area without permits. If they want to sell the house in the future, it has to be disclosed and the home brought up to code.

The Amish have long used this exemption in building codes for constructing their own houses. But they have also interpreted it in recent years to also apply to health and sanitation rules.

Allen County appears to be the epicenter of the fight, though isolated cases have been found in a few other counties.

The Indiana Court of Appeals originally weighed in through a Washington County case in 2007, backing a county’s right to apply health code regulations on sewage disposal systems.

Allen County also won a 2011 case, and on Jan. 31 the Indiana Court of Appeals ruled again in its favor of another one. A Jay County case from 2012 also backed the county interpretation.

“We are trying to codify what the courts have said over and over because it is draining our legal resources to keep fighting the same fight,” Waldron said. “I just don’t think that proper sewage control is something that can be deemed optional. The effects are felt throughout the community in terms of disease and water pollution.”

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Government | Indiana Law

Ind. Courts - La Porte County Problem Solving Court doubles in size

Matt Fritz has the story in the LaPorte Herald Argus. It begins:

La PORTE — In a matter of a few months, the La Porte County Problem Solving Court, a program designed to help recovering addicts in the county, has more than doubled in size.

And now with a donation from La Porte Mayor Blair Milo, it is helping to make sure those participants get the aid they need to become productive members of society again.

Yesterday, Milo provided the court with the equivalent of 20 weeks worth of individual ridership service with the city of La Porte TransPorte Department, a department which provides transportation services to community members.

The money was raised at the Mayor's Ball.

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Courts

Ind. Courts - "Prominent Floyd attorney Rick Fox charged with drunken driving"

Here is the story by Harold J Adams in the Evansville Courier Journal. It begins:

Prominent New Albany attorney Richard “Rick” Fox was arrested Thursday night on a drunken-driving charge in Clark County, according to court records and his attorney.

Fox, who is the attorney for Floyd County government, was arrested in Clarksville by an Indiana State Police trooper after leaving the Roosters restaurant on Green Tree Boulevard shortly after 10 p.m., attorney Larry Wilder said.

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Courts

Ind. Law - More on "Bill would restrict out-of-state college students from voting"

Updating this ILB entry from from Feb. 7th on HB 1311, Dave Bangert's column in the Sunday Lafayette Journal Courier is headed "The attack on Purdue students' voting rights: A dubious bill targets out-of-state college students." A few quotes from the long story:

HB 1311, introduced by Rep. Peggy Mayfield, a Martinsville Republican, proposes that the state deny residency for voting to anyone who moves to a precinct for “educational purposes if the person pays a nonresident tuition rate.”

At Purdue, that would apply to 11,080 U.S. nonresident students — or about 28 percent of the total enrollment in West Lafayette this school year, according to the Purdue Data Digest.

“We’re having people who are not necessarily residents voting in our elections,” Mayfield told The Indianapolis Star. Those in favor of the bill said they were looking to keep people from voting in two places — already a Class D felony in Indiana for anyone caught voting twice. * * *

State Rep. Sheila Klinker, a Lafayette Democrat, lent a page practically ripped from the Community of Choice discussions around town: “I think it sends a negative message to the young people who want to live in our area and who want to stay in our area — many of whom go to graduate school, get married in our area, have children that go to our schools. So we really don’t want to see this bill go any further.”

But let’s say we didn’t really give a flip whether students from other states came, stayed, went, whatever. The question at the Statehouse should be: Is this a problem in college communities?

Not really. At least not here in Purdue’s backyard, says Tippecanoe County Clerk Christa Coffey.

“No, I don’t remember ever having to challenge on the registration status for Purdue students — and I certainly don’t want to encourage that,” Coffey said. “And yes, we do encourage them to register and be involved in this community.”

It’s not as if the county’s election board is beating back a crush of student voters looking to tip the scales. Usually, the opposite is true, taking a monumental effort to coax students buried in studies and smartphones to vote once, let alone twice.

There is much more in the story.

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Law

Ind. Law - Indianapolis native, attorney Richard M. Fairbanks, III has died

From the obituary in today's Indianapolis Star:

The Honorable Richard M. Fairbanks, III, Founder and Chairman of the Board, Layalina Productions died at his home, in Coconut Grove, Florida on February 6, 2013.

Mr. Fairbanks spent his professional life as a lawyer and in government service following in the footsteps of his great-grandfather Charles Warren Fairbanks, Vice-President under Theodore Roosevelt. A native of Indianapolis, Indiana, Mr. Fairbanks received his A.B. from Yale University on a NROTC scholarship and his J.D. magna cum laude from Columbia University School of Law where he was Business Manager of the Columbia Law Review and a Harlan Fiske Stone Scholar. Between Yale and Columbia, Mr. Fairbanks served on active duty as a Regular Officer with the U.S. Navy as the Operations Officer of USS Zellars (DD-777), and later as Aide and Flag Lieutenant to the Commander, Cruiser-Destroyer Force, Atlantic Fleet.

Upon graduation from Columbia in 1969, Mr. Fairbanks spent two years as an associate attorney with the Washington law firm of Arnold & Porter. In 1971, Mr. Fairbanks was named the Special Assistant to the Administrator of the Environmental Protection Agency, William Ruckleshaus and also served as an Adjunct Professor of Environmental Law at Georgetown University Law Center from 1971 to 1972. In July 1971, he became a Staff Assistant at the White House Domestic Council and became Associate Director for Natural Resources, Energy, and the Environment of the Council in December 1972.

After leaving government service in 1974, Mr. Fairbanks was a founding partner of the Washington law firm which was known, prior to his departure in 1981, as Beveridge, Fairbanks & Diamond.

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Law

Ind. Courts - "He took money from orphans, from widows, from people whose lives were devastated"

That is a quote from a lengthy, front-page story today in the Indianapolis Star, reported by Tim Evans. The headline is "Once wealthy, powerful lawyer's fate now rests in hands of a public defender," and the subject is William F. Conour. Mr Conour resigned from the Indiana bar the end of June - see this ILB entry. Here is a list of related ILB posts.

Here is a sample from today's story:

"He was the construction injury attorney in the state of Indiana. And highly, highly respected," [Timothy F. Devereux, who worked for Conour from 2008 to 2011] said. "That's why I felt comfortable when I joined the firm, because everybody said, 'Oh yeah, this guy, he's a god.' He had the atrium of the law school named after him!"

Conour's sterling reputation didn't stop Daly from reporting him to the Indiana Supreme Court's Disciplinary Commission in 2008.

But it would be nearly four years before the commission initiated action to suspend his law license and the criminal charge was filed.

[John P. Daly, who worked with Conour from 2005 to 2008] said he became concerned because Conour, who always handled the distribution of settlements, was slow in getting money to clients.

"It was taking longer than I liked," he explained, "and Bill was not at all receptive to questions about that."

After he split from Conour, Daly said he filed the complaint because he feared Conour would not pay a settlement they won for a woman in a nursing home.

"No one knew she had not been paid," he said, "but Bill and me."

Daly said the woman died in January -- without receiving her money. There was no money for her burial.

"It was absolutely horrible," he said.

Daly said he is frustrated it took so long for authorities to reign in [sic] Conour.

"Bill did a lot of mayhem between the time I made the complaint and the time he was formally charged," he said. "It was disappointing that it apparently wasn't a priority."

Kathryn Dolan, the Supreme Court's public information officer, said details about specific complaints and investigations are confidential.

"Each case is reviewed based on its own merits," she said. "Depending on the nature of a complaint, the length of an investigation can vary. ... As you can imagine, complicated investigations make it more difficult to quickly resolve a complaint."

Posted by Marcia Oddi on Sunday, February 10, 2013
Posted to Indiana Courts

Saturday, February 09, 2013

Ind. Law - The Indiana Law Blog's Legislative Research Shortcuts

The ILB has just updated its very useful research tool, The Indiana Law Blog's Legislative Research Shortcuts.

New features include links providing access to earlier editions of the Indiana Code, specifically the 2009, 2010 and 2011 editions. This allows the researcher to see what a section or chapter said before it was amended or repealed.

Another resource created by the ILB for readers is the searchable Indiana Constitution. Unlike other online versions, which provide only one Article at a time, the ILB's Indiana Constitution is a pdf document that may be searched across Articles (this feature may not work on a tablet computer, however). Using the search tool, one can immediately determine, for instance, that the pronoun "his" appears 41 times in the Constitution, while the pronoun "her" does not appear.

Posted by Marcia Oddi on Saturday, February 09, 2013
Posted to Indiana Law

Friday, February 08, 2013

Ind. Law - "Purdue opens up intellectual property rules for students"

From the Purdue Office of Technology Innovation, a statement today that begins:

WEST LAFAYETTE, Ind. - Purdue University student inventors will own their innovations thanks to a new interpretation of the university's policy governing intellectual property.

"We're out to foster a culture of entrepreneurship that extends from the newest freshman on campus to the most senior faculty member," said Purdue President Mitch Daniels. "If you have a great idea, Purdue is the place to develop what's in your mind and take it to the market."

Interpreted strictly, the intellectual property policy states any invention created with the use of Purdue resources is subject to university ownership. The new interpretation offers students clear ownership rights as long as the resources used were part of a course and were available to all students in the course; that the student was not paid by the university or a third party; and the class or project was not supported by a corporation or government grant or contract.

"We have a large number of students who come here with great ideas or develop them with the friends they make in classrooms and laboratories," Daniels said.

The ILB has emphasized the term "new interpretation." This is apparently in lieu of actually amending the policy.

Here, in contrast, is MIT's readily available policy on ownership of intellectual property.

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Indiana Law

Ind. Law - "Animal Protection Groups Urge Opposition to Harmful Anti-Whistleblower Bill"

The ILB has been forwarded an email that includes:

(Feb. 8, 2013) — The Humane Society of the United States, The American Society for the Prevention of Cruelty to Animals, Farm Sanctuary, Mercy For Animals, Compassion Over Killing, the Animal Legal Defense Fund, Animal Welfare Institute, Compassion in World Farming and the Humane Society Veterinary Medical Association are urging members of the Indiana Senate Corrections and Criminal Law Committee to oppose SB 373, a bill that seeks to prevent whistleblowers from exposing the mistreatment of animals and other misconduct on industrial farms. If passed, the bill would prohibit, among other things, photography and recording images at agricultural operations.

“This bill punishes whistleblowers, hides animal abuse, and endangers the public by keeping unsafe working conditions, food safety issues and environmental problems on industrial farms hidden,” said Erin Huang, Indiana state director for The HSUS. * * *

“Under the guise of property rights, anti-whistleblower bills are intended to prevent consumers from ever seeing the animal abuse, contaminated crops, illegal working conditions and food safety problems that are commonly found on industrial farms,” said Stephen Wells, executive director of the Animal Legal Defense Fund.

“This bill attempts to conceal from the public information about animal welfare and food safety conditions on farms,” said Vicki Deisner, state director of ASPCA Government Relations for the Midwest region. “The agricultural industry should be attempting to rectify its on-farm problems rather than suppressing information about them.”

Critics question the constitutionality of whistleblower suppression bills as infringing First Amendment rights to free speech and freedom of the press, and a broad spectrum of national interest groups have spoken out against these bills. They include animal protection, civil liberties, public health, food safety, environmental, food justice, legal, workers’ rights and freedom of speech organizations.

Well, this email is evidently one of the groups warned about by the author of the constitutional amendment that would ensure the "right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products." (See also this Feb. 7th entry.)

Here is the digest to SB 372:

Makes it unlawful recording of agricultural or industrial operations, a Class A misdemeanor, for a person to: (1) enter real property that is owned by another person and on which agricultural operations or industrial operations are being conducted; and (2) take a photograph of or make a video recording or motion picture of the real property, structures located on the real property, or the agricultural operations or industrial operations being conducted on the real property; without the written consent of the owner of the real property or an authorized representative of the owner.
On a related note, here is an article from Wired, reported by Maryn McKenna, headed "Why We Can’t See Inside Poultry Production, and What Might Change if We Could." The last two paragraphs deal with the so-called ag-gag laws.

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Indiana Law

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

For publication opinions today (2):

In Billy Russell v. State of Indiana, a 23-page opinion, Judge Barnes concludes:

The trial court did not abuse its discretion in refusing to completely bifurcate trial of the SVF charge from the murder charge and in refusing to give Russell’s tendered self-defense jury instruction. The trial court also did not commit fundamental error by not giving an instruction on voluntary manslaughter as a lesser included offense of murder, or by not giving an instruction on the nexus requirement for the committing a crime exception to a claim of self-defense. Finally, Russell’s sentence is not inappropriate. We affirm.
In Hiawathia Hunt v. State of Indiana, a 7-page opinion, Judge Mathias writes:
Hiawathia Hunt (“Hunt”) was convicted of Class D felony theft following a bench trial in Marion Superior Court and sentenced to 545 days in the Department of Correction. Hunt appeals and claims that the trial court imposed an improper conditional sentence. We affirm. * * *

Thus, the trial court simply explained to Hunt that modification of his sentence was possible if he paid restitution to the victim; it did not make Hunt’s sentence conditional on the payment of restitution. Because Hunt’s sentence was not conditional, and because Hunt alleges no further error in his sentence, we affirm.

NFP civil opinions today (1):

Estate of Ruby L. Rowland: James A. Rowland, Jr. v. Michael B. Rowland (NFP)

NFP criminal opinions today (1):

Louis Townsend v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Applications available for vacancy on St. Joseph Co. Superior Court

The vacancy on the St. Joseph Superior Court will occur on June 3, 2013, when Judge Michael P. Scopelitis retires. See details here.

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Indiana Courts

Ind. Courts - "Sex offender who bought alcohol for minor ordered to walk outside courthouse with sign" [Updated]

WRTV6 has this brief report this morning. The ILB is currently unable to find out the name of the judge. A quote from the story:

Larry Bass, 27, of Pike County in southern Indiana, was convicted of child molestation in 2010 and was sentenced to five years.

But after his release from prison, he was arrested for buying vodka for a 14-year-old.

As part of his punishment, Bass will have to walk Friday outside of the Pike County Courthouse wearing a sandwich-style fluorescent sign reading, "Registered Sex Offender Who Bought Alcohol for Kids."

Mr. Bass's earlier conviction was affirmed on appeal by the COA on April 14, 2011.

[Updated at 12:30 pm] The ILB has just received this info from a helpful reader:

According to the docket, Judge Jeff Biesterveld (the judge of the Pike Circuit Court) presided over the relevant Pike County case (State v. Larry T. Bass, No. 63C01-1209-CM-000144). It looks like the case was resolved yesterday on a plea agreement.
[Updated again at 1:35 pm] A second reader writes:
According to Doxpop, the Judge on this new case is Biesterveld. The cause number is 63C01-1209-CM-144.

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Indiana Courts

Ind. Law - More on "Indiana legislature unlikely to vote on same-sex marriage in 2013"

Updating this ILB entry from Feb. 1st, yesterday it became official. The leadership of the House and Senate have agreed to wait until 2014 to vote on the currently pending amendment, which has to be adopted a second time in either 2103 or 2014 before being sent to the voters for ratification. The reason for waiting is to see what the SCOTUS does with the cases pending before it this term. Here are stories from Niki Kelly of the FWJG, and Dan Carden of the NWI Times.

Posted by Marcia Oddi on Friday, February 08, 2013
Posted to Indiana Law

Thursday, February 07, 2013

Ind. Courts - State legislator appears to represent the State of Indiana in lawsuit

Interesting article on a forfeiture action posted this morning on Eagle Country 99.3 FM website. Some quotes:

(Lawrenceburg, Ind.) - A lawsuit seeks to allow the State of Indiana to keep millions of dollars and property seized during an investigation into Acapulco Mexican Restaurants.

The Dearborn County Prosecutor’s Office recently filed the lawsuit on behalf of the State of Indiana against the owners of the southeast Indiana restaurant chain which was raided by Indiana State Excise Police in September. The litigation names Acapulco owners Adolfo and Maria Lopez, Benito Lopez, and others as defendants.

“The defendants have acquired real or personal property purchased with money that is traceable as proceeds of a violation of a criminal statute,” the complaint claims. * * *

In the lawsuit, the state requests that the value of the property be put towards the law enforcement costs with any proceeds beyond that sent to the state’s common school fund.

State Representative Jud McMillin, who works as an attorney in Brookville, is representing the prosecutor’s office in the lawsuit.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Courts

Law - GAO issues report on SORNA implementation issues

The GAO has today issued this report on SORNA, "Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects."

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to General Law Related

Ind. Law - "Dan Carpenter: It's not the little folks the farm-fish-hunt amendment aims to serve"

Dan Carpenter had this Feb. 6th column today in the Indianapolis Star. Some quotes:

The prospect of an animal-rights lawyer robbing Hoosiers of the right to hunt, fish and farm beggars the imagination; but there's no overestimating the political fertility of paranoia, nor the eagerness of demagogues to plow that ground. * * *

Which makes more sense, after all? That the farmer and rod- and gun-bearer of our Hoosier heritage are in danger from sinister vegetarian forces -- or that large corporate-owned livestock operations are using their influence in the Statehouse to ward off complaints and lawsuits from the small farmers who suffer as their neighbors?

Animal-rights activists have had their impact, to be sure; on issues such as puppy mills, canned hunting, inhumane treatment of animals in mass confined breeding. That would seem to square with Hoosier heritage.

More pertinent to the amendment push is a class-action lawsuit brought by family farmers and others, who convinced the Indiana Court of Appeals in 2011 that the Right to Farm Act did not immunize confined animal feeding operations whose waste became a nuisance.

Promoters of the constitutional amendment insist it would not give farming -- or hunting or fishing -- a free pass. What it would do, however, is send a message to government and neighbors alike that they would make trouble for this eminent source of revenue at their political peril.

Big business, not small farmers and not hunters and fishermen, stands to benefit from anti-regulation measures in a state that already ranks among the nation's worst in soil, water and air quality. To portray this special-interest favor as grassroots traditionalism is an insult to town and country folks alike.

See also this Feb. 5th ILB post, headed "Should we pass a constitutional amendment when no one knows what it means?"

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law

Ind. Courts - More on: Gary-based child support court move to Crown Point reignites controversy

Updating this ILB entry from Feb. 2nd, Bill Dolan of the NWI Times reports today:

CROWN POINT | Lake County commissioners are joining a lawsuit to keep a Gary courtroom where thousands of child-support disputes are resolved annually from moving south to Crown Point.

The three-member executive board voted to intervene in litigation filed by the cities of Gary and East Chicago and the NAACP to stop Juvenile Court Judge Mary Beth Bonaventura from consolidating her child support staff, now split between Gary and Crown Point courtrooms. The move would leave vacant a courtroom she has operated in the Justice Robert D. Rucker Courthouse at Fourth Avenue and Broadway in Gary.

Commissioners Roosevelt Allen, D-Gary, and Mike Repay, D-Hammond, said closing the Gary venue would inconvenience thousands, primarily single mothers with children, who use the court. Bonaventura has said the consolidation will make her court more efficient.

Lake Circuit Judge George Paras in Crown Point will hear arguments Friday from both sides about whether to issue a restraining order to block the move.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In State of Indiana v. William Coats, a 13-page, 2-1 opinion, Judge Barnes writes:

The State appeals the trial court’s denial of its motion to commit William Coats to the Indiana Division of Mental Health and Addiction (“DMHA”). We affirm.

The State raises one issue, which we restate as whether the trial court properly denied the State’s motion to commit Coats to the DMHA for competency restoration services. * * *

Here, the trial court expressly found that restoration to competency is improbable and unlikely, and the report supports that finding. Although the better practice in most cases is to follow the statutory commitment procedures, given Coats’s progressive dementia and the trial court’s finding that he will not be restored to competency, the purposes of the competency restoration process cannot be met by following those procedures here. It is clear that Coats’s dementia will progress, and there simply is no hope nor medical reason to believe that competency will be restored. The discussion in Curtis informs and instructs us that “the State’s interests cannot be realized if there is a finding that a defendant cannot be restored to competency.” Curtis, 948 N.E.2d at 1154. We conclude that the trial court properly denied the State’s motion to commit Coats.

Conclusion. The trial court properly denied the State’s motion to commit Coats to the DMHA. We affirm.

BAKER, J., concurs.
RILEY, J., dissents with opinion. [which begins, at p. 11] I respectfully dissent from the majority’s decision to affirm the trial court’s denial of the State’s motion to commit Coats to the Department of Mental Health and Addiction (DMHA). The statutory scheme does not allow the trial court discretion over the statutory commitment procedures. If the trial court finds that a defendant lacks the ability to understand the proceedings and assist with the preparation of his defense, “it shall delay or continue the trial and order the defendant committed” to the DMHA. Ind. Code § 35-36-3-1(b) (emphasis added). Consequently, the statute does not give the trial court discretion to decline to order commitment even where it concludes that the defendant could never be returned to competency.

In Terry Smith v. State of Indiana , a 24-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in granting the State’s motion to continue so that the State could procure the testimony of a necessary witness. The trial court also did not abuse its discretion in the admission of the evidence regarding the shots fired and casings found, the evidence obtained during the execution of the search warrant, or the DNA evidence obtained from the buccal swab. Lastly, the State presented evidence sufficient to support the trial court’s determination that Smith was an habitual offender. Affirmed.
In Christina M. Kovats v. State of Indiana , a 13-page opinion, Judge Mathias concludes:
Kovats’s convictions for Class B felony neglect of a dependent, Class D felony criminal recklessness, and Class D felony OWI constituted double jeopardy because all three convictions were based on, or elevated by, the same serious bodily injury. Merging these convictions for purposes of sentencing was insufficient to cure the double jeopardy problems because the trial court had already entered judgments of conviction on all counts. On remand, the trial court is instructed to vacate Kovats’s convictions for Class D felony criminal recklessness and Class D felony OWI, and to enter a judgment of conviction and concurrent sentence on the lesser-included offense of Class A misdemeanor OWI. Lastly, Kovats’s maximum executed sentence of twenty years for her conviction for Class B felony is inappropriate, and we remand with instructions that the trial court enter a sentencing order reflecting our revision of Kovats’s sentence to fifteen years executed on that conviction.
NFP civil opinions today (3):

In Re: The Adoption of T.W.: T.J. v. J.B. (NFP)

In Re: The Paternity of B.H.: S.H. v. B.B. (NFP)

Neff Family Fertilizer, Inc. v. John Jones Chevrolet Buick Cadillac of Salem, Inc. (NFP)

NFP criminal opinions today (10):

Christopher Estridge v. State of Indiana (NFP)

Kenneth L. Robinson v. State of Indiana (NFP)

Charles Day v. State of Indiana (NFP)

Kenny L. Futch v. State of Indiana (NFP)

James Kerner v. State of Indiana (NFP)

Jamie Masterson v. State of Indiana (NFP)

Prince Harris v. State of Indiana (NFP)

Larry R. Dean, Jr. v. State of Indiana (NFP)

Anthony Paul Banks v. State of Indiana (NFP)

Gregory D. Sutton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides four Indiana cases today

In Bernard Hawkins v. U.S. (ND Ind., Moody), a 27-page, 2-1 opinion, Judge Posner writes:

This appeal from the denial of a motion under 28 U.S.C. § 2255 to set aside the sentence in a federal criminal case presents the question whether an error in calculating the applicable guidelines sentencing range can be corrected in a postconviction proceeding, now that the guidelines are merely advisory rather than, as they formerly were, mandatory. * * *

Hawkins was sentenced nine years ago. He has served almost three-quarters of the sentence that he now challenges as illegal. Yet it is “illegal” (his word, but not the right word) in the sense not that it must be nullified, but only that, were he correct in calling it a miscarriage of justice, it would have to be reconsidered. If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that. Indeed we’re surprised that the appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. top of the guidelines range for a violent assault with a weapon by a hardened criminal on two federal officers, inflicting bodily injury, is only 21 or perhaps 30 months, a quarter or less of the statutory maximum. It would be no surprise if a sentencing judge, asked to choose between 21 (or 30) and 151 months, chose the latter.

The judgment denying the section 2255 motion filed by the defendant is AFFIRMED.

[Judge Rovner's dissent starts at p. 12 and begins] Last year this court reviewed a remarkably similar case but reached the opposite result. The majority’s rationale for a different result here is illusory and for this reason I respectfully dissent.

In U.S. v. Ronald Love (ND Ind., Van Bokkelen), an 18-page opinion, Judge Kanne writes:

A jury convicted Ronald Love of one count of distributing crack cocaine and one count of conspiring to distribute crack cocaine. He appealed, challenging his conviction and sentence on various grounds. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for resentencing.

In U.S. v. Adolfo Wren and Anthony Motion (ND Ind., Lozano and Moody), a 7-page opinion, Chief Judge Easterbrook writes:

After Congress reduced from 100:1 to 18:1 the ratio between crack and powder cocaine for purposes of statutory minimum and maximum sentences, see Dorsey v. United States, 132 S. Ct. 2321 (2012), the Sentencing Commission made corresponding changes to the Guideline ranges for crack. Amendment 750 makes the changes; Amendment 759 authorizes retroactive application. Adolfo Wren and Anthony Moton asked the district court to cut their sentences. The applications went to different judges; both said no. * * *

Only one decision we have found deals with the situation in which Wren and Moton found themselves—an original Guideline range above the statutory floor, a sentence below that floor because of substantial assistance to the prosecutor, and a retroactive change to the Guidelines that (apart from §5G1.1) permits a reduction in the sentence. United States v. Liberse, 688 F.3d 1198 (11th Cir. 2012), holds that in these circumstances the district court may grant a motion under §3582(c)(2) without resetting the Guideline range at the statutory minimum. We agree with that conclusion, for the reasons we have given.

The Sentencing Commission may want to take a close look at the way §1B1.10(b)(1) works when the original sentencing range is at a presumptive statutory minimum. It is difficult to see why prisoners in that situation who received a substantial-assistance or safety-valve sentence should be excluded from a retroactive Guideline reduction, while prisoners whose original ranges were just slightly above the statutory floor are eligible for the benefit of the retroactive change. That is how the Guidelines work as currently written, however. Wren and Moton are entitled to seek relief under §3582(c)(2) as the Guidelines stand, and we remand so that the district judges may exercise the discretion they possess. VACATED AND REMANDED

In Kadamovas v. Stevens, et al (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:
The plaintiff, an inmate of a federal prison, filed a Bivens suit against seven named members of the prison’s staff plus several “John Does” (unnamed defendants—how many is unclear), complaining of varied mistreatment amounting to cruel and unusual punishment and in one respect to infringement of religious liberty. The district judge dismissed the complaint before an answer or other responsive pleading was filed (no defendants have as yet made an appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. * * *

Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than before Twombly and Iqbal. And anyway long before those decisions judges and lawyers had abandoned any effort to keep complaints in federal cases short and plain. Typically complaints are long and complicated. One-hundred page complaints that survive a motion to dismiss are not rarities. The Forms Appendix to the civil rules, with its beautifully brief model complaints, is a fossil remnant of the era of reform that produced the civil rules in 1938. Three quarters of a century later a 28- page complaint pleading seven distinct wrongs is not excessively long. District judges could do more to require that complaints be cut down to size, but it is not apparent what more would be necessary in this case.

Unintelligibility is distinct from length, and often unrelated to it. A one-sentence complaint could be unintelligible. Far from being unintelligible, the complaint in this case, which the plaintiff says he wrote with the assistance of another prisoner (the plaintiff is Lithuanian and claims to be illiterate in English), is not only entirely intelligible; it is clear. * * *

In short the complaint does not violate any principle of federal pleading. The judgment dismissing it for “unintelligibility” must be reversed. But we deny as premature the plaintiff’s further claims that he should have the assistance of counsel in this litigation and that the case should be reassigned to another district judge on the ground that Judge Lawrence is prejudiced against the plaintiff. There has been no showing of prejudice. And until the defendants respond to the complaint, the plaintiff’s need for assistance of counsel (a need asserted for the first time in this appeal) cannot be gauged. * * *

REVERSED AND REMANDED.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Bill would restrict out-of-state college students from voting"

A long report today by Mary Beth Schneider of the Indianapolis Star that begins:

Paying out-of-state tuition could cost students something more under legislation that will be debated Wednesday: their vote.

Under House Bill 1311, students who pay out-of-state tuition would not be able to vote in Indiana.

Rep. Peggy Mayfield, the Martinsville Republican who filed the bill, said she's trying to resolve an issue about determining who is an Indiana resident.

"We're having people who are not necessarily residents voting in our elections," she said.

But legal experts, as well as lawmakers in both parties whose districts include some of Indiana's public universities, say there's a big problem with the bill, which will be debated in the House Elections and Apportionment Committee today: It's unconstitutional.

"I hope that's a quick hearing," said Lee Rowland, counsel at the Brennan Center for Justice at the New York University School of Law, which monitors voting rights issues across the nation. "Because, frankly, conditioning voting rights on a 12-month residency is so clearly unconstitutional that it would be an utter waste of the legislature's time to consider such a bill." * * *

Mayfield said lawmakers may have to work on some issues with the bill -- including the fact that it treats public university students differently from those at private colleges, which don't distinguish between in-state and out-of-state students when it comes to tuition.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law

Ind. Gov't. - Dual roles of current and past legislators employed by Ivy Tech explored

The Fort Wayne Journal Gazette had this brief editorial item yesterday (supplementing its Sunday feature on lucrative offices), headed "Ivy Tech taps its legislative pipeline again":

The Indiana General Assembly/Ivy Tech Community College connection grew closer last week with the appointment of former Republican lawmaker Tim Harris to Ivy Tech’s Corporate College.

The two-term state legislator from Marion was named associate vice president of sales and marketing for the Corporate College. He will earn $125,000 a year. Most recently, Harris was chief of staff for Rep. Marlin Stutzman, a former colleague in the General Assembly.

“Tim Harris was hired because of his business background and experience,” said Jeff Fanter, vice president of communications and marketing for Ivy Tech. “He brings a wealth of contacts and relationships to this position – which are the keys to success in Corporate College.”

The president of Ivy Tech’s Corporate College is former legislator Matt Bell, who earns $250,000 a year. Fanter said the Corporate College operation is self-sustaining.

Former state lawmaker Craig Fry is executive director of apprenticeship studies for the Corporate College.

Ivy Tech’s employee roster also includes current lawmakers Patrick Bauer, vice president of external partnerships; and Mike Karickhoff, executive director of facilities.

Christopher Ruhl, budget director for former Gov. Mitch Daniels, recently joined Ivy Tech as senior vice president and chief financial officer.

Indiana's Transparency Portal is "designed to give you, the Indiana taxpayer, an inside look into Indiana State Government spending and operations." The bottom part of this page "allows you to view salary information for employees and elected officials of the State of Indiana."

A search for "Patrick Bauer" will be unsuccessful, but "B Bauer" (as in "B. Patrick") reveals "B BAUER -- HOUSE OF REPRESENTATIVES -- $57,330.86". Also this annotation: "Please note, for state legislators the results are total compensation from the previous calendar year. For all other employees, the results are annualized salaries from the most-recent payroll cycle."

The transparency portal does not include information about state college and university salaries. However, the Lafayette Journal Courier has a database of Ivy Tech salaries, 2011-12. It shows: "B. Pat Bauer --Vice Pres External Ptnrshps -- $96,465.00".

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Government

Ind. Law - "Indiana legislature seeks taxpayer safeguard on Rockport coal-gas plant" [Updated]

Tony Cook reports today in the Indianapolis Star in a long story that begins:

A controversial coal-gas plant in Rockport is facing growing opposition heading into a state Senate committee hearing today on a bill that could kill the deal.

More than 20 lawmakers have signed on to Senate Bill 510, which would force the project's developer, Indiana Gasification, to refund once every three years any losses the state incurs as part of an agreement to purchase gas from the plant. Two other groups, the Indiana Farm Bureau and the AARP, also announced support for the bill this week.

The building resistance to the project comes on the heels of recent comments from the top two lawmakers in the House and Senate calling for a fresh review of the deal.

The Senate Committee on Utilities will hold a hearing on the bill at 8:30 a.m.

The hearing is scheduled for Room 233. Check to view it in progress here.

[Updated almost immediately] Eric Bradner of the Evansville C&P just tweeted:

"Merritt cancels Thursday's Rockport hearing. A lot of grumbling this a.m. from opponents of the plant."
Here is Bradner's comprehensive story, posted at 7:30 am this morning.

Posted by Marcia Oddi on Thursday, February 07, 2013
Posted to Indiana Law

Wednesday, February 06, 2013

Ind. Gov't. - "Juwi Wind Energy sees report denied to public. County attorney: Document created to aid negotiations"

An interesting, quite long Feb. 5th denial of public access story by Scott Smith of the Kokomo Tribune reports that:

Tipton County officials are withholding a consultant’s report on tax abatements from the public, but not from the developers of the Prairie Breeze Wind Farm. * * *

[When consulted, state public access counselor Joseph Hoage] said that since the Indiana Court of Appeals issued the 2003 Indianapolis Star v. Indiana University Board of Trustees decision, it has been generally accepted that once a “deliberative” record has been disclosed to an outside party, the agency can’t deny that record to other parties.

“The court of appeals has said that if an agency provides it to one party, from there on down the line, they can’t deny it to another party, based on a deliberative exception,” Hoage said.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Government

Ind. Law - "Digital billboards grow in favor among Indianapolis leaders"

The ILB has had a number of entries on "digital" or "electronic" billboards (aka "high-tech" billboards). The name has evolved as the years have passed.

Yesterday Jon Murray had this long story in the Indianapolis Star - some quotes:

Marion County’s longtime ban on digital billboards could end under a new push that’s starting to gain traction with city leaders.

A softer stance on billboards with electronic screens — cycling through multiple ads in a minute — could result from a review now under way in the Department of Metropolitan Development, led by new Director Adam Thies.

The assessment came in response to requests from City-County Council members of both parties and the advertising industry. Indianapolis Mayor Greg Ballard has signaled he’s open to allowing digital billboards. * * *

The city’s ban, which was enshrined preemptively in zoning ordinances nearly a decade ago, is rooted in concern that changing images could distract drivers.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 4 of the General Assembly

Here is the fourth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Environment - "Two companion bills addressing phosphorus pollution served as a bright spot amidst the environmental darkness"

That is a quote from an editorial today in the Fort Wayne Journal Gazette. More:

Senate Bill 546, authored by Sen. Ed Charbonneau, R-Valparaiso, requires lawn care service providers that use and retailers that sell fertilizers containing phosphorus to provide their customers with information about concerns regarding the overuse of the chemical. House Bill 1202, authored by Rep. Sue Errington, D-Muncie, goes one step further by also requiring that retailers and lawn care service companies offer customers fertilizers that don’t contain phosphorus.

Excessive runoff of phosphorus-laden fertilizers used in lawn care and agriculture is the culprit behind the contamination of several Indiana lakes. High levels of phosphorus produce the toxic blue-green algae blooms that cause skin rashes, eye irritation and stomachaches as well as tingling in the fingers and toes. The cyanobacteria algae produce nerve toxins that can easily kill pets and other animals, including fish and water fowl. Contact with contaminated water is especially dangerous for young children, the elderly or people with compromised immune systems.

It was a toxic algae infestation that led to the closure of Grand Lake St. Marys in Ohio a few years ago. That state lost millions of dollars in tourism revenue because of the pollution.

Toxic algae were also linked to the death of two dogs that went for a swim in Salamonie Reservoir in July.

Here is a list of earlier ILB entries re phosphorus.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Environment

Ind. Law - More on "Experts: Recast sex offender bill unconstitutional"

Updating this ILB entry from Jan. 31st, re SB 347, Charles Wilson of the AP reported late yesterday in a story that begins:

INDIANAPOLIS (AP) — Indiana lawmakers rushed Tuesday to narrow the scope of a court-overturned ban on social networking for sex offenders, but it wasn't clear whether the reworked proposal would be able to withstand future legal challenges over free-speech rights.

The bill the Senate Committee on Corrections and Criminal Law unanimously sent to the Senate floor Tuesday rewrites a complete ban dating from 2008 that was overturned by a federal court on Jan. 23. The 7th U.S. Circuit Court of Appeals in Chicago said the old law was too broad and violated freedom of speech.

Two Republican legislators rewrote the ban earlier this session, but critics said it would still virtually ban offenders from using social media, even if they don't try to directly contact children and their past crimes had nothing to do with the Internet. The amended version approved Tuesday applies only to offenders convicted of child-related sex crimes who knowingly use social networks, instant messaging or chat rooms to communicate with children below age 16.

"It's much narrower now than it was," said Sen. Randy Head, R-Logansport, the bill's sponsor.

But Larry Landis, executive director of the Indiana Public Defender Council, said he still wasn't sure the bill was narrow enough. For one thing, the bill would penalize offenders who have already finished their time in prison and on probation.

"You're presuming that a person who's been convicted of the offense 20 years ago could not possibly be rehabilitated over it and have a legitimate conversation with somebody below the age of 16," Landis said. "You can meet them face-to-face privately and have a conversation if you want, but you can't do it remotely."

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police. But those laws don't deal with free speech, Landis said.

Here is a story by Norman Cox that was on last evening's WRTV6 News. One interesting portion of the report:
The Senate Criminal Law Subcommittee put together a new bill last week , but the state's legal counsel advised that the new law would likely also be thrown out by federal judges.
Who would that be? The AG? No, looking back at last week's linked story:
But the state's chief public defender warned members of the Senate Criminal Law Committee that their bill would not satisfy the federal judges who threw out the original law.

He said the new bill would still be an unconstitutional restriction on sex offenders' rights of free speech.

Instead of limiting the number of sex offenders who could use social media, he recommended limiting how they could use it.

"Just limiting the list of offenses that it applies to doesn’t satisfy the problem," said Larry Landis, public defender council. "So I urge you, re-read that 7th Circuit case and I think you will see that some of those amendments don’t address the problems, and none of us are in favor of passing an unconstitutional provision."

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Indiana Law

Ind. Decisions - Gingerich's attorney asks Supreme Court to let COA decision stand

Updating this ILB entry from Jan. 11, quoting an IndyStar story that Attorney General "Zoeller said Thursday that his office would appeal an Indiana Court of Appeals ruling last month regarding Paul Henry Gingerich, who was 12 when he pleaded guilty to conspiracy to commit murder in the death of his friend’s stepfather," Charles Wilson of the AP reported late yesterday that begins:

A northern Indiana boy convicted in adult court at age 12 in the killing of a friend's stepfather should not be denied a new trial just because he signed a plea agreement, his lawyer says in documents filed with the state Supreme Court.

Attorney Monica Foster said Paul Henry Gingerich's case didn't belong in adult court in the first place. Foster filed a brief Monday asking the high court to let stand an Indiana Court of Appeals decision in December that ordered a Kosciusko County judge to hold a fresh juvenile court hearing to determine whether the boy should be tried as an adult.

That appeals ruling threw out Gingerich's guilty plea and 25-year prison sentence, saying the local court rushed to judgment.

Last month, the attorney general's office asked the state Supreme Court to hear the case, arguing that Gingerich signed a plea agreement and waived his right to appeal.

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Pekin Insurance Company v. Jose and Carol Hanquier and Joseph Hall , a 7-page opinion, Judge Kirsch writes:

Pekin Insurance Company (“Pekin”) appeals the trial court’s order denying Pekin’s motion to correct error. Pekin raises the following restated issue on appeal: whether the trial court erred in failing to enforce the arbitration provision of the Pekin insurance policy as mandated by Indiana Code section 34-57-2-3. We reverse and remand with instructions. * * *

We conclude that the trial court erred in failing to issue a stay of the proceedings as to Pekin pending arbitration. We reverse the trial court’s order and remand with instructions to enter an order compelling arbitration and staying the proceedings as to claims against Pekin until the completion of arbitration.

In Walter E. Smith, Jr. v. State of Indiana , a 19-page opinion, Judge Kirsch writes:
Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine1 as a Class A felony. On appeal, Smith raises the following restated issues:
I. Whether the trial court committed reversible error when it refused to give Smith’s tendered jury instruction.
II. Whether the trial court’s scheduling of Smith’s trial entitled Smith to discharge under Indiana Rule of Criminal Procedure 4(B).
III. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop.
We affirm. * * *

[Re III] We agree with the trial court’s sound reasoning. Here, Officer Long’s testimony during the telephonic hearing revealed that he stopped Smith for unsafe lane movement. See Navarro v. State, 855 N.E.2d 671, 673 (Ind. Ct. App. 2006) (Navarro was stopped for unsafe lane movement). While still completing the warning, fellow officers arrived at the scene. While Officer Ralston was completing the written warning, Officer Long took Shadow, a trained narcotics dog, around the U-Haul truck. See Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005), cert denied, 126 S. Ct. 2295 (2006) (dog sniffs are not “searches” requiring probable cause under the Fourth Amendment). Shadow made an indication to the presence of drugs in the vehicle. Finding probable cause for the search, Judge Bolk issued a warrant. At the suppression hearing, Smith did not dispute the validity of the stop; instead, he argued that the length of the stop was unconstitutional, and therefore, the evidence seized following that stop should be suppressed. The trial court was unconvinced and denied Smith’s motion to suppress. At trial, Smith again objected to the introduction of the cocaine evidence, to which the trial court responded, “All right, I’m going to show continuing objection by defense counsel, and incorporate previous arguments made in proceedings before this court. Show the objection overruled . . . .” Jury Tr. at 185. Other than the arguments made at the suppression hearing, Smith has offered no evidence to suggest that the stop was unreasonable, the length of the stop was unreasonable or that the search warrant was not supported by probable cause. The trial court did not abuse its discretion in admitting at trial the cocaine evidence that was seized pursuant to a valid search warrant.

NFP civil opinions today (7):

David Edmonds v. Menards, Inc. (NFP)

James Newman v. Review Board of the Indiana Dept. of Workforce Development and Gagan LLC (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: D.T., and A.M. v. The Indiana Dept. of Child Services (NFP)

Jason Tye Myers v. Stason L. Wiete, Unknown Party, and W. Lafayette Police Department (NFP)

Term. of the Parent-Child Rel. of C.D., and A.D., minor children, and S.D., the mother: S.D. v. Indiana Dept. of Child Services, and Lake County C.A.S.A. (NFP)

Shaun L. Steele v. Correctional Industrial Facility (NFP)

Term. of the Parent-Child Rel. of J.D., J.D., J.D.,L.D., and La.D., (Minor Children), and J.D. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Joshua D. Preston v. State of Indiana (NFP)

Roman Lawson v. State of Indiana (NFP)

Amber D. Courtney v. State of Indiana (NFP)

Jarrell Marcell Ballard v. State of Indiana (NFP)

Shannon N. Maiden v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 06, 2013
Posted to Ind. App.Ct. Decisions

Tuesday, February 05, 2013

Ind. Courts - Supreme Court Vacates Grant of Transfer in NFP Case Argued Last Week

Updating this ILB entry from yesterday, today the Supreme Court issued an order dated February 4th unanimously vacating the grant of transfer in Darrell Lawrence v. State. As discussed in yesterday's post, NFP decisions often have a significant impact on litigants, although they have no precedential value. This case makes clear that not every NFP opinion is a Supreme Court case.

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ignacio Perez v. State of Indiana , an 18-page opinion, Judge Baker writes:

In this interlocutory appeal, the appellant-defendant, Ignacio Perez, challenges the trial court’s denial of his motion to suppress evidence that police officers seized from his person and his residence.

Notwithstanding Perez’s arguments, we find that the detention, arrest, and search incident to that arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution. Moreover, we conclude that a “dog sniff” outside Perez’s residence was reasonable, and that there was probable cause for the issuance of a search warrant. Thus, the seizure of cocaine from Perez’s residence was proper and the trial court properly denied his motion to suppress.

Finally, we conclude that there was no violation of Perez’s rights under Article I Section 11 of the Indiana Constitution. We therefore remand this cause for trial.

In Keiyun L. Mays v. State of Indiana , aan 8-page opinion, Judge Bradford writes:
Sixteen-year-old D.K. was asleep in her bed when she felt someone on top of her, beating and stabbing her on her head and upper body. As the attack progressed, D.K. was struck several times with a tire iron, was stabbed several times, lost consciousness three times, and urinated on herself. At some point, D.K. recognized that her attacker was Appellant-Defendant Keiyun Mays, known to her because he had dated her sister. D.K. eventually escaped from Mays and obtained assistance. A jury found Mays guilty of Class B felony criminal confinement, and the trial court sentenced him to fifteen years of incarceration and found him to be a sexually violent predator (“SVP”). Mays contends that the trial court abused its discretion in sentencing him, that the State produced insufficient evidence to sustain an SVP finding, and that the SVP interview process violated his right against self-incrimination such as to constitute fundamental error. Concluding that all of Mays’s arguments are without merit, we affirm.
In Vance R. Pace v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Vance R. Pace (“Pace”) appeals from the post-conviction court’s order denying his petition for post-conviction relief, which sought to set aside his convictions for Class B felony dealing in amphetamine and Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”) based on claims of ineffective assistance of trial and appellate counsel, stemming from trial counsel’s failure to file a motion to bifurcate1 Pace’s jury trial on his dealing in amphetamine and SVF charges. We reverse and remand. * * *

Given the prejudicial nature of the evidence regarding his prior dealing in cocaine conviction and dealing charges for which he was not convicted, especially in light of his dealing in amphetamine conviction, we conclude that Pace has met his burden of showing that he was prejudiced by counsel’s failure to file a motion to bifurcate. * * *

Because trial counsel’s performance was deficient and Pace was prejudiced by that deficient performance, the post-conviction court erred by denying post-conviction relief to Pace on his claim of ineffective assistance of trial counsel. We, therefore, reverse the denial of Pace’s petition for post-conviction relief and remand this case for a new trial.

NFP civil opinions today (4):

Shabbir Hussain v. Syed Ali (NFP)

Term. of the Parent-Child Rel. of L.R., Minor Child, and Her Father, R.R.: R.R. v. Indiana Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of: M.A.P. (Minor Child) and M.L.P. (Father) v. Indiana Dept. of Child Services, Allen County Office (NFP)

Term. of the Parent-Child Rel. of D.B., Minor Child, and His Mother, J.B.: J.B. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Donald Tatum v. State of Indiana (NFP)

Eddie Rogers v. State of Indiana (NFP)

Alfredo Lopez v. State of Indiana (NFP)

Joshua W. Joyner v. State of Indiana (NFP)

Jereamy M. Barnes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Should we pass a constitutional amendment when no one knows what it means?

According to this AP story today in the Indianapolis Star, a number of other states have done so:

Seventeen states now have guaranteed the right to hunt and fish in their constitutions, according to the National Conference of State Legislatures. Four states added the language last year -- Idaho, Kentucky, Nebraska, and Wyoming. All the constitutional provisions except for Vermont have been added since 1996.
Here is the wording of the proposal:
ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 39. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
From a story by Eric Bradner of the Evansville Courier & Press:
A state senator’s effort to protect hunters and farmers from the “tentacles” of organizations like the Humane Society by enshrining their rights in Indiana’s constitution took another step forward Monday.

A Senate panel unanimously approved the proposal to give Hoosiers the final say through a 2014 statewide referendum on an amendment that would make clear that hunting, fishing and farming are “a valued part of our heritage and shall be forever preserved for the public good.”

The amendment is necessary because of “the radicalism that our nation is facing at this time from outsiders who attack these two very important traditions in this state,” said its author, Sen. Brent Steele, R-Bedford.

“This idea is nothing new,” he said. “The king of England owned the land and the hunting rights were exclusively his, and when our forefathers came to America, they wanted to make sure that never happened again.”

Agriculture is an $8 billion industry in Indiana, Steele said. He said the state has nearly 15 million acres’ worth of farms that produce more than 3 billion pounds of dairy products each year.

Meanwhile, he said, there are more than 284,000 Hoosier hunters and 965,000 Hoosiers who fish and both industries create jobs and bolster the state’s bottom line with more than $15 million per year in hunting and fishing licenses.

Those rights are now being threatened, Steele said. He specifically pointed the Humane Society of the United States, which he said “not only opposes hunting but they oppose farming,” as one such outside organization.

He cited literature from the Humane Society’s website indicating the group seeks to reduce the suffering of animals raised for food and improve the treatment of farm animals. He also highlighted its complaints about how plant products are used in farming.

“Fishing and hunting and farming are part of our heritage in Indiana, and all are under attack,” Steele said. “They have spread their tentacles.”

But how would the amendment do that, given the language "subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly"? Are we considering meaningless language for our Bill of Rights, or language which will involve years of expensive litigation?

For more, see this Jan. 25th ILB entry, and this one from Dec. 2, 2012 headed "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments," the headline referencing an article in Slate.

[More] See also this Nov. 4, 2012 story from ABC9/WCPO.com on a similar amendment in Kentucky. It begins:

Voters in Kentucky will decide on Nov. 6 whether or not hunting and fishing should be considered constitutional rights.

Approving the state constitutional amendment would put the right to hunt, fish and harvest wildlife right up there with life, liberty and free speech in Kentucky.

While there are no obvious arguments against amending the constitution to make hunting and fishing a right, some in Kentucky have expressed concern that there are more important things to consider as constitutional amendments, others have said the amendment is just a means to ensure more extremist Republicans make it to the polls and still others say the amendment amounts to special interest groups making a statement and nothing more.

Posted by Marcia Oddi on Tuesday, February 05, 2013
Posted to Indiana Law

Monday, February 04, 2013

Ind. Law - Lucrative Offices: "Confusing sets of rules govern those with dual public roles"

A long editorial in the Sunday Fort Wayne Journal Gazette, written by Tracy Warner, looks at:

... Indiana’s law on conflicts of interest, holding two government jobs and “double dipping” by government employees. The state’s legal approach is at best contradictory and confusing, and at worst – at least to a layperson – seemingly haphazard and nonsensical.
More:
[W]hile the Hatch Act is fairly clear for federal employees, Indiana’s law for local government employees is confusing, starting with the state’s constitutional ban, continuing with the convoluted and – to many Hoosiers – non-understandable definition of “lucrative office” and ending with hit-and-miss state laws.

For example, public school teachers are prohibited from serving on the school boards that govern the districts where they work (good policy), while legislators have conveniently allowed themselves to work for state-financed universities (bad policy). Ivy Tech, in particular, has taken great advantage of this giant loophole by liberally employing state legislators who, conveniently, have been quite generous in awarding tax dollars to the state college.

Think about it. The more money legislators give Ivy Tech, the better Ivy Tech can pay its employees, some of whom are legislators.

But conflict of interest is only one of the reasons the state constitution bans workers from holding more than one “lucrative office.”

“The concerns over fear of corruption in government as well as a fear of too much power and control falling into the hands of too few led the Framers to include” the ban on dual offices, Indiana Attorney General Greg Zoeller, then chief counsel to the A.G., wrote in an extensive Indiana Law Review article on the issue in 2004.

The framers were also concerned about the separation of powers among the legislative, executive and judicial branches. If one person serves in two branches, that can undermine the separation.

A helpful “Dual Officeholding Guide” the Indiana attorney general’s office issues cautions officeholders to consult with an attorney before taking a second government job, noting it can be a felony to hold two “lucrative offices.”

But just defining “office” and “lucrative” can be tortuous. Holding a government job isn’t the same as holding government office, and “lucrative” in this case doesn’t hold the common definition.

“An office is considered ‘lucrative’ when there is attached compensation for services rendered,” the guide explains, and “does not depend on the amount of compensation affixed to the office.”

Per diem payments are considered compensation, even though they are usually intended to cover expenses. * * *

Generally, a 1911 court opinion explains, a public officeholder in Indiana is someone “charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control.”

Clear? Hardly.

A long list of court decisions and state laws leaves much up to interpretation, and some of the inconsistencies can be difficult to explain. For example, a 1969 court ruling declares a city clerk-treasurer (the position in smaller cities) a “lucrative” office, but an 1876 ruling says a city clerk is not. The county highway engineer is lucrative, but a city civil engineer is not. Members of alcohol beverage boards hold lucrative positions, but city Board of Public Works members do not.

The editorial looks at the reasons behind the prohibition: concerns about consolidating power in too few hands and creating conflicts of interest is one, and double dipping is another. Sometimes the two rationales merge, such as when a legislator is also on the payroll of a state university. The article concludes:
To eliminate potential conflict, violations of separation of powers and double dipping, Indiana legislators could pass a simple law: Only one government job per person.

If they won’t go that far, legislators at the very least should recognize that a number of Hoosiers – university officials among them – clearly believe those lawmakers should not be working for institutions they finance with tax dollars. Credit Republican Rep. Bill Davis of Portland for authoring a bill (HB 1088) to prohibit the practice, though it is destined to go nowhere. The perception among some Hoosiers is that Ivy Tech “owns” legislators. It’s appalling.

A sidebar gives a few examples of double-dipping public officials, but certainly does not list all the legislators engaging in this practice.

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Connie S. Landers v. Wabash Center, Inc., an 11-page opinion, Sr. Judge Shepard writes:

Stephen McAninch stole over $4 million from his employer, Wabash Center, Inc., during and after his marriage to Connie Landers. After Wabash discovered the theft, it determined that Landers had received a portion of these ill-gotten gains and sued her for return of its money. The trial court entered judgment for Wabash.

Landers says the court’s decision must be reversed because Wabash’s claim is barred by the statute of limitation and because there is insufficient evidence to support the judgment. We affirm. * * *

This evidence of McAninch’s elaborate scheme and Wabash’s consistent monitoring of its financial procedures adequately supports the trial court’s conclusion that Wabash acted with ordinary diligence in managing its finances and could not have reasonably been expected to discover McAninch’s theft prior to his suicide. Within a few months after McAninch’s suicide in October 2009, the forensic accounting firm hired to determine the scope of the theft and determine what McAninch did with the money submitted a report that concluded, “[F]unds were used by McAninch to pay for personal purchases, pay personal debt, purchase a new home, and provide funds to family members including . . . Connie Landers.” Wabash filed suit against Landers in 2011, well within six years of the date Wabash discovered McAninch’s theft and transfer of funds to Landers.

We find no clear error in the trial court’s conclusion that the statute of limitation did not bar Wabash’s suit.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Mohamed Sesay v. State of Indiana (NFP)

Brandon Johnson v. State of Indiana (NFP)

Eligah Thomas v. State of Indiana (NFP)

Chris Corey v. State of Indiana (NFP)

Blaine Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "The bill’s critics argue that it is a violation of students’ First Amendment rights and a burden to already-busy teachers and principals."

That is a line out of Jessica Contrera's story yesterday in the Lafayette Journal Courier, about HB 1015, which is currently in the Education Committee. More from the long story:

The bill takes aim at cyberbullies by allowing school administrators to punish students for out-of-school activities that interfere with school purposes or educational function. * * *

As the law stands now, schools can discipline students for “unlawful” out-of-school activities against other students or teachers. HB 1015 would broaden that to any “delinquent, criminal or tortious” act.

Supporters of the bill say it would provide school administrators with the legal support they need to properly discipline online bullies. The bill’s critics argue that it is a violation of students’ First Amendment rights and a burden to already-busy teachers and principals. * * *

By giving the school permission to punish for acts that are “tortious,” students can be disciplined for defamation, or intentionally saying something false about a person to harm his or her reputation.

The bill also allows students to be penalized for “juvenile” acts. Indiana University law professor Daniel Conkle said since the word juvenile is not specifically defined in Indiana law, administrators would have more leeway to determine what to punish someone for.

Indiana already has a cyberbullying law, but it is limited. It makes it illegal to harass another person using a computer network or other form of electronic communication. But the communication must be “with a person” or transmitted to the person through an “obscene message.”

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending February 1, 2013

[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 1, 2013. It is two pages (and 16 cases) long.

Transfer was vacated in one earlier grant, Ohio Farmers Insurance Company and S.C. Nestel, Inc. v. Indiana Drywall & Acoustics, Inc. - see this Jan. 29th ILB post for more info.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "Little-understood grand jury system under debate"

That is the heading to this lengthy story by Virginia Black in the Sunday, Feb. 3rd South Bend Tribune. Some quotes:

In Indiana, a prosecutor or a judge can convene a grand jury of six people and an alternate to vet a troublesome criminal case.

Typically, it's a tool for prosecutors, who are granted a fair amount of leeway in issuing subpoenas to reluctant witnesses, compelling them to testify when they might not have been willing to speak with investigators.

Grand jurors can question witnesses themselves. Although the standard of a regular jury's unanimous guilty verdict is based on "beyond a reasonable doubt," a grand jury returning an indictment is asked to determine only whether it is more likely than not a defendant is guilty.

Everything surrounding a grand jury -- the subjects, the testimony and even the grand jurors' identities -- is considered secret, with violators of those secrets facing potential misdemeanor criminal charges. If a grand jury does not return an indictment in a case, the public might never learn one was even seated.

That, and the fact that grand jury operation is weighted heavily in the prosecution's favor, has compelled state Sen. Mike Delph, R-Carmel, to introduce a bill to the General Assembly for the second year in a row that would eliminate the use of grand juries.

Delph, a business attorney, said last week he thinks the bill will be tabled in favor of language creating a legislative study committee on the topic this summer, which would examine how grand juries and special prosecutors might be better used, or whether they're necessary.

Delph said that over the years, he's heard a growing concern over what he calls abuses of the system, where a prosecutor might call a grand jury instead of making a politically difficult decision.

"I think we're shining the light on the grand jury system, which is a good thing," Delph said.

If a grand jury chooses to pass down indictments -- which, because the prosecution has so much leeway, often happens, he said -- it can put more pressure on a defendant to plead guilty, and then the public is kept in the dark about what the facts of the case are.

"If you're a target, or a prosecutor has their sights on you, it's a very, very different, almost undemocratic situation, that you're almost guilty until proven innocent," Delph said. "We should allow public juries to rule the day."

The state senator said he does not consider himself soft on crime.

"An individual charged with breaking the law should be charged with breaking the law," Delph said, "but it should be done in an honest, forthright way."

Larry Landis, executive director of the Indiana Public Defenders Council, said his organization supports abolishing grand juries or at least shoring up the rights of defendants in the process.

A defendant can bring an attorney to grand jury proceedings, Landis said, but the attorney has no right to present evidence or make any arguments on the defendant's behalf.

And if someone is indicted, that defendant has no right to transcripts from the grand jury unless a judge orders them unsealed, he said, although the prosecutor has access to them.

The standard of proof is lower for a grand jury indictment than for a verdict in open court, but "for the public, it looks like, 'Well, he must be guilty,' " Landis said. "The name itself (grand jury) has status, prestige."

Grand juries have some legitimate uses, Landis acknowledges, such as an investigative tool when there's difficulty in persuading witnesses to talk or in judging their credibility, and when a prosecutor feels the need to gauge a community's sense of justice.

ILB: This is a very long story and those quotes are just a sample.

The bill to eliminate grand juries, SB 55, has been assigned to the Committee on Rules and Legislative Procedure.

Grand juries are mentioned in the Indiana Constitution, at Art. 7, Sec. 17:

Section 17. Grand Jury. The General Assembly may modify, or abolish, the grand jury system.
(History: As Amended November 3, 1970)

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Indiana Courts

Ind. Courts - Two Justices Ask, “Why is This a Supreme Court Case?,” at Recent Oral Argument Involving an NFP Decision

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Appellate Rule 57(H) makes clear that a “grant of transfer is a matter of judicial discretion” and lists a number of “principal considerations” that suggest an issue has broad, state-wide significance. Under Appellate Rule 65(D), a not-for-publication memorandum decision from the Court of Appeals cannot be cited as precedent in any Indiana court, which suggests it will seldom be worthy of transfer. Nevertheless, the Supreme Court granted petitions to transfer in 3.6% of the NFP cases reviewed here.

Some questions during one of the Thursday, January 31st oral arguments suggest the two most senior members of the Court —- Chief Justice Dickson and Justice Rucker —- may be the most skeptical of granting transfer in NFP cases.

The argument was Darrell Lawrence v. State, a case involving the reversal of a Class A misdemeanor conviction for resisting law enforcement in a not-for-publication memorandum decision. Beginning at the 22:45 mark, the justices engaged in the following discussion with the Deputy Attorney General arguing on behalf of the State:

JUSTICE RUCKER: Counsel, this is an unpublished memorandum decision, concerning a misdemeanor, with no precedential value. Why is this a Supreme Court case?

COUNSEL: Well, it’s only considering …uh, the Class A resisting law enforcement misdemeanor because the trial court excluded the Class B felony possession of cocaine in what the State still contends was a lawful stop.

JUSTICE RUCKER: I understand you have a cross-appeal. But that aside for the moment, referring specifically to this A misdemeanor not-for-publication opinion with no precedential value, why is this a Supreme Court case?

COUNSEL: Because even assuming that the trial court ruled correctly, this case presents dangers to law enforcement if defendants feel they can commit new crimes whether they are assaults, whether they are bribery, whether they are ID theft by giving officers the wrong name. It presents a problem in that defendants can then commit new crimes with impunity and not be subject--

CHIEF JUSTICE DICKSON: Now, wait. You’re not responding to Justice Rucker’s question. This is a memorandum decision; it cannot be cited as authority or precedent. Why is this a threat to the State?

COUNSEL: It is a threat to the State because, even though it is memorandum, it, it sanctions what Lawrence did here by committing the assault against the police officer.

JUSTICE RUCKER: But it has no broader application. He served his time. He was sentenced to a year. He served his time. I mean it has no broader application that’s why to get to Chief Justice Dickson’s question, why is this a threat to the State?

COUNSEL: It’s a threat to the State because of, well, it’s a threat to police officers, to Lawrence here, because we have a person here whose cocaine was excluded. Umm, he was facing a Class B felony cocaine conviction, if this Court were to adopt the State’s position, that, that would send a message to the trial courts as well as to defendants that that was improper.

JUSTICE RUCKER: Thank you.

Not all NFP cases are created equal. As discussed here, the Court recently granted petitions to transfer filed by the State in two sentencing cases. Those opinions made a real difference; defendants must now serve more time in prison than they would have if the Court of Appeals’ opinions were the last word. In Lawrence, though, the Defendant had already served his sentence, and a grant of transfer would at most preserve an A misdemeanor conviction.

When a criminal defendant is seeking transfer, the stakes are arguably always significant. Regardless of a period of incarceration, a 2011 dissenting opinion from Justice Rucker aptly notes that some misdemeanor convictions “carry devastating collateral consequences ranging from deportation, to eviction from public housing, to barriers in employment.”

Moreover, in civil cases, the consequences of an unpublished opinion may be every bit as life-altering for the litigants, such as recent cases involving grandparent visitation rights or parenting time issues.

In other cases, such as the honest sales disclosure case being argued on February 14, the NFP decision seems to have established, modified, or clarified a rule of law, suggesting it should have been published under Rule 65(A).

In sum, although Mr. Lawrence’s attorney made a strong argument for the Court to vacate its grant of transfer of the NFP decision, as of this post the grant of transfer stands. At least three of the justices appear to believe that even a non-precedential decision involving a misdemeanor sentence that has been served is worthy of Supreme Court review. Therefore, appellate lawyers drafting petitions to transfer on any range of issues in the future can remain hopeful that their petitions, too, may have a shot at transfer.

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Indiana Courts | Schumm - Commentary

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, February 3, 2013:

From Saturday, February 2, 2013:

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (2/4/13):

Thursday, February 7th

Next week's oral arguments before the Supreme Court (week of (2/11/13):

Thursday, February 14th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/4/13):

Thursday, February 7th

Next week's oral arguments before the Court of Appeals (week of 2/11/13):

Wednesday, February 13th

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.

Posted by Marcia Oddi on Monday, February 04, 2013
Posted to Upcoming Oral Arguments

Sunday, February 03, 2013

Ind. Law - "Utility users: Watch legislature carefully"

The Indianapolis Star had this letter from Kerwin Olson, Executive director Citizens Action Coalition, on page B9 today, but I was unable to find an online link:

The fate of monthly utility bills and the future of Indiana energy policy will be a hot topic of discussion during the 2013 session of the Indiana General Assembly.

Once again, the proposed coal-to-gas plant to be built in Rockport by Indiana Gasification will be the subject of legislation. Two companion bills, SB 510 authored by Sen. Doug Eckerty, R-Yorktown, and HB 1515 authored by Rep. Suzanne Crouch, R-Evansville, promise to protect consumers from what is certain to be excessive charges for the substitute natural gas to be produced by the proposed facility. By making this legislation the law of our state, captive Hoosier ratepayers will be protected from being gouged by an Enron like scheme that promises hefty returns for a privately held, out-of-state hedge fund.

Conversely, SB 560 authored by Sen. Brandt Hershman, R-Monticello, guarantees that gas and electric ratepayers will face enormous increases in their bills as the legislation eliminates regulatory protections consumers are entitled to. SB 560 will shift almost all of the costs and risk of operating a utility company to ratepayers and away from investors. Additionally, SB 560 would allow utilities to raise rates virtually automatically and would further reduce regulatory oversight by placing unreasonable time restrictions on both the Indiana Utility Regulatory Commission and the Indiana Office of Utility Consumer Counselor to review requests by utilities to raise your rates.

Should SB 560 become law, utility profits will become excessive as they will have little incentive to control costs while more expensive, risky and obsolete technologies will continue to be chosen over cheaper, cleaner and less risky alternatives.

Posted by Marcia Oddi on Sunday, February 03, 2013
Posted to Indiana Government | Indiana Law

Environment - "Environmental protection? It gets cold reception in Statehouse"

So writes Dan Carpenter today in his Sunday Indianapolis Star column. Some quotes:

Beverly Gard was not quite the darling of environmentalists in her many years as a state senator, but the Greenfield Republican distinguished herself as a mainstay on some major issues in that realm.

She favored close oversight of large confined livestock breeding operations to weed out bad actors. She rebuffed efforts by members of her own party to prevent the state from adopting any environmental rules that were stricter than the federal ones, pointing out that Indiana has particular threats to health (such as mercury and lead) for which federal rules are too weak or nonexistent.

That was then. Gard is gone. She retired after the 2012 session. In the 2013 session, a key lawmaker has refiled the no-more-stringent-than-the-feds measure that Gard called "absolutely the worst piece of environmental legislation that I've seen for a long, long time."

That lawmaker is Rep. David Wolkins, R-Winona Lake, chairman of the House Environmental Affairs Committee.

And what of the so-called factory farms that have generated so much revenue along with so much consternation from neighbors and watchdogs of water, air and soil quality and animal welfare? They are the subject of proposed constitutional amendments intended to insulate them from lawsuits and government interference. * * *

[Environmentalists] contend, for example, that large livestock producers are inadequately scrutinized by the state for waste management, and they point out that air pollution from the operations isn't covered by either state or federal law. Yet there are no bills in the hopper to address those concerns; to the contrary, a legislature influenced by strong agribusiness lobbies is considering several "right to farm" proposals aimed specifically at disarming their critics -- including local zoning boards. As Kharbanda sees it, "People in rural Indiana would be stripped of their right to protect themselves."

Also today, the Indianapolis Star has a lengthy, front-page story by Ryan Sabalow and Tim Evans headed "INDOT official benefited from his and his family's sales of land along I-69 route" The story focuses on Troy Woodruff, a one-term state representative, who is now a high official at the Indiana Department of Transportation. Along the way, for a short time he held a high level position with IDEM:
The I-69 land sales aren't the first time Woodruff, who served in the legislature from 2005 to 2007, has been accused of mixing family and state business.

When he was a legislator in 2005, some cried foul after his wife was hired for an unadvertised job at INDOT, saying it was a reward from Daniels for Woodruff's controversial vote supporting daylight saving time.

Voters, angry that Woodruff flip-flopped on a promise to oppose daylight saving time, turned him out of office in the next election. He worked for a time in the private sector. Then, in 2008, he ended up in a state job. He was named director of the southwest region of the Indiana Department of Environmental Management despite having no formal environmental training. The job was not publicly advertised and, according to state personnel records, was filled "on a noncompetitive basis."

After Woodruff took over as director of the Vincennes INDOT region a year later, a nepotism complaint was filed with the Inspector General's office. Woodruff's mother had been hired at the office he oversaw.

Woodruff, who declined to comment on his mother's hiring, said he landed his jobs because of his experience. Before being elected to the legislature at age 33, he was a congressional staffer. Plus, he possesses qualities that might not show up on a resume.

"One of the strengths that I have is the ability to be able to lead a group of people in a positive direction to get positive results," he said. "I feel like I've been able to do that throughout my life and career."

Woodruff since has been promoted to chief of staff, reporting directly to INDOT's commissioner. His last reported salary was $103,366 a year.

Posted by Marcia Oddi on Sunday, February 03, 2013
Posted to Environment | Indiana Government

Saturday, February 02, 2013

Ind. Courts - Gary-based child support court move to Crown Point reignites controversy

Bill Dolan's NWI Times story on Jan. 29th reported:

CROWN POINT | The Lake Juvenile Court judge is moving her Gary-based child support court to Crown Point next week and reigniting a debate about the benefits of consolidating local government versus the cost of removing government facilities from the county's urban core.

Lake County Commissioner Roosevelt Allen, D-Gary, complained Tuesday the transfer will inconvenience thousands of north county residents who now will have to travel 20 additional miles to use it.

"That is very unfair," Allen said.

He represents Gary on the Lake County Board of Commissioners, which oversees the main county government complex in Crown Point and smaller satellite courthouses in Gary, Hammond and East Chicago.

Juvenile Court Judge Mary Beth Bonaventura said Tuesday that centralizing the court makes its operations more user-friendly for her staff and presents no difficulty for the public, who easily access the many other county courtrooms already in Crown Point.

The court in question will close its Gary doors Friday [Feb. 1st] and will resume hearings only in Crown Point. * * *

Its transfer comes a decade after Bonaventura moved the bulk of her staff out of the Justice Robert D. Rucker county courthouse at Fourth Avenue and Broadway in Gary, complaining that building was in disrepair.

Gary and county officials so resisted that move, Bonaventura had to win a mandate forcing them to finance her $23 million Juvenile Justice Complex near 93rd Avenue and Chase Street, which opened in 2002.

Bonaventura kept her IV-D court in Gary, but a rise in child support cases required her to open a second IV-D court in Crown Point in 2010.

"As time has gone on, we have had a higher rate of appearance in the IV-D court in Crown Point than we do in the Gary court. But adding the second court has created confusion for some people, including lawyers, about which court they are supposed to be in, here or there," Bonaventura said.

Bonaventura said she will retain other staff in the Gary courthouse who conduct DNA testing for her court's paternity cases. She said no one is losing their jobs.

Today a story by NWI Times correspondent Lu Ann Franklin reporting:
CROWN POINT | The NAACP filed a petition Friday in the Lake Circuit Court for a temporary restraining order to prevent Lake Juvenile Court Judge Mary Beth Bonaventura from moving the Gary-based child support court to Crown Point.

“We are asking the court for an immediate temporary restraining order, a preliminary injunction and then a permanent injunction,” NAACP attorney Barbara Bolling said.

Plaintiffs in the petition include the NAACP, the cities of Gary and East Chicago along with two residents of Gary and Hammond who use the Gary-based court.

“We are alleging that to move the court would work a severe, if not irreparable, hardship on citizens from Gary, East Chicago, Hammond and Whiting because we do not have an extensive public transportation system that serves low-income or no-income residents,” Bolling said.

ILB: Judge Bonaventura was appointed Jan. 30th by Governor Pence to serve as the Director of the State Department of Child Services. The ILB has seen no information on when she will resign from the bench and assume her new role.

Posted by Marcia Oddi on Saturday, February 02, 2013
Posted to Indiana Courts | Indiana Government

Courts - "Should a US Attorney take pride in helping to 'have produced the longest average prison sentences in the country'"?

I saw that heading for a post on The Sentencing Law Blog and idly clicked to find out -- who was this federal prosecutor?

It turns out it links to this story about U.S. Attorney General for the Southern District of Indiana Joseph Hogsett, reported by Mark Wilson in the Evansville Courier & Press.

Posted by Marcia Oddi on Saturday, February 02, 2013
Posted to Courts in general

Law - "Crop of New Law Schools Opens Amid a Lawyer Glut"

Fascinating Jan. 31st story in the Wall Street Journal ($$), reported by Jennifer Smith. A few quotes from the lengthy story:

Law-school applications are at their lowest in a decade, but that hasn't stopped a handful of colleges and universities across the nation from opening new law schools. * * *

Indiana Tech's new law school in Fort Wayne will be the state's fifth when it opens this fall. * * *

The statistics do give some educators pause. "It seems like the worst possible time to open a new law school," said Brian Z. Tamanaha, a law professor at Washington University in St. Louis and frequent law-school critic who last year published a book titled "Failing Law Schools."

André D.P. Cummings, associate dean for academic affairs at Indiana Tech's new law school, said plans to enroll 100 students in the fall class may have to be scaled back. "Are we where we'd like to be?" he said. "Not yet. The truth is that applications are down significantly across the country."

Mr. Tamanaha said schools may be finding it hard to derail plans set in motion before the current drop became apparent. * * *

"The notion that we need to open more law schools is absolutely crazy," said Paul Campos, a law professor at the University of Colorado who contributes to a blog called "Inside the Law School Scam." The current law-school model is unsustainable, given that "there are at least two graduates for every available legal job," he said, adding that educators launching new schools are "blind to the economic realities."

Reporter Smith has more on her WSJ story in the WSJ Law Blog. The post links to a much-redacted Indiana Tech feasibility study.

Kenneth Anderson of The Volokh Conspiracy uses the WSJ story as the basis of a broader commentary, including:

The upfront cost of law school plus borrowing costs seems completely out of synch with the returns to law practice. Worse, for all but the very top schools, the investment in law school appears less and less predictable. If you’re at the top, it can still be treated as an investment with a greater or lesser net return. If you’re very far out of the top schools, it looks like a bet – even before you can get to the net return on your lawyer job, you have to go through an up or down bet on whether you’re going to get employed in a “lawyer” job at all. I don’t see anyone predicting a cyclical return to the growth rates of the last couple of decades in lawyer employment or general upward movement in salaries; the question is whether it gradually recovers to bring us closer to the numbers of new lawyers produced each year in relation to the law jobs out there, so to close the gap. That would be the “good” recovery scenario, and even that one appears brutal on the business model of legal education and many of the students in the system. * * *

Meanwhile, talk is turning to layoffs and buyouts at bottom ranked law schools. Vermont Law School, the Boston Globe notes, has turned to both. No faculty were involved, but Bill Henderson is quoted in the Times story on what happens when lack of tuition-paying bodies meets law school expenses:

“In the ’80s and ’90s, a liberal arts graduate who didn’t know what to do went to law school,” Professor Henderson of Indiana said. “Now you get $120,000 in debt and a default plan of last resort whose value is just too speculative. Students are voting with their feet. There are going to be massive layoffs in law schools this fall. We won’t have the bodies we need to meet the payroll.”

Posted by Marcia Oddi on Saturday, February 02, 2013
Posted to General Law Related

Friday, February 01, 2013

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

In Devbrow v. Dr. Eke Kalu (SD Ind., McKinney), a 12-page opinion, Circuit Judge Sykes writes:

This case arises out of a delay by prison medical staff in ordering a prostate biopsy for a prisoner. Eugene Devbrow entered the Indiana prison system in 2000. During the intake process, he told the medical staff that he had prostate problems and would need to be tested for prostate cancer within two to four years. In February 2004 a prison doctor ordered a PSA test (for “prostate-specific antigen”), which revealed an elevated PSA, but the medical staff did not order a prostate biopsy until April 2005. In a follow-up biopsy six months later, Devbrow was diagnosed with prostate cancer, but by that time the disease had spread to his spine and treatment options were severely limited.

In October 2007 Devbrow sued two prison doctors and a prison nurse practitioner under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He alleged that their long delay in ordering a biopsy prevented the discovery of his cancer while the odds of successfully treating it were still good. The district court entered judgment for the defendants based on the two-year statute of limitations. The court construed the claim as a continuing constitutional violation that began in February 2004—when, according to Devbrow, his PSA test and prostate history showed the need for a biopsy—and ended in April 2005 when the biopsy was ordered. At that point, the court said, the defendants’ deliberate indifference ceased, the cause of action accrued, and the limitations clock started ticking. Because Devbrow filed suit more than two years later, the court dismissed it as untimely.

We reverse. The statute of limitations for a § 1983 deliberate-indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause. Judged by that standard, Devbrow’s suit is timely. He did not know of his injury in April 2005 when the defendants finally ordered a biopsy; he discovered it six months later when he learned he had cancer that might have been diagnosed and treated earlier but for the defendants’ deliberate indifference. The limitations period runs from that discovery, and Devbrow filed suit just before the time expired.

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Travis Koontz v. State of Indiana , a 4-page opinion, Chief Judge Robb writes:

In Koontz v. State, 975 N.E.2d 846 (Ind. Ct. App. 2012), we held that Travis Koontz waived any claim of an illegal sentence by entering into a plea agreement which reduced his penal exposure. Id. at 849-50 (Baker, J., dissenting). Both Koontz and the State of Indiana have filed petitions for rehearing. We grant the petitions for the purpose of correcting a misstatement of the law, but reaffirm our original disposition. * * *

[We stated] [B]eing convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. * * *

As both parties have pointed out, this is a misstatement of the law. * * *

Even without this consideration, however, the other factors we mentioned remain viable and we continue to believe that, given the circumstances in which Koontz was charged with all misdemeanors, two of the four misdemeanors were dismissed, and Koontz agreed to the sentence as part of his plea agreement, he has waived any illegality in the sentence. Accordingly, we again affirm the trial court’s denial of his motion to correct erroneous sentence.

BRADFORD, J., concurs.
BAKER, J., would reverse as previously stated in his dissenting opinion.

NFP civil opinions today (3):

Judy Canada v. Countrywide Home Loans, Inc., Bank of America, N.A., BAC GP, LLC, and BAC Home Loans Services, LP (NFP)

Alvino Pizano v. IDOC Commissioner Bruce Lemmons, IDOC Parole Chairman Gregory Server, CIF Superintendent Wendy Knight (NFP)

Term. of the Parent-Child Rel. of: Se.L.; N.L.; G.L.; J.L.; Sh.L.; L.L.; & I.L. (Minor Children), and D.L. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Christopher Hanneman v. State of Indiana (NFP)

Theresa Pressinell v. State of Indiana (NFP)

Larry Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Ind. App.Ct. Decisions

Law - "Reuters: Hospital chain defies NLRB rulings after court decision"

How Appealing has just pointed to this Reuters exclusive, reported by Terry Baynes. The lede:

A California-based hospital company says it will not comply with at least two National Labor Relations Board rulings from the past year after a federal court invalidated three of President Barack Obama's recess appointments to the NLRB last week.

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to General Law Related

Ind. Law - "Indiana legislature unlikely to vote on same-sex marriage in 2013"

So reports Mary Beth Schneider in a lengthy story today's Indianapolis Star.

Also today in the Star, a story headed "13 gay and lesbian couples 'marry' in ceremony led by Bloomington mayor," written by Kristine Guerra. A quote:

The couples participated in a mass wedding ceremony presided by Bloomington Mayor Mark Kruzan at the Buskirk-Chumley Theater in downtown Bloomington. It was meant as a protest against a proposed constitutional amendment that would ban same-sex marriage in Indiana. * * *

“People ask us why we’re doing this…It’s about equality and opportunity,” Kruzan said. “History simply will not smile kindly upon those who advocated against equality. It’s time that same-sex marriage be recognized by all.”

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Indiana Law

Ind. Courts - Indiana Roll of Attorneys Site much improved

Check it out here.

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Indiana Courts

Ind. Law - “Loser pays” tort reform bill withdrawn

Eric Bradner of the Evansville Courier & Press reports today:

INDIANAPOLIS — Indiana Gov. Mike Pence was dealt the first legislative loss since taking office earlier this month on Thursday. It came when state Sen. Mike Delph, R-Carmel, gave up his efforts to push a “loser pays” tort reform bill that was part of the Republican’s first-year legislative agenda.

Delph, who was carrying the measure on Pence’s behalf, filed a motion to pull the bill from further consideration this year. He said he will focus instead on the governor’s proposal to lower Indiana’s income tax.

“I went and spoke with the governor’s office, and we agreed it would probably be best to withdraw it and revisit the issue sometime in the future,” Delph said.

The bill would have required the losing side in all civil litigation to pay the winner’s attorney fees and other costs — an idea championed by the U.S. Chamber of Commerce, but that Indiana-based business groups have not sought.

The issue proved tricky for Pence. His staff asked Delph to carry the measure on the governor’s behalf — but since then, Pence has steadfastly refused to address it.

From Mary Beth Schneider's story in the Indianapolis Star:
Sen. Mike Delph, who had filed the measure at the request of Gov. Mike Pence’s administration, said he withdrew Senate Bill 88 after hearing concerns from several legislators, including from Sen. Brent Steele, chairman of the Senate Judiciary Committee.

The problem with the bill is simple, Steele said: “It doesn’t work.”

Steele, R-Bedford, said he had filed “exactly the same bill” in 1995 and got an earful from just about every interest group.

They convinced him, he said, that it is unworkable because determining just who is the loser in a lawsuit is difficult — and impossible in “no fault” divorce cases.

Steele said that in a lawsuit where someone is seeking $40,000 damages and the defendant wants to settle for $20,000, both sides can come out winners if the jury awards $30,000. The plaintiff, he said, gets more than they were offered and the defendant pays less than was initially sought.

“At first blush you’d think it’s a good idea” to try to discourage lawsuits by making the loser bear the financial burden, Steele said, “but it’s just not workable.”

ILB: The ILB just tried to link to SB 88, but only gets "Bill Withdrawn" -- the text is no longer available.

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Indiana Law

Ind. Courts - Who will fill Lake County Judge Bonaventura's juvenile court vacancy?

Bill Dolan has this story in today's NWI Times. Some quotes:

CROWN POINT | One of about a dozen Lake Superior Court judges will be first in line to take over a juvenile court system any politician would consider one of the sweetest plums in Lake County's patronage empire.

There will be no campaign or popular election to replace Juvenile Court Judge Mary Beth Bonaventura, who has been named to lead the Indiana Department of Child Services.

Bonaventura leave behind a court with a $6 million budget and payroll of 169 detention officers, lawyers, probation officers, clerical personnel and judicial assistants.

State law and internal court rules dictate a select group of Lake County judges have what amounts to a right of first refusal for the job.

"When there is a judicial vacancy, nearly any Superior Court judge can move to that vacant position in order of their seniority," Chief Superior Court Judge John Pera said. * * *

Bonaventura, whose resignation becomes effective next month, said she has no favorites among those who could replace her.

"I haven't talked to any of the other judges about it, but they all know it's a lot of work," she said. "You run the detention center, so basically you have to be the sheriff for kids."

Along with that, she's on several statewide boards and manages a large staff with 30,000 pending cases.

"It's a huge, huge job, and we all get paid the same. Why go from managing three people and come over here for the same amount of money?" Bonaventura said.

If no standing judge accepts the juvenile court position, the Lake County Judicial Nominating Commission -- a body of lawyers and residents -- would accept applications from any attorney living the county and narrow the field down to three finalists.

Gov. Mike Pence would name the new judge from those finalists.

Bonaventura, who went through the judicial nominating process in 1993, said politics plays a role, but not necessarily a dominant one.

"You have got to get (political) support behind you," she said.

She went to Lake County Democratic Chairman Bob Pastrick to gain his support when she sought the job.

Despite the fact she was a Republican, she had 11 years of experience and stressed she was the best for the work. She also spoke with then-Indiana Democratic Party Chairman Mike Pannos.

Eventually, Gov. Evan Bayh -- a Democrat -- selected her from among three finalists. "He liked my resume," she said.

Posted by Marcia Oddi on Friday, February 01, 2013
Posted to Indiana Courts