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Sunday, March 31, 2013

Ind. Gov't. - "Zoeller wasting his effort" claims letter to Muncie Star-Press

The Muncie Star-Press today prints this letter from Joseph Castelo of Hartford City [emphasis by ILB]:

Regardless of how one feels about same gender marriage, Indiana Attorney General Greg Zoeller is on the wrong side of history and the inevitable. Indiana is not a defendant in this national legal issue. Yet Zoeller has taken it upon himself not only to participate, but to lead at taxpayer expense.

There are legal and factual issues that must be ignored in order to believe it is good policy to spend money, time and the efforts of his office on such pursuits. The Full Faith and Credit clause in the Constitution has been cited in many court decisions as upholding a contract or policy in force in one state being fully in force in others.

Civil marriage is a contract at law. It is a common law and legal tradition going back to the founding of the republic that if a person is legally married in an opposite gender marriage in one state they are legally married in all states. It is hard to see how this could not be true of same sex marriage.

Striking down state laws against inter-racial marriages by the Supreme Court also raised the issue of Equal Protection under the 14th Amendment. Limits on the permitted conditions for marriage, except for age without consent of a parent, have been generally rejected since.

Mr. Attorney General: Seeking to impose one set of some Hoosier’s moral standards on everyone is not realistic. Also, do not try to tell us it is costing no taxpayer money. Who pays your salary?

Attorney General Zoeller just this week defended his role as the leader of various states in opposition to marriage equality in this March 28th opinion piece in the Fort Wayne Journal Gazette. Some quotes:
Indiana, represented by my office and joined by many other states, filed “friend of the court” briefs in the DOMA and Proposition 8 cases defending our state’s authority and the constitutionality of our current laws.

There are many who disagree with this position. I appreciate that there are strongly held views on both sides of this societal debate and understand that polls have shown a dramatic change in public attitude in recent years toward same-sex marriage.

But my duty as Indiana attorney general is to represent our state and to uphold and defend our state statutes when challenged, not to represent my personal views or what polls might suggest is popular opinion. * * *

As Indiana attorney general, I don’t get to define marriage or vote on legislation.

Instead, as the state government’s lawyer, I am obligated to defend our state’s laws passed by the people’s elected representatives in the Indiana legislature.

Our state’s legislative branch has the policy-making authority to license marriage within our state’s borders using the traditional marriage definition, and I will continue to defend their legal authority in court as necessary.

Rather than presuming to decide the constitutionality of our laws by leaving them undefended, I will uphold my responsibility to defend them and instead let the judicial branch decide whether they are constitutional, as is its role.

ILB: Some side notes:

Posted by Marcia Oddi on Sunday, March 31, 2013
Posted to Indiana Government

Ind. Gov't. - "That official is making how much? Public worker salaries on state databases"

Margaret Fosmoe's story today in the South Bend Tribune introduces a new and comprehensive:

... searchable database [that] lists 2012 employee salary data for counties, cities, towns, townships, public school corporations, charter schools, public colleges and universities, districts and many other governmental units.

Do you wonder how much the mayor or the county sheriff earns? It's listed there.

Curious about how much is being spent on administrative salaries at area school districts or public colleges? That's there, too.

Want to find out how many employees work for your public library district? You can look it up in this database.

Called the Indiana Gateway, the website is at: gateway.ifionline.org.

The Indiana Gateway is provided by Indiana's Department of Local Government Finance, the State Board of Accounts and the Indiana Business Research Center at Indiana University's Kelley School of Business. The site includes extensive data on budgets, annual financial reports, debt management and other financial topics.

The Gateway started in 2006 and has been growing. This is the first year all units of government were required by Jan. 31 to electronically file Gateway 100R reports, which list the name, job title and salary of each employee during the previous year. The salary data then is electronically posted to the searchable Gateway website.

In the past, members of the news media and the public generally had to file access to public records requests and wait several days or weeks to obtain public employee salary information. * * *

Indiana residents won't find salaries for the governor, state legislators, judges and other state agency workers listed on the Gateway website. [ILB: But see below.]

Those salaries are available online elsewhere, on the Indiana Transparency Portal website: www.in.gov/itp.

ILB: There does appear to be at least some overlap, the ILB did find at least one legislator listed - the Indiana Gateway results showed both his legislative salary and his salary from IU-McKinney Law School.

With a little effort, the ILB found another legislator who had listed his name somewhat differently as legislator and as a VP at Ivy Tech.

Posted by Marcia Oddi on Sunday, March 31, 2013
Posted to Indiana Government

Ind. Law - " Debate over pot penalties not over: Push for marijuana decriminalization alive and well in Indiana"

That is the headline to Maureen Hayden's (CNHI) story today in the Kokomo Tribune. Some quotes:

Indianapolis — The politics of pot may keep Indiana lawmakers from rolling back the state’s tough marijuana laws this session, but it won’t eradicate the push for decriminalization.

State Sen. Karen Tallian, a Democrat from Portage, has vowed to bring back a bill next year that would turn most marijuana possession offenses into an infraction, the same as a speeding ticket.

Tallian is convinced her proposal, first introduced two years ago, is gaining traction among the public – and with some conservative legislators -- despite opposition from Republican Gov. Mike Pence.

“Just look the polling on this issue,” Tallian said, referring to recent polls that show increasing support among Hoosiers for lowering pot penalties. “The public is in favor of this.”

Late last week, in response to Pence’s criticism of legislation that rewrites Indiana’s criminal code to lower drug penalties, a Senate committee amended the bill to make punishment for marijuana crimes tougher than the legislation’s Republican authors had originally proposed.

“The governor is the only one who’s been talking about tougher penalties for drug crimes,” said Tallian, a lawyer and grandmother. “Across the country, the train is moving in the opposite direction.”

Fifteen states have reduced marijuana possession to a fine-only offense. This year alone, legislative chambers in four states have passed measures to reclassify minor marijuana offenses as non-criminal violations, punishable by a fine only.

Nearly a dozen other states are currently considering legislation to legalize the consumption of marijuana by adults and regulate its retail production and sale. Two states that have legalized pot for recreational use by adults are looking at ways to tax it.

The Indiana General Assembly wasn’t ready to go that far, but it had been moving to lessen pot penalties this session.

In February, the Republican-controlled House approved House Bill 1006, which rewrites Indiana’s criminal code to lower drug penalties and toughen punishment for violent and sex offenders.

The bill contained language that made most of the state’s marijuana crimes into misdemeanors. Bill supporters say the intent of the bill is divert drug users out of state prisons and into treatment programs, while reserving the prisons for the worst offenders.

Pence waited till mid-March to weigh in on House Bill 1006 and did so at a press briefing with TV and radio reporters, telling them: “I think we need to focus on reducing crime, not reducing penalties.” * * *

Under current Indiana law, possessing marijuana is a felony unless it’s a first-time offense or under one ounce. As originally drafted, House Bill 1006 dropped all the marijuana possession charges down to a misdemeanor level.

It also made a first-time offense of possessing less than one ounce of marijuana into a class C misdemeanor punishable with up to 60 days in jail. Currently, it’s a class A misdemeanor, which carries a penalty of up to a year in prison.

Pence was particularly critical of the original bill’s language that dropped possession of up to 10 pounds of marijuana from its current felony level down to a class A misdemeanor.

Under changes made by the Senate courts and corrections committee last week, most of the penalties have been pushed back up a level but are still lower than what the current law calls for. Possessing between one-third of an ounce and 10 pounds is now a class D felony, with a prison sentence between six months and 2.5 years.

Andrew Cullen is the legislative liaison for the Indiana Public Defender Council, which worked with the Indiana Prosecuting Attorneys Council to help craft the original House Bill 1006.

The marijuana drug penalties are just a small part of a massive piece of legislation that also includes tougher penalties for murderers, rapists, sex offenders, and other violent criminals. It’s the first rewrite of the state’s criminal laws since 1978.

“This is Indiana’s first opportunity to do something big in criminal justice reform in 35 years,” said Cullen. “It’s perplexing that Gov. Pence focused on minor drug offenses as his number one concern when we have the opportunity to reshape criminal justice in the state of Indiana.”

Posted by Marcia Oddi on Sunday, March 31, 2013
Posted to Indiana Law

Saturday, March 30, 2013

Courts - "Defendant pays for DNA test to clear himself, but Louisville prosecutors won't close case"

Andrew Wolfson of the Louisville Courier-Journal reported yesterday in a lengthy story:

Suppose you were so sure you were innocent of a crime that you demanded a trial — but the prosecution wouldn’t give you one.

Suppose you presented DNA evidence suggesting you didn’t commit the crime, yet the prosecution wouldn’t permanently dismiss the charge — meaning it would follow you around like a dark cloud.

That is the situation in which Jerry Jones, 24, of Cookeville, Tenn., says he finds himself after being arrested in Louisville on Feb. 6, 2011 on a marijuana charge. A Louisville Metro Police officer added a felony drug possession charge after finding a baggie of crack cocaine in the back of his cruiser after driving Jones to Louisville Metro Corrections.

Jones insisted the cocaine wasn’t his, turning down a misdemeanor plea offer with no jail time, and instead paying $1,800 for a DNA test to see who touched the bag of drugs. The test showed that two people had — and neither was Jones.

Assistant Commonwealth’s Attorney Josh Schneider, conceding the test results would create a reasonable doubt for a jury, agreed to dismiss the charge, but only “without prejudice,” meaning the commonwealth could reinstate the charge in the future.

That meant the charge would remain on Jones’ record, because Kentucky law allows expungements only for charges dismissed “with prejudice” — permanently.

At a hearing March 13, Jefferson Circuit Judge Charles Cunningham ruled that he couldn’t order the prosecution to dismiss the case forever, citing the doctrine in the Kentucky Constitution that says one branch of government can’t tell another what to do. * * *

Kentucky is one of only four states with no statute of limitations for prosecuting felony crimes, according to Avvo, a legal research website. Most states set a period of years (in Indiana, it’s five) in which most felonies must be charged.

Posted by Marcia Oddi on Saturday, March 30, 2013
Posted to Courts in general

Friday, March 29, 2013

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

In U.S. v. Scott (SD Ind., Barker), a 6 page opinion, Judge Wood writes:

Aswan Scott pleaded guilty to distribution of 50 or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). His plea agreement, which was entered under Federal Rule of Criminal Procedure 11(c)(1)(C), specified a prison term of 192 months; the district court accepted the agreement and that sentence. Later, Scott filed a motion under 18 U.S.C. § 3582(c), seeking a reduction in his sentence based on changes to the U.S. Sentencing Guidelines. The district court denied that motion, and Scott now appeals, arguing that the court’s statement of reasons was insufficient to allow us to review its exercise of its discretion. Because Scott was not eligible for a reduced sentence, see Freeman v. United States, 131 S. Ct. 2685 (2011), we affirm the district court’s denial of the motion.
In Jackson v. Bank of America (SD Ind., Lawrence), a 12-page opinion,Judge Kanne writes:
In April 2003 Phillip and Deborah Jackson applied for and obtained a $282,500 home mortgage refinancing loan with a 30-year fixed interest rate of 5.875% from Countrywide Home Loans, Inc. doing business as America’s Wholesale Lender (“AWL”). (R. 27-2 at 75-87.) To secure the loan, the Jacksons granted AWL a mortgage on their home, which was duly recorded in Hamilton County, Indiana, in May 2003. (R. 27-2 at 118); (R. 27-2 at 24.) The Jacksons used a mortgage broker—Midwest Financial & Mortgage Services, Inc. (“MFMS”)—to apply for the loan. (R. 27-2 at 120.) The Jacksons allege that the remaining defendant-appellees have been “involved with the mortgage process in various capacities.” (Appellant’s Br. at 8.)

The Jacksons were initially able to make timely payments on the loan but went into default in March 2010. (R. 27-2 at 121.) Although there was no foreclosure action taken by the banks at the time (nor has there been in the intervening time period), the Jacksons initiated an action to quiet title on the property in Hamilton County Circuit Court in December 2011. They additionally claimed that some or all of the defendants negligently evaluated the Jacksons’ ability to repay the loan and that the loan contract was substantively and procedurally unconscionable. The defendants removed the case to the Southern District of Indiana in January 2012 and, the next month, filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The Jacksons amended their complaint, but the district court granted the motion to dismiss on all counts in September 2012. Jackson v. Bank of Am. Corp., No. 12-cv-79, 2012 WL 4052285 (S.D. Ind. Sept. 13, 2012).

The Jacksons timely filed this appeal, challenging the district court’s dismissal of each of their three claims: negligence, unconscionability, and quiet title. We address each below and affirm the district court’s dismissal.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Indiana ACLU wins immigration suit against Indiana

WRTV 6 has the early story here.

The ILB has the rulings and will be posting them momentarily...

Here they are.

This 19-page opinion by federal Judge Sarah Evans Barker in Buquer v. City of Indianapolis, et al is headed "Order denying motion to intervene and denying as moot defendants' motion for reconsideration and motion to strike." It begins:

By their motion, three Indiana state senators seek to have this court resolve the internecine disagreement between themselves and the Indiana Attorney General over the strategy to be pursued in this litigation by Defendants. Having carefully reviewed the senators’ request, we cannot endorse the result they seek, and their motion to intervene must be denied. As would-be suitors these three legislators lack the power to substitute themselves for the Office of the Attorney General in order to pursue their own strategic litigation preferences.
The second opinion is a 43-page "Order on pending summary judgment motions." Some quotes:
Plaintiffs, Ingrid Buquer, Berlin Urtiz, and Louisa Adair, on their own behalf and on behalf of those similarly situated, challenge Section 18 (currently codified at Indiana Code § 34-28-8.2) and Section 20 (currently codified at Indiana Code § 35-33- 1(1)(a)(11)-(13)) of the 2011 Senate Enrolled Act (“SEA”) 5901 as unconstitutional and preempted by federal law. On June 24, 2011, the Court entered a preliminary injunction in favor of Plaintiffs, enjoining Defendants, the City of Indianapolis (“the City”); the City of Franklin; the Marion County Prosecutor, in his official capacity; the Johnson County Sheriff, in his official capacity; and the Johnson County Prosecutor, in his official capacity, from enforcing Sections 18 and 20 until further order of the Court.

On November 20, 2011, Plaintiffs filed a motion for summary judgment [Docket No. 122], requesting that the previously entered preliminary injunction be made permanent and that judgment be entered in their favor against all Defendants. On December 21, 2011, the City filed its response in opposition to Plaintiffs’ motion for summary judgment as well as a cross-motion for summary judgment [Docket No. 137], arguing that Plaintiffs have failed to identify an improper municipal custom, policy, or practice sufficient to support their claim against the City brought pursuant to 42 U.S.C. §1983, but otherwise taking no position on the merits of the substantive claims as applied to the other Defendants. On January 4, 2012, Plaintiffs filed their response in opposition to the City’s cross-motion for summary judgment. The City filed its reply on January 23, 2012, and Plaintiffs filed a surreply on January 30, 2012.

After discovery, on April 9, 2012, the Office of the Attorney General, representing the Marion and Johnson County Prosecutors (“the State Defendants”), filed its response opposing Plaintiffs’ motion for summary judgment. In its response, the Office of the Attorney General requested not only that Plaintiffs’ motion be denied but also that summary judgment be issued for the state officials. The Attorney General did not file a separate motion for summary judgment, however. On April 20, 2012, Plaintiffs filed their reply in support of their motion for summary judgment, at which point both summary judgment motions were fully briefed.

After careful review of the parties’ submissions, documentary evidence, and applicable legal authorities, we GRANT Plaintiffs’ Motion for Summary Judgment as to the State Defendants and hereby PERMANENTLY ENJOIN enforcement of Sections 18 and 20 of SEA 590. Plaintiffs’ claim against the City of Indianapolis is DISMISSED WITHOUT PREJUDICE as unripe.

The conclusion:
It is clear that Plaintiffs’ claim is based, not on any direct action taken by the City, but on the assumption that if and when the challenged sections of SEA 590 became effective the City would enforce those provisions. At the time we originally addressed the question of ripeness, SEA 590 was about to go into effect and the City had not affirmatively stated that it intended to refrain from enforcing Sections 18 and 20 if they became effective. Accordingly, we found that there was a credible threat of enforcement sufficient to meet the second prong of the ripeness inquiry, to wit, that Plaintiffs would suffer hardship if the court withheld consideration of their claim. However, the posture of the case has changed and with the Court’s final determination on the merits, including a permanent injunction prohibiting enforcement of the challenged portions of SEA 590. Given our ruling, and the Supreme Court’s directive in Los Angeles County, Cal. v. Humphries, 131 S.Ct. 447 (2010), in which the High Court made clear that civil rights plaintiffs must meet the standard set forth in Monell in order to successfully sue a municipality under § 1983 irrespective of whether the remedy sought is money damages or prospective relief, we conclude that Plaintiffs’ claim against the City is contingent on the outcome of a variety of intervening acts and scenarios not fully settled at this time. These uncertainties render the claims against the City premature, and no longer ripe for adjudication.

In short, even assuming Plaintiffs were able to show that the challenged provisions of SEA 590 provide the City sufficient discretion such that any decision it might make to enforce those provisions could be said to be a Monell policy and not merely an action taken under the command of state law,13 the City’s opportunity to make such a decision will be entirely foreclosed unless and until these statutes are upheld as constitutional and not preempted. Accordingly, we find that Plaintiffs’ claim against the City is not ripe for adjudication at this time because they face no hardship, immediate injury, or prejudice from the Court’s withholding of a ruling on that claim.

[Updated at 1:06 PM] Here is the news release from the ACLU.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on "Bill shoots down anti-discrimination protections: Sponsors call it an unintended consequence"

Following up on this March 26th ILB entry and a second post, the Fort Wayne Journal Gazette has a long editorial today on Senate Bill 213. Some quotes:

State lawmakers backing a bill on employment rules insist they just want to protect employers and guarantee a uniform set of rules for wages and benefits throughout Indiana. Instead, those lawmakers crafted legislation that, according to several legal experts, nullifies local antidiscrimination ordinances and provides an excellent example of the danger of unintended consequences.

Senate Bill 213, authored by Sen. Phil Boots, R-Crawfordsville, and sponsored in the House by Rep. Mike Speedy, R- Indianapolis, passed in both chambers. It needs only Gov. Mike Pence’s signature for it to become law. The bill prohibits local governments from establishing laws that require an employer to provide benefits, terms of employment, working conditions or attendance policies that exceed state or federal laws.

The problem is that the bill’s broad statement prohibiting local governments from adopting any employment rules greater than state or federal rules appears to nullify any local ordinances, including Fort Wayne’s, meant to discourage discrimination based on sexual orientation.

The administration of Indianapolis Mayor Greg Ballard, a Republican, was quick to voice concerns about the bill and deserves credit for bringing the problem to the public’s attention. An initial review from the city’s legal staff found that the bill would invalidate significant portions of Marion County’s human rights ordinance.

A Ballard spokesman told the Indianapolis Star that the mayor was concerned because he “wants to do everything he can to make sure that we are a welcoming and inviting place for business and residents and employees.”

The Fort Wayne civil rights ordinance adding sexual orientation to the list of protected categories was passed in 2001. It is an example of courageous leadership from Mayor Tom Henry, who authored the legislation during his last term on the Fort Wayne City Council.

“From our initial legal review, it appears the bill might have the unintended consequence of negating our local ordinance banning discrimination on the basis of sexual orientation since that is not a protected class under state or federal law,” said John Perlich, Henry’s spokesman, in an email.

Cathy Serrano, executive director of the Fort Wayne Metropolitan Human Relations Commission and an attorney, concurred.

“After reviewing the last printing of the bill, I think it might have the unintended consequence of impacting the portion of our ordinance which prohibits discrimination on the basis of sexual orientation,” she said in an email.

The bill’s supporters insist the intent was not to nullify local equal employment protections. The purpose was to stop local governments from requiring private employers to pay higher wages or benefits than required by state or federal laws.

Unfortunately, once the bill becomes law, the author’s professed intent will not matter. The only thing that matters is what is written in the bill. * * *

Lawmakers had the opportunity to avoid the mistake altogether. On March 18, Rep. Cherrish Pryor, D-Indianapolis, proposed adding an amendment specifying that the bill would not affect equal opportunity in employment. But the amendment was defeated in a party-line vote, casting some doubt on stated intentions of the bill’s supporters.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Government

Ind. Gov't. - Interesting story re failure of Posey County treasurer to get bonding

Here is the long story by Valerie Werkmeister in the March 25th Posey County News.

But first see this March 4th story by the same reporter. Some quotes:

Newly elected Posey County Treasurer Chris Harp continues to have difficulty in securing a $300,000 bond. Posey County Commissioner President Carl Schmitz stated during their meeting yesterday morning that Harp does currently have a $100,000 bond. However, she has been unable to find an insurance company willing to bond her for the higher amount. No reason was given as to why Harp is unable to be bonded for the higher amount.

According to Indiana Code 5-4-1-9 – Time Limitation for bond, failure to comply; An officer required to give an official bond shall give the bond before the commencement of his term of office. If the officer fails to give the bond before that time, the officer may not take office.

Schmitz contended that there is a provision in the state treasurer’s association that allows counties to approve the lesser bonding amount, if that’s all she can secure.

“There is a precedence here in the state of Indiana that if she can’t be fully bonded the commissioners can vote on it and attach it to her office and approve it as such,” Schmitz stated.

“We still have two more companies that are looking at it. We need two more weeks to see if we get turned down or whatever,” he added.

Schmitz also stated that the commissioners have asked for assistance from Richard Mourdock’s office, the state treasurer’s office and the state’s attorney for county commissioners.

“We don’t want to set a precedence here in Posey County as being one that can’t fully bond their treasurer,” Schmitz said.

Now the follow-up from the March 25th story - it is headed "New Posey treasurer appointee greeted with lawsuit" and begins:
A new Posey County Treasurer was seated last week following a Republican Party caucus March 18. Republicans hoped to put the bonding fiasco with Chris Harp behind them and move forward with their new choice, Justin White. Yet, the troubles and questions surrounding the seat are far from over.

A lawsuit filed by Posey County Democratic Party Chairman, Ed Adams, contends that since Harp was never fully bonded to the tune of $300,000, she was not qualified to take office. Adams’ lawsuit asks the courts to decide if Harp’s seat was legal. If not, he contends that Republicans held an illegal caucus. In turn, appointing White to the office may not be legal.

According to Section 3, Article 15 of the Indiana Constitution, it states: “Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.”

Essentially, this means that previous treasurer, Linda Curtis, could have been held over in the position. Her bond reads, in part: the bond is effective “until [her] successor is duly qualified.”

Adams believed that since Harp failed to comply with fulfilling her bond requirement, it was not legal for her to take office. Indiana Code 5-4-1-9 reads: An officer required to give an official bond shall give the bond before the commencement of his term of office. If the officer fails to give the bond before that time, the officer may not take office.

Adams maintains that Curtis could have continued in her position with Harp, “taking as long as she needed to secure her bond. She didn’t need to resign. She could have stayed in the office.”

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Government

Ind. Gov't. - Amendment sets $100,000 cap on the money a county auditor can keep from ferreting out unlawfully claimed tax credits

Dan Carden reports in the NWI Times in a story that begins:

INDIANAPOLIS | Porter County Auditor Bob Wichlinski would lose access to nearly all the money generated by his crackdown on homestead tax credit abusers under legislation approved by a House committee Thursday.

Senate Bill 494 was changed by the House Ways and Means Committee to set a $100,000 cap on the money a county auditor can keep from ferreting out unlawfully claimed tax credits.

Current state law permits the auditor to hold on to all the money generated when an illegal homestead credit is removed. Wichlinski's recent crackdown produced nearly $2 million for his office.

State Rep. Ed Soliday, R-Valparaiso, who sought the change, said the auditor should not get the only say in how that money is spent.

He said any funds above $100,000 should go to the county council for it to decide how the money is used.

"There's a world of difference in having some money to go after malefactors and having $1.9 million," Soliday said. "All of us would like to have a slush fund, but I don't think a slush fund incentivizes folks to do what's right."

The legislation comes on the heels of the Porter County Council seizing $606,000 in tax credit abuse proceeds from Wichlinski's accounts this month and ordering Wichlinski to seek council permission to spend the money.

Wichlinski claimed that action was illegal and will prevent him from having the funds necessary to seek out more tax credit abusers.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Government

Ind. Law - "At the Statehouse, the Ag-Gag bill and a push to shut you up"

That is the headline to Matt Tully's column today in the Indianapolis Star. It begins:

There was a telling and dispiriting moment during a House Agriculture Committee debate over a bill to ban undercover photography on factory farms Thursday morning. Well, actually, there were many of them. But let’s start with the most telling and most dispiriting.

It came when Democratic Rep. Pat Bauer of South Bend asked the committee’s chairman a simple question, one that followed the presentation of a sweeping amendment to the very contentious and much-criticized bill. It’s a bill critics rightly contend would protect entities such as corporate farms and puppy mills from scrutiny.

Turning to Chairman Don Lehe, Bauer said: “This is a substantial amendment. Are you going to allow public comment on it?”

Nope.

And about 20 minutes after the committee began its work, it passed Senate Bill 373 by a vote of 9-3, making it ever-more likely that Big Farm is going to have another big win during the 2013 state legislative session.

Here are some earlier ILB entries on SB 373.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Law

Ind. Decisions - More on: Worrisome slowdown at Tax Court?

Last Friday the ILB reprinted an item from March 25th issue of the subscription-only Indiana Legislative Insight (ILI), but only after a great deal of thought.

The new, April 1 issue of ILI has just arrived. It includes this follow-up to last week's report:

In a March 28 Senate Committee on Appropriations budget hearing, Indiana Tax Court Judge Martha Wentworth requested additional operational funding for the Tax Court (citing a recent report in [ILI] that outlined the burden on the court). “The message is clear,” she said. “We need to change things to be more productive.” Judge Wentworth, who is only the second judge in the court’s history, said the additional dollars would be directed toward hiring another staffer and making some one-time technology investments.

The Tax Court currently employs two law clerks and is in the process of hiring a third. Most of the Indiana Court of Appeals judges and the Indiana Supreme Court have three clerks as well as a cadre of senior attorneys which the Tax Court does not have.

Judge Wentworth also updated the numbers we recently served up for you. Approximately 140 cases are currently pending in the Tax Court, she told lawmakers, including 10 she just received on Wednesday.

As far as cases under advisement, 12 rulings have been written that will be published as soon as the quality control process is complete (one of those rulings was released Thursday, dealing with “the proper calculation of Indiana net operating losses (NOLs) available for carryover when a corporation receives dividend income from its foreign subsidiaries (Foreign Source Dividends or FSDs),” an appeal initiated in 2008 involving an audit of an international company’s 1996 through 2003 tax returns), while another 30 cases are under advisement without finished drafts.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - " Let’s hope this proposal never makes it out of the discussion stage."

So concludes an editorial today in the Indianapolis Star about HB 1175, the bill that would permit government agencies to charge not only for copying costs, but also for their time in filling public record requests.

Reader may remember this post from Wednesday, quoting the Star story reporting that the bill had failed to pass the second house, 23-23, but could be called down for another try under certain conditions. Wednesday's story also had this passage, which greatly surprised the ILB:

The bill has the support of local government coalitions, such as the Association of Indiana Counties. The Hoosier State Press Association, which advocates on behalf of Indiana’s media outlets, also helped craft the bill’s language.

HSPA’s executive director, Steve Key, said Republican House Speaker Brian Bosma asked him to come up with recommendations because he said a bill was needed and would likely be introduced.

“We’d rather be working with the Speaker in trying to develop what we thought were acceptable principals for search-fee legislation going forward,” Key said, “instead of being on the outside letting the language driven by an entity over there who might not be as sympathetic to citizens’ rights to access (public records).”

Hmm, who was advocating on behalf of the public?

Today's Indianapolis Star editorial takes on that task. Some quotes:

It can be made to seem like an affordable answer to a practical problem.

Understaffed state and local governments complain they can’t afford to keep up with the many requests they receive to view public records; and state lawmakers want to enable them to charge up to $20 an hour, after two free hours, for the research.

Does it make sense? Well, the federal government and more than half the states allow agencies to charge for records searches. But that does not make it good public policy. The General Assembly should rethink several implications of the proposed bill before joining the crowd.

First is principle. Aside from voting, for which fees long ago were declared unconstitutional, there is no American right more basic than access to information about the actions of elected officials and their appointees. To erect a toll gate in front of that information would set a grave precedent for a state that has prided itself on open records and open meetings, however compromised those laws sometimes may have been.

Turning to practicalities, there is a need up front to differentiate between charging for copies of records – which the state allows, within limits – and charging for staff time, which House Bill 1175 would authorize. The former entails extra cost and is not an access matter; the latter does not add to personnel nor to the workday and thus is not a cost item in itself.

Given a new revenue tool, agencies may be tempted to take their time responding, perhaps to keep the meter running or to punish customers for inconvenience or bad press.

The staff is there to serve a fundamental need. Society as a whole – the taxpayers – should make sure that staff is sufficient. This point has been made by First Amendment and open government organizations large and small, and it relates to the issue of the “mere” $20-an-hour maximum fee.

For large news operations, the tab might be manageable – except that they may make hundreds of records checks in the course of a year and might be impelled to curtail their watchdog efforts in light of the budgetary burden.

And how about the little guys – independent journalists, citizen groups or the engaged individual who simply wants to know how his school board is spending his money? As John Loflin, with an Indianapolis grass-roots education coalition called Parent Power, puts it:

“Charging the public $20 an hour to search for its own records seems contradictory. After all, the taxes of citizens already provide the building and office used by researchers, and their general wages. Pool state and county taxes so no citizen is charged.

“Let’s have an open and easily accessible democracy, not one that favors persons or groups because of ability to pay.” * * *

Enough senators were concerned about that right to derail the bill via a tie vote Tuesday, after it had sailed through the House. It was reassigned to a Senate committee; but its Senate sponsor, Travis Holdman, R-Markle, had not said as of Thursday whether he planned to try again. Let’s hope this proposal never makes it out of the discussion stage.

The ILB has added the emphasis in the final paragraph to the phrase "It was reassigned to a Senate committee" as this does not appear to comply with Senate procedure -- Senate Rule 81(b), quoted in the earlier ILB post, spells out the procedure in the case where a bill fails for lack of a constitutional majority.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Government

Ind. Law - Bills of interest to the judiciary heard in committee during Week 12 of the General Assembly

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

It was available late yesterday, as today is a state holiday.

Especially interesting is the coverage under the Criminal Law heading of the hearing on HB 1006, the criminal code redo, and HB 1482, on expungement.

Under Judicial Administration, the ILB was interested in the discussion of HB 1393, on the Judicial Technology and Automation Committee (JTAC). One point: "Justice Massa testified that the Supreme Court is leaving the decision about case management system providers to be made locally," the ILB has not seen stated so clearly before.

Posted by Marcia Oddi on Friday, March 29, 2013
Posted to Indiana Courts

Thursday, March 28, 2013

Ind. Decisions - Tax Court issues one today

In Caterpillar, Inc. v. Indiana Department of State Revenue, a 10-page opinion, Judge Wentworth writes:

This matter concerns the proper calculation of Indiana net operating losses (NOLs) available for carryover when a corporation receives dividend income from its foreign subsidiaries (Foreign Source Dividends or FSDs). Caterpillar, Inc. and the Indiana Department of State Revenue are currently before the Court on cross-motions for summary judgment. While the parties offer several reasons to support their positions, the dispositive issue is whether Caterpillar’s FSDs are deductible in calculating its Indiana NOLs, including those available for carryover as a deduction from taxable income in future years under Indiana Code § 6-3-2-2.6.1 The Court finds that they are.

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Law - "Indiana House panel passes "ag-gag" bill to block stealth videos on farms, businesses"

Mary Beth Schneider of the Indianapolis Star reports on this morning's committee meeting:

A bill that makes it a crime to take videos and photos on Indiana farms and businesses without permission is now headed to the full House for debate.

The House Agriculture and Rural Development committee voted 9-3 for the bill, Senate Bill 373, along party lines.

The measure has drawn national attention, with Republican political consultant Mary Matalin and former game show host Bob Barker both weighing in to urge legislators to defeat the bill.

There is much more in the long story about SB 373.

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Indiana Law

Ind. Decisions - More on: "Judge could issue ruling on BSU-Hiatt dispute this month"

Updating this ILB entry from March 1st, Douglas Walker of the Muncie Star-Press reported this morning:

MUNCIE — A Delaware County judge has ruled Ball State University can proceed with its efforts to claim a campus-area property through an eminent domain lawsuit. * * *

In a ruling issued Wednesday, Circuit Court 5 Judge Thomas Cannon Jr. ruled that with 93 percent of the building being dedicated to” the educational, housing and support services needed by the university,” the “paramount interest being served is the educational mission of Ball State.”

The judge is now expected to appoint three appraisers to determine the fair market value of the property.

An appeal of his ruling by the Hiatts is anticipated.

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Pence names Steven L. Hostetler to the St. Joseph Superior Court [Corrected]

Yesterday the ILB reported that the St. Joseph County Superior Court Judicial Nominating Commission had added a name to its list of five for the upcoming Scopelitis vacancy, as Elizabeth C. Hurley (who was on both lists) had been named Tuesday by Gov. Pence to fill the upcoming Chamblee vacancy.

This morning Gov. Pence's office has announced:

Governor Mike Pence today announced the appointment of Steven L. Hostetler to the St. Joseph Superior Court. The appointment of Hostetler will fill an upcoming vacancy on the St. Joseph Superior Court that will occur on June 3, 2013 when Judge Michael P. Scopelitis retires.

"Steven Hostetler is a man of integrity whose legal experience and knowledge of the law, combined with his extensive pro bono work and volunteerism in the community, make him the right choice to serve as a judge in St. Joseph County Superior Court," said Governor Pence.

Hostetler graduated magna cum laude with a B.S. from Olivet Nazarene University. He earned his J.D., cum laude, from Indiana University School of Law and began working for Thorne Grodnik, making partner in 1988.

Hostetler has extensive civil litigation experience. He developed an impressive practice representing businesses and financial institutions. His legal expertise includes bankruptcy, creditors' rights, commercial litigation, real estate and general corporate law.

Active in the Salvation Army of St. Joseph County, Hostetler has served as a member and past president of the advisory board. As president, he spearheaded fundraising and planning to build the South Bend Kroc Community Center.

The St. Joseph County Superior Court Judicial Nominating Commission submitted Hostetler's name along with four others to Governor Pence for his consideration and appointment.

ILB: In answer to questions, Hostetler only applied for the Scopelitis vacancy, so he was not on both lists.

[Correction] I just reread that and it is not what I intended to say. I don't know that "Hostetler only applied for the Scopelitis vacancy." I only know that he was not on the final list of five names for the Chamblee vacancy.

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

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In In the Matter of the Involuntary Termination of the Parent-Child Relationship of G.P., and J.A. v. The Indiana Department of Child Services , an 11-page opinion, Chief Judge Robb writes:

J.A. (“Mother”) appeals the termination of her parental rights. She presents two restated issues on appeal: 1) whether she was denied due process when the trial court failed to appoint her an attorney for the underlying Child in Need of Services (“CHINS”) proceeding; and 2) whether sufficient evidence supported the termination of her parental rights. Concluding that her due process rights were not violated, and that there was sufficient evidence to support the termination, we affirm. * * *

While we are disappointed that the trial court did not follow through with appointment after determining that appointment was appropriate, any error in that failure appears to be harmless and we cannot say that it changed the balance of risk of error in the termination proceedings. * * *

Concluding that Mother was not denied her due process rights when the trial court failed to appoint her counsel in the CHINS case, and that sufficient evidence supports the termination of her parental rights, we affirm.

NFP civil opinions today (4):

Ricky Outlaw v. Indiana Dept. of Corrections, Keith Butts, Rick Talley, Bruce Lemon, and Alan Finnan (NFP)

Term. of the Parent-Child Rel. of D.K. (Minor Child) and B.K. (Mother) and D.B.K. (Father) v. The Indiana Dept. of Child Services (NFP)

Howard Osborne and Kimberly Easterday v. Tina R. Berger and Carla Hill, co-personal representatives of the Estate of Elbert H. Osborne, deceased (NFP)

J.W. v. Review Board of the Indiana Dept. of Workforce Development and DeGood Dimensional Concepts, Inc. (NFP)

NFP criminal opinions today (7):

Jami M. Martin v. State of Indiana (NFP)

Jamarcus Cain v. State of Indiana (NFP)

Daymon Holbert v. State of Indiana (NFP)

William Baxter v. State of Indiana (NFP)

Steven Reynolds v. State of Indiana (NFP)

Tyrone Bell v. State of Indiana (NFP)

William J. Caudill v. State of Indiana (NFP)

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

Courts - "Divided Supreme Court Hinders Cops’ Use of Drug-Sniffing Dogs"

David Kravets of WIRED writes on Tuesday's SCOTUS decision in Florida v. Jardines. A quote:

A divided Supreme Court on Tuesday gave notice to the nation’s law enforcement officials that they generally need search warrants to employ drug-sniffing dogs outside a home to detect whether drugs are inside.

The case decided 5-4 involving a suspected Florida drug dealer limited the government’s ability to intrude into the home and was a blow to police. Law enforcement officials told the justices that the practice was “widely used,” and wanted the high court to sanction warrantless dog-sniff searches as the high court has for airport luggage or vehicles stopped during routine traffic stops.

A private residence, and the “curtilage” surrounding it, is another story and is protected by “ancient and durable roots,” Justice Antonin Scalia wrote for the majority.

“But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,’” Scalia wrote, quoting a 1961 high court decision. “This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.”

At least 18 states warned the Supreme Court that, should it rule the way it did, the outcome would imperil “a widely used method of detecting illegal drugs.” [ILB: Indiana is not listed on the amicus brief referenced.]

In dissent, Justice Samuel Alito wrote that the majority’s decision is based on thinking “that is nowhere to be found in the annals of Anglo-American jurisprudence.”

Alito said those growing marijuana inside their homes have no reasonable expectation of privacy.

“A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human,” he wrote.

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

Ind. Law - Re criminal records, FWJG editorial presents "A better proposal"

From a long editorial today in the Fort Wayne Journal Gazette, well worth reading in full. A few quotes:

Though well intentioned, Indiana legislators’ efforts in 2011 to help otherwise law-abiding Hoosiers get jobs by hiding records of an old criminal conviction were flawed. They resulted in a law that gives such offenders permission to lie on job applications and creates two sets of books, one open to the public, another open to law enforcement and court personnel.

Now, their attempts to fix some of the most obnoxious portions of that law are heading in the right direction, though the state’s prosecutors appear to have the better remedy. * * *

House Bill 1482 – which the House passed and which was passed Wednesday by the Senate Judiciary Committee (advancing to the full Senate) – would fix one of the most noxious elements of the law by allowing all eligible ex-offenders to have their criminal record erased if they remain law-abiding for 10 years. This would eliminate the problem of the two sets of records, which provides dishonest information to the public. * * *

The Indiana Prosecuting Attorneys Council has a reasonable and fair proposal. It would serve both the public’s right to know and the ex-criminal trying to gain employment. The prosecutors proposed marking the appropriate records as “expunged” in a legal sense but permitting the dated court records to remain public. The conviction is eliminated from their record without trying to change the past by denying it happened.

This gives the transparency the public deserves: Yes, John Doe was convicted of writing a bad check 11 years ago but hasn’t had any convictions since, so the court has removed this conviction from his record. It would open to civil lawsuits prospective employers who use expunged records to deny someone a job.

The prosecutors are also rightly concerned because the current proposal would allow people with multiple offenses to have their record expunged, while the intent of the law is to allow people who made a mistake years ago to get another chance.

The 2011 law needs to be overhauled. The current wording of a bill to make changes is a good step, but the prosecutors’ council has the best proposal, one legislators should adopt.

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Indiana Law

Ind. Law - Opponent and proponents clash at Wed. committee meeting on Rockport coal gasification

Eric Brander has the story today in the Evansville Courier & Press. Some quotes from the long story:

Arguing that the shale gas boom can’t keep gas prices down much longer, developers of the proposed Rockport coal-to-gas plant defended the economics of their $2.6 billion project during an Indiana legislative hearing Wednesday. * * *

“Shale gas is a miserable commercial failure,” said Arthur Berman, a Houston-based petroleum geologist and consultant. * * *

“The whole thing is a sham, and maybe even a fraud,” Berman said.

The developers and their experts argued for the project in the face of stiff opposition from lawmakers, business lobbying groups and environmentalists, all of whom said they are more optimistic that natural gas prices will beat the Rockport plant’s rates.

They said the necessity of the Indiana Finance Authority’s contract to buy its product at a pre-negotiated rate and then resell it to Hoosier ratepayers — a move that locked in a guaranteed buyer so that Leucadia had a better chance of qualifying for a federal loan guarantee — is evidence the project could not succeed on its own merits.

“What does it say that nobody is going to finance this project unless the utility ratepayers in Indiana are saddled with losses for the next 30 years?” said Sen. Doug Eckerty, R-Yorktown, the author of the measure the panel was considering.

Opponents of the project — again, chiefly Vectren Corp. — lined up to testify at what was likely their last opportunity to do so publicly during this year’s legislative session.

Those opponents ranged from the consumer advocacy group Citizens Action Coalition and the environmental organization Sierra Club to business interests such as the Indiana Chamber of Commerce, the Indiana Farm Bureau and the Indiana Manufacturers Association. * * *

Both sides last week petitioned the Indiana Supreme Court to weigh in on numerous legal issues stemming from the state’s 30-year contract.

On Wednesday, those sides couldn’t even agree on whether the contract is valid at this stage. They disputed the impact of a months-old Indiana Court of Appeals decision that required a technical change to the contract but left its substance intact.

The bill lawmakers are considering — it’s passed the Senate and is set for a House committee vote next week — would defer action until the state’s high court takes the next step.

If the court orders changes to the contract, though, the whole thing would go back to the Indiana Utility Regulatory Commission for another in-depth review, with regulators this time instructed to consider whether the deal is in the “public interest.”

It’s a solution that pleases neither side. Developers say utility regulators have already thoroughly vetted the project and the price issues surrounding it. Opponents say they prefer to amend the actual contract by strengthening its ratepayer protection mechanisms.

House Utility Committee Chairman Eric Koch, R-Bedford, could opt to overhaul the bill when the panel meets again next week. But he did not tip his hand during Wednesday’s hearing on what changes, if any, he could seek to make.

Rep. Suzanne Crouch, R-Evansville, is carrying Senate Bill 510 in the House and said lawmakers should advance it in its current form because the state leans heavily on the Indiana Utility Regulatory Commission, which is tasked with protecting ratepayers and through the measure would be given new instructions on what to consider.

“This project should go forward if it’s right for ratepayers, but it should not go forward if it is not,” Crouch said. “Let the state’s experts make the right decision for Hoosier ratepayers.”

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Indiana Law

Ind. Courts - "Judge's view of Lake Juvenile Court dispute is no love letter"

That is the headline to this story posted last evening in the NWI Times, reported by Bill Dolan. It begins:

CROWN POINT | A contest among Lake Superior Courts judges over who should take over the juvenile justice complex has gotten personal.

One of those judges has accused former Juvenile Court Judge Mary Beth Bonaventura of not only disrespecting fellow judges but also privately angling to put one of her favorites on the juvenile bench — in contradiction of her public call for the new Juvenile Court judge to be chosen by merit selection.

Superior Court Judge Jesse Villalpando penned that opinion in a March 13 letter he wrote to Chief Superior Court Judge John Pera, which was recently obtained by The Times. In it, Villalpando compliments Pera for how he represented him and other judges in opposing Bonaventura in a dispute over who should be the next Lake Juvenile judge.

The story links to a copy of the 3-page letter, which begins:
Against my better instincts I am articulating my thoughts regarding your letter of March 11, 2013 to Justice Robert Rucker. In a word: Congratulations.

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

Ind. Law - "Abortion-drug measure part of lawmakers' incremental approach against procedure"

The Indianapolis Star's Mary Beth Schneider has a long, front-page story today on yesterday's committee hearing on SB 371. It begins:

In a year when Arkansas and North Dakota lawmakers have grabbed national headlines by banning most abortions, Indiana’s legislature is choosing a chisel over a sledge-hammer.

Rather than a sweeping anti-abortion bill, the Indiana House and Senate are advancing a bill to regulate abortion-inducing drugs — and potentially stop one Lafayette clinic from prescribing them at all.

But anti-abortion advocates in Indiana are saying the state is taking an incremental approach, that in the end may do more to slow abortions than an attention-grabbing law that simply gets tied up in legal cases.

And abortion rights advocates agree. Through such incremental changes made year after year, said Betty Cockrum, president of Planned Parenthood of Indiana, Indiana lawmakers are succeeding in making it more difficult for women to access a procedure that is safe and legal.

“Legislators really intend to chip away at Hoosier women’s access to abortion,” Cockrum said.

It’s a strategy that hasn’t changed in Indiana, even though this year Republicans, who are overwhelmingly anti-abortion, hold supermajorities in both the House and Senate.

Under a bill approved 8-5 Wednesday by the House Public Policy Committee, a clinic that provides a drug that causes abortion, such as RU 486, would have to meet the same building standards as a surgical unit — complete with wider halls and doorways to accommodate gurneys, a recovery room and sterilization equipment for surgical tools.

For Cockrum, that measure is unnecessarily onerous and, unless expensive changes can be made by Jan. 1, it may force the group’s Lafayette clinic to stop prescribing RU 486 for women who want an abortion.

From later in the long story:
Senate Bill 371, which passed the House committee today and is now headed to the full House for debate, initially went further. When it passed the Senate, it required women getting an abortion drug to have an ultrasound. Physicians had said that would mean an invasive transvaginal probe, since the drug typically is given in the early weeks of pregnancy when the non-invasive ultrasound through the abdominal wall doesn’t work well.

Now the bill simply leaves in place current law, which requires physicians to use appropriate medical standards to determine the fetal age.

The House version also initially included a provision that Planned Parenthood of Indiana said could have led to all nine abortion clinics in Indiana closing if they couldn’t meet new building code standards put in place in 2006. Currently, they are grandfathered in by the state Department of Health.

The House committee quickly excised that provision, so that now the bill only applies to any newly licensed facility — including that Lafayette clinic.

But the committee also added a provision banning the use of an abortion-inducing drug after nine weeks of gestation, and requires a physician to examine the woman in person before prescribing it. * * *

Critics questioned why, if the changes are needed, they apply only to clinics and not to the offices of physicians who prescribe an abortion-inducing drug. And Cockrum said it amounted to a coordinated national effort to shut down Planned Parenthood clinics.

Dan Carden's story in the NWI Times includes:
Under the revised legislation, facilities that only provide abortion pills would be required to be licensed as an abortion clinic and meet the same building and equipment standards as facilities that perform surgical abortions.

That includes, among 36 single-spaced pages of other requirements, a reception area with at least two waiting room chairs per examination room, a waiting room toilet and drinking fountain, procedure rooms that are at least 120-square-feet in size, scrub facilities, corridors at least 44 inches wide and 3-foot-wide doors throughout.

Posted by Marcia Oddi on Thursday, March 28, 2013
Posted to Indiana Law

Wednesday, March 27, 2013

Ind. Law - "Republican Mary Matalin asks Indiana lawmakers to defeat bill banning unapproved video on farms, businesses"

Mary Beth Schneider has the IndyStar story here. It begins:

Republican political consultant Mary Matalin is making a videotaped appeal to Indiana’s lawmakers to defeat a bill that would ban unapproved videos on farms and businesses.

Groups representing farmers and businesses have said Senate Bill 373 is needed to prevent people from making surreptitious videos that could damage their reputations, and that they claim can be misleading.

Opponents -- including the news media, labor unions, animal-protection groups and even some farmers -- say videos can bring to the public’s attention serious problems on the care of animals, food safety and worker safety.

The bill, and possible changes to it, will be voted on Thursday morning in the House Agriculture and Rural Development Committee.

Here is a list of earlier ILB entries on the ag-gag bill.

Posted by Marcia Oddi on Wednesday, March 27, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court issues one today

In In Re: Prosecutor's Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana, a 9-page, 5-0 opinion, Justice Massa writes:

When a prosecutor has neither filed a charge nor initiated a grand jury proceeding, may she nevertheless petition a court to compel a party to testify under a grant of use immunity, when that party is the primary target of the investigation and has asserted the constitutional privilege against self-incrimination? We think not. * * *

We therefore hold that in a situation where, as here, no charges have been filed and no grand jury has been convened, a prosecutor may subpoena witnesses pursuant to Indiana Code § 33-39-1-4; if those witnesses invoke their constitutional right against self-incrimination, however, the prosecutor cannot petition the court to grant them use immunity and compel them to testify without first filing charges or convening a grand jury. Further, we disapprove any language in Indiana Bell that may be read to contradict our holding today.

Conclusion. We reverse the trial court’s ruling on the motion to correct error and remand this case for further proceedings consistent with our opinion.

Posted by Marcia Oddi on Wednesday, March 27, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - Watch DOMA argument on C-SPAN at 2 pm

From C-SPAN:

In United States v. Windsor, the court hears arguments on whether DOMA, which defines marriage as between one man and one woman, violates the fifth amendment.

At issue in the case is whether same-sex spouses in states that legally recognize gay marriage should be afforded the federal benefits of being married. The Obama Administration has stopped defending the act, so the Justices will hear from three parties, including an attorney hired by House Republicans to argue in favor of DOMA.

Remember the first hour of the argument was on standing, but after that it gets lively, according to the reports I've seen.

As was the case yesterday, C-SPAN will repeat the broadcast at 8:00 PM.

As Lyle Denniston reports here at SCOTUSblog:

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

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

Law - "Anthony Lewis, former reporter and columnist for The New York Times, died Monday at the age of 85."

NPR had two tributes to Anthony Lewis, both of which replay parts of earlier interviews with Lewis:

Posted by Marcia Oddi on Wednesday, March 27, 2013
Posted to General Law Related

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

For publication opinions today (5):

In State of Indiana v. Antonio Gonzalez-Vazquez, a 10-page opinion, Judge Bailey writes:

The post-conviction court excluded the State’s response on grounds that Rule 6(E) was inapplicable; this was erroneous as a matter of law and the State’s motion and response were timely. Therefore, the grant of summary judgment must be reversed. * * *

The post-conviction court erred in striking the State’s response as untimely. We reverse and remand for further post-conviction proceedings.

In In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B. , an 11-page opinion, Judge Baker writes:
Paternal Grandmother J.C. (Grandmother) appeals from the trial court’s order vacating the grandparent visitation rights she had enjoyed since 2009 on the basis that the trial court that initially granted these rights lacked the statutory authority to do so. Among other things, Grandmother contends that her lack of standing under the Grandparent Visitation Act was waived when her granddaughters’ guardians, J.B. and S.B. (collectively, “the Guardians”), failed to appeal the original order. The Guardians cross-appeal, arguing that even if their objection to the original order was waived, Grandmother’s appeal is nevertheless moot because S.B., a non-relative, and J.B. have since adopted the girls, and grandparent visitation rights do not survive adoption by a non-relative.

We conclude that although Grandmother did lack standing to pursue the original grandparent visitation order, the Guardians’ objections to her want of standing were waived when they failed to appeal the original order. We also conclude that Grandmother’s visitation rights were not terminated by the adoption because the girls were not adopted only by S.B. but also by J.B., who is their uncle. As a result, we reverse the judgment of the trial court.

In Terrence J. Fuqua v. State of Indiana , a 14-page opinion, Judge Mathias concludes:
We conclude that the investigating detectives had reasonable suspicion to search Fuqua’s trash, and that the subsequent search warrant was supported by probable cause. For this reason, the trial court acted within its discretion when it admitted evidence seized during execution of the search warrant.
In Michael L. Harris v. State of Indiana , a 30-page opinion with a separate concurring opinion and with an appellant pro se, Judge Riley writes:
Appellant-Defendant, Michael L. Harris (Harris), appeals his conviction and sentence for Count I, failure to register as a sex offender, a Class D felony, Ind. Code § 11-8-8-17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35-42-4-12. We affirm in part and reverse in part.

Harris raises three issues on appeal, which we restate as the following four issues:
(1) Whether Harris’s convictions under I.C. § 11-8-8-17 and I.C. § 35-42-4-12 violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction under I.C. § 11-8-8-17 violates Harris’s right of free expression under the Indiana Constitution;
(3) Whether I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and
(4) Whether the evidence was sufficient to convict Harris of failure to register as a sex offender under I.C. § 11-8-8-17. * * *

Based upon the foregoing, we conclude that Harris’s conviction under Ind. Code § 35-42-4-12 violates the First Amendment to the United States Constitution and reverse his conviction under that statute. However, Harris’s constitutional challenges to I.C. § 11-8-8-8(a)(7) under the First Amendment as well as Article 1, Sections 9 and 24 of the Indiana Constitution fail. We also conclude that the State produced sufficient evidence to support Harris’s conviction under I.C. § 11-8-8-17. Affirmed in part, reversed in part.

BAILEY, J. concurs
CRONE, J. concurs in part and concurs in result in part with separate opinion
objection [which concludes] As for Indiana Code Section 35-42-4-12, the majority acknowledges that the Seventh Circuit Court of Appeals recently addressed its constitutionality under the First Amendment in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013), but never quite gets around to saying that the court found the statute unconstitutional on its face. See id. at 695 (“We … hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest.”). I acknowledge that we are not bound by the Seventh Circuit’s holding and that Doe is both factually and procedurally distinguishable, but I see no reason to reinvent the wheel here and would reverse Harris’s conviction under Indiana Code Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case. We need not address Harris’s state constitutional argument here, but I would simply note that the protections of Article 1, Section 9 of the Indiana Constitution are at least equal to if not greater than those of the First Amendment.

In Joseph J. Scott v. State of Indiana , an 8-page opinion, Judge Bradford writes:
Joseph Scott was operating a vehicle with a blood alcohol concentration (“BAC”) of 0.18 grams per deciliter when he fled a police officer and lost control of the vehicle, killing another. Scott indicated that he wanted to plead guilty, and his trial counsel advised him that the maximum sentence he could receive following that guilty plea would be thirty years of incarceration. Scott pled guilty to Class B felony operating a vehicle with a BAC of at least 0.18 g/dl and Class B felony resisting law enforcement causing death. The trial court sentenced Scott to an aggregate sentence of thirty years of incarceration with five suspended to community corrections, and Scott did not appeal. Eventually, Scott filed a petition for post-conviction relief (“PCR”), alleging fundamental error and that he received ineffective assistance of trial counsel. Because we conclude that Scott received ineffective assistance of trial counsel, we reverse and remand with instructions to impose a sentence of twenty-three years of incarceration.
NFP civil opinions today (2):

Pamela A. Thompson v. Carroll E. Thompson (NFP)

In Re Paternity of G.K., A Minor Child; K.D.K. v. N.K. (NFP)

NFP criminal opinions today (2):

Marc Stults v. State of Indiana (NFP)

William D. Everage, Jr. v. State of Indiana (NFP)

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

Courts - "5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses"

Today's oral argument on the DOMA have wrapped up. Here is a long, early report from Adam Liptak and Peter Baker of the NY Times.

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

Ind. Gov't. - "Kentucky legislature overwhelmingly overrides veto of 'religious freedom' bill"

Interesting story today in the Louisville Courier Journal, reported by Tom Loftus. Some quotes:

FRANKFORT, Ky. – The Kentucky House and Senate voted by overwhelming margins Tuesday night to override Gov. Steve Beshear’s veto of the controversial “religious freedom” bill.

The House’s 79-15 vote sent House Bill 279 to the Senate, which voted 32-6 to override the measure.

The one-paragraph bill that stirred strong emotions now will become law in 90 days.

Beshear released a statement saying he was disappointed with the override of the only bill he vetoed in the 2013 legislative session. “As I explained in my veto message, I have significant concerns that this bill will cause serious unintentional consequences that could threaten public safety, health care, and individuals’ civil rights.”

But the Family Foundation claimed the wide vote margins proved that the concerns of Beshear, the American Civil Liberties Union of Kentucky and gay-rights and human-rights groups were unfounded. * * *

HB 279 says that government shall not infringe on any person’s sincerely held religious beliefs unless it can show with “clear and convincing evidence” some compelling governmental interest for doing so.

Gay-rights and human-rights groups led the opposition to the bill, warning that it could be used to challenge local laws in Louisville, Lexington, Covington and Vicco designed to protect gays and lesbians from discrimination.

Beshear added additional concerns in his veto message on Friday, saying the bill could could be costly to local governments, impede the state’s economic development efforts, and possibly result in the withholding of needed medical care or the use of religious beliefs as a justification for abuse.

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

Ind. Gov't. - FWJG Editorial: "Constitutional? Yes, but …"

Here is the Fort Wayne Journal Gazette's editorial take today on yesterdays Supreme Court ruling upholding school vouchers. Some quotes:

The most revealing sentence in the Indiana Supreme Court’s decision upholding the voucher program is this from Chief Justice Brent Dickson: “We emphasize that the issues before this court do not include the public policy merits of the school voucher program … the desirability and efficacy of school choice are matters to be resolved through the political process.”

Yes, the state’s highest court unanimously rejected a constitutional challenge to the Choice Scholarship Program. Before drafting the law to establish the program, voucher proponents learned much from legal challenges to more limited programs in Milwaukee, Cleveland and elsewhere. But as Dickson noted, the lawsuit did not require defendants to prove school vouchers are good for Indiana children or taxpayers. That’s for lawmakers to determine before they vote to spend even more on the program.

“Now that the court has made the decision on the legal issues, it’s up to legislators to decide from a policy standpoint if the voucher program is effective,” said Terry Spradlin, director for education policy at Indiana University’s Center for Evaluation and Education Policy. “For some kids it probably is, but we don’t know if that’s the case for all.”

Spradlin, a former legislative and policy analyst with the Indiana Department of Education, said today’s scheduled vote on the voucher expansion bill, House Bill 1003, in the Senate Education and Career Development Committee is key.

“There is a lot at stake here, and now the ball is back in the legislators’ court. Some want to move ahead and others seem to want to be a little more cautious,” he said. “This is happening very quickly. What happens (today) will be a foretelling of things to come.” * * *

The fact that the chief justice raised the issues of desirability and efficacy should be a warning to legislators eager to expand voucher use, however. It might meet constitutional muster, but there’s no research to suggest it serves students well. * * *

But school choice has not proven its success in Indiana classrooms, only in the minds of lawmakers increasingly beholden to the same pro-voucher and anti-union interests who drafted the disingenuously named Choice Scholarship Program.

Another important takeaway: School choice is literally that – private and parochial schools choose the students they will accept, leaving public schools with less support for students with severe disabilities, refugees with no English skills and others who might impair a voucher school’s academic record.

Before Indiana lawmakers spend more on the unproven program, they must determine whether vouchers pass not only the constitutional test but also the test for sound public and fiscal policy – one that could be satisfied with a study from IU’s highly respected and nonpartisan education policy center.

If they proceed without it, Hoosiers should know it’s about the money, not the students.

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

Ind. Courts - John Maciejczyk to replace Hurley as one of the five finalists for the June vacancy

Those who have been following the filling of two different vacancies on the St. Joe Superior Court know that two lists were sent to the Governor, one for each vacancy, but with three overlapping nominees. One of those overlapping nominees, Elizabeth C. Hurley, was appointed yesterday by Gov. Pence to fill the upcoming Chamblee vacancy. Today, according to this news release from the Indiana Courts, John M. Maciejczyk, assistant United States Attorney, has been named to replace Hurley on the second list.

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

Ind. Gov't. - Pew makes Election Performance Index available to measure states' performance

Interesting story by Susan K. Urahn in Governing. A quote:

To achieve an election system that is convenient, accurate and fair, state and local leaders need data to review and track their voting processes--from registration to ballot-counting.

This kind of analysis is not easy. Our nation's locally run elections lack a common set of performance measures and a baseline from which reliable comparisons--between election cycles and across jurisdictions-can be made. Accurate data on what leads to better or worse results in any particular area are often scarce.

Now, state and local election officials--policymakers as well as administrators--can access an online tool to help them meet some of these challenges: the Elections Performance Index. This database provides a means for evaluating the management of elections within and across states and from year to year. An advisory group of election officials and leading academics, convened by the Pew Charitable Trusts and partners at the Massachusetts Institute of Technology, guided its development.

The index examines all 50 states and the District of Columbia on 17 indicators of election administration, including polling-location wait times, availability of online voting-information tools, number of rejected voter registrations, percentage of voters with registration or absentee-ballot problems, number of military and overseas ballots rejected, voter turnout, and accuracy of voting technology. While the 17 indicators do not capture every possible measurement of election performance, they do reflect the best currently available data.

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

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

Updating this ILB entry from Feb. 21st, Teresa Auch Schultz of the Gary Post-Tribune reports today:

Former Lake County Coroner Thomas Philpot will stay in prison after a federal judge denied his request Tuesday to stay out on bond pending the result of his appeal.

Philpot actually reported to prison last week, several weeks before he had to. His attorney Leonard Goodman said they were still moving forward with the motion, though, and that Philpot would just leave if the motion was granted.

Philpot is appealing his conviction last summer of paying himself from a state fund when he did not have the authorization to do so. He was sentenced earlier this year to 18 months in prison. Philpot’s attorneys argued in his motion that because the appeals process can take some time, he likely would have already served a majority of the sentence by time the 7th Circuit U.S. Court of Appeals ruled on his case.

Posted by Marcia Oddi on Wednesday, March 27, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Bill that would charge for public records search stalls in Senate: Measure could be reintroduced"

That is the headline to this Indianapolis Star story by Ryan Sabalow that begins:

A bill that would give state and local agencies the ability to charge up to $20 an hour to respond to public-records requests has stalled in the Indiana Senate.

Senators deadlocked Monday on the bill. But its sponsor has until next Monday to introduce it again.

ILB: Nothing so far in the story made any sense to the ILB! So I looked at the Action List for HB 1175. The action shows the bill failed to pass third reading in the Senate by a vote of 23-23 - i.e. it did not receive a constitutional majority.

This circumstance is covered by Senate Rule 81(b) [p. 49]:

(b) When a bill or joint resolution shall have failed for want of a constitutional majority, but shall have received an equal number of affirmative votes and negative votes of the Senators present (the same number but less than 25 of each the yeas and nays), such bill or joint resolution may be called down by the author or sponsor for a second and final vote, without debate, during the call of bills on third reading on a subsequent day but within three (3) days that the Senate is convened following the initial vote. The call down of such a bill or joint resolution shall not be counted as a third reading call of the author or sponsor. The daily calendar shall list such bill or joint resolution at the beginning of the calendar under the separate heading “Rule 81(b) Bills and Joint Resolutions” and shall note the days remaining for action.
From the story:
Under House Bill 1175, an agency can’t charge if a document search takes less than two hours. But once a search takes more time than that, the agency could charge the hourly rate of the person gathering the documents. There’s a $20-an-hour cap on the amount an agency could charge. * * *

The bill has the support of local government coalitions, such as the Association of Indiana Counties. The Hoosier State Press Association, which advocates on behalf of Indiana’s media outlets, also helped craft the bill’s language.

HSPA’s executive director, Steve Key, said Republican House Speaker Brian Bosma asked him to come up with recommendations because he said a bill was needed and would likely be introduced.

“We’d rather be working with the Speaker in trying to develop what we thought were acceptable principals for search-fee legislation going forward,” Key said, “instead of being on the outside letting the language driven by an entity over there who might not be as sympathetic to citizens’ rights to access (public records).”

Key said 27 states and the federal government allow agencies to charge.

The bill also has a provision that strengthens Indiana’s public records law by prohibiting agencies from charging a fee for public records transmitted by email. Key said officials also must provide electronic records like spreadsheets in digital form, rather print the records out, keeping expenses down for the person who requested them.

Even with those givebacks, at least one First Amendment advocate says the bill goes too far.

Gerry Lanosga, president of the Indiana Coalition for Open Government, said that while big media outlets, activist groups or political organizations may be able to afford a $20-an-hour fee for documents, such costs could become a major hurdle for smaller organizations or individuals.

Plus, he said he’s concerned agencies might intentionally dawdle to rack up large bills as a revenue source.

“The fact is the all public documents in any public agency are bought and paid for tax dollars,” Lanosga said, “so I think access to them ought to be pretty unfettered.”

Sen. Mike Delph, R-Carmel, agreed, saying that’s why he voted against the bill on Monday. He said Tuesday that it would create a “chilling effect” on people’s right to petition their government for grievances — and information.

Posted by Marcia Oddi on Wednesday, March 27, 2013
Posted to Indiana Law

Ind.. Courts - "Incoming St. Joseph Superior judge has passion for children's cases"

Updating this ILB entry from March 25th, the South Bend Tribune has this report on incoming judge Hurley, reported by Madeline Buckley. Some quotes:

Indiana Governor Mike Pence announced the appointment Monday after calling up Hurley and telling her the news in a conversation she said she will never forget.

Hurley's appointment to the Superior Court marks Pence's first as governor.

"We had a very lovely conversation yesterday," Hurley said Tuesday. It was very meaningful to me."

She said her transition to the Superior Court is a natural one in a long career of handling criminal cases, particularly those involving children.

As the judge replacing Chamblee, Hurley will oversee many of the same kinds of criminal felony cases she used to prosecute.

She left her role as a prosecutor in 2012 when St. Joseph County Circuit Court Judge Michael Gotsch appointed her as a Circuit Court magistrate.

As a magistrate, she handled mostly family law cases, which Hurley said felt like a continuation of her work with children as a prosecutor.

She oversees divorce cases, which, she said, bring a lot of emotion themselves despite not being criminal cases.

As a judge in such cases, Hurley said she works to ensure the children are subject to the least amount of collateral damage as possible. * * *

Chamblee vacates the bench March 31.

Pence will have to fill another pending vacancy when St. Joseph County Superior Court Chief Judge Michael Scopelitis retires on June 3.

Hurley also made the shortlist for that vacancy, meaning the commission that sends Pence candidates to chose from will send a new name as a replacement.

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

Tuesday, March 26, 2013

Ind. Gov't. - More on: "Bill shoots down anti-discrimination protections: Sponsors call it an unintended consequence"

Updating this ILB entry from first thing this morning, Jon Murray and Chris Sikich posted a story to the IndyStar site late this afternoon in which Speaker Bosma is quoted:

Bosma said today that lawmakers did not intend to overturn anti-discrimination ordinances in Indianapolis or a handful of other Indiana cities.

If the House’s legal review finds that the ordinance would be impacted, Bosma said, lawmakers can fix the mistake by amending another bill so that the issue is addressed properly in any changes to state law.

“We don’t believe the opinion expressed by the city of Indianapolis is correct,” Bosma said. “However, if it is, then we will have to take some action.” * * *

Marc Lotter, a spokesman for Ballard, said the city’s legal staff were in the midst of a deeper review to confirm the initial finding and to examine whether SB 213 could affect any other local ordinances or policies regulating private employers.

The bill is aimed at protecting private employers, providing exemptions from its limits for municipal employees and conditions set by city contracts and some economic development incentives.

ILB: Are there some concrete examples of requirements imposed by Indiana local governmental units on their contractors that are more stringent that state and federal laws and regs which led to the passage of this bill? Perhaps some examples were given during committee or floor debate?

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

Ind. Decisions - "Public schools take blow from Indiana Supreme Court"

That is the heading to columnist Dan Carpenter's story posted on the IndyStar site earlier this afternoon. It begins:

Now that the Indiana Supreme Court has ended the debate over the state constitutionality of school vouchers, the legislature can go ahead and proceed with its debate over how large to make the program.

Oh, wait. That’s already happening.

The privatization parade was not about to march in place while trifling questions over the separation of church and state and the meaning of common schools were being weighed.

Tuesday’s 5-0 decision came the day before the Indiana Senate Education Committee was scheduled to vote on a striking expansion of the tuition subsidy for non-public schools, a measure already approved handily by the full House.

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Still more on "Lawmaker advocates fenced deer hunting"

Updating Sunday's ILB entry, the Indianapolis Star reporter Ryan Sabalow reports on yesterday's (Monday's) committee hearing in a long story that begins:

Five high-fence hunting preserves in Indiana may avoid closure if a newly amended bill passes the state legislature.

Rep. Matt Ubelhor, R-Bloomfield, today introduced an amendment to Senate Bill 487 in the House Committee on Natural Resources that would exempt hunting preserves that have continuously operated from Jan. 1, 2005, to the start of this year from a state ban on the practice.

No action was taken on the bill Monday after more than two hours of testimony. It will likely come up for a committee vote next Monday. At that time, the committee also will discuss rules to govern the preserves, said Committee Chairman Sean Eberhart, R-Shelbyville.

Jim Shella of WISHTV.COM has this brief story.

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

Ind. Decisions - More on: School voucher opinion now posted

Updating this ILB entry from earlier today, here is some of the early press coverage:

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - Watch this morning's oral argument, reenacted on C-Span

Listen now to the actual audio of the oral argument in Hollingsworth v. Perry, with closed captioning and photos of speakers, via C-Span. Note: It's over now but t will be aired again at 8:00 PM tonight on C-Span 1 TV.

While you are waiting, the LA Times has pulled together the transcript (with index), the audio, and comments of experts.

See also: Amy Howe, What will the Court do with Proposition 8? Today’s oral argument in Plain English, SCOTUSblog.

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

Ind. Courts - Hilarious! "Hitler" reacts to Lake County judicial transfers

From Twitter:

Marisa Kwiatkowski ‏@nwi_MarisaK

Worth watching: An absolutely hilarious parody of the controversy surrounding the Lake Juvenile Court vacancy http://youtu.be/oDCvnEONhn0

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In State of Indiana v. Gregory Lagrone, an 18-page opinion, Judge Najam concludes:

In sum, we conclude that the installation of the GPS device and the parcel wire into the package Lagrone picked up from the hotel did not violate the Fourth Amendment because any privacy interest Lagrone had in the package was lost when UPS opened the package on its premises. Nor did the police monitoring of the GPS device to track the package en route to Lagrone’s home violate the Fourth Amendment, because officers also tracked Lagrone on the highway visually. Moreover, the evidence presented does not show that the GPS monitoring continued after Lagrone carried the package into his home.

But the police then monitored the package without a warrant via the parcel wire after the package was inside Lagrone’s home. The information obtained from that device, namely, that the package had been opened, could not have been observed from outside the home. As such, the receipt of that information via the parcel wire without a warrant violated Lagrone’s Fourth Amendment rights. And under King the police cannot use the exigent circumstances exception to justify a warrantless entry into the home, based on the electronic signal from the parcel wire located inside the home, without having first obtained a warrant. Thus, we affirm the trial court’s order granting Lagrone’s motion to suppress evidence obtained as a result of their warrantless search of Lagrone’s home.

NFP civil opinions today (1):

Victor C. Regalado v. The Estate of Joseph James Regalado, and Paula Heffelfinger (NFP)

NFP criminal opinions today (2):

Michael Miller v. State of Indiana (NFP)

Donnie Messer v. State of Indiana (NFP)

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

Ind. Decisions - School voucher opinion now posted

Teresa Meredith, Dr. Edward E. Eiler, Richard E. Hamilton, Sheila Kennedy, Rev. Michael Jones, Dr. Robert M. Stwalley, III, et al. v. Mike Pence, as Governor of Indiana, and Glenda Ritz, et al.

Chief Justice Dickson, the Court's constitutional scholar, has written the 22-page opinion for the 5-0 Court:

Asserting violation of three provisions of the Indiana Constitution, the plaintiffs chal-lenge Indiana's statutory program for providing vouchers to eligible parents for their use in send-ing their children to private schools. Finding that the challengers have not satisfied the high bur-den required to invalidate a statute on constitutional grounds, we affirm the trial court's judgment upholding the constitutionality of the statutory voucher program.

As a preliminary matter, we emphasize that the issues before this Court do not include the public policy merits of the school voucher program. Whether the Indiana program is wise educa-tional or public policy is not a consideration germane to the narrow issues of Indiana constitu-tional law that are before us. Our individual policy preferences are not relevant. In the absence of a constitutional violation, the desirability and efficacy of school choice are matters to be re-solved through the political process. * * *

[Article 8, Section 1] The plaintiffs contend that Article 8, Section 1, by directing the General Assembly "to provide, by law, for a general and uniform system of Common Schools," prohibits the legislature from providing for the education of Indiana schoolchildren by any other means. In this respect, the plaintiffs argue that the specific directive for a system of public schools supersedes the other directive of Article 8, Section 1. * * *

We conclude that plaintiffs have not established that the school voucher program con-flicts with Article 8, Section 1, of the Indiana Constitution, and summary judgment for the de-fendants was thus proper as to this issue.

[Article 1, Section 4] The plaintiffs assert that the school voucher program violates Article 1, Section 4,19 of the Indiana Constitution. Specifically, the plaintiffs argue that the voucher program is contrary to the decree that "no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent." * * *

Thus, we separately and independently find as to each of the two issues that the school voucher program does not contravene Section 6. First, the voucher program expenditures do not directly benefit religious schools but rather directly benefit lower-income families with school-children by providing an opportunity for such children to attend non-public schools if desired. Second, the prohibition against government expenditures to benefit religious or theological insti-tutions does not apply to institutions and programs providing primary and secondary education. Summary judgment for the defendants was thus proper as to the plaintiffs' Section 6 claims.

Conclusion. We hold that the Indiana school voucher program, the Choice Scholarship Program, is within the legislature's power under Article 8, Section 1, and that the enacted program does not violate either Section 4 or Section 6 of Article 1 of the Indiana Constitution. We affirm the grant of summary judgment to the defendants.

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court uphold school voucher program

In a 5-0 opinion just issued, the Indiana Supreme Court has ruled:

WE HOLD THAT THE INDIANA SCHOOL VOUCHER PROGRAM, THE
CHOICE SCHOLARSHIP PROGRAM, IS WITHIN THE LEGISLATURE'S
POWER UNDER ARTICLE 8, SECTION 1, AND THAT THE ENACTED
PROGRAM DOES NOT VIOLATE EITHER SECTION 4 OR SECTION 6
OF ARTICLE 1 OF THE INDIANA CONSTITUTION. WE AFFIRM
THE GRANT OF SUMMARY JUDGMENT TO THE DEFENDANTS.
--------------- DICKSON, C.J.
RUCKER, DAVID, MASSA, RUSH, JJ., CONCUR.
22 PAGES
Case Number: 49 S 00 - 1203 - PL - 00172
MEREDITH, TERESA DR., ET AL. V. DANIELS, MITCH, ET AL.

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana Leading Push to Ban Gay Unions"

The Indianapolis Star elected to hold Maureen Groppe's story until today, and has published it on the front page.

(See this ILB post from March 22nd, which begins: "Updating this ILB entry from February 26th, which includes links to several earlier ILB entries, a story today by Maureen Groppe of the Gannett Washington Bureau in the Lafayette Journal Courier reports the same -- that Indiana is leading the group of states objecting to marriage equality.")

From the long story:

Indiana Attorney General Greg Zoeller is the primary author of briefs submitted by states in support of California’s gay marriage ban and of a federal law defining marriage as the union between a man and a woman.

Faced with a dramatic shift in public opinion on same-sex marriage, Zoeller insists his leadership on the issue should not be seen as opposition. Instead, he says, he is arguing in defense of Indiana’s existing marriage law, and for the right of individual states to determine their own marriage rules.

Today Politico has a story by Josh Gerstein that gives a long overview of the issue. One of its references is to the 1967 SCOTUS decision in Loving v. Virginia, the ruling that banned laws against interracial marriage across the board, rather than leaving it to the individual states to decide ...

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

Courts - Prop. 8 being argued today; DOMA tomorrow

I hear audio of the oral arguments will be released by the SCOTUS early each afternoon.

To follow the news, I'd urge you to follow SCOTUSblog, as I do.

Also, How Appealing has a good post this morning, linking to a number of news stories, including NPR's Nina Totenberg's coverage.

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

Ind. Gov't. - "Bill shoots down anti-discrimination protections: Sponsors call it an unintended consequence"

Really.

That is the headline to this story in this morning's Indianapolis Star, reported by Mary Beth Schneider. The brief document, which passed the second house without amendment and is thus eligible to be enrolled and sent to the Governor, is SB 213. In addition to voiding human rights ordinances which bar employment discrimination based on sexual orientation and gender identity in various Indiana cities, the bill likely also would void provisions mandating health insurance coverage to unmarried partners, if such requirements exist.

From today's lengthy Star story:

Indianapolis Mayor Greg Ballard’s office says a bill passed by both the Indiana House and Senate will nullify the city’s human rights ordinance, which bars employment discrimination based on sexual orientation and gender identity.

That, said Marc Lotter, a spokesman for the mayor, apparently is the unintended consequence of a bill meant to protect private employers from local mandates on wages and benefits.

Only an hour after the House voted 54-40 for Senate Bill 213 -- the final legislative hurdle to send it to Gov. Mike Pence to be signed into law -- Lotter said a legal review by city attorneys showed it would invalidate sections of that anti-discrimination ordinance that have to do with employment.

Now, Lotter said, a thorough review is being conducted to confirm that and to see if any other ordinances are negated by the sweeping bill now headed to Pence.

Ballard, Lotter said, “is concerned. ... Obviously Mayor Ballard wants to do everything he can to make sure that we are a welcoming and inviting place for business and residents and employees.” * * *

Rep. Mike Speedy, the Indianapolis Republican who sponsored the bill in the House * * * and Sen. Phil Boots, the Crawfordsville Republican who authored the bill, repeatedly have insisted that the measure does not impact equal employment opportunity criteria. Instead, both said, the bill is aimed solely at stopping local governments from requiring private employers to pay wages or benefits better than what is already required by state or federal laws.

Speedy -- a former City-County Council member who voted against the 2005 human rights ordinance -- said nullifying that ordinance “was never my intent.” * * *

Rick Sutton, president of the Indiana Equality Association, also was stunned.

Boots and Bosma’s office had both assured him that SB 213 would not affect any of the human rights ordinances enacted by communities around the state, including the one in Marion County.

“If the mayor’s office is correct, it will be a sorry day for this legislature,” Sutton said. “We weighed in pretty heavily that we didn’t want that to be the intention and were told directly by the speaker’s office that ‘You’ve got nothing to worry about. That’s not the intention of this bill.’ So we’d been assured all the way around.”

ILB: In Indiana, the intention of a law may not be gleaned from the assertions of legislators who worked on a bill, it must be apparent on the face of the law. More from the story:
Earlier Monday, Boots said the bill would not affect anti-discrimination statutes.

“This bill was not intended to interfere with that issue at all,” Boots said. “Primarily (the intent) was to make certain that employment law is not different in different communities.” * * *

“It’s trying to prevent a hodge-podge of different employment benefits and laws around the state,” Boots said. “I never even envisioned that (it would affect discrimination ordinances) because I thought federal law or state law already handles discrimination.”

The problem is that those laws do not mention sexual orientation and gender identity, as the Marion County ordinance does. And SB 213 includes a broad statement barring locals from approving any employment condition greater than state or federal requirements.

“I guess I didn’t think about that,” Boots said. “Discrimination is discrimination, and we don’t want to do that no matter what.”

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

Ind. Decisions - Supreme Court to hand down school voucher decision this morning

Indiana Courts ‏@incourts 21m
Today (approx 10:30 am) the Court will hand down 49 S 00 1203 PL 172 also known as "school voucher" case.

See this ILB entry from March 20th for background and links.

Posted by Marcia Oddi on Tuesday, March 26, 2013
Posted to Ind. Sup.Ct. Decisions

Monday, March 25, 2013

Ind. Courts - Gov. Pence appoints Elizabeth C. Hurley to the St. Joseph Superior Court

Here is the press release:

Indianapolis - Governor Mike Pence today announced the appointment of Elizabeth C. Hurley to the St. Joseph Superior Court. The appointment of Hurley will fill an upcoming vacancy on the St. Joseph Superior Court that will occur on March 31, 2013 when Judge Roland W. Chamblee, Jr. retires.

"I'm pleased to appoint Elizabeth Hurley to the St. Joseph Superior Court where she has already proven to be a valuable part of the court system," said Governor Mike Pence. "She has the character, life experiences and professional skills that make her a good fit for the position. Undoubtedly, Judge Hurley will continue to be a strong leader when she assumes her new role as Superior Court Judge."

Hurley is well known for her courageous fights in the courtroom against child predators. She recently assumed her current position as St. Joseph Circuit Court Magistrate Judge on January 2, 2012, after she was appointed by Circuit Court Judge Michael Gotsch. Hurley's career also includes nine years in the St. Joseph County Prosecutor's Office in child support, family violence special victims unit, and major crimes divisions. She spent five years in private practice handling family law, appeals and general civil litigation. Hurley serves on the Violence Fatality Review Team and Bench and Bar Committee and Civility Subcommittee of St. Joseph County Bar Association.

Hurley graduated cum laude with a B.A. from Villanova University with an English major and minors in French and Political Science. She earned her J.D. from University of Notre Dame Law School.

The St. Joseph County Superior Court Judicial Nominating Commission submitted Hurley's name along with four others to Governor Pence for his consideration and appointment.

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

Ind. Decisions - COA rules "Pastor's new contract valid: Ruling overturns Marion Superior Court decision"

Tim Evans of the Indianapolis Star reports this afternoon on the NFP Court of Appeals decision today in the case of Rev. Carl Z. Liggins and The Board of Trustees of Mt. Olive Missionary Baptist Church, Inc. v. William Bagley, Raymond Gaines, Gregg Merriweather, Stevie Bonds, Curtis Godfre, et al. (NFP). Some quotes from the story:

Trustees of Mt. Olive Missionary Baptist Church in Indianapolis did not violate bylaws when they renewed the contract for the Rev. Carl S. Liggins in 2010, the Indiana Court of Appeals ruled today.

The ruling overturned a Marion Superior Court decision in 2012 that had ordered the trustees to conduct a congregational meeting to consider the retention of Liggins. * * *

In the opinion issued today, Judge James S. Kirsch explained “the church is a corporation, organized and existing under the laws of the state of Indiana.”

“If a church or religious group elects to incorporate under the laws of this state,” the opinion says, “then the courts have the power to consider and require that the corporation thus formed comply with state laws concerning such corporations.”

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

Ind. Law - Bills of interest to the judiciary heard in committee during Week 11 of the General Assembly

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

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

Ind. Decisions - Transfer list for week ending March 22, 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, March 22, 2013. It is one page (and 7 cases) long.

No transfers were granted last week.

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

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

Updating this ILB entry from Feb. 24th, Sentencing Law & Policy Blog had a post yesterday headed "Should sex offender have to pay an annual fee for their monitoring?" It is followed by reader comments.

The post linked to this Detroit Free Press story by Alanna Durkin, also dated March 24th, headed "ACLU, other groups object to Michigan bill pushing annual sex offender fee." The article surveys what other states have done. An interesting quote from near the end:

But the ACLU also points to a ruling in Wisconsin court case earlier this year that said imposing fees on registered sex offenders, when it was not a law at the time of their conviction, is unconstitutional.

The judge wrote that "to be sure, the State has a non-punitive purpose for wanting to collect money for such a purpose, but to single out only individuals who have prior convictions for sexual assaults as the sole source of funding can only be seen as punitive."

That case is now on appeal to the federal 7th Circuit Court of Appeals.

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

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al., a 12-page opinion, Judge May writes:

Maria Upham brought an action against Morgan County Hospital and certain physicians (collectively, “the Hospital”) for the wrongful death of her husband, Wilbur Upham. A jury found for the Hospital. On appeal, Upham argues the trial court should have granted a mistrial because of remarks a prospective juror made during voir dire, should not have given the jury two instructions, and should not have denied certain discovery requests. We affirm. * * *

Upham asked Dr. Eisenhut in interrogatories whether he had been treated or counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems, or whether he had a criminal record. The Doctor objected on various grounds and Upham brought a motion to compel. The Doctor provided the trial court an exhibit for in camera review. After review, the trial court denied the motion to compel in May 2003. Upham brought subsequent motions to compel, which were also denied.

NFP civil opinions today (2):

Ronald G. Arnold and B. Candi Arnold v. Allen Robert Linnemeier and Kathy Sue Linnemeier (NFP)

Rev. Carl Z. Liggins and The Board of Trustees of Mt. Olive Missionary Baptist Church, Inc. v. William Bagley, Raymond Gaines, Gregg Merriweather, Stevie Bonds, Curtis Godfre, et al. (NFP)

NFP criminal opinions today (6):

Jesse R. Luckey v. State of Indiana (NFP)

Aaron Brown v. State of Indiana (NFP)

Alejandro Gomez-Aviles v. State of Indiana (NFP)

Jaime A. Herrera v. State of Indiana (NFP)

Mark Kevin Liston v. State of Indiana (NFP)

Sherry L. Pruitt v. State of Indiana (NFP)

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

Courts - "Supreme Court Hears 'Pay To Delay' Pharmaceutical Case"

From NPR's Nina Totenberg this morning, a 4-minute story that begins:

The U.S. Supreme Court hears arguments on Monday in a case worth billions of dollars to pharmaceutical companies and American consumers. The issue is whether brand name drug manufacturers may pay generic drug manufacturers to keep generics off the market. These payments — a form of settlement in patent litigation — began to blossom about a decade ago when the courts, for the first time, appeared to bless them.
The case is Federal Trade Commission v. Actavis. See SCOTUSblog case page here.

Posted by Marcia Oddi on Monday, March 25, 2013
Posted to Courts in general

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

From Sunday, March 24, 2013:

From Saturday, March 23, 2013:

From late Friday afternoon, March 22, 2012:

Posted by Marcia Oddi on Monday, March 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 3/25/13):

Thursday, March 28th

Next week's oral arguments before the Supreme Court (week of (4/1/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/25/13):

Tuesday, March 26th

Next week's oral arguments before the Court of Appeals (week of 4/1/13):

Monday, April 1st

Friday, April 5th

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, March 25, 2013
Posted to Upcoming Oral Arguments

Sunday, March 24, 2013

Ind. Law - More on "Lawmaker advocates fenced deer hunting" [Updated]

Updating this ILB entry from March 20th, Niki Kelly reported March 22nd in the Fort Wayne Journal Gazette in a story headed "Captive deer hunts may be added to Senate bill":

INDIANAPOLIS – A move to revive legislation legalizing the hunting of white-tailed deer behind high fences in Indiana could come Monday in a House Natural Resources Committee hearing.

The panel is set to hear an unrelated hunting bill, but rumors have circulated that Rep. Matt Ubelhor, R-Worthington, will offer an amendment to Senate Bill 487 involving so-called canned or captive hunts.

Ubelhor authored House Bill 1194 this year to allow the establishment of hunting preserves, in which deer are killed behind fences. But it did not receive a hearing in the House and died.

That bill was supported by the Indiana Deer and Elk Farmers’ Association. About 400 deer and elk farms are in Indiana.

They currently sell most of their deer to out-of-state shooting facilities because state DNR officials outlawed the practice in 2005.

Four such facilities do operate in Indiana under an injunction from an 8-year-old lawsuit.

But the deer farms want more of the preserves so they can sell additional deer in-state. They argued last year that farms and preserves are an economic development tool, bringing money from out-of-state hunters.

[Updated 3/25/13] FWJG has editorial today. Note that committee meeting mentioned for today probably has a 2-hour weather delay now.

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

Ind. Law - "‘We changed the rules on these kids,’ says Hispanic House member"

Maureen Hayden of CNHI Statehouse Bureau has this story today in the Logansport Pharos Tribune. The headline: "Push on to roll back law barring in-state tuition for illegal immigrants." Some quotes:

INDIANAPOLIS — Two years ago, Indiana lawmakers bent on cracking down on illegal immigration passed a law that banned in-state college tuition for children of undocumented workers, and resulted in hundreds of students dropping out when they couldn’t afford the much higher out-of-state rates.

Now there is an effort to roll back that law. It’s lead by some conservative Republican legislators who see the ban as both unfair to children brought here illegally by their parents and contrary to the state’s effort to produce more college graduates.

“There is not a downside to educating every student, whether they’re undocumented or not,” said Rep. Becky Kubacki of Syracuse, the first Hispanic Republican elected to the Indiana General Assembly.

In February, the Republican-controlled state Senate passed legislation, Senate Bill 207, that would allow students who were enrolled in college when the 2011 law took effect to be eligible again for in-state tuition.

Kubacki is sponsoring that bill in the House, where some of her Republican colleagues are working to expand it by amending the legislation to cover more children of undocumented workers who are residents of Indiana. Details of the amendment have yet to be made public, but it’s expected to spark a vigorous debate.

“I never, ever dreamed there would be discussion in the House of expansion (of the bill),” said Republican State Sen. Jean Leising of Oldenburg, who authored Senate Bill 207. “But maybe enough legislators have talked to these kids and heard their plight and struggle.”

Leising kept the parameters of her bill narrow — benefitting only students already enrolled in college when the in-state tuition ban took effect in 2011 — believing it was the only way it would pass. Similar legislation was shot down last year after a fierce lobbying blitz by opponents who saw it as a form of “amnesty” for people here illegally.

Among the supporters of Leising’s bill is Republican Sen. Carlin Yoder of Middlebury who voted for the original 2011 law. His change of heart came after hearing from students adversely impacted by the 2011 law, including a college student who’d been brought to the U.S. illegally when she was two months old.

“These kids are victims,” Yoder said during a hearing on Senate Bill 207. “They‘ve done nothing wrong. They are not at liberty to tell their parents what to do when they cross this border, and I’m not sure how we as a society here in Indiana benefit by trying to limit their possibilities.”

That’s the case the Kubacki is hoping to make as well in the House. Kubacki, whose maiden name is Espinoza, is a second-generation American and the daughter of migrant farm workers.

As a freshman legislator, she voted for the 2011 law. Its defenders at the time said it would it send a clear message that Indiana would no longer be a “sanctuary” for undocumented workers who were in the U.S. illegally because of the federal government’s failure to act on illegal immigration.

But she later came to regret that vote, especially after hearing from students who dropped out of college because they couldn’t afford the non-resident tuition; it’s $31,000 a year at Indiana University compared to $10,000 for in-state students.

“We changed the rules on these kids, which is just not the fair thing to do when they were already in college and headed on a career path,” Kubacki said. * * *

Opponents of Senate Bill 207 remain steadfast. Republican Sen. Mike Delph of Carmel, who argued for the 2011 bill that barred in-state tuition for students who couldn’t document they were here legally, argued against Leising’s bill. He said it may violate the equal protection clause of the Constitution and would allow foreign students who come to study in the U.S. legally to claim a right to in-state tuition.

Bill supporters dismiss that argument and cite the dozen states that currently have laws that conditionally allow in-state college tuition for the children of illegal immigrants who reside in those states.

For more on this issue, see this list of earlier ILB posts. See also this post and its links.

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

Ind. Gov't. - "St. Joe County archives create digital records database"

Here is the long story by Amanda Gray of the South Bend Tribune. It begins:

SOUTH BEND -- In a nondescript building on South Lafayette Boulevard, the St. Joseph County Archives and Records Center holds a large chunk of this county's history in its 380,000-plus files.

It's sometimes called the county government's "best-kept secret," says archives director Vicky Rydzynski.

Rydzynski oversees the department responsible for housing records the county generates, from court records to marriage licenses and divorce decrees, and everything in between. She said archive efforts in the last year have focused on creating a digital database of all marriage records in the county, from 1832 to the end of 2012.

"The push (for digital records) has been because of space, and because it's basically almost easier to do with departments already making digital records," she said Tuesday. "We have been seeing a push in the last 10 years, and it's a big push for easy access to records."

What does this mean for county residents? An ease of access to information, according to Rydzynski. For now, residents need to visit the archive center to access most information, but eventually information such as entire marriage applications will be available online.

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

Ind. Gov't. - "Judge Bonaventura outlines goals for new job as head of DCS"

Marisa Kwiatkowski of the NWI Times has this long story today on the coming change-over at the Indiana Dept. of Child Services that puts all the pieces together:

Lake Juvenile Court Judge Mary Beth Bonaventura will soon trade her judge's robes for a new job involving the welfare of children.

Gov. Mike Pence appointed Bonaventura in late January to serve as director of the Indiana Department of Child Services. Her departure ends a 31-year judicial career closing much the way it began — amid contention.

Bonaventura became Lake Juvenile Court judge in 1993 after serving nearly 11 years in Juvenile Court as a referee and a magistrate.

Shortly after becoming judge, she began a years-long battle with Lake County officials to secure more space for the juvenile court. Bonaventura filed a lawsuit in 1996 to force the county to build a new home for the juvenile court.

Ultimately, her fight was successful. The county paid millions to build the Lake Juvenile Court facility on 93rd Avenue in Crown Point, a light-filled, spacious center with modern courtrooms, a comfortable waiting area that can accommodate families, private conference rooms, and offices for probation officers as well as a juvenile detention center all in one building.

Bonaventura's administration also was the subject of nationally aired documentaries when she allowed production companies to show the process in Lake Juvenile Court and the stories of individual juveniles.

Now at the end of her judicial career, Bonaventura has attracted controversy with more attempts at what she deems reform and for speaking out about the method used to name her successor.

Officials from East Chicago and Gary and the NAACP sued Bonaventura over her decision to close the Gary court and consolidate it with the Crown Point-based juvenile facilities to save money. Opponents argue her move creates a hardship for low-income residents in the northern part of the county.

That lawsuit is pending.

She also recently drew the ire of fellow Lake Superior Court judges for challenging their decision to allow Judge Nicholas Schiralli to transfer into her soon-to-be vacated position.

She argued Schiralli's move to juvenile court would violate a Lake County-based rule and a number of Indiana laws, according to her letter dated Feb. 25. Bonaventura asked the Indiana Supreme Court to intervene and require her replacement be chosen through merit selection.

The Supreme Court justices initially declined to issue an opinion on her request in the absence of a formal legal challenge.

However, on Wednesday, three Lake juvenile Court magistrates filed a lawsuit to stop Schiralli from becoming the next Lake juvenile judge this month. Magistrates Glenn Commons, Jeffery Miller and Charlotte Peller asked the Indiana Supreme Court to give them the chance to apply for Bonaventura's former job.

The next day, it granted a temporary stay preventing Schiralli from becoming juvenile judge while it mulls its decision. On Friday, the state's high court named Senior Judge Thomas W. Webber Sr. to serve as the temporary Juvenile Court judge.

Bonaventura said while she was disappointed in the way her successor was chosen, she is ready to move on to the next chapter of her life.

"It's like a dream come true, really," she said. "I will work every minute of the day to make sure I don't let anyone down."

Bonaventura said much of her job will involve building bridges, mending fences and fine-tuning the work done by her predecessor, former DCS Director James Payne. Payne resigned last year amid allegations he improperly intervened in a DCS neglect case involving his grandchildren. He denied wrongdoing and said he was leaving to prevent more harm to his grandchildren and DCS.

Bonaventura said Payne was her mentor and did things that weren't necessarily popular but important.

"He was the pioneer, and I'm probably the settler," she said. "I thank him. Today, DCS is a better agency than it was eight years ago."

Bonaventura said she will spend the first few months transitioning into her new position but already has some goals she'd like to accomplish. Among them:

* The DCS hotline: A topic that has received significant attention from the public and elected officials, Bonaventura said she will want to focus on their recommendations and the ongoing study of the hotline to determine how it should work moving forward.

* Children's commission: State legislators also discussed creating a children's commission. Bonaventura said the commission's job will be to partner with DCS. "It can only help," she said. "We need partners — the court can't do it alone and DCS can't do it alone."

* Statewide visits: Bonaventura said she'd like to visit all 92 counties — speaking directly with judges, regional DCS directors and caseworkers. "I want them to see my face," she said. "I want them to tell me how I can do this better."

* Case management burnout: Bonaventura said she hopes her conversations with DCS employees will help her figure out how to reduce the turnover and burnout of caseworkers. She said DCS employees have to quickly make decisions with huge ramifications.

* Mental health for children: Bonaventura said she will continue to closely watch a DCS pilot project that officials hope will close the gap in providing mental health services for children.

Here is a long list of earlier ILB entries re Judge Bonaventura.

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

Ind. Courts - FWJG on the changeover in the Allen County Superior Court judgehip dealing with civil family law and juvenile criminal law

Updating this ILB entry from March 5th (which is well-worth rereading), the Fort Wayne Journal Gazette has two stories today on the changeover.

This long editorial, which is the paper's "Sunday Centerpiece," is headed "Sims leaves expansive legacy." It begins:

If Stephen Sims’ only legacy in the Allen County judicial system were building a state-of-the art juvenile facility, he would be worthy of admiration.

The Allen County Juvenile Center, often referred to in the legal community as the ACJC, has led to lasting improvements in juvenile justice that go beyond detaining children in a place far more livable and safer than the depressingly outdated and inadequate building it replaced.

But Sims has done much more. In his career as an Allen County Superior Court judge and, before that, as Allen County prosecutor, Sims left his mark in several significant ways. Consider:

•As prosecutor, he introduced DNA evidence in a trial for the first time in Indiana.

•As judge, he found a way to help intervene – but not intrude – in the lives of some of the county’s most vulnerable citizens, its babies.

•He worked with the county’s school systems to develop a sophisticated system for educating juvenile offenders.

•Drawing both criticism and praise, he used laws targeting organized crime to close down adult bookstores in the city, leading to court decisions that defined – at least in the 1980s – local standards that separated legal pornography from illegal obscenity.

•He developed a common-sense deferred prosecution program that allows for eventually dismissing charges against eligible people while establishing an ongoing revenue stream that saves taxpayers money.

Still, his most visible legacy is the juvenile center.

The second story, this one by Tracy Warner, editorial page editor, is headed "Heath ready for new role." It begins:

Judge Dan Heath soon will be in charge of a school, and he’s been doing a lot of homework.

When he transfers from the Civil Division of the Allen Superior Court to the Family Division, he will be moving from the Courthouse to the Allen County Juvenile Center. Geographically, the distance is just two miles, but from a legal perspective it is much farther.

Heath will be hearing cases covering a significantly different area of the law from the business tort, medical malpractice, personal injury, estate and other civil claims he hears now. Heath will be ultimately responsible for the Juvenile Center, including its important education component as well as juvenile probation officers, confinement officers, two magistrates and a host of other duties.

Another big difference: In civil court, most of the judge’s work involves analyzing legal briefs and writing orders and decisions. In Family Court, he will spend much time conducting hearings on the bench.

But more than a month before he assumes the seat that Judge Stephen Sims is vacating, it’s clear Heath has been doing research. He will tell you that the juvenile center has 164 employees and 140 beds for detainees. Its budget is nearly $9 million. The constitutional rights of juveniles to be protected behind bars are even stronger than for adults. He has already made plans to attend a weeklong seminar on juvenile and family court law.

“I’ve been reading tons of stuff,” he says.

Posted by Marcia Oddi on Sunday, March 24, 2013
Posted to Indiana Courts

Ind. Law - "In the past, major gambling provisions have found themselves in the budget. Or redistricting of legislative districts has mingled with school funding."

That is a quote from a story by Niki Kelly and Brian Francisco in today's Fort Wayne Journal Gazette that begins:

Way back before Mike Pence was governor or even congressman, he was a citizen who challenged state legislators for violating the single-subject provision of the Indiana Constitution.
That would be this decision: Pence v. State, 652 N.E.2d 486, 489 (Ind. 1995) (Dickson, J., dissenting). More from the FWJG piece:
That experience has him watching legislation that comes to his desk very closely.

“There are large issues that ought to have a standalone vote, and the governor ought to be given an opportunity to say yea or nay,” Pence said. “Things should not be unnecessarily combined, and if I see where they are, we’ll express ourselves in the legislative process about that.”

Legislative logrolling is infamous in the Capitol, though, to be fair, it happens much less than it used to. The general concept involves combining into one bill several unrelated proposals to get the votes needed to pass the measure.

In the past, major gambling provisions have found themselves in the budget. Or redistricting of legislative districts has mingled with school funding.

Indiana Law Blog author Marcia Oddi noted in a 2001 article for [Res Gestae,] the journal of the Indiana State Bar Association that the last time the Indiana Supreme Court used the one-subject-matter limitation to invalidate a law was 40 years ago, in 1971.

“Although a number of legislative acts have been challenged on the same basis since 1971, none has been held by the Court to violate the one subject matter prohibition. The direction the Court has taken in recent years is one of reluctance to intervene in the activities of a co-equal branch of government,” Oddi wrote.

There has always been a single-subject limitation, though it has been revised several times. The current language was changed in 1974 and reads, “An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.”

Pence in 1995 sued over a bill that included language involving both compliance with the Americans with Disabilities Act and lawmakers’ pensions. But the court ruled that Pence lacked standing to file it, according to Oddi.

“The Supreme Court has spoken on that. I do believe that the spirit of that provision of the Constitution has continued to be adhered to by the General Assembly in the years that have followed and should continue to be,” Pence said.

ILB: Those interested in a relatively recent Supreme Court opinion touching on this issue may wish to read A.B. v. State (July 29, 2011). The opinion by Justice David found that the amendment at issue did not violate the one-subject requirement of the Constitution. However, in a separate concurring opinion, Justice Dickson wrote in part:
The series of prior cases reflecting the possible lack of vigorous enforcement of Section 19 does not preclude this Court from discharging our constitutional responsibilities to uphold and enforce the Indiana Constitution, especially in light of the reaffirmation of the single-subject requirement in 1974 by Indiana's General Assembly and Hoosier voters. Such reinvigoration of the Single-Subject Clause should revitalize this Court's willingness to seriously consider claims that legislation was enacted in violation of Section 19.
Justice Sullivan, concurring in part in a 6-page separate opinion (that referenced my 2001 article), took a contrary view, writing in part:
Part I of the Court‘s decision today concerning the Single Subject Clause of Art. IV, § 19, conforms with the deferential standard of reasonableness that this Court has accorded the General Assembly in a long line of cases dating back 145 years. Both history and sound jurisprudence warrant adherence to these precedents. I therefore respectfully disagree with Justice Dickson‘s suggestion that the courts of this state not adhere to precedent and instead begin what he terms ―robust enforcement of the Single Subject Clause.

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

Legislative Benefits - "Conflicts of interest rampant at Indiana Statehouse"

Matthew Tully has a lengthy story on the front-page of Sunday's Indianapolis Star, headed "Conflicts of interest rampant at Indiana Statehouse." To make its point, the story is replete with examples. This is the first of a three-part series:

Culture of coziness
  • March 24: Conflicts of interest are both rampant and widely accepted in the Indiana General Assembly.
  • March 31: Lobbyists and other special interests shower key committee leaders with campaign donations and other rewards.
  • April 7: More transparency is essential to reducing conflicts of interest in the Statehouse.
A quote from Sunday's story:
Conflicts of interest are as routine in the General Assembly as partisan spats, and the atmosphere of coziness between lawmakers and special interests is both deeply entrenched and widely accepted. Some call conflicts of interest business as usual, but this much is clear: the heavy influence exerted by well-connected lobbyists and industries makes it nearly impossible for average citizens, or those with fewer connections and less clout, to compete for attention when the laws that shape Indiana. * * *

Walk the Statehouse corridors when the General Assembly is in session and among the most common sights is the presence of former lawmakers and legislative staffers, now working as paid lobbyists. They fill the halls outside the House and Senate chambers, looking for help from lawmakers with whom they once served. The lobbying industry spends millions to shape public policy; the state’s casino industry alone spent at least $5.8 million to lobby 150 lawmakers over the past five years at the same time it repeatedly sought legislative changes that would save the industry far more money. High-ranking operatives in both major political parties also work as Statehouse lobbyists, seeking to influence the same members they help get elected. And many lawmakers, like Holdman, don’t shy from participating in debates over bills despite having close ties to the businesses or industries affected by the legislation.

Perhaps the most perplexing aspect of the culture of coziness is that it is often not a secret -- it’s tolerated and even applauded.

Posted by Marcia Oddi on Sunday, March 24, 2013
Posted to Legislative Benefits

Saturday, March 23, 2013

Ind. Decisions - Cases focus on the obligation to report child abuse

Questions about the obligation to report child abuse have been in the forefront since the Penn State scandal. Indiana has had several cases in the courts.

Yesterday, in a story headed "Attorney seeks new venue, special prosecutor in LaPorte school sex case," Stan Maddux of the NWI Times reported:

LAPORTE COUNTY | A judge Thursday scheduled hearings on a motion that two LaPorte school officials should be tried outside the county on allegations they failed to report their suspicions of a sexual relationship between a now former coach and player.

LaPorte Superior Court Judge Jennifer Koethe also decided to hear motions that a special prosecutor be appointed in the case and that both cases be tried together during the same hearings.

Koethe is scheduled to hear all of the arguments for the entire day on June 5 and for a half-day on June 6 on the motions submitted Wednesday by the defense and prosecution.

Defense attorney Elizabeth Flynn, in her written motion for a change of venue, said pre-trial publicity could make it difficult to find jurors who would not be tainted from what they've read about the case in the press.

LaPorte High School athletic director Ed Gilliland and former girls varsity volleyball coach Mary Beth Lebo are charged with two counts of Class B misdemeanor failure to report child abuse and neglect.

It's alleged Gilliland, 53, and Lebo, 50, knew about a sexual relationship between junior varsity girls volleyball coach Robert Ashcraft and a player, and failed to report the activity to the proper authorities.

Ashcraft, 48, is now serving a 21-year prison sentence after being convicted of of two counts of Class B felony sexual misconduct with a minor; Class C felony sexual misconduct with a minor and Class D felony child seduction.

From earlier ILB entries:In a separate case, out of Muncie, the March 8, 2013 ILB post begins:
Attorney General Zoeller has filed a petition to transfer in the case of Christopher Smith v. State of Indiana.
The question in the case was whether ex-Central principal Chris Smith failed to immediately report child abuse or neglect. The AG is seeking to have the Smith conviction reinstated.

Posted by Marcia Oddi on Saturday, March 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Questions about vacancies on the St. Joseph Superior Court

Updating this ILB entry from March 20th, which reported that a question had been raised as to whether the St. Joe Nominating Commission could send lists including the same three names to the Governor for two different Superior Court vacancies. Last evening reporter Madeline Buckley posted on the South Bend Tribune webpage this story addressing the question:

After The Tribune reported Wednesday that three attorneys made the list of finalists for both bench openings, readers questioned whether this was legal.

Several people called and e-mailed, citing a portion of Indiana code that says the nominating commission must send the government five separate finalists in the event of two judicial vacancies.

The law reads: “If there are existing at the same time two (2) or more vacancies on the court, the commission shall nominate and submit to the governor a list of five (5) different persons for each of the vacancies.”

But the commission says the choice to select three of the same people for both lists is compliant with the law.

Kathryn Dolan, spokeswoman for the Indiana Supreme Court who speaks for the commission, said because neither Chamblee or Scopelitis have left the bench, the benches are not vacated.

“Technically, there isn’t a vacancy until a judge actually leaves,” Dolan said.

By the time Chamblee retires, Scopelitis will still have another couple months on the bench, meaning the vacancies are not simultaneous.

The list of finalists for Chamblee’s bench will essentially be dissolved if the governor appoints a successor to that bench before Scopelitis actually vacates his seat.

Dolan said if one of the three overlapping candidates is chosen to replace Chamblee, the commission will send the governor another candidate to potentially replace Scopelitis.

The part of the law referenced here comes into play when there are two or more benches with no sitting judge, for example if two judges resigned unexpectedly.

Dolan said the commission is working proactively to enable the governor to select a judge to replace the retiring judge right away.

“We want to have a smooth transition and no time period where there is no judge,” Dolan said.

Thus, the governor receives the list of finalists before a vacancy occurs when possible.

Dolan said the three attorneys who are on both lists separately applied and were interviewed for both positions.

In addition to Gammage, Sanford and Hurley, in the running for Scopelitis’ bench are Steven L. Hostetler and Mark F. James.

Also on the list for Chamblee’s bench are Mary Catherine Andres and Scott Duerring.

[More] The SBT allows comments to its stories; there was only this one posted when the ILB checked this morning:
Doug Allen Bernacchi · Top Commenter · Georgetown University
"Two pending vacancies at the same time" are substantively different from "two vacancies at the same time." Depends on what the definition of "is" is, remember that one? Semantics or clearly what the legislature intended? Come on...; We upstate hoosiers might have been born in the day, but we weren't born yesterday! A vacancy or pending vacancy requiring the St. Joseph County Judicial Nominating Commission to meet again is another "vacancy," period. It walks like a duck, right? I want to respect the process. If you ask me, there should be two separate lists of 5 nominees totally 10 candidates for 2 vacancies not 7 for two vacancies (and The Governor deserves and should demand his rights), or we just let the voters vote on it. When there is a problem fix it. Be part of the solution, not part of the problem. just saying. Sorry, I care.

Posted by Marcia Oddi on Saturday, March 23, 2013
Posted to Indiana Courts

Friday, March 22, 2013

Ind. Courts - "High court names Lake Juvenile Court caretaker" [Updated]

Bill Dolan is reporting late this afternoon in the NWI Times:

CROWN POINT | A veteran Northwest Indiana judge will serve as caretaker of the Lake Juvenile Justice complex while the rest of the county's judiciary does battle for permanent control of that court.

The Indiana Supreme Court named Senior Judge Thomas W. Webber Sr. Friday to serve as the temporary juvenile court judge after the current officeholder, Judge Mary Beth Bonaventura steps down Sunday to become head of the Indiana Department of Child Services in Indianapolis.

Webber, 75, of Porter Township, will preside over a court with 30,000 cases of juvenile delinquency, investigations of child abuse and neglect and litigation involving child paternity and financial support as well as a juvenile detention center in Crown Point that has a combined staff of 169 and an annual budget of $6 million budget.

He served 20 years as a Portage policeman and 13 years as a former Porter Superior judge. He still serves as a senior Indiana judge when other local judges cannot preside over a legal matter. * * *

The high court agreed Thursday to hear the dispute. The Indiana Attorney General also announced it may join the fray and argue in favor of the use of the merit selection law.

Here is the Supreme Court order, the stamp indicates it was filed today at 4:00 PM.

This from an AP story today:

The Indiana attorney general's office says it won't represent either side in a dispute over a Lake County judgeship, but may step in to defend the existing state law that requires the post be filled by merit selection.
[Updated 3/23/13] Here is a story covering the events, published in yesterday's Gary Post-Tribune.

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

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

F.G. v. B.G. (NFP)

Gail Eisenhut v. Richard Eisenhut, M.D. (NFP)

NFP criminal opinions today (8):

C.M. v. State of Indiana (NFP)

Lisa M. Rooker v. State of Indiana (NFP)

Roudy Joe Beasley v. State of Indiana (NFP)

John Mwangi v. State of Indiana (NFP)

Rex L. Kast v. State of Indiana (NFP)

Andrew J.P. Cox v. State of Indiana (NFP)

Thomas Albert Overton v. State of Indiana (NFP)

Daimon Culpepper v. State of Indiana (NFP)

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

Ind. Courts - Charlie White files petition for PCR

Updating this ILB entry from earlier today, here is the petition for post-conviction relief filed by Charlie White in Hamilton County Superior Court.

Posted by Marcia Oddi on Friday, March 22, 2013
Posted to Indiana Courts

Ind. Decisions - Worrisome slowdown at Tax Court?

The March 25th issue of the subscription-only Indiana Legislative Insight concludes with this story, which the ILB reprints with permission, and only after a great deal of thought:

Our sister newsletter, INDIANA GAMING INSIGHT, has reported on the long lag time facing Indiana Tax Court litigants in recent years, citing filings with federal courts outside our own circuit in the slot wagering tax case which urged the federal judges to retain jurisdiction because Indiana action, based upon statistics served up in the papers, would take too many years to ultimately resolve.

Now we’re picking up a growing concern in the tax community about the increasing backlog of cases at the Tax Court, most notably those involving property tax. The Tax Court decides issues on appeal that are either property tax related or those emanating from the Department of Revenue. The annual backlog from 2007 — 2009 ranged between 127 and 138 appeals, with 15 to 25 decisions issued on the merits annually. But in 2010, many more items than average were withdrawn, dropping the backlog to just 91 cases. Judge Martha Wentworth replaced the retired judge Thomas Fisher in January 2011. Judge Fisher has stayed on since then as senior judge, but despite his assistance, in 2011, someone who has done the math tells us that the backlog surged to 140 appeals with only eight decisions on the merits being decided (down from 15 in 2010).

Although the Tax Court’s 2012 annual report has not yet been released, observers note that the Tax Court issued only 11 decisions in 2012 . . . and none since the first week of December 2012.

As the ILB reports on all the Tax Court decisions, it was simple to pull up the list to check this. Here are the four most recent postings on the list:

Posted by Marcia Oddi on Friday, March 22, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - More on "Charlie White files for post-conviction relief"

Updating this ILB entry from yesterday, the ILB has heard from several readers who read in full Tim Evans' story about the petition.

Here is a sample:

Please, please, please tell me you might be able to get a copy of Charlie White's PCR petition.

I am dying to see the "he did it too" defense and the "Super Bowl frenzy duress" defense.

Now, how the "he did it too" defense is a freestanding claim on post-conviction I will never understand.

The ILB is attempting to obtain a copy of the 79-page petition.

Posted by Marcia Oddi on Friday, March 22, 2013
Posted to Indiana Courts

Courts - "Indiana leading states supporting gay marriage bans"

Updating this ILB entry from February 26th, which includes links to several earlier ILB entries, a story today by Maureen Groppe of the Gannett Washington Bureau reports the same -- that Indiana is leading the group of states objecting to marriage equality. Some quotes from the lengthy story, here as it appears in the Lafayette Journal Courier:

WASHINGTON — The two gay marriage cases that hit the Supreme Court next week have divided states, and Indiana is leading the side defending the right to ban same-sex unions.

Indiana Attorney General Greg Zoeller is the primary author of briefs submitted by states in support of California’s gay marriage ban and of a federal law defining marriage as the union between a man and a woman. Such briefs are filed by those who are not part of the litigation and won’t appear in court, but who believe the court’s decision could affect them.

“The state of Indiana has been a leader in advocating generally for the legal authority of states to determine their own marriage license definitions and specifically for the traditional marriage definition of one man and one woman,” Zoeller said in a statement.

A lower court’s decision to strike down California’s ban, Zoeller wrote in one brief, is a “disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”

Zoeller, however, said that he’s not arguing against same-sex marriage as much as he’s advocating that states should be able to make their own decisions.

“People always think it’s a personal advocacy when, in fact, I’m arguing our current state statute,” Zoeller said in a January interview. “If they tell us that we can’t limit the licensing of marriage, now we know.”

But there’s a clear political divide among states that have chosen to speak out on this issue.

The 20 other attorneys general that signed Zoeller’s brief or wrote their own statement of support are Republican, as Zoeller is.

The 15 attorneys general that have weighed in on the other side are Democrats. * * *

Dale Carpenter, a conservative constitutional law expert who has argued that gay marriage bans are bad politics and policy for Republicans, said states that are taking the lead on defending their bans “would appear to be behind the curve nationally to some extent.”

The increasing support for same-sex marriage is one of the largest changes in public opinion on any policy issue over the past decade, according to the Pew Research Center.

“But my guess is that in their individual states, there may still be popular support for these gay marriage bans,” said Carpenter, a law professor at the University of Minnesota Law school. “In fact, their actions may reflect the fact that their own state citizens do support these bans.” * * *

Because of the fast moving public opinion on the issue, constitutional law expert Ira Lupu said it’s possible the Supreme Court will rule in a way that will allow states to continue to decide for themselves whether to allow gay couples to marry.

“Everybody now thinks that (legalizing gay marriage) is inevitable, that this will get approved state-by-state. It will just take time,” said Lupu, a professor at George Washington University. For that reason, he said, many argue that it would be “healthier, more politically legitimate, to let this work through a state at a time, rather than for the Supreme Court to decide for all 50 states at once.”

Indiana makes that argument in its brief to the court.

“Federal courts should not stultify democratic principles by declaring a winner of the marriage debate,” Zoeller wrote. “The court should instead continue to recognize the importance of the people’s role in fashioning the standards for marriage and children — traditionally the absolute preserve of the states.” * * *

Indiana argues that there’s a legitimate government purpose for conferring exclusive benefits on heterosexual married couples.

“Opposite-sex couples are the only procreative relationships that exist, which means that such couples are the only ones the government has a need to encourage,” Zoeller wrote in one of the coalition briefs.

If that argument isn’t valid, he continued, than states won’t have any justification for denying marriage status to “any number of persons who desire a committed relationship with each other.”

Massachusetts, the first state to allow same-sex marriage, counters that such states have continued to place other restrictions on marriage. For example, there are still appropriate and constitutionally permissible restrictions on consent ages, the number of spouses someone can have, and whether close relatives can marry.

“Thus, even after gender is removed from consideration, other state regulations continue to advance important governmental interests and remain valid,” Massachusetts and 12 other states wrote in a brief.

States are not the only interests that have contributed to the more than 170 briefs submitted in hopes of influencing the Supreme Court’s decisions. * * *

[Professor Lupu of George Washington University] said so many groups are weighing in because gay marriage is “the civil rights issues of our generation.”

“On the government’s side, certainly on all the states’ side, it’s one where the politics is very visible, very intense and people are paying attention,” Lupu said. “People who are politically active want to know, what’s our state attorney general doing? Are we in this? Are we out of it? Are we sticking up for ourselves? Are we sticking up for the side that we believe in? So it’s highly visible.”

Note: The story also appears in today's Indianapolis Star.

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

Courts - Why you might want to be admitted to practice bfore the SCOTUS

Orin Kerr of The Volokh Conspiracy, in a post headed "For Lawyers, Joining the Supreme Court Bar is a Vanity Trip”," points out the real reason to join the Supreme Court bar, if you are a Supreme Court nerd:

[T]he best reason to join the Supreme Court bar, at least if you live in or can travel to Washington, DC: You can get in to see Supreme Court arguments, and you get incredible seating when you do. The Court seats members of the bar separately from members of the public, and it seats bar members on a first-come, first-serve basis. You have to get there early for high-profile cases, as the line fills up. If all the seats are taken, you have to listen in remotely from the lawyer’s lounge (effectively, an overflow room). But often the bar section never fills up, which is especially likely when the cases that day involve areas of law without a strong connection to DC legal practice. On those days, bar members can walk in to the Supreme Court building just a few minutes before the argument starts and still get a seat. And the seats are the best in town. Bar members are seated in the rows immediately behind the lawyers arguing the case. So they’re very close to the action, with a front-row seat to watch the Justices and the advocates. And you can go as often as you like without a ticket. It’s one of the best deals in Washington, at least for Supreme Court nerds who are lawyers.

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

Thursday, March 21, 2013

Ind. Law - "Crime bill hits bump in governor's office: Pence says state should work on reducing crime, not reducing penalties"

John Russell has posted this long story this afternoon on the IndyStar site. Some quotes:

Across Indiana, state prisons now house more than 27,000 inmates, more than double since 1991, and climbing nearly every year.

But a bill designed to stem the rapid growth in the prisoner count and overhaul the state’s criminal code for the first time in more than 30 years is now winding its way through the Indiana General Assembly.

And for the first time, such a move has won widespread support from legislators, prosecutors, public defenders and even the chief justice of the Indiana Supreme Court.

But it has met resistance from one man: Gov. Mike Pence.

On Wednesday, Pence said he was bothered by provisions that would decrease penalties for entry-level drug offenses, such as dealing and possession.

“I think we need to work on reducing crime, not reducing penalties,” Pence said during a press conference.

Pence said the bill would reduce the penalty for dealing less than 10 pounds of marijuana from a felony to a Class A misdemeanor.

Advocates say such measures would make punishment fit the crimes and restore proportionality among various offenses.

But Pence’s comments raise new questions of whether Indiana’s push to reduce the penalties for certain offenses stand a chance of succeeding. The concept was proposed two years ago by Gov. Mitch Daniels, but ran into trouble with prosecutors and state legislators, and was scrapped.

Since then, a new, more comprehensive effort to overhaul the criminal code has built momentum, winning the support of many prosecutors. The new legislation, known as House Bill 1006, would allow some low-level offenders to avoid prison, and serve their punishment in other ways, such as work-release programs, home detention or probation. That would leave Indiana’s prisons for the worst offenders.

Much later in the lengthy story:
“I think it’s a smart-on-crime bill, not a tough-on-crime bill,” said Joel Schumm, clinical professor of law at Indiana University’s McKinney School of Law in Indianapolis. “This is something Indiana needs badly.”

In January, Chief Justice Brent Dickson urged the legislature to approve the bill. He said it would make the justice system more effective, allow for offender reformation and reduce the costs of incarceration. * * *

Marion County Prosecutor Terry Curry said a big difference is that the new bill is a complete revision of the criminal code. The work group looked at each offense, one by one, and asked what penalty made sense for it, in relation to other offenses.

The criminal code was badly in need of revision, he said.

“Over time, due to various amendments, it started to look like a patchwork instead of a cohesive set of statutes,” Curry said. “So fundamentally, yes, I absolutely support the idea of the code revision.”

And he dismissed the idea that the new bill is soft on crime. While some low-level offenders will avoid prison, they will still serve time in alternative settings. And more serious offenders will have to serve 75 percent of their sentence. Under the current system, many offenders get one day knocked off of their sentence for each day served if they abide by prison rules and complete educational and reformative programs.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Indiana Law

Ind. Courts - "Charlie White files for post-conviction relief" [Updated]

The headline to the WRTV6 News Alert is "Former Secretary of State Charlie White claims attorney Carl Brizzi didn't provide adequate defense." A quote:

In a request for post-conviction relief filed Thursday, White, who was sentenced to one year on home detention, claims he received ineffective counsel from Brizzi, specifically that "Brizzi failed to present a defense" and that "Brizzi was ignorant of the law."

The former Marion County prosecutor came under fire after he failed to call any defense witnesses in White's case.

[Updated at 4:33PM] Here is a much longer and more complete story by Tim Evans of the IndyStar. A sample:
The 79-page petition filed in Hamilton Superior Court, White asks the court to vacate six felony conviction, including theft and voter fraud.

White’s Indianapolis attorney, Andrea Ciobanu, filed the request Friday — the deadline Hamilton Superior Judge Steven Nation had set after special prosecutor Dan Sigler sought to have White begin serving his one-year, home-detention sentence.

In the motion for post-conviction relief, White cites three general issues:

His convictions violate state and federal law.

He was denied effective counsel by his attorney, former Marion County Prosecutor Carl Brizzi.

The criminal charges against White stemmed from his residency while he served on the Fishers Town Council.

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

Ind. Decisions - Supreme Court acts quickly in Lake County juvenile court dispute

Updating this entry from earlier today headed "Magistrates sue their judicial bosses over Lake Juvenile Court succession," the Supreme Court has this afternoon issued an Emergency Writ and Order on Further Proceedings.

The case is State ex rel. Commons, et al. v. Pera. (4SS00-1303-0R-209)

Relators, by counsel, have filed an application for a permanent writ of mandamus and prohibition and also have filed for an emergency writ to stay proceedings and maintain the status quo until this Court can address their request for a permanent writ.

The Court GRANTS the request for an emergency writ in the following manner. This Court ORDERS that any proceedings by Respondents concerning the transfer of Judge Schiralli to preside over the Lake Superior Court, Juvenile Division, are STAYED until the Supreme Court may rule upon Relators ' request for a permanent writ of mandamus and prohibition. By a separate order, the Supreme Court shall appoint a Judge Pro Tempore to preside over the Lake Superior Court, Juvenile Division, upon the retirement of Judge Bonaventura, until the Court may rule upon Relators ' request for a permanent writ of mandamus and prohibition.

This Court also determines that this original action warrants additional briefing. Accordingly, Respondents, by themselves or by counsel, may file a brief opposing issuance of the writ. * * * Such briefs should be filed directly with the Clerk of the Supreme Court in Indianapolis and must be physically on file with the Clerk (not merely in the mail) on or before noon, Indianapolis time, on Monday, April 8, 2013. Once briefing is completed, the Court will take the matter under advisement.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Bei Bei Shuai trial delayed"

Tim Evans reports today in the Indy Star in a long story that begins:

A judge has delayed the April 22 trial of an Indianapolis woman charged with murder and attempted feticide in the 2011 death of her baby daughter.

Marion Superior Judge Shelia Carlisle approved a request to delay the trial of Bei Bei Shuai, but has not set a new date.

Prosecutors sought the delay earlier this month citing the large volume of documents and other evidence to review in the case.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Ind. Trial Ct. Decisions

About the ILB - More on: State of Indiana now blocking ILB?

Thanks to Deputy Attorney General Lawrence J. Carcare II, who writes:

Marcia,

I believe the problem may be with the agency for which @TheRealLeighBee works. I read this morning’s ILB without a problem. Our office had tightened security earlier this year or late last year. The system includes a list of allowable sites (yours has always been available to our office, maybe because it is seen as a work-related blog at the OAG) and maybe in his/her agency it was innocuously left off.

I've also heard "no problems here" from another DAG, and from IDEM.

[Update at 1:07] No problem in state courts either.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to About the Indiana Law Blog

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

For publication opinions today (3):

In Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer, a 12-page opinion, Judge Baker concludes:

In K.S., our Supreme Court stated that when subject matter jurisdiction and personal jurisdiction exist,
"a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack." * * *

We can only conclude that the contrary language in Universal Outdoor is misleading. To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed. Indeed, as strongly suggested by the K.S. Court, practitioners and the judiciary, including ourselves, should stop using the phrase “jurisdiction over a particular case,” rather than “legal error,” which is what occurred in the instant case. The Commissioners equated jurisdiction with legal error. Accordingly, because legal error is not subject to collateral attack and the Commissioners did not object to Dreyer’s 2009 exceptions or even raise the issue on direct appeal, we cannot say the trial court erred by denying their Rule 60(B) motion. The judgment of the trial court is affirmed.

In Town of Cedar Lake v. Gina Alessia, Candi Reiling, Andrew Balkema, Individually and as Members of the Town of Cedar Lake Park Board, a 19-page opinion, Judge Najam concludes:
The traditional rule in the law of municipal corporations strictly circumscribed municipal power. This restriction was based on the principle that there is no inherent right to local self-government, that local governments possess no inherent powers, and, thus, that local governments must depend totally upon state legislatures for every power they exercise. Under this rule, Dillon’s Rule, a municipality could exercise only those powers specifically granted, necessarily implied, or indispensable to a municipal corporation. Before the Powers of Cities Act, this rule was firmly established in Indiana law. The Powers of Cities Act turned Dillon’s Rule upside down. The Power of Cities Act and, later, the Home Rule Act changed the legal landscape of the relationship between the State and its political subdivisions.

Thus, the trial court erred as a matter of law when it used Dillon’s Rule to determine the scope of the Town’s legal authority to dissolve the Park Board and the Parks Department. The proper legal inquiry is based on Indiana’s Home Rule Act. Pursuant to that Act, there is no statutory prohibition against the Town’s exercise of authority to dissolve the Park Board or the Parks Department. And any doubt as to the existence of such power is resolved in favor of its existence. I.C. § 36-1-3-3. Accordingly, the Town’s exercise of that authority by enacting the Ordinance was lawful.

Given the Town’s authority under Indiana’s Home Rule Act, we reverse the trial court’s entry of summary judgment for the Park Board Members on their claims for illegal termination, declaratory judgment on the validity of the Ordinance, and injunctive relief. On each of those claims, we remand with instructions that the trial court enter summary judgment for the Town. We affirm the trial court’s order that the law firm may not continue to represent the Park Board and its members in any matters based on a current conflict of interest.

The trial court’s entry of summary judgment for the Park Board Members is affirmed in part, reversed in part, and remanded with instructions for the court to enter summary judgment in favor of the Town on Counts I, II, and III of the First Amended Complaint.

In C.B. v. B.W. , a 14-page opinion, Judge Najam writes:
C.B. (“Mother”) appeals the trial court’s order granting the request of B.W. (“Father”) to change the surname of C.D.B. (“the child”) in initial paternity proceedings. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s request for the child’s surname to be changed to Father’s surname. We affirm. * * *

We conclude that, like all children, a child born out of wedlock is better served when he knows and is identified with both parents, and both parents are engaged in his upbringing. A child’s surname connects the child with the parent. Here, Mother will have physical custody of the child and, as such, the child will continue to be identified with her and will be connected with her in countless ways, large and small, on a daily basis. Father’s surname will connect the child with his non-custodial parent and is a tangible reminder to the child that the child has two parents who care for him, which is in the child’s best interests.

We conclude that the trial court’s decision is not clearly against the logic and effect of the facts and circumstances before the court or contrary to law. Mother has not shown reversible error. The evidence, taken as a whole, supports the conclusion that it is in the child’s best interests to share his father’s surname. Our opinion supports the general principle that it is in the best interests of children born out of wedlock for their fathers not only to provide financial support but also to actively and visibly identify themselves as parents and to participate in their children’s upbringing.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Marquis Shipp v. State of Indiana (NFP)

Arturo Fuentes v. State of Indiana (NFP)

Christina J. Epps v. State of Indiana (NFP)

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

Ind. Decisions - Two today from Supreme Court

In Anthony D. Dye v. State of Indiana, an 8-page, 4-1 opinion, Justice Rucker writes:

The State seeks rehearing of this Court’s opinion in which we determined that the Defendant’s sentence for unlawful possession of a firearm by a serious violent felon (“SVF”), which was enhanced under the general habitual offender statute, constituted an impermissible double enhancement. Dye v. State, 972 N.E.2d 853 (Ind. 2012). * * *

The State filed a timely petition for rehearing contending the Court’s decision is a departure from Mills in that the Court has now “held that serious violent felons who possess firearms cannot be punished as habitual offenders.” Pet. for Reh’g at 1. We grant rehearing to address this contention. * * *

Were we to sanction the State’s charging decision in this case, it would amount to elevating form over substance. We agree with Judge May’s observation that it is incongruous to hold that “two offenses . . . are so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support a double enhancement in the form of an SVF count and an habitual offender enhancement.” Dye, 956 N.E.2d at 1175 (May, J., dissenting).

In sum, the State is not be permitted to support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.

Conclusion. We grant rehearing and again affirm that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon. In all other respects we reaffirm our original opinion.

Dickson, C.J., and David and Rush, JJ., concur.
Massa, J., concurs in part and dissents with separate opinion.

Massa, Justice, concurring in part and dissenting in part.

While I join my colleagues in clarifying that the original majority opinion in this matter did not extend Mills to situations where different prior unrelated convictions are used to establish an habitual offender finding and the elements of the Serious Violent Felon statute, I continue to dissent from the ultimate result on rehearing for reasons previously explained. Dye v. State, 972 N.E.2d 853, 859 (Ind. 2012) (Massa, J., dissenting).

In Todd J. Crider v. State of Indiana, a 10-page, 5-0 opinion, Justice Rucker writes:
In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence. * * *

Taken together, our jurisprudence stands for the proposition that in Indiana, a defendant can waive his right to appeal an illegal sentence. Our cases have recognized legitimate reasons for this proposition. “[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.” Lee 816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002)). * * *

Absent due process concerns to the contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, whether or not the sentence or method is authorized by the law, he cannot later appeal such sentence on the ground that it is illegal. See Lee, 816 N.E.2d at 40. In this case Crider made no such agreement. And in the absence of any such agreement, he was entitled to presume that the trial court would sentence him in accordance with the law. Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law. Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.

Conclusion. We reverse in part the trial court’s sentencing order and remand for resentencing in accordance with this opinion.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - "Justices uphold EPA's policy on logging road runoff"; BP rewrites history

Jeremy P. Jacobs, E&E reporter, wrote yesterday for Greenwire:

The Supreme Court today upheld U.S. EPA's policy for regulating stormwater runoff on logging roads in the Pacific Northwest.

The 7-1 ruling in Decker v. Northwest Environmental Defense Center backed EPA's policy that logging roads are not industrial point-source pollution and consequently don't require Clean Water Act permits.

The decision is a blow to environmental groups like the Portland, Ore.-based NEDC, which argued that the channeled runoff carries sediment and other contamination into forest streams, polluting their ecosystems. It was widely welcomed, however, by the timber industry.

Justice Anthony Kennedy, who delivered the court's opinion, noted that days before the court heard arguments on the case in December 2012, EPA amended its policy and formally said the logging roads are not an industrial activity -- and thus do not require the permits.

Jonathan H. Adler at The Volokh Conspiracy noted that ironically:
The sole dissenter was Justice Scalia, who would have affirmed the decision of the U.S. Court of Appeals for the Ninth Circuit holding that NPDES permits were required. In Justice Scalia’s view, the plain meaning of the EPA’s implementing regulations required this result, even though the EPA argued for an alternative interpretation. So not only was Justice Scalia the only justice to support the position advocated by environmentalist groups (and the Ninth Circuit), he also rejected the interpretation advanced by the executive branch.
In another story yesterday, CNET's Violet Blue has a story headed "BP accused of rewriting environmental record on Wikipedia: A British Petroleum representative allegedly rewrote 44 percent of the oil giant's Wikipedia page, including the environmental sections. Some Wikipedia editors are crying foul."

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Environment

Ind. Law - 2013 Indiana Law Review Symposium April 4th and 5th

Each spring, the Indiana Law Review hosts a national symposium on a cutting edge topic at the intersection of law and contemporary public policy. This year it will examine “Law and the Financial Crisis” by pursuing three inquiries: (1) law’s role in instigating the financial crisis; (2) law’s effectiveness in addressing the financial crisis; and (3) law’s potential in preventing the next financial crisis.

The Symposium will be held on April 5, 2013, at the Indiana University Robert H. McKinney School of Law, with an opening dinner the preceding evening. Keynote speakers include Kevin Kabat, Vice-chairman and CEO of Fifth Third Bancorp and former US Senator Evan Bayh. A tentative program and registration are available here.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to Indiana Law

About the ILB: State of Indiana now blocking ILB? [Updated]

I was very sorry to read this tweet this morning:

@TheRealLeighBee

State Internet filter now blocks @indianalawblog. Retribution for criticisms of access to records?

Can anyone confirm? Is it Twitter or the blog, or both?

[Updated at 9:28] @TheRealLeighBee now writes to say:

it's not just ILB that's blocked. Apparently filters strengthened overnight to block a bunch of blogs.

Posted by Marcia Oddi on Thursday, March 21, 2013
Posted to About the Indiana Law Blog

Ind. Courts - "Order judges to obey merit selection law"

Following up on his March 17th editorial, Doug Ross editorializes today in the NWI Times:

The Indiana Supreme Court now has a lawsuit, rather than letters, to consider in deciding whether the next Lake Juvenile Court judge should be chosen by merit selection, as the law requires, or by transfer, as Lake County's judges hope. The high court must choose to follow the law.

Juvenile Court magistrates Glenn Commons, Jeffery Miller and Charlotte Peller want the Supreme Court to give them a fair shot at the job being vacated by Lake Juvenile Court Judge Mary Beth Bonaventura. * * *

The lawsuit filed by the three magistrates names all 16 Lake Superior Court judges and the Lake Circuit Court judge as defendants. The magistrates want the Supreme Court to prevent any of those judges from filling the vacant judgeship until the high court determines whether the state law requiring merit selection is being ignored.

This ought to be an easy decision. State law requires the position be filled through merit selection.

Yet Lake Superior Court Judge Nicholas Schiralli, who ranks second in seniority, intends to transfer to the juvenile court bench, with the blessing of his Lake Superior Court colleagues. Schiralli was elected, rather than appointed through the merit selection process.

State law has since been changed to require that judges in Schiralli's division be chosen through merit selection as vacancies occur. * * *

The magistrates' lawsuit asks that an interim judge be named until the lawsuit is settled. That's a reasonable response. There is much work to be done in the court, which presides over 30,000 cases a year and has a staff of 169, including the juvenile detention center.

Ultimately, though, the Supreme Court must uphold the use of the merit selection process to fill this vacancy. State law must be followed by judges no less than private citizens.

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

Ind. Courts -"Magistrates sue their judicial bosses over Lake Juvenile Court succession"

The battle continues over who will fill the Lake County juvenile court vacancy created by Judge Mary Beth Bonaventura decision to accept the position offered by Gov. Pence to becomechief of the state Child Services Agency.

Bill Dolan has the report here today in the NWI Times:

CROWN POINT | Three Lake Juvenile Court magistrates are suing to stop Lake Superior Judge Nicholas Schiralli from becoming the next Lake County juvenile judge this month.

Magistrates Glenn Commons, Jeffery Miller and Charlotte Peller, who have been serving as judicial assistants for two decades, are asking the Indiana Supreme Court to give them the chance to apply for the job outgoing Lake Juvenile Judge Mary Beth Bonaventura leaves to become head of the Indiana Department of Child Services in Indianapolis.

Bonaventura said Sunday will be her last day as judge.

Kathryn Dolan, spokeswoman for the high court, said the Supreme Court clerk's office received a copy of an "original action" filed late Wednesday by "Glenn Commons et al," but the paperwork still was being processed and a public copy wasn't available. ** *

The Times obtained a copy of a Verified Emergency Petition for Writ of Mandamus and Prohibition naming all 16 Lake Superior Court judges and the Lake Circuit Court judge as defendants.

It asks the high court to block all sitting Lake judges from filling the juvenile court vacancy until the high court rules whether state law is being circumvented and the judgeship is being wrongfully usurped.

Lake is one of the few counties in the state where judges are picked through merit selection. A nine-member panel of lawyers and lay people interview applicants, narrow them to three finalists and forward their names to Gov. Mike Pence.

The governor then appoints the new judge, who would serve for about two years before voters chose whether to retain or replace the judicial appointee.

However, when Bonaventura announced her departure last month, the 15 other Superior Court judges met and decided they should be first in line to take over the juvenile court.

Bonaventura objected in a recent letter to the Indiana Supreme Court, stating merit selection is the only way to name her replacement.

Magistrates Commons, Miller and Peller are adopting her argument that the other sitting judges have exceeded their authority and harmed the magistrates' opportunity for career advancement and opened the juvenile court to other legal challenges.

The petition calls on the high court to name an interim juvenile judge to sit in Schiralli's place until the matter is resolved.

For background, start with this ILB entry from March 15th.

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

Wednesday, March 20, 2013

Ind. Courts - Questions about vacancies on the St. Joseph Superior Court

Governor Pence has now received two sets of five names to fill two different vacancies on the St. Joseph Superior Court, the only county in Indiana other than Lake County (which also has been in the news recently) [and, I've just been told, Allen, but apparently that only applies to interim vacancies on the superior court] which has a merit system for the selection of judges.

Unfortunately his office appears to be unaware of it, as his Judicial Appointments webpage states "There are no current vacancies."

From the Indiana Courts web calendar, however, a reader can glean this information:

The Governor has 60 days to act in each case.

Madeline Buckely reported on March 19th in a story in the South Bend Tribune on the second set of nominees:

The commission chose three of the same finalists it previously sent to the governor to fill another Superior Court bench, that of retiring Judge Roland Chamblee.

Gammage, Hurley and Sanford are also in the running to take over Chamblee's bench.

The ILB (and a number of others) received a note this afternoon from a "concerned citizen" pointing out that this overlap was a problem:
The judicial selection commission cannot send the same 3 names on both lists to the Governor!
The reader points to IC 33-33-72, the law governing St. Joseph County superior courts.

The judicial nominating commission of St. Joesph county
is set up in the law beginning at section 29. Here is a description of that body from the Indiana Court's recent news releases:
The Nominating Commission was established by the Indiana General Assembly in 1973. It consists of seven members. Three of the members must be admitted to the bar and are selected by the lawyers of the county and three must be non-lawyers appointed by a committee consisting of the judge of the St. Joseph Circuit Court, the mayors of South Bend and Mishawaka, and the president of the board of St. Joseph County commissioners. The seventh member, who serves as the chairman of the Commission, must be a justice of the Indiana Supreme Court or a judge of the Court of Appeals appointed by the Chief Justice of Indiana. Justice Massa recently replaced retired Justice Frank Sullivan as Chairman of the Commission.
Here is the provision pointed out by the concerned citizen. It seems pretty clear on this point:
IC 33-33-71-39 Withdrawal of list or names of nominees

Sec. 39. (a) After the commission has nominated and submitted to the governor the names of five (5) persons for appointment to fill a vacancy of the St. Joseph superior court:
(1) any name may be withdrawn for a cause considered by the commission to be of a substantial nature affecting the nominee's qualifications to hold office; and
(2) another name may be substituted at any time before the appointment is made to fill the vacancy.
(b) If a nominee dies, or requests in writing that the nominee's name be withdrawn, the commission shall nominate another person to replace the nominee.
(c) If there are existing at the same time two (2) or more vacancies on the court, the commission shall nominate and submit to the governor a list of five (5) different persons for each of the vacancies. The commission may before an appointment is made:

(1) withdraw the lists of nominations;
(2) change the names of any persons nominated from one (1) list to another; and
(3) resubmit the lists as changed or substitute a new name for any of those previously nominated.
As added by P.L.98-2004, SEC.12.

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Courts

Ind. Law - "Lawmaker advocates fenced deer hunting"

That is the heading to this story by Ryan Sabalow in today's Indianapolis Star. Some quotes:

Rep. Matt Ubelhor, R-Bloomfield, said today that he believes more high-fence hunting clubs would lead to job growth and give the nearly 400 Indiana farmers who raise deer and elk an in-state source of business. * * *

Ubelhor earlier this year was the lead author of a hunting bill that died in committee. It would have set licensing requirements for the hunting clubs, allowed previously operating clubs to reopen and allow hunting at the facilities from August to April, without bag limits.

Ubelhor said he may amend a senate bill he is co-sponsoring in the House to include some of the language from his earlier bill. Under Ubelhor’s bill, a new high-fence clubs would have to be at least 200 acres, and the deer must have adequate cover and space to hide. * * *

Ubelhor said the matter is likely to come up at a hearing Monday at the House’s Committee on Natural Resources.

ILB: Reading the story this morning it occurred to me that a law permitting fenced hunting might not even be necessary if SJR 7 passes.

The same might apply with SB 373, called the "ag gag" bill, which is now in committee in the second house.

If SJR 7, which is currently in the second house committee, passes the House again this year, it will go on the ballot of the next general election.

SJR 7 would add a new Section 39 to our Bill of Rights, reading:

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.

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Law

Ind. Courts - "Prosecutors do 'not believe $3,500 per month in car payments is reasonable or consistent with an individual being provided counsel at public expense.'”

Tim Evans reports this afternoon in the online IndyStar in a story that begins:

An Indianapolis attorney accused of bilking clients out of more than $4.5 million is trying to maintain a champagne lifestyle on what should be a beer budget, a federal prosecutor says.

Responding to William F. Conour’s recent request for a federal judge to release $10,000 from a victim compensation fund to cover living expenses, including $3,500 in car payments, federal prosecutor Jason Bohm had another suggestion.

In a motion filed in U.S. District Court in Indianapolis earlier this month, Bohm said Conour should seek court approval to sell “a large collection of art, including paintings and sculptures, as well as a substantial collection of wine and champagne” to cover his living expenses. Divorce records filed last year show Conour estimated the value of his art collection then at $500,000.

Bohm’s motion added that prosecutors do “not believe $3,500 per month in car payments is reasonable or consistent with an individual being provided counsel at public expense.”

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Courts

Ind. Courts - More on SB 103, changing the Judicial Nominating Commission law

According to reports, questions were raised in the House Committee on Judiciary this week on the constitutionality of Senate Bill 103.

The bill would change the way the three citizen members of the Judicial Nominating Commission are appointed. Currently these appointments are made by the Governor.

Regarding the citizen members, Art. 7, Sec. 9 simply states:

The Governor shall appoint to the commission three citizens, not admitted to the practice of law.
The General Assembly has, by statute (IC 33-27-2-1), added some framework to the process, spelling out that the three citizen members shall be from separate judicial districts and that their terms shall run for three years. The terms are staggered because of the way the law was phased in.

Senate Bill 103, however, would limit the power given to the Governor by the Constitution to appoint three citizen members to the Judicial Nominating Commission by adding a requirement that the Governor make his/her selection from a list of "recommended candidates" prepared by the leadership of the House and Senate.

This proposal appears to raise at least two constitutional concerns.

The first concern is that it imposes an additional qualification on a constitutional office - that a citizen member of the Judicial Nominating Commission not only must be appointed by the Governor, as set out in the Constitution, but additionally under the new statutory proposal, the member must initially have been nominated to the position by the legislative leadership.*

The second, and more obvious, concern with the proposed legislative involvement is that of the separation of powers. Article 3: - "[N]o person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." The language of Art. 7, Sec. 9 of the Constitution simply does not involve the General Assembly in the selection of the citizen members of the Judicial Nominating Commission.

See earlier ILB posts from March 15th and Feb. 12th.
______________
*An example of a related concern that has been raised in Indiana in the past is whether by statute additional qualifications may be imposed on the constitutional office of coroner.

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In State of Indiana v. I.T. , a 10-page opinion, Judge Friedlander writes:

The State appeals from the juvenile court’s order rescinding its prior approval of a delinquency petition filed against I.T. Concluding sua sponte that the State is without authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition, we dismiss. * * *

Because we conclude that the juvenile court’s order was not “an order granting a motion to dismiss an indictment or information” for the purposes of I.C. § 35-38-4-2(1), we conclude that the State has no statutory right to appeal in this case, regardless of the merits of the juvenile court’s ruling. We therefore dismiss the State’s appeal.

NFP civil opinions today (1):

Republic Services d/b/a Able Disposal Company v. Bullaro & Carton, P.C. (NFP)

NFP criminal opinions today (3):

Mickell Biggs v. State of Indiana (NFP)

Adrian P. Jerrell v. State of Indiana (NFP)

Ricky Eugene Arion v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Waiting game on school choice ruling

The Fort Wayne Journal Gazette ran this brief editorial item yesterday:

Speaking of the Supreme Court, Thursday will mark four months since the justices heard arguments over the constitutionality of the state’s expansive private school voucher program. There is no typical time lapse between argument and decision; it can range from hours to years. As the General Assembly considers expanding the program to include an even broader base of students, some lawmakers are surely getting restless. But given the importance of this decision, justices are certain to be as thorough as possible.
ILB: The Indiana Supreme Court heard oral argument in the case of Teresa Meredith et al. v. Mitch Daniels, et al. on Nov. 21, 2012.Here is a list of the ILB posts on the case. This post includes links to the documents. BTW, the case was heard by all five justices, including Justice Loretta Rush, who was hearing oral arguments that day for the first time.

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Courts

Ind. Gov't. - How accessible is information from the Indiana General Assembly?

The Law Librarian Blog has a great post introducing the Sunlight Foundation's Report Card comparing how state legislatures make their data publicly available.

Indiana has an overall grade of D for reasons such as "Senate votes must be collected from journals, not provided as roll calls" and "vote data available only as scanned PDF."

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Indiana Government

Courts - Justices Ginsburg and Kagan share a personal trainer

Ginsburg does pushups, Kagan boxes, both in the Supreme Court gym - see the story in today's Washington Post.

Posted by Marcia Oddi on Wednesday, March 20, 2013
Posted to Courts in general

Tuesday, March 19, 2013

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

In Frontier Ins. V. Hitchcock (SD Ind., Pratt), a 5-page opinion, Chief Judge Easterbrook concludes:

If the existence of a fund in the registry of the district court permits Frontier to pay the Sellers 100¢ on the dollar, the Guarantors have no legitimate complaint. There is no reason why Frontier’s financial troubles should benefit the Guarantors at the expense of the Sellers. If, however, New York’s insurance authorities instruct or permit Frontier to pay the Sellers less than the face value of the surety bond, then the Clerk of the district court will return the excess to the Guarantors. The final disposition of these funds thus depends on the outcome of Frontier’s rehabilitation. Until then, however, Frontier is entitled to the security that the Guarantors promised to provide. AFFIRMED

Posted by Marcia Oddi on Tuesday, March 19, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Update on mandatory judicial retirement legislation

The ILB has posted before on SB 124, which would abolish any retirement age for Indiana appellate court judges.

The last half of this post today in Gavel to Gavel has a good chart comparing other state initiatives this year relating to the retirement age for appellate judges.

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

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

Judy Chang v. Purdue University, The Trustees of Purdue University; Dr. France A. Cordova, President of Purdue University (in her official capacity); et al. is a 32-page opinion relating to the dismissal by Purdue of a nursing student.

NFP civil opinions today (2):

Alyse McGlaughlin and Connie Kleiner v. Jennifer M. McGlaughlin, State Farm Mutual Automobile Ins. Co., and Roger McGlaughlin (NFP)

First Financial Bank, National Assn., Hamilton, Ohio, as Successor in Interest to Federal Deposit Ins. Corp., Receiver of Irwin Union Bank and Trust Co. v. Fred L. Paris and Michelle S. Paris (NFP)

NFP criminal opinions today (2):

Derek F. Williams v. State of Indiana (NFP)

Jeremy L. Musall v. State of Indiana (NFP)

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

Ind. Law - Bill would restore power of prosecutors

From an editorial today by Tracy Warner of the Fort Wayne Journal Gazette:

Over the last several years, state laws and policies have changed to increase the power of the state executive branch’s Department of Child Services at the expense of local judicial branch officials. Two northeast Indiana lawmakers are behind a bill moving through this year’s General Assembly that would give a little power back to the judicial system.

Senate Bill 164
would allow a county prosecutor to file a Child In Need of Services (CHINs) petition with a local juvenile court. The petition is the first step in bringing court review of allegations that a child is being mistreated by a parent or guardian. Just as important, it would allow the prosecutor rather than the DCS to represent the state.

That prosecutors don’t now have that explicit power is mind-boggling, making the bill a no-brainer. But the motivation is part of the ongoing back and forth between court and officials and the DCS. Numerous officials, lawyers and child advocates believe that in the past several years, DCS has tended to push case resolutions that are of the lowest cost to the state rather than in the best interest of abused or neglected children.

Travis Holdman of Markle is the co-author of the Senate bill, which passed that chamber 49-0. Rep. Kevin Mahan of Hartford City is the sponsor in the House, where the bill passed second reading Monday. The bill was one of the recommendations of an interim study commission on the DCS that Holdman co-chaired.

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

Ind. Decisions - Supreme Court vacates earlier transfer grant in utility bucket case

Readers may remember the oral argument January 3rd in the case of Wade v. Terex-Telelect. It was the oral argument that was notable as a "teaching moment" because appellants successfully sought to bring exhibits including a "double man utility bucket," a bucket liner, and an exemplar bucket liner to the oral argument.

In an order dated March 18th the Court has now ruled:

By order dated September 27, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind. Ct. App. 2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

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

Ind. Law - Andrew Klein is new dean of IU-McKinney Law School

Here is the official announcement.

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

Ind. Decisions - More on "Appeals court upholds ruling Hammond gun ordinances"

This ILB entry from Sunday concerned the Court of Appeals decision March 15th in Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond. In that case the City of Hammond was sued because it did not remove from its books "city gun restrictions now voided by state law. ... The ordinances had restricted guns from city buildings or at any city board or commission meeting.

"The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states." (quotes from the NWI Times story)

The March 15th COA opinion concludes:

The Ordinances were in effect before July 1, 2011, indicating that the City of Hammond could not have adopted the Ordinances at a time in which they would be in violation of Indiana Code section 35-47-11.1-2. The Firearm Owners have also failed to designate any evidence that the City of Hammond made any attempt to enforce the void ordinances; on the contrary, the only evidence presented was that the mayor issued two executive orders prohibiting the enforcement of the void ordinances. Appellant’s App. p. 102-03. Therefore, the Firearm Owners have not shown that they have been “adversely affected by an ordinance . . . adopted or enforced” in violation of Indiana Code section 35-47-11.1-2, so they have failed to show that they have any valid claim under Indiana Code section 35-47-11.1-5.

We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.

Interestingly, however, the COA designated the opinion as "Not for Publication." This although Appellate Rule 65(A) provides that a Court of Appeals opinion shall be published if it "involves a legal or factual issue of unique interest or substantial public importance."

What is the significance of a NFP designation? Under Rule 65(D): "Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court ..."

Today Mark Wilson has a story in the Evansville Courier & Press headed "Indiana Court of Appeals ruling could negate part of local gun-related lawsuit." Some quotes:

EVANSVILLE — An Indiana Court of Appeals opinion siding with the city of Hammond, Ind., against a lawsuit by gun owners there could negate part of local gun owner Benjamin Magenheimer’s lawsuit against Evansville.

However, attorney Guy Relford, who represents both Magenheimer and the Hammond gun owners, said on Monday he still expects a trial in Vanderburgh Circuit Court.

The lawsuits argue a 2011 state law preventing local governments from regulating guns requires cities to officially repeal local gun ordinances and not just stop enforcing them. The Court of Appeals opinion said it doesn’t matter because the state law made local ordinances void.

Magenheimer filed a lawsuit in Vanderburgh Circuit Court after Evansville police officers removed him from Mesker Park Zoo & Botanic Garden in September 2011 in response to a zoo employee’s 911 call about a man openly wearing a gun.

The lawsuit claims Evansville police were enforcing a city ordinance barring firearms from park properties when they removed him and that he had a license to carry a gun.

Two months before the incident at the zoo, a state law took effect in Indiana preventing local governments from regulating firearms on property or in buildings that they own or manage, with a few exceptions such as zoning to prevent selling firearms within 200 feet of a school; in buildings with courtrooms; and in municipal buildings occupied by private businesses or residential tenants (such as entertainment venues).

The story also states, somewhat ambiguously IMHO:
The Hammond opinion was marked not for publication, meaning it cannot be cited as legal precedent in other cases. However, it leaves the door open for Senior Judge Carl Heldt to rule on the city of Evansville’s motion for a judgement in its favor and for a jury trial on remaining issues in Magenheimer’s lawsuit.

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

Courts - "DUI acquittal reveals shortcomings in Kentucky state lab testing"

That is the heading of this very long story in the Louisville Courier Journal, reported by Andrew Wolfson. It begins:

[The driver failed a field sobriety test when she was stopped, but she] registered a 0.00 when her breath was tested for alcohol at the Jefferson County Jail. And though she said she had taken a prescribed painkiller an hour earlier, according to a jail officer’s notation, no trace of drugs in her system by the Kentucky State Police laboratory.

As a result, on the second day of her trial, Jefferson District Judge Sheila Collins ordered her acquittal March 5 on a charge of driving under the influence, saying the commonwealth had failed to prove what — if anything — had impaired her.

The Jefferson County Attorney’s Office says the case illustrates the limitations of the state police toxicology screen, which tests for only 40 of the mostly commonly abused drugs in Kentucky.

“We are not ‘NCIS,’” Assistant County Attorney Tracey Frazier said, referring to the popular television show where technicians solve cases with the most minute evidence.

Posted by Marcia Oddi on Tuesday, March 19, 2013
Posted to Courts in general

Courts - More on: Cameras at SCOTUS oral arguments suddenly look much less likely than ever

Updating this ILB entry from March 14th, Michelle Olsen of @AppellateDaily has tweets this morning pointing to this Feb. 14th National Law Journal article by Tony Mauro headed "Sotomayor now opposes cameras at the court: She's the latest in a line of justices to come out against televising arguments after they join the Supreme Court." Also, an older article by Mauro at SSRN titled "Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism". From the abstract:

This article reviews the history of the long and unsuccessful effort to change the Court’s mind, and to examine whether the Court’s exceptionalist self-image or the other reasons it offers for its resistance to cameras can or should stand in the way of the demands of the modern era of access and transparency.
Olsen also points to a half-hour Huffington Post video panel on Video Censorship.

Posted by Marcia Oddi on Tuesday, March 19, 2013
Posted to Courts in general

Ind. Courts - "Lake County Bar Association rates federal judges, magistrates"

Marisa Kwiatkowski of the NWI Times today reports on the Lake County bar association rankings of the nine federal judges and magistrates who work in Lake County.

The results are particularly interesting when read in conjunction with Prof. Schumm's article yesterday on judicial temperament and the part bar surveys might play.

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

Monday, March 18, 2013

Ind. Decisions - Transfer list for week ending March 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, March 15, 2013. It is two pages (and 21 cases) long.

One transfer was granted last week:

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

Ind. Courts - "Gideon's promise often broken: Guarantee of adequate legal defense suffers"

Some quotes from Tim Evans' long, front-page story today in the Indianapolis Star:

Today is the 50th anniversary of a landmark U.S. Supreme Court decision that said every criminal suspect has the right to an attorney, even when they cannot afford to pay.

The court’s 1963 ruling in Gideon vs. Wainwright cemented that right as one of the fundamental cornerstones of America’s criminal justice system. Many consider it the most important right because a strong defense is essential to securing all other legal protections. * * *

But social justice advocates, legal scholars and public defenders working in courtrooms across the U.S. won’t spend much time celebrating the anniversary of that ruling. If they pause at all to reflect on it, there’s a strong chance it will be to lament what is widely seen as the broken promise of a level playing field for rich and poor — an ideal still unrealized in many of America’s courtrooms.

In some areas of Indiana, part-time public defenders can have as many as 1,200 cases a year. Experts say that’s significantly higher than what a private attorney would take on and three times the standard for misdemeanors — the lowest level crimes — recommended by the National Advisory Commission of Criminal Justice Standards and Goals. For more complicated cases, such as felonies, the commission’s recommendation drops to 150. * * *

The shortcomings are not a slam on the lawyers who work in the public defender system, said Larry Landis, executive director of the Indiana Public Defender Council.

“The only reason the system works as well as it does,” Landis said, “is because there are lots of dedicated lawyers who are committed to providing representation to the people who can’t afford it. The responsibility of government to provide adequate representation has fallen on the backs of those committed few.”

Landis said Indiana has made “significant progress” in some areas, including the creation of the state’s public defender council and commission — which have lobbied for funding and established standards — and the adoption of Criminal Rule 24 that establishes rules for the appointment and compensation of counsel in capital cases.

A few large counties, including Marion County, also have created public defender agencies. That approach to professionalize the work provides more supervision and accountability in terms of both expenditures and performance.

The Marion County Public Defender Agency has an annual budget of about $17 million and employs 136 attorneys. It also contracts with another 97, who provide varying part-time assistance.

Chief Public Defender Robert J. Hill said his agency’s use primarily of full-time attorneys, along with strong oversight and a committed staff that takes pride in its work, helps it defy the stereotype and problems common in many other places.

“We have to make certain we are going to the jail to see clients, we have to make certain we prepared, we have to make certain that we’re on top of case and that we are not causing delays that impact the sheriff because of jail overcrowd, or impact the court because of backlogs, or impacts the prosecutor because we don’t want to have to do cases twice because of ineffective assistance,” he said.

“I’m of the opinion that our delivery system and the service that would provide here is second to none in the state.”
subhead

Landis said that isn’t the case in some other parts of Indiana.

“Much more work needs to be done to fulfill the right to counsel promised in Gideon and in our state and federal constitutions,” he said.

“The most significant issues facing indigent defense services in Indiana are the lack of adequate funding and the lack of oversight and accountability for the quality of services provided... It is time for the state to accept responsibility for providing and funding this fundamental right guaranteed by the state constitution and which is essential to the functioning of a fair and just criminal justice system.”

Until that happens, the scale of justice will, in many cases, remain tipped in favor of the prosecution, Landis said.

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

Ind. Courts - "Jury consultants looking to expand"

Carrie Ritchie of the Indianapolis Star has a long story in the paper's business section that told me a lot I didn't know about the business of jury consulting. A few quotes:

Litigation consultants have earned some recognition for their role in the acquittals of famous defendants such as O.J. Simpson and Casey Anthony. But for all the publicity surrounding those cases, what consultants do remains somewhat clandestine.

They charge thousands of dollars, putting their help out of reach for many attorneys who don’t handle high-profile civil and criminal cases. But they are trying to convince attorneys that even the most affordable services can make a big difference in a case, paving the way for growth in the highly specialized though little-known industry.

For attorneys in some prominent Indiana cases, the consultants’ services have been worth the expense.

When grocery executive Don Marsh was sued by his former company for inappropriate spending, his attorney hired a litigation consultant. The company sought $7 million. A federal jury awarded $2.2 million.

When Indianapolis real estate broker John M. Bales and attorney William E. Spencer faced federal fraud charges involving a real estate deal with the Department of Child Services, Bales’ attorney used a litigation consultant to help pick the jury. The jury found both men not guilty.

“Some lawyers say they don’t go to the courtroom with out a rule book,” said Indianapolis attorney Larry Mackey, who represented Bales. “I say I don’t go to court without a trial consultant these days.”

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

Ind. Courts - "Are Indiana Judges Required to be Nice to Lawyers and Litigants?"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Media accounts of the abrupt resignation of an Allen County magistrate judge a few weeks ago cited concerns about “‘highly inappropriate conduct on the bench,” including “berating attorneys” and heated interactions with litigants. These concerns had reportedly been brought to the attention of the supervising elected judges previously.

I appeared before that judge several times in 2006 for pretrial hearings and ultimately a jury trial for a taillight infraction. Her demeanor was less “patient, dignified, and courteous” than I had ever witnessed in a courtroom, and it was not simply directed at me. For example a failed plea agreement during one hearing I observed led to a pencil flying from the bench. Although I was bothered by the judge’s demeanor, I did not file a complaint with the supervising judges or the Judicial Qualifications Commission.

This post discusses the judicial ethical rule on demeanor and its application in recent cases, concluding that compliance is unlikely without involvement from lawyers, other judges, the public, and perhaps even the press.

The Rule and Its Application

Rule 2.8 of the Indiana Code of Judicial Conduct governs, among other things, “decorum” and “demeanor.” Specifically (with my emphasis added):

(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's direction and control.

Comment [1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

Although specific information about every demeanor complaint is not publicly available, several recent opinions mention Rule 2.8(B).

The 2012 case of a Hammond City Court judge quotes a pointed colloquy about a seatbelt violation, which the parties agreed violated Rule 2.8(B) and other rules.

A 2010 Indiana Supreme Court opinion reversing a driving while suspended conviction cited violations of four rules, including 2.8(B), specifically noting “the Court exhibited impatience and stated that if Hollinsworth were found guilty, ‘she’s going to jail for a year.’” A subsequent judicial disciplinary opinion imposed a thirty-day suspension.

Last year the Commission alleged a violation of 2.8(B) and other rules by a South Bend judge who “made derogatory statements about the litigant’s socioeconomic status by suggesting that it was inappropriate for her to request that ‘the taxpayers pay for’ [an interpreter] when she ‘hadn’t paid taxes for several years.’” Those charges were resolved by a private reprimand shortly before the judge’s retirement.

Finally, the Judicial Qualifications website also summarizes recent “confidential cautions,” which include the following:

A judge lost his temper and verbally berated another guest at a social gathering. The judge immediately reported this incident to the Commission and acknowledged the injudiciousness of the behavior.

The judge was the subject of two investigations about inappropriate courtroom demeanor. The Commission sent a caution and advised the judge it would file charges if another similar event occurred.

Lawyer Perspective or Layperson Perspective?

If losing one’s temper and verbally berating a guest at a social gathering violates the rule, then surely a judge losing his or her temper on the bench and berating a litigant or lawyer would qualify. But what about conduct that falls short of that? Chief Justice Dickson speaks often about the importance of civility and certainly practices what he preaches, but other appellate judges on occasion may demonstrate what some would view was impatient or discourteous behavior. If a lawyer is not answering a question, judges may understandably lose their patience, which might take some degree of courtesy with it.

A lawyer’s perspective, though, is often different from a layperson’s. For example, a few years ago some family members and non-lawyer friends attended one of my oral arguments before the Court of Appeals. I thought the questioning (of both sides) was tough and perhaps a bit more aggressive than usual. Their reaction, though, was almost disbelief at why one judge was “so mean.”

Although appellate judges spend a small fraction of their time on the bench at oral argument, some trial judges spend several hours each day on the bench, which makes strict compliance with the rule suggest something akin to the patience of Job.

The point of this post is not to suggest a minor lapse of patience or courtesy is an ethical violation but rather to suggest that severe breaches and especially repeated breaches are a problem. As one of the news stories on the Allen County magistrate puts it, she “would often spend court time berating attorneys – a practice the attorney said shocked and puzzled relatives from another country who were visiting her courtroom.”

Enforcement Requires Involvement

Judicial Qualifications Commission counsel Adrienne Meiring shared in a recent email: "When I speak to groups, I regularly point out that I can’t help lawyers/litigants if I don’t know what the problems are. With that in mind, I always try to make myself available to discuss with attorneys if they think they have experienced a problematic demeanor situation.”

Based on my own experience and discussion with others, lawyers generally don’t want to “get involved” and file a complaint against judges, especially for something like demeanor. Filing a complaint takes time and some lawyers, especially those who appear repeatedly before a judge, may fear reprisal. Moreover, at least from my experience, I wondered if I was being too thin-skinned. If every lawyer takes the same view, a complaint will never be filed, and there is little reason for a judge to curb his or her behavior.

Bar-sponsored assessments of judges by lawyers may help in this regard. For example, the Indianapolis Bar Association survey, which is unfortunately administered only once every six years (shortly before a judge’s re-election), asks for a 1-5 (strongly disagree to strongly agree) score on the following: “This person demonstrates the proper temperament and demeanor expected of a judge.” If a majority or large minority of lawyers respond “strongly disagree” or “disagree,” the judge should realize there’s a problem. Although one might expect a reaction from the press as well, the Marion County poll generates very little media attention—and no discussion of something like demeanor. Therefore, as in the Allen County case, the news story is when a judge is escorted from the building—not concerns about the conduct years earlier.

Conclusion

Although most people reading this blog are lawyers or judges, we should not lose sight of the public’s perspective. The overwhelming majority of Indiana judges display remarkable patience, courtesy, and dignity day after day in dealing with a variety of challenging situations. The few who fall short, especially any who regularly and significantly fail to meet the standard, derogate the public’s perception of our system of justice for the hundreds or thousands of citizens who appear in their courtrooms as litigants, witnesses, or jurors. For many citizens, a single experience will be their only view of the judiciary; they should not leave court feeling demeaned or disrespected.

According to JQC counsel Meiring, “demeanor is definitely an issue that the Commission takes seriously.” We should, too -— which means bringing demeanor issues to the attention of the Commission and, in the case of magistrate judges or commissioners, the supervising judges.

Posted by Marcia Oddi on Monday, March 18, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - More on: "Kentucky [and Indiana] families struggle to care for violent, mentally ill children"

Updating this ILB entry from March 17th, here are two additional stories from the Louisville Courier Journal.

"When mentally ill kids become legal adults, getting them proper treatment shows gaps in system," a March 17th story by Chris Kenning.

"Stigma surrounding mental illness grows in wake of school shootings," a March 18th story by Laura Ungar.

Addressing the stigma issue
is this long, brave March 17th story in the Concord Vermont Monitor, by staff reporter AnnMarie Timmins, headed "I’m one of the 26 percent with mental illness."

Posted by Marcia Oddi on Monday, March 18, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Carmeuse Lime & Stone and Carmeuse Lime, Inc. v. Illini State Trucking, Inc., a 15-page opinion, Judge Brown writes:

Carmeuse Lime & Stone and Carmeuse Lime, Inc. (collectively, “Carmeuse”) appeal from the trial court’s order dismissing their complaint in favor of Illini State Trucking, Inc. (“Illini”). Carmeuse raises one issue which we revise and restate as whether the court erred in dismissing its complaint. We affirm. * * *

This court has observed that “forum selection provisions are enforceable if they are reasonable and just under the circumstances and if there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be deprived of a day in court.” Dexter Axle Co. v. Baan USA, Inc., 833 N.E.2d 43, 48 (Ind. Ct. App. 2005). Additionally, the provision must have been freely negotiated. Id. “Moreover, ‘[e]ven where the forum-selection clause establishes a remote forum for resolution of conflicts, the party claiming [unfairness] should bear a heavy burden of proof.’” Id. (quoting Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 592, 111 S. Ct. 1522, 1526 (1991)) (internal quotations omitted). * * *

Here, by contrast, Carmeuse has already settled with Ruiz, the party who would have not been bound by the forum selection clause contained in the contract between Carmeuse and Illini. Thus, there is no possibility of multiple lawsuits. Also, as noted above the party claiming unfairness from a forum selection clause due to the remoteness of the forum bears a heavy burden of proof. On that score, we also note that the distance between Lake County, Indiana, and Allegheny County, Pennsylvania, may be traversed by automobile in several hours, and accordingly we cannot say that Allegheny County, Pennsylvania is too remote. See Horner, 650 N.E.2d at 764 (noting that the distance between Marion County, Indiana and Peoria County, Illinois “may be traversed by automobile in several hours” and accordingly “it cannot be said that, in the context of the issue before us, Peoria County, Illinois is a remote forum”). We cannot say that enforcing the forum selection clause is unjust and unreasonable, and accordingly we conclude that the court did not err in dismissing Carmeuse’s lawsuit.

ILB irrelevant observation: Hmmm, I've driven to Allegheny County Pennsylvania and it took quite a bit longer than "several hours".

NFP civil opinions today (0):

NFP criminal opinions today (0):

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

Ind. Courts - "Pope of Lake County's judiciary claims superiority"

That is the heading to a biting column today in the NWI Times by Rick James. A sample:

In a letter to Supreme Court Justice Robert Rucker, Pera asks the high court to ignore Bonaventura’s plea.

Pera argues the law requiring merit selection as a requisite for a transfer is “a legislative overreach into the exclusive province of the judiciary.”

That bears repeating. “The exclusive province of the judiciary” pretty much puts the Lake Superior Court system in some sort of nether world.

It gets better. Pera went on to say that the separation of powers prevents the Legislature from “meddling” in the judiciary.

In other words, even though the Lake Superior Court system was created by the Legislature, the courts don’t have to listen to their maker.

And furthermore, Pera called “unconstitutional” the law requiring merit selection as a requisite for transfer.

The pope has spoken, essentially saying the law is unconstitutional and the Supreme Court doesn't need to waste its time with the matter.

For background, see this ILB entry from March 15th.

Posted by Marcia Oddi on Monday, March 18, 2013
Posted to Ind. Trial Ct. Decisions

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

From Sunday, March 17, 2013:

From Saturday, March 16, 2013:

From late Friday afternoon, March 15, 2012:

Posted by Marcia Oddi on Monday, March 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 (3/18/13):

Next week's oral arguments before the Supreme Court (week of 3/25/13):

Thursday, March 28th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/18/13):

Tuesday, March 19th

Wednesday, March 20th

Next week's oral arguments before the Court of Appeals (week of 3/25/13):

Tuesday, March 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, March 18, 2013
Posted to Upcoming Oral Arguments

Sunday, March 17, 2013

Ind. Decisions - "Appeals court upholds ruling Hammond gun ordinances"

Friday's NFP COA opinion in Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP) is the subject of a story today by Chelsea Schneider Kirk in the NWI Times. Quotes from the end of the story:

In 2011, Mayor Thomas McDermott Jr. issued an executive order directing the Hammond Police Department and city employees not to enforce an ordinance that banned guns in city buildings.

The order came after the Hammond City Council voted down an ordinance to bring city code into compliance with the new state law. At the time, the Indiana Association of Cities and Towns had recommended local governments repeal gun regulations on their books.

McDermott said appealing the city's ordinances would have been a bad move, especially in light of recent gun violence in the nation. He said the appeals court ruling reaffirms his actions and those of the City Council.

“I'm proud of the way we reacted,” McDermott said. “Basically the (National Rifle Association) through Guy Relford is trying to bully the city of Hammond, and I won't stand for it. Make no mistake about it. The NRA is lock, stock and barrel behind this lawsuit.”

Now from the beginning of the story:
HAMMOND | The Indiana Court of Appeals upheld a ruling Friday that two area residents are not adversely impacted by city gun restrictions now voided by state law.

Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, had sued the city, alleging their rights were violated because gun regulations are still present in city code. * * *

“We feel like the city of Hammond, and Mayor (Thomas) McDermott specifically, intentionally want to leave the ordinances on the books, so they influence people's behavior,” said Guy Relford, the residents' attorney.

The appeals court found that, regardless of whether the ordinances were still in code, the restrictions were voided by a 2011 state law that essentially bars local governments from regulating firearms except in courtrooms.

The ordinances had restricted guns from city buildings or at any city board or commission meeting.

The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states.

The appeals court ruling sides with the decision of Lake Superior Court Judge Jeffery Dywan, who rejected the lawsuit because state law had voided the local ordinances.

For background, see this ILB entry from Sept. 4, 2011, and this entry from Sept. 27, 2011.

Judge Vaidik's opinion from last Friday concludes:

The Ordinances were in effect before July 1, 2011, indicating that the City of Hammond could not have adopted the Ordinances at a time in which they would be in violation of Indiana Code section 35-47-11.1-2. The Firearm Owners have also failed to designate any evidence that the City of Hammond made any attempt to enforce the void ordinances; on the contrary, the only evidence presented was that the mayor issued two executive orders prohibiting the enforcement of the void ordinances. Appellant’s App. p. 102-03. Therefore, the Firearm Owners have not shown that they have been “adversely affected by an ordinance . . . adopted or enforced” in violation of Indiana Code section 35-47-11.1-2, so they have failed to show that they have any valid claim under Indiana Code section 35-47-11.1-5.

We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.

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

Ind. Law - "Purdue misconduct policies questioned: National professors group claims process gives too much power to administration"

Eric Weddle reports today in a long story for the Lafayette Courier & Press. Here are a few quotes:

Crippling legal costs, banishment from campus and a muddled path to appeal.

That’s what some Purdue University professors faced during investigations or sanctions for alleged wrongdoings during the past two years, according to faculty leaders and an outside academic organization.

The cause, they say, is university policies that have limited faculty input and in some cases effectively made administrators judge and jury.

A series of nonpublic disciplinary cases led the American Association of University Professors to issue a string of letters in the past year criticizing the university’s due process and asking President Mitch Daniels to institute changes.

“If the administration wishes to impose a severe sanction on a faculty member, or a dismissal of a faculty in one instance — it should prove them all in a hearing in front of a faculty body and demonstrate body of proof for the cause of the severe sanction,” B. Robert Kreiser, the association’s national associate secretary, told the Journal & Courier this month. “It is remarkable, given that Purdue is a major university, that they have such deficient policies when it comes to affording faculty members due process.

“The way in which Purdue regulations operate, it appears that Purdue faculty members are guilty, then need to prove they are not.” * * *

While the administration and faculty advocates may not see eye to eye, those involved say common ground is emerging.

Marcus Rogers, president of the AAUP Purdue chapter and a cyber forensics professor, said Daniels and [Provost Tim] Sands are listening to concerns and expects some changes in the next year. Daniels, who began reaching out last year after his selection as Purdue’s 12th president, wants to understand the disagreements, Rogers said. * * *

Rogers is hopeful that Daniels’ recent decision to hire in-house counsel and reduce the university’s historic relationship with Stuart & Branigin, a Lafayette firm, will create cooler heads when questions or accusations over conduct arise. Rogers and other believe that until now administrators had too-easy access to lawyers on retainer, which led to undue and costly legal actions against faculty.

Between April 2011 and December 2012, $1.58 million was paid to Stuart & Branigin for “legal issues resulting from administration action against any staff or faculty member,” according to documents obtained through an open records request and provided to the Journal & Courier.

An additional $330,000 was identified in additional expenses related to these cases. Specifics of the legal issues were not included in the records request.

In the past three years, Purdue paid Stuart & Branigin $6.77 million for services, in addition to hiring other law firms.

For Rogers, at least two other policies raise concerns, persona non grata orders and an executive committee that creates policy.

Posted by Marcia Oddi on Sunday, March 17, 2013
Posted to Indiana Law

Ind. Courts - Still more on: Gary-based child support court move to Crown Point reignites controversy

Updating this ILB entry from Feb. 7th, the NWI Times has this editorial today, by Doug Ross, headed "Move court, but help move people":

Testimony in last week's trial over moving the Lake Juvenile Court's Gary child support operations to Crown Point discussed how accessible these services are to the poor. It is a symptom of a larger problem in Lake County.

East Chicago, Gary and the National Association for the Advancement of Colored People filed suit when Lake Juvenile Court Judge Mary Beth Bonaventura decided several weeks ago to close the Gary court and consolidate it with its Crown Point counterpart to save money.

Witnesses in the lawsuit testified last week before Lake Circuit Court Judge George Paras that low-income residents in north county find it difficult to travel to Crown Point because they don't have cars and rely on public transportation.

One young mother said she lost welfare benefits after she missed her Feb. 12 court date in Crown Point. The bus times meant she arrived an hour late for her 8:30 a.m. court hearing.

Testimony in the case has concluded; attorneys are now preparing their findings of fact for Paras.

Moving the child support courtroom to Crown Point, from Gary, wouldn't be a problem if Lake County would finally address the public transportation mess.

Saying the Gary courtroom is more accessible to north county ignores the problem of how people without their own cars are to traverse Hammond during this public transportation crisis.

The Lake County Council's failure to provide public transportation must not continue. As the testimony in this case shows once again, there is a definite need for reliable bus service.

Consolidating the courtrooms for more efficient — and cheaper — operations makes sense. But finally address the public transportation problem to make the court more accessible.

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

Ind. Law - Bills of interest to the judiciary heard in committee during Week 10 of the General Assembly

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

Posted by Marcia Oddi on Sunday, March 17, 2013
Posted to Indiana Law

Courts - "Four former Pa. governors come out for judicial merit selection"

Aubrey Whelan, Philadelphia Inquirer Staff Writer, reports today:

Pennsylvania is one of just a handful of states where residents elect all their judges in partisan elections - a system critics say has led judicial candidates to solicit big campaign donations from lawyers and special interests who could later appear in their courts.

Over the years, various legislators have introduced constitutional amendments seeking to have governors appoint judges instead. None took hold.

On Monday, though, the age-old debate over judicial elections will take on a new look.

That's when three former governors - Republicans Dick Thornburgh and Tom Ridge, and Democrat Ed Rendell - are set to express their support, in a conference call, for having governors pick the state's top judges. A fourth, George Leader, a Democrat who was governor from 1955 to 1959, has also signed a letter to Gov. Corbett and the legislature indicating the same.

Proponents of so-called merit selection of state appellate judges are hoping those big names can help gather popular support for the long and grueling road toward a constitutional amendment.

Most states, including New Jersey, have some form of a merit selection system.

Under the system, the governor would be able to appoint judges, but could select them only from a pool of applicants screened and preapproved by a bipartisan nominating commission.

The former Pennsylvania governors' proposal would have governors appoint judges to the state's three appellate benches - Commonwealth, Superior and Supreme Courts. Municipal and Common Pleas Court judges would still have to campaign to win their seats in partisan races. Merit-selection supporters reason that voters are more familiar with local candidates.

Later in the long story:
The issue has gained renewed attention in recent months thanks to headlines about high-profile cases of judicial misconduct. The seven-seat Supreme Court has just six justices hearing cases after suspended Justice Joan Orie Melvin was convicted in February on six criminal charges. Jurors found that she had illegally used state-funded staff on her campaigns.

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

Law - "Under Pressure, ALEC Releases Hundreds of 'Model' Bills"

Quotes from a March 15th story from Common Cause:

March 15, 2013 - A two-year campaign by a coalition of public interest groups including Common Cause has pushed the American Legislative Exchange Council (ALEC) to release hundreds of pieces of "model" state legislation secretly developed and pushed into law by corporate interests.

The coalition also includes the Center for Media and Democracy, ColorOfChange, Greenpeace, People For the American Way, Progress Now and a variety of labor organizations. * * *

The legislative database indicates that ALEC is the force behind state laws designed to turn public schools and prisons into corporate profit centers, weaken the bargaining rights of tens of thousands of working people, roll back clean air and clean water laws, and undermine voting rights.

Since March 2012, campaign to expose ALEC has led 42 for-profit corporations to give up their membership; 71 legislators across the country also have announced their departures and 100 more lost their seats in elections last year or have left office.

Posted by Marcia Oddi on Sunday, March 17, 2013
Posted to General Law Related

Ind. Gov't. - "Kentucky [and Indiana] families struggle to care for violent, mentally ill children"

A very long, and chilling, story today in the Louisville Courier Journal, authored by Laura Ungar. Here is a quote:

The Davieses are among the uncounted families in Kentucky, Indiana and across the nation desperately struggling to care for violent, mentally ill children — and they fear they are losing the battle.

They see their lives all too closely reflecting bits and pieces of the terrifying outcome in Newtown, Conn., where 20-year-old Adam Lanza, who media reports say had sensory-integration disorder and was under his mother’s care, went on a shooting rampage in an elementary school that left 20 students and six staff members dead.

Although people with mental illness commit only 5 percent of all violent crimes, according to a 2006 study in the American Journal of Psychiatry, experts and advocates say consistent, appropriate treatment is essential to curbing such violent outcomes. And too often, family members say, the treatment their mentally ill sons or daughters receive is neither.

“Every one of us is Adam Lanza’s mother. We understand where Adam Lanza probably came from, and nobody’s listening,” said Cynthia, who lives with her husband and daughters in a log home in rural Western Kentucky. “There is no help. Parents try to get help. They don’t want to see their kids hurt someone.”

See also this related March 9th story, reported by Marisa Kwiatkowski of the NWI Times. The headline: "Indiana mother, son recall tortuous journey to secure mental health services." The long story begins:
When R.D. Riley was 3 years old, his therapist told him he would become a mass murderer, the boy and his mother recall.

R.D. was kicked out of nearly a dozen schools and programs by the time he was 5. The Batesville, Ind., resident's mother said a special education director told her it was a waste of time to bring R.D. to school because he couldn't learn.

By age 6, R.D. said he was hearing demonic voices that told him to harm his parents. So he did. R.D. stabbed his mother multiple times and hit his father in the head with a flashlight, said R.D.'s mother, Kathy Riley.

Riley said she tried desperately to find solutions to her son's violent behavior, but no one would listen. She said R.D.'s negative behavior continued to escalate as officials either dismissed her concerns or blamed his behavior on bad parenting.

A Times' investigation published last year found a multiagency failure to provide intensive services to some children with severe mental illnesses or developmental disabilities. Children who do not receive needed services may enter the court system as juvenile delinquents or children in need of services.

R.D. was once one of those children. He became a child in need of services in 2001 after Kathy had him arrested to help gain access to mental health services. She believed it was her only choice.

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

Ind. Courts - More on "Lawyer challenges certification of breath test machines"

Updating this ILB entry from March 1st, Susan Brown has a report today in the NWI Times headed "Area lawyers weigh in on challenge to breath tests."

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

Friday, March 15, 2013

Ind. Courts - Supreme Court won't stop Lake Superior Judge Nicholas Schiralli from becoming the next Lake County Juvenile judge

In a story that may surprise many, Bill Dolan reports late this afternoon in the NWI Times:

CROWN POINT | The Indiana Supreme Court won't stop Lake Superior Judge Nicholas Schiralli from becoming the next Lake County Juvenile judge this month.

The high court decided Friday it won't issue an advisory opinion regarding the correct way to select the next juvenile judge because of the complexity of law and court rules surrounding the question, said David Remondini, chief deputy executive of the division of state court administration.

The justices communicated their decision Friday to soon-to-be-departing Lake Juvenile Judge Mary Beth Bonaventura, who expressed her disappointment.

Bonaventura, who objected to the process used to pick her successor, said she will soon step down as juvenile court judge to become head of the Indiana Department of Child Services in Indianapolis.

The 15 other Lake Superior Court judges decided last month they should be first in line for her vacancy by order of their job seniority and agreed upon Schiralli, who has been a county judge since 1976.

Bonaventura objected to that and invited the Indiana Supreme Court to intervene. She wanted the state's high court to order merit selection, a non-partisan process in which a nine-member panel of lawyers and lay people interview any county attorneys willing to apply.

ILB: Here is a list of ILB entries on Judge Bonaventura in reverse chronological order; those relating to this issue start in January 2013.

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

Ind. Courts - "Arizona and Indiana: changing merit selection by statute, not constitutional amendment?"

See this post from Bill Raftery of Gavel to Gavel. It begins:

I’ve noted before the sort of odd situation going on in Arizona and separately in Indiana, name state legislatures trying to alter merit selection systems established in the constitution via statue.
It then quotes extensively from this Feb. 12th ILB post on SB 103. That ILB post posits that SB 103 runs counter to the Ind. Const. by imposing additional requirements on the selection by the Governor of the citizen members of the commission, beyond those outlined in the Constitution.

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

Ind. Courts - Another story about Lake County juvenile court seat

Michael GOnzalez [sic.] of the Gary Post Tribune has just posted this story. Some quotes:

CROWN POINT- Retiring Lake County Superior Court Judge Mary Beth Bonaventura, head of the juvenile division, said she will leave office by late next week, but, along with some backing from the governor, she remained opposed to the way her replacement was made.

Lake Superior Court Chief Judge John Pera backed a colleague’s move to replace Bonaventura, but he refused to comment on a letter he sent to the Indiana State Supreme Court.

“I have concerns about the process,” Bonaventura said about Lake Superior Court Judge Nicholas Schiralli’s move to replace her using his seniority as a judge.

Schiralli, sitting in the county division since the 1970s, was not selected by an Indiana governor using the merit selection process. Instead, he was elected and faces retention votes.

“I like Judge Schiralli as a person and friend, and he’s a qualified judge, but I think there are people in this county who should be able to apply (for the juvenile judge post) who’ve dedicated their lives and careers to helping children.” * * *

Since 2000, Lake County judges who have gone through the merit selection process have been able to transfer to open judicial spots using their seniority. According to a section of Indiana Code, judges who were not selected using the process are not eligible to be reassigned, rotated or transferred to an open position.

According to one judge, who spoke to the Post-Tribune on condition of anonymity, the Superior Court judges voted to support Schiralli’s transfer, despite the Indiana code, claiming there was a body of precedents to support such a move.

In early March, Bonaventura asked Indiana State Supreme Court Chief Justice Dickson to order her replacement be selected using the merit selection process, effectively ruling Schiralli out of the top spot.

Pera responded this week to each of Bonaventura’s positions, calling the state law that blocks a judge who was not selected through the merit selection process, “unconstitutional” and a legislative overreach.

In her two decades of leading the juvenile division, Bonaventura oversaw the building of a new Juvenile Justice Complex, including a detention center with 148 beds, in Crown Point, built a staff of 197 workers and managed 30,000 pending cases and a $6 million budget.

She also remained active, hearing cases three days a week and handling administrative matters the other two days.

“You shouldn’t learn this on the job,” Bonaventura said. “We work in an emergency room environment. The judge runs the jail for kids.”

Earlier this week, Pence said he agreed with Bonaventura’s position the next juvenile court judge should come from the merit selection process. The Lake County Judicial Nominating Commission would take applications, conduct interviews and provide three names to Pence for selection.

For background, start with this ILB entry from earlier today.

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

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

For publication opinions today (3):

In State Farm Insurance Company v. Thomas A. Young and Mary E. Young, Joel P. Genth and Philip K. Genth, INGENIX , a 6-page opinion, Judge May writes:

State Farm Insurance Company (hereinafter, “Policy One”) appeals an order reducing the subrogation lien that Policy One held against Thomas and Mary Young. We affirm. * * *

In light of the unusual facts before us, i.e., that State Farm issued both Policy One and Policy Two, we decline to adopt State Farm Policy One’s premise that its subrogation lien should not be reduced based on State farm Policy Two’s refusal to pay the full amount of the Youngs’ claim. The purpose of subrogation is to avoid unjust enrichment. George, 681 N.E.2d at 186. State Farm paid under Policy One for some of the Youngs’ damages, and thus was entitled to a subrogation lien. But “the one primarily liable,” Wirth, 950 N.E.2d at 1216, and who “in good conscience should have been” paying, id., was State Farm under Policy Two. Therefore, to allow State Farm to recover the full value of its subrogation lien under Policy One, when State Farm did not pay the full value of Youngs’ claim under Policy Two, would unjustly enrich State Farm.

As we may “affirm on any legal theory supported by the evidence adduced at trial,” Trust No. 6011, 967 N.E.2d at 14, we affirm the decision of the trial court.

In Charles Meriwether v. State of Indiana, a 7-page opinion, Judge May writes:
Charles Meriwether appeals his convictions of Class A misdemeanor possession of marijuana and Class D felony possession of paraphernalia. He presents one issue for our review: Whether the trial court abused its discretion when it admitted Meriwether’s statement indicating he had marijuana in his vehicle, and the marijuana and pipe subsequently found therein. We affirm.
In Matthew Bryant v. State of Indiana , a 20-page opinion, Sr. Judge Darden writes:
Matthew Bryant appeals his conviction and sentence for aggravated battery, a Class B felony, and for being a habitual offender. We affirm.

Bryant raises four issues, which we expand and restate as:

I. Whether Bryant was deprived of his right to a speedy trial under the federal and state constitutions.
II. Whether the trial court abused its discretion in admitting evidence.
III. Whether the evidence is sufficient to sustain Bryant’s conviction for aggravated battery.
IV. Whether the trial court abused its discretion in sentencing Bryant.
V. Whether Bryant’s sentence is appropriate.

NFP civil opinions today (8):

NIPSCO Industrial Group v. Northern Indiana Public Service Company, Indiana Office of Utility Consumer Counselor (NFP)

D.P. v. M.Y. (NFP)

Term. of the Parent-Child Rel. of: D.C., M.H., A.J., D.J., & J.J. (Minor Children), and M.H. (Mother) v. The Indiana Dept. of Child Services (NFP)

MJB Lawn Care v. Tower Cleaning Systems, Inc. (NFP)

Kentuckiana Trench Shoring, LLC v. National Water Service, LLC (NFP)

Kimberly R. Goff (Miller) v. Larry Goff (NFP)

Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP)

Term. of the Parent-Child Rel. of J.B., Minor Child, and Her Mother, A.B.: A.B. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (5):

In State of Indiana v. Mark M. Hairston (NFP), a 13-page opinion, Judge Crone writes:

In 2005, a jury convicted Mark M. Hairston of multiple felonies, including class A felony kidnapping, class B felony aiding criminal deviate conduct, two cocaine-related offenses, and battery. The jury also found him to be a habitual offender and a repeat sexual offender. The trial court sentenced him to 147 years. On direct appeal in 2006, this Court affirmed his convictions and sentence.

Hairston later filed a petition for post-conviction relief, claiming that his appellate counsel provided ineffective assistance by failing to raise on direct appeal the issue of insufficiency of evidence to prove the habitual offender count against him. The post-conviction court agreed and vacated his thirty-year habitual offender enhancement.

The State now appeals, claiming that the post-conviction court erred in vacating the habitual offender finding against Hairston. We reverse.

Joshua Gaunt v. State of Indiana (NFP)

Mahoganee K. Edmond v. State of Indiana (NFP)

Tyrone Frazier v. State of Indiana (NFP)

Christopher Whirl v. State of Indiana (NFP)

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

Ind. Courts - "Judges, of all people, should respect the law. This is Lake County at its ugliest."

The quote is from a March 13th editorial in the NWI Times, written by Doug Ross:

Lake County's judicial selection process is a model the rest of the state should follow. It is shameful that some of Lake County's judges are attempting to circumvent it.

Lake Juvenile Court Judge Mary Beth Bonaventura, who is leaving that position to become the new director of the Indiana Department of Child Services, is outraged -- as she should be -- that her replacement on the bench could be chosen by seniority rather than merit.

Bonaventura has asked the Indiana Supreme Court to require the merit selection process be followed.

Lake Superior Court Chief Judge John Pera sent Indiana Supreme Court Justice Robert Rucker, a Gary native, his own lengthy letter Monday, arguing against a state law forbidding the transfer of a judge who has not gone through the merit selection process and asking that Lake Superior Court Judge Nicholas Schiralli be allowed to transfer to the juvenile court.

Schiralli has been a judge longer than anyone but Judge Gerald Svetanoff, who doesn't want the juvenile court job.

This not about Schiralli's qualifications but about the selection process itself.

Joel Schumm, a clinical professor of law at Indiana University's Robert H. McKinney School of Law in Indianapolis, said having Lake County's judges decide this on their own is unconstitutional and sets a dangerous precedent. Schumm doesn't see how the Indiana Supreme Court can avoid weighing in on this issue.

He's right.

Judges, of all people, should respect the law. This is Lake County at its ugliest.

Schiralli, who serves in the county division, was elected. That's a flaw in the state law that has since been corrected. Merit selection selection now applies to that position as well.

Gov. Mike Pence said Tuesday he agrees with Bonaventura that state law requiring the merit selection process must be used.

Former Indiana Chief Justice Randall Shepard supported the merit selection law. His successor, Chief Justice Brent Dickson, a Hobart native, now chairs the state's Judicial Nominating Commission.

The Indiana Supreme Court now needs to support the application of the merit selection law in this situation.

Pick the best judge, not the most senior.

Going rogue might be in vogue, but not when it comes to our courts.

For background on this matter, see earlier ILB posts, including this most recent one from March 13th.

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

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

Updating this ILB entry from Feb. 22nd, Sophia Tareen of the AP reported yesterday in a long story that the Illinois Governor and Attorney General are at odds over whether to appeal:

SPRINGFIELD, Ill. (AP) -- Gov. Pat Quinn said Wednesday that he wants the Illinois attorney general to appeal a federal court ruling that the state's last-in-the-nation concealed carry ban is unconstitutional, a move that would take it before the U.S. Supreme Court.

But Attorney General Lisa Madigan said she prefers to wait and see whether lawmakers craft a new law this spring that would allow the concealed carry of weapons, as the federal appeals court ordered them to do.

A three-judge panel of the 7th U.S. Circuit Court of Appeals struck down Illinois' ban last year and gave lawmakers until early June to legalize the practice. Last month, the court declined Madigan's request that the full appeals court reconsider the ruling.

The matter has led to intense hours-long hearings at the State Capitol, where lawmakers and anti-violence advocates from Chicago - which has seen a spike in violence - have been pitted against gun rights advocates from less populated and more conservative areas. The matter has placed Illinois in the spotlight at a time when the nationwide debate over gun control has been reignited.

Posted by Marcia Oddi on Friday, March 15, 2013
Posted to Ind. (7th Cir.) Decisions

Thursday, March 14, 2013

Courts - Cameras at SCOTUS oral arguments suddenly look much less likely than ever

Stephanie Condon reports today for CBS News in a story that begins:

Two Supreme Court justices today expressed concern that if cameras were present during oral arguments in Supreme Court cases, the justices may feel pressured to edit what they say.

"You think it won't affect you, your questioning," Justice Stephen Breyer said today during a hearing of a House Appropriations Committee subpanel. However, he continued, "the first time you see on prime time television somebody taking a picture of you and really using it in a way that you think is completely unfair... in order to caricature [your position]... the first time you see that, you will watch a lot more carefully what you say."

Justice Anthony Kennedy agreed, adding that he wouldn't want that "insidious dynamic" in the courtroom.

The justices were on Capitol Hill today to testify before the Financial Services and General Government Appropriations Subcommittee about their annual budget. Rep. Mike Quigley, D-Ill., asked the justices about cameras in the courtroom, which has been a matter of debate for years.

More from the long story:
Breyer said today he would have to consider more fact-based evidence on the issue, such as studies on the impact of cameras in the courtroom in California, or its role in shaping public opinion. "I know that's a bore, but that's where I am at the moment," he said.

However, that fact-based evidence has long existed, Bruce Collins, corporate vice president and general counsel for C-SPAN, pointed out to CBSNews.com.

In 1994, with approval from then-Supreme Court Chief Justice William Rehnquist, the Federal Judicial Center published a report called Electronic Media Coverage of Federal Civil Proceedings. The report was based on a years-long study on the use of televised and still camera coverage in six trial courts and two appellate courts. The use of cameras, the study found, "didn't have any harmful effect on the administration of justice," Collins said.

"That means they didn't see any lawyers grandstanding, they didn't see witness intimidation, they didn't see jury intimidation," he continued. The report's first listed recommendation was to authorize the use of cameras in federal courts of appeals and district courts nationwide.

On top of that, Collins noted, nearly every state in the country allows court proceedings, including criminal, civil and appellate proceedings, to be televised.

"If Justice Breyer says he wants to have studies -- OK, let's do it again," Collins said. "But why don't we first read this report from 1994 and then talk to the state judges?... We've got a couple decades of experience with how the administration of justice is affected by televising courts, and basically it's a non-story."

Tal Kopan has a story on Politico:
Rep. Mike Quigley (D-Ill.) took his time during the House Appropriations Financial Services and General Government Subcommittee hearing to question the justices on why the Supreme Court opposes the introduction of cameras in that court.

“We are a teaching institution, and we teach by not having the television there, because we teach that we are judged by what we write, the reasons that we give,” Kennedy said, saying he believed the majority of his colleagues felt the same way.

He and Breyer both expressed concern that cameras present during oral arguments would fundamentally change the way justices operate.

“We feel, number one, that our institution works. And in my own view, there would be considerable reluctance where I would have the instinct that one of my colleagues asked a question because were on television. I just don’t want that insidious dynamic to come between me and my colleagues,” Kennedy said.

“In all my life, I can’t imagine the Supreme Court acting in a way other than they normally would, whether there were cameras or not, but I respect your point,” Quigley said.

Breyer said that while he very much likes the idea of a camera for certain oral arguments -- turning to Kennedy and asking if he remembers the Arkansas case on term limits (presumably U.S. Term Limits, Inc. v. Thornton) and how excellent arguments were in that “difficult” case --, he is at this moment against bringing in cameras.

“We’re a very conservative institution … and the last thing any of us would like to do is to make it worse as an institution,” Breyer said. “People who you would find surprising, I won’t say who they are, they come to me and they say, ‘Be careful, you think it won’t affect your questions. … If you see on television a person taking a picture of you and really mischaracterizing [what you say], … the first time you see that, the next day you’ll watch a lot more carefully what you say. Now that’s what’s worrying me.”

Breyer said he wants to see more studies of the impact of courtroom cameras (“not paid for by the press”), for example in California and really analyze the issue before he would feel ready to allow them in.

ILB: Of course Justices Breyer and Kennedy has never been in favor of televising oral arguments. But newer Justices Kagan and Sotomeyer did not rule out the idea, at least before they were named to the Court. Adam Liptak reported Feb. 18th in his NYT Sidebar column:
WASHINGTON — Justice Sonia Sotomayor, populist, revealed a paternalistic streak this month, announcing that she had rethought her enthusiasm for video coverage of Supreme Court arguments.

At her confirmation hearings in 2009, she said she was in favor of letting citizens see their government at work. “I have had positive experiences with cameras,” she said. “When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.” * * *

The court’s newest member, Justice Elena Kagan, has also done an about-face. At her confirmation hearings in 2010, she said video coverage “would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” Two years later, she said she now had “a few worries, including that people might play to the camera” and that the coverage could be misused.

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

Ind. Gov't. - What does “reasonable particularity” mean as a requirement for records requests under the Access to Public Records Act?

Steve Key, executive director and general counsel for the Hoosier State Press Association, has given the ILB permission to reprint his recent HSPA column.

A Huntington resident has asked the Indiana Supreme Court to sort out what “reasonable particularity” means as a requirement for records requests under the Access to Public Records Act. [ILB: See the Jan. 29 COA opinion in Seth Anderson v. Huntington County Board of Commissioners.]

The case stems from Seth Anderson’s request for all emails sent or received over a 4½ month period by the three Huntington County commissioners and the county’s human resources director.

Anderson’s attorney, Justin Wall of Huntington, wrote in the petition to transfer the case to the state’s high court that officials initially denied Anderson’s request because it lacked “reasonable particularity” about the records being requested.

Anderson decided to file a lawsuit seeking the records in Huntington County Superior Court before Special Judge Kenton Kiracofe.

Kiracofe ruled against Anderson, but ironically the commissioners decided to comply with Anderson’s request before the ruling.

Although he had the records, Anderson appealed the trial court ruling, but the appellate panel of Judges John Baker, Michael Barnes and Elaine Brown also ruled against him.

Baker, who wrote the opinion, relied on a string of public access counselor opinions that refer to email as a method of communication, not a type of record. The opinions also require requests for emails to include both the sender and recipient to be considered reasonably particular.

So despite the fact that the county was able to identify the 9,500 records Anderson requested and make them available after redacting confidential material, Baker ruled the request wasn’t particular enough under the law.

While deferring to the public access counselor’s office, the case seems to run contrary to another Court of Appeals decision from last year, Jent v. Fort Wayne Police Department. [ILB: See the Aug. 15, 2012 COA opinion here, 4th case.]

In that case, inmate Michael Jent requested “daily incident log reports” from the Fort Wayne Police Department of specific crimes reported.

Sgt. Andrew Bubb denied the request to the extent that the records were investigatory records. But he said the police agency would respond with daily log records if the department still had those records.

Bubb also explained that the department didn’t have the software sophistication to search by the parameters outlined by Jent.

The Allen Circuit Court ruled in favor of the police department when Jent filed suit under the Access to Public Records Act. A panel of Judges Edward Najam, Patricia Riley and Carr Darden heard Jent’s appeal.

In addressing the question of reasonable particularity, Najam’s opinion noted that the appellate courts had not interpreted the language of the Access to Public Records Act.

The opinion then drew upon the rules of discovery in trial proceedings, where courts have found that a requested item was reasonably particular if it enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request.

In Jent’s case, his added detail about which records he was requesting actually worked against him.

“Depending upon the storage medium, the details provided by the person making the request may or may not enable the agency to locate the records sought,” Najam wrote. “Indeed, here the FWPD was unable to fulfill the request using the search parameters Jent provided.”

While Jent lost his case, applying Najam’s interpretation to the Anderson case should have changed the result since Huntington County actually provided the records requested.

Hopefully, the Indiana Supreme Court will take the Anderson case and clarify “reasonable particularity.”

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

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Gersh Zavodnik v. Brian Richards and Njgolfman.com a/k/a Savva's Golf Enterprises a/k/a ProGolfJerseyCity@yahoo.com and, Steve Panayiotov a/k/a Steve Panayiotou a/k/a Savva Panayiotou , a 9-page opinion, Judge Barnes writes:

Gersh Zavodnik appeals the dismissal of his lawsuits against Giselle Guzman, Brian Richards, and Steve Panayiotou. We affirm.

The sole issue is whether the trial court properly dismissed Zavodnik’s lawsuits against Guzman, Richards, and Panayiotou based upon their similarity to previous lawsuits that had been dismissed without prejudice under Indiana Trial Rule 41(E).

From 2008 through 2010, Zavodnik filed a total of twenty-seven lawsuits against defendants who resided in five different states and ten different countries. Guzman and Richards were defendants in two separate lawsuits; Panayiotou does not appear to have been a defendant in this original batch of suits. These lawsuits were consolidated before Judge Timothy Oakes of the Marion Superior Court. On March 2, 2011, Judge Oakes dismissed without prejudice all twenty-seven lawsuits under Indiana Trial Rule 41(E) for Zavodnik’s failure to comply with local rules and failure to effect service upon a number of defendants. On March 1, 2012, this court affirmed the dismissal of twenty-four of the lawsuits, including those against Guzman and Richards, while reversing three of the dismissals. Zavodnik v. Gehrt, No. 49A02-1105-CT-393 (Ind. Ct. App. March 1, 2012). * * *

Judge Dreyer acted properly in dismissing both complaints against Guzman, Richards, and Panayiotou. Zavodnik’s only remedy if he wishes to continue to pursue legal action against those parties is to obtain reinstatement of his original complaints before Judge Oakes. We affirm.

In Michael Bowser v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:
Michael Bowser appeals his two convictions of battery by means of a deadly weapon, both Class C felonies. Ind. Code § 35-42-2-1 (2008). We affirm.

Bowser raises two issues, which we restate as:

I. Whether the trial court abused its discretion in denying his motion for severance.
II. Whether the evidence is sufficient to sustain his convictions.

NFP civil opinions today (4):

Sherri A. Cornejo v. Review Board of the Indiana Department of Workforce Development and Houchens Food Group, Inc. (NFP)

Citizens Financial Bank v. Richard Cooper and Peggy Cooper (NFP)

Richard Lindsey v. City of Clinton, Indiana (NFP)

Heath Lord v. Ashley Lord (NFP)

NFP criminal opinions today (2):

John F. Minter-Bey III v. State of Indiana (NFP)

Bennie Chamberlain v. State of Indiana (NFP)

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

Courts - Wis. law students get clinical experience with 7th Circuit

Here is the news release from the U. of Wisconsin Law School. It begins:

Beginning next fall, a new clinical offering at the University of Wisconsin Law School will provide six law students with in-depth experience in appellate advocacy.

The Federal Appeals Project, an expansion of UW Law School’s existing Oxford Federal Project, combines coursework on federal appellate procedure with work on a criminal case before the 7th Circuit Court of Appeals.

According to Adam Stevenson, assistant clinical professor at the Law School, “Through classroom instruction and hands-on experience, the Federal Appeals Project will address a full spectrum of federal criminal law and legal issues, so that students get a broad, yet deep view of the issues defendants face.”

Working in pairs, clinic students manage all aspects of a criminal appeal assigned by the 7th Circuit—including investigation, briefing, and possibly even arguing before the court. Besides interaction with real clients, students may also meet with other attorneys, government counsel, and members of the district courts and 7th Circuit.

(h/t @AppellateDaily)

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

Courts - "Merit selection for judges: efforts to adopt it, extend it, end it or change it advance in 4 states in last 3 days"

See the story by Bill Raftery in Gavel to Gavel.

[More] See this update.

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

Ind. Courts - "Judge refuses to order review of dying man's care"

Updating three earlier ILB entries, from Jan. 14th, Jan. 17th, and Jan. 21st, the end-of-life story continues. Tim Evans reports today, in the Indianapolis Star:

A judge has denied a request to have an independent guardian review the condition of Paul G. Smith, the retired attorney and former Hamilton County court magistrate at the center of a bitter family battle for control of his care.

More than two months have passed since doctors at St. Vincent Indianapolis Hospital began providing Smith “end-of-life” care after a physician determined he was likely to die within a day because of multiple organ failure.

That decision led care providers to remove Smith, 88, from the ventilator that was helping ease his labored breathing and temporarily cut off food and water.

The care plan also ignited a legal fight between Smith’s daughter and longtime caregiver, Susan Rissman, and another of Smith’s daughters, Judith Sly, who has legal control over their father’s care and finances. Rissman disagreed with the approach to her father’s treatment directed by Sly and St. Vincent.

In a ruling filed Tuesday, Hamilton Superior Court Judge Steven Nation denied Rissman’s request to have an independent, court-appointed guardian review Smith’s care and condition and report to the court. * * *

It is an approach, hospital officials and doctors insisted, that follows wishes Smith set out in a living will he signed in 2004. The document states he does not want life-prolonging procedures if they only serve to artificially extend the dying process.

But after more than five weeks had passed and Smith’s condition appeared to be improving — to the point where he reportedly was receiving some solid foods and drinking Pepsi from a can — Rissman’s attorney filed the request for a review of his condition and care.

Nation previously denied two other requests filed by Rissman’s attorney, Tim Stoesz, to intervene in Smith’s care.

The judge ruled both times that the living will is valid and adequate for directing Smith’s treatment.

Posted by Marcia Oddi on Thursday, March 14, 2013
Posted to Ind. Trial Ct. Decisions

Wednesday, March 13, 2013

Ind. Courts - Technology improvements re Indiana appellate courts

A note went out this afternoon from the Court's Office of Technology to appellate practitioners:

Dear Appellate Counsel –

I am writing to inform you of a change in the email address used by the Clerk of the Supreme Court, Court of Appeals, and Tax Court to transmit orders, opinions, and notices pursuant to Appellate Rule 26(a). The email account has been upgraded, and all orders, opinions, and notices are now being sent from dispositions@courts.in.gov. Please add this address to your list of contacts or "white list” of safe senders so that your office’s spam filter will recognize the message as safe.

We have also upgraded the live webcasts of oral arguments presented in the courtrooms of the Indiana Supreme Court and Court of Appeals. Webcasts are now accessible from a wider range of devices - including iOS (iPhones, iPads) devices and Mac and Windows PCs - at http://mycourts.in.gov/arguments during the live proceeding. We are converting past oral arguments to the new format and will make replay available later this Spring.

A reader writes the ILB to express hopes that the first paragraph means that the problems some have reported in not receiving opinions and orders were legitimate and that those problems have been addressed.

As for the second paragraph, being able to watch webcasts on other than Windows computers will be great. Checking out the oral arguments page right now, I see that already you can listen to some oral arguments as podcasts via MP3 files.

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

Ind. Decisions - Supreme Court decides one today

In Brandy L. Walczak, Individually and on Behalf of Those Similarly Situated v. Labor Works - Fort Wayne LLC, d/b/a Labor Works, a 13-page, 5-0 opinion, Justice Massa writes:

James Whitcomb Riley (1849–1916), our celebrated “Hoosier Poet,” is widely credited with the origination of the Duck Test; as he expressed it, “[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”1 Brandy Walczak successfully applied for employment at Labor Works, received job assignments and paychecks, and was never fired or laid off. Nevertheless, when she filed a class action lawsuit against Labor Works under the Indiana Wage Payment Act, Labor Works argued that day laborers like Walczak are involuntarily separated from the payroll at the end of every shift and thus required to proceed under the Wage Claims Act. Because we conclude Walczak had a reasonable expectation of continuing to receive job assignments from Labor Works on the day she filed her claim—in short, that Walczak passes the Duck Test—we hold she was not separated from the payroll for the purpose of the Wage Claims Act and may proceed with her claim as she filed it, under the Wage Payment Act. * * *

Ultimately, we believe the drafters of the Wage Payment Act intended the statute to benefit the entire Indiana workforce, including day labor employees. Day labor is not a newcomer to Indiana’s economy, and the drafters of the Wage Payment and Wage Claims Acts were likely aware of its role in the state’s employment landscape. See, e.g., Indiana Bridges Historic Context Study, 1830s–1965 INDOT CC No. 050108, M&H Architecture, Inc. (Feb. 2007) (citing “Report of the Indiana State Highway Commission,” in Year Book of the State of Indiana for the Year 1931 1076–1077 (Indianapolis, Ind.: William B. Burford, 1932)) (stating that in 1932, the ISHC “employed 8,000 men on an hourly basis for day-labor”). Therefore, day labor employees are no less entitled to the statutory protections that the General Assembly has provided than any other Hoosier employees.

Conclusion. We hold that Brandy Walczak, on the day she filed her complaint, had not been separated from the Labor Works payroll. She may thus proceed in the trial court with her claim under the Wage Payment Act. We therefore reverse the trial court’s dismissal of Walczak’s claim and remand this case for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, March 13, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Lawrence County Commissioners pass an ordinance restricting possession of weapons in the Courthouse and Courthouse Plaza"

Read the long story here, via WBIW.com, Bedford.

Posted by Marcia Oddi on Wednesday, March 13, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Benjamin Mentink v. Karen Downing (NFP)

Pat Fleming and Bob Steffan d/b/a Dr. Bob's RV Service v. Santander Consumer USA, Inc. and Gemb Lending, Inc. (NFP)

NFP criminal opinions today (10):

N.O. v. State of Indiana (NFP)

Michael A. Combs v. State of Indiana (NFP)

Troy Farris v. State of Indiana (NFP)

Sedrick J. Grandberry v. State of Indiana (NFP)

Tyler Becker v. State of Indiana (NFP)

Joshua D. Huff v. State of Indiana (NFP)

Victoria Anderson v. State of Indiana (NFP)

J.A.H. v. State of Indiana (NFP)

Lavern Baltimore v. State of Indiana (NFP)

Bruce Anderson v. State of Indiana (NFP)

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

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

In Thomas v. Zatecky (SD Ind., Barker), a 6-page opinion, Chief Judge Easterbrook writes:

Kelly Thomas was sentenced to 65 years’ imprisonment for murder. Indiana’s judiciary affirmed his conviction on appeal and rejected his collateral attack. Thomas v. State, 965 N.E.2d 70 (Ind. App. 2012). A federal district judge denied Thomas’s petition for a writ of habeas corpus under 28 U.S.C. §2254, and he filed a notice of appeal. The judge declined to issue a certificate of appealability, see 28 U.S.C. §2253(c), and certified that the appeal had been taken in bad faith. See 28 U.S.C. §1915(a)(3). Thus Thomas must pay the $455 appellate fees, before any substantive step can be taken on appeal, unless he persuades this court to permit him to proceed in forma pauperis.

Thomas has filed a motion asking us to disregard the district court’s certification of bad faith. He contends that prisoners simply need not pay appellate filing and docketing fees. * * *

To sum up: The portions of §1915 and §1915A applicable exclusively to prisoners’ civil actions do not apply to collateral attacks on criminal judgments. But the portions of §1915 that apply generally are as relevant to collateral litigation as to other suits and appeals. Section 1915(a)(3) is one of those generally applicable provisions.

We therefore deny Thomas’s request that we permit him, and all other applicants for collateral relief, to file appeals without regard to the fees required by §1913 and the resolutions of the Judicial Conference. Thomas is, however, entitled to contest in this court the propriety of the district judge’s declaration that the appeal has been taken in bad faith—a phrase that despite lay usage has been understood to mean objective frivolousness. See Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). A frivolous appeal never meets the standard for a certificate of appealability. But an appeal can be nonfrivolous and still flunk the standard established by §2253(c)(2), which conditions a certificate of appealability on “a substantial showing of the denial of a constitutional right.”

Thomas has filed a document captioned “Petition for Leave to File and Proceed on Appeal In Forma Pauperis”, but it does not attempt to demonstrate that the appeal is non-frivolous, let alone that a constitutional issue is “substantial.” We give him 21 days to file in this court a motion for permission to proceed in forma pauperis (which depends on demonstrating that he cannot pay the fees and that the appeal is not frivolous) and a certificate of appealability (which depends on “a substantial showing of the denial of a constitutional right”). Failure to meet this schedule will lead us to dismiss the appeal for failure to prosecute.

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

Ind. Gov't. - "Left in dark on charter appeals"

An editorial today in the Fort Wayne Journal Gazette begins:

Charter schools are public schools, financed with your tax dollars. Yet when Ball State University – a public, taxpayer-subsidized school – hears appeals from three local charter schools trying to save their Ball State-authorized charters, the hearings will be secret.

No public, no video or audio recording of the hearing. Period.

Why? A Ball State spokeswoman says the university considers the hearings – which are part of the schools’ formal appeals of Ball State’s decision to revoke their charters – an administrative matter that is similar to a personnel or disciplinary hearing.

But they aren’t. The hearings will determine the fate of Timothy L. Johnson Academy, Imagine MASTer Academy and Imagine Schools on Broadway. The revocation has garnered much public interest, and the public has every reason to hear details on why Ball State revoked the charter – especially since at least one school, the Johnson Academy, is already seeking a charter from another authorized sponsor.

By all appearances, Ball State was correct in revoking the charters, but it has an appeal process in place. The university’s Office of Charter Schools has developed a very detailed process for hearing an appeal, including listing who may attend. But it does not specifically bar the public.

Sadly, because Ball State President Jo Ann Gora will appoint the hearing panel, it appears to fall outside the scope of the state’s open meetings law.

Even worse, such exceptions to the open meetings law are too typical. While the essence of the law is solid, it includes far too many loopholes and fails to include some government boards – such as Ball State’s charter appeals board. And though the law specifically instructs judges to liberally construe the law in favor of openness, that is not always the case.

Indeed, in far too many areas, Indiana continues to foster a closed government atmosphere. * * *

The House approved another bill that would allow local governments to charge up to $20 an hour if a request for public records requires more than two hours of public employee work. [ILB - this would be HB 1175]

Posted by Marcia Oddi on Wednesday, March 13, 2013
Posted to Indiana Government

Ind. Gov't. - Questions about HB 1175

Some may recall ILB reports of the long-going court battle between the Louisville Courier Journal and Kentucky officials over public access to records in fatal child abuse, neglect cases. See this post from Jan. 22, 2012 and this one from Feb. 27, 2012.

Today Governing has a long story by Jonathan Walters headed "The Tennessee Department of Children's Services Versus the Media: Historically, the two have never gotten along. But they need to learn to play nice if they truly want to help children." Here are some quotes [ILB emphasis]:

It's painful to watch any children and family services system in turmoil, but the goings on in Tennessee right now might be setting a new standard for disaster. The Tennessee Department of Children's Services (TDCS) is locked in a high-profile battle with the state's most prominent newspaper, The Tennessean, which has published a series of articles questioning the department's performance in analyzing and reporting on child fatalities. * * *

So it's no surprise that last month -- the day before she was due to testify before the state Senate Health and Welfare Committee on TDCS's record keeping and complaint investigation process -- TDCS Commissioner Kate O'Day tossed in the towel, announcing her resignation after two years on the job.

It sounds like it was a tough two years: The Tennessean series revealed that the department has experienced severe turmoil at the top. During her two-year tenure, O'Day fired more than 70 TDCS executives. But the current crop of problems really arose when the agency tried to stonewall the paper's request for records relating to child fatalities. TDCS agreed to release files about child deaths, but put a $55,584 price tag on the delivery of that information. After the predictable hue and cry from the media, the fee was dropped to the less-than-bargain-basement rate of $34,225 (the high price tag was due to all sorts of implausible sounding factors, including the high cost of copying, redacting and then hand delivering material that was available electronically).

But here's the real issue, and one that's not easily solved: In most jurisdictions around the country, the media and departments of children and family services have a long and stormy history. It starts when something bad happens to a kid and the local media finds out about it. The media proceeds to beat the stuffing out of the department, regularly driving even excellent staff to new careers and jurisdictions. So it's no surprise that departments of children and families have a history of being less than forthcoming with the media, typically citing confidentiality as the roadblock to transparency.

ILB: Yes, we've had disputes in Indiana too. None, however, involving enormous price-tags on the delivery of public information.

Could this happen if the General Assembly passes HB 1175, now eligible for 2nd reading in the Senate, and seemingly moving below the radar??

Posted by Marcia Oddi on Wednesday, March 13, 2013
Posted to Indiana Government

Ind. Decisions - More on the blogger Daniel Brewington appeal

Updating earlier ILB posts on the Daniel Brewington Court of Appeals decision (this one from Feb. 25th has links to Brewington's petition for transfer, and the Volokh and ACLU amicus briefs in support), Attorney General Zoeller has now filed the State of Indiana's response.

The link is thanks to Prof. Eugene Volokh's post last evening, headed "Indiana Attorney General’s Office Agrees: Indiana Supreme Court Should Review the Brewington Case." Some quotes:

Yesterday, the Indiana Attorney General’s office filed its response with the Indiana Supreme Court, agreeing that the Indiana Supreme court should consider the matter, and describing the Indiana Court of Appeals decision as “overbroad.” That is very good, I think. The amici that I represent want to see the Indiana Court of Appeals decision reversed, because it broadly threatens free speech in Indiana. The AG’s position here sends the same message.

(Other parts of the AG’s position — its view that Brewington’s conviction should nonetheless be affirmed on other grounds — are, I think, mistaken; I hope to blog about this shortly, though speaking only for myself, and not for the amici.)

ILB: So where are we now in the process? According to Prof. Schumm: As the State filed its response March 11, Brewington's attorney (Sutherlin) will have 10 days to file a final reply. Then the case with transmit to the Court, which could mean a decision within about three weeks after that.

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

Ind. Courts - "State legislators overreached their authority when they passed a law prohibiting judges from transferring to a different court unless they have gone through merit selection, Lake Chief Judge John Pera wrote Monday

That is the beginning of Marisa Kwiatkowski's latest story on filling the Lake County court vacancy created when long-time Lake Juvenile Court Judge Mary Beth Bonaventura accepted Gov. Pence's appointment as director of the Indiana Department of Child Services. From today's story:

At issue is the Lake Superior Court's announcement that Judge Nicholas Schiralli would replace Lake Juvenile Court Judge Mary Beth Bonaventura, who is leaving the bench to become director of the Indiana Department of Child Services. Schiralli would transfer into the position based on seniority.

Bonaventura disagreed with the method of choosing her replacement and wrote letters asking the Supreme Court justices to require her successor be chosen through merit selection rather than a transfer, letters obtained by The Times show.

She argued Schiralli's move to juvenile court would violate a Lake County-based rule and a number of Indiana laws, including one that states a judge who has not been appointed through merit selection is ineligible to transfer, according to her letter dated Feb. 25. Schiralli did not go through merit selection.

Through merit selection, a Judicial Nominating Commission interviews applicants and chooses three finalists to present to the governor, who has final choice.

Bonaventura was appointed through merit selection.

In his letter to the Supreme Court, Pera argued merit selection is not the only way to appoint a qualified juvenile court judge. He said such a notion is offensive to trial judges elsewhere in the state who were elected to their positions. It also implies the Lake Superior Court judges are not equal to one another once in office, Pera said.

More from the long story:
Pera asked the Supreme Court justices to deny Bonaventura's request to intervene. He responded to each of her arguments, paying particular attention to the state statute prohibiting the transfer of a judge who has not gone through merit selection, the letter shows.

Pera argued in his letter the law is "a legislative overreach into the exclusive province of the judiciary" and is "unconstitutional." He said the separation of powers prevents the Legislature from "meddling" in the judiciary. * * *

Joel Schumm, a clinical professor of law at Indiana University's Robert H. McKinney School of Law in Indianapolis, said the judges set a "dangerous precedent" by deciding on their own that a statute is unconstitutional. He said the constitutionality of a law typically is determined through a court case and argument from both parties.

"I'm not familiar with a court, on its own, ever deciding to do something like this," Schumm said.

He said Bonaventura's strongest argument is that Schiralli cannot transfer into juvenile court because it would be against state law for him to do so. Schumm said her other arguments — including her suggestion that a current merit-selected judge could not be reassigned to the juvenile division — are on shakier ground.

A similar transfer recently occurred in the superior court system in Allen County.

"I cannot imagine that the Indiana Supreme Court is eager to be dragged into a dispute between Judge Bonaventura, a long-serving and well-respected judge, and her distinguished colleagues who are also well-known to the justices," Schumm said. "But I don’t see how the court can ignore the issue at this point."

Here, thanks to the NWI Times, is a copy of Chief Judge John Pera's March 11, 13-page letter to the Indiana Supreme Court.

Some quotes from the letter:

[beginning at p. 10] The true interpretation of the separation of powers is that any one department of the government may not be controlled or even embarrassed by another department, unless so ordained in the Constitution. In re Senate Act No. 441, 332 N.E.2d at 98 (striking down as unconstitutional legislation prescribing qualifications for county court judges that required such judges to take and pass a special examination administered by the Supreme Court with a standard of examination less than that fixed to practice law as a violation of the separation of powers).

The legislature cannot interfere with the discharge of judicial duties or attempt to control judicial functions of superior courts once they are created. Montfort, 723 N.E.2d at 411-412 (Ind. 2000). The courts possess the entire body of the intrinsic judicial power of the state, and the other departments are prohibited from assuming to exercise any part of that judicial power. Id.

The Transfer Restriction Statute purports to set qualifications for Judges of the Lake Superior Court in a manner that subjugates it to the control of the legislature and attempts to dictate to the Lake Superior Court the manner in which it may carry out its judicial function.

When a person becomes a Lake Superior Court Judge, he or she holds all of the powers of such office and stands equal to fellow Lake Superior Court Judges. The legislature cannot create a superior court staffed with several judges with equal powers and then declare, in an Orwellian manner, that some superior court judges are more equal than other superior court judges.

Judge Bonaventura's position conflicts with the 2000 Supreme Court Order and the firm and consistent holdings of our appellate courts that the Executive and Legislative branches of Government cannot intermeddle with the internal functions of the Judiciary. The adoption of Judge Bonaventura's analysis will result in the usurpation by the Indiana Legislature of the authority the Supreme Court has to control judicial functions.

Determining which judges serve in which Divisions of the Lake Superior Court is an inherent judicial function committed exclusively to the judicial branch. The Transfer Restriction Statute does no more than dictate to the Lake Superior Court, which Judges of the court may serve in its Divisions. Accordingly, the Transfer Restriction Statute should be given no effect by this Court. This legislative overreach into the judiciary by such statute should be
rejected. * * *

[beginning at p. 12] The gravamen of Judge Bonaventura's Letter Petitions to this Court and her attempts to bar Judge Schiralli from transferring to the Juvenile Division is the untenable notion that elected judges are somehow less qualified than judges appointed by way of Merit Selection.

This Court should dismiss such notion out of hand and spare great offense to the trial judges of this state who tirelessly work in all manner of courts upon all types of cases. In all counties, circuits and disrricts of this State, except Lake County, and even in St. Joseph County (the only other county in which Superior Court judges are selected via Merit Selection), elected judges diligently and competently serve as judges in juvenile cases and in juvenile courts.

Judge Bonaventura's claim that the Juvenile Division requires some "unique" qualifications and that Judge Schiralli, and apparently any other current Lake Superior Court Judge, does not possess the requisite "unique" qualifications required to serve in the Juvenile Division insults the outstanding judicial officers that already serve the public in the Lake Superior Court.

It is without any reservation or equivocation that we state that any current Judge of the Lake Superior Court has the knowledge, skill, character, integrity, competence, and ability to serve in the Juvenile Division. At least four (4)current judges have experience in the Juvenile Division and each can attest that such position requires no set of legal skills, no unique sense of empathy, no special legal knowledge, and no greater devotion to the rule of law and the administration of justice than that required to serve in the Civil Division, Criminal Division or County Division.

See earlier ILB posts, beginning with this most recent one from March 12th.

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

Tuesday, March 12, 2013

Ind. Courts - "Pence backs merit selection for new juvenile court judge"

Following on this ILB entry from earlier this afternoon, Dan Carden has now posted a story on the NWI Times website that reports:

Gov. Mike Pence is siding with Judge Mary Beth Bonaventura, his new director of the Indiana Department of Child Services, in favoring merit selection to replace her as head of Lake County's Juvenile Court.

The Republican governor told reporters Wednesday Bonaventura was chosen through merit selection, has done an outstanding job as juvenile court judge and her successor should be picked the same way.

"I think Lake County, under Judge Bonaventura, has become a model for the nation with its juvenile court system," Pence said. "I think it's extremely important that the families and communities and kids that are affected by that receive the same level of service and leadership that they've received over the last 30 years."

Under merit selection, which is intended to remove politics from the courtroom, Pence would appoint the new juvenile court judge from among three candidates recommended by a nine-member panel headed by Supreme Court Justice Robert Rucker, a Gary native.

Bonaventura last week asked Indiana's high court to prevent Judge Nicholas Schiralli from becoming the new juvenile division leader, because he was initially elected judge, not chosen through merit selection, and shouldn't be eligible to transfer to the juvenile court post.

Pence said he's been monitoring the dispute and hopes it can be resolved in a way that satisfies all parties, but reiterated he supports merit selection for Bonaventura's replacement.

"It can officially be the first time that I agree with Judge Bonaventura," Pence said. "So you can put me down as a yes."

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

Ind. Gov't. - "State government’s ballooning role in higher education is hard to miss"

From Sunday's lead editorial in the Fort Wayne Journal Gazette:

State government’s ballooning role in higher education is hard to miss in the dozens of bills aimed at fixing what Republican lawmakers claim is broken. But the danger for all Hoosiers is that the regulations and red tape they seek to add run counter to the goals of creating more college graduates and reducing administrative overhead.

As The Journal Gazette’s Niki Kelly reported Sunday, efforts to push students to degree completion in four years are finding resistance from students themselves.

“It only works if you don’t have a job and all you do is go to school,” said Columbia City resident Nick Brewer. “Four-year degree programs are a thing of the past with the economy and tuition costs.”

At 28, Brewer is precisely the target demographic for Indiana’s efforts to increase the number of residents with a college degree. He’s been working toward his degree in hospitality management at IPFW for 10 years. He holds a full-time job, has a mortgage and two small children.

Brewer’s challenge is the struggle to balance school, work, everyday life and finances. It’s not – as some legislators seem to believe – that the university has created undue barriers to keep him in school and charge him more and more tuition.

An angry parent’s complaint of an extra semester or year to pick up a required course doesn’t justify the bureaucratic morass the legislature seeks to create. A fifth year of school might have more to do with a student’s late decision to change majors than with course scheduling. Some academic programs require work co-op experiences that more than make up for an extra semester’s cost in terms of job opportunities.

Proposed legislation that would tie financial aid to progress toward a degree is counter to efforts to encourage non-traditional students to seek a degree. Nor does it serve traditional students, who also should have the opportunity to explore a rich complement of ideas and studies, not just a rigid career track. Employers increasingly complain about college graduates without critical-thinking skills. * * *

But the real irony of lawmakers’ push for more control of state’s universities is that it comes as taxpayers pick up an ever-smaller share of the cost. In 1980, more than 75 percent of IPFW’s operating support came from the state, while tuition payments made up the balance. By 2005, the percentage had fallen to about 47 percent. This year, taxpayers covered just 39 percent of the cost.

If lawmakers want to increase the bureaucratic requirements for Indiana’s public colleges and universities, they first should increase the share of costs to support them and acknowledge that those same requirements might lead to faster degrees, but fewer of them.

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

Ind. Courts - Tippecanoe Public Defenders Office to hire immigration coordinator

According to this brief story from WLFI 18:

The County Council voted to allow the office to hire an immigration resource coordinator. This position will advise non-citizens who commit crimes about their risk of deportation when they plead guilty or are found guilty after trial. In 2010 the U.S. Supreme Court decided defense attorneys must inform non-citizens of these risks. The new coordinator will also be in contact with an immigration consultant to stay up-to-date with changing immigration laws.

"The individuals in our office will do a lot of the legwork to help eliminate some of the cost of the expert we have to use to avoid additional cost to the county," said Tippecanoe County Chief Public Defender Amy Hutchinson.

"We have a lot more of the minority groups. Many of whom can't speak English. We are required by the state and federal government to provide them adequate representation," said County Council member Jeff Kemper.

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

Ind. Courts - Filling county court vacancies, particularly juvenile court judgeships

Updating this ILB entry from March 5, 2013, the Supreme Court has announced today:

The Allen Superior Court Judicial Nominating Commission is beginning the process of selecting a new superior court judge, Commission Chairman and Indiana Supreme Court Justice Steven David announced today. A vacancy on the Allen Superior Court will occur April 26, 2013 when Judge Stephen Sims retires from his position in the Family Relations Division.

State statute particular to Allen County, IC 33-33-2-39, allows another Allen County judge to transfer to Judge Sims position. Allen County Judge Daniel Heath informed the Commission he will transfer from the Civil Division to the Family Relations Division. That means a vacancy will be available in Allen Superior Court, Civil Division.

According to Indiana law, the Judicial Nominating Commission is required to nominate "the three most highly qualified candidates from among all those eligible" for appointment to the Allen Superior Court when a vacancy arises. "I encourage those interested in a public service career to submit their names to the Commission," said Justice David. "We recognize the Commission will have a tough task with many qualified Allen County attorneys, but we are looking forward to meeting with the applicants and providing the Governor with an excellent list of candidates." The appointment will be made by Governor Mike Pence.

The ILB has emphasized the second paragraph. Read it in conjunction with this quote from the March 5th story in the FWJG:
The number of applicants for the pending opening for an Allen Superior Court judge will most likely grow, perhaps significantly, now that the duties have shifted.

Judge Dan Heath’s decision to move to the Family Relations Division to replace the retiring Judge Steve Sims will mark a significant change for Heath. The family-relations position requires knowledge of not just civil family law but juvenile criminal law as well, an expertise not that many of the county’s lawyers have.

And the position carries a heavy administrative workload, with responsibility for overseeing the Allen County Juvenile Detention Center in addition to the significant juvenile caseload.

Heath, now entering his 17th year on the bench, decided he was ready for new challenges and said he has already begun preparing for the new role.

Not to diminish the importance of the Civil Division seat that Heath and three other Superior Court judges hold, but his new job will be a lot harder. And the vacancy on the Civil Division will draw a lot more interest from local attorneys than the complex and wide-ranging Family Division seat.

Marion County. Apparently, each county's court local rules may vary. I'm told that in Marion County:
There are a variety of factors that the Executive Committee is to consider when there is an opening and a judge requests to move to another court – seniority, expertise and ability, the judge’s desire, political balance of each division, racial and gender diversity in each division (Local Rule LR49-AR00 301). Thus, most judges, when first elected, end up going to the least desirable courts first. Judge Moores got to go to Juvenile when appointed essentially because no one else who was a current judge really wanted it.
Tippecanoe County appears to have different statutes/rules, as when then-Judge Loretta Rush resigned from the Tippecanoe County juvenile court, six people "applied to fill the remaining four years and one month of Loretta Rush’s term," according to this Nov. 13, 2012 story in the Lafayette Journal Courier.

St. Joseph County.
Judge Peter Nemeth, Probate Judge in St. Joseph County, who presided over what is the only probate court in the state with juvenile court jurisdiction, did not run for reelection in the 2012 primary.

Lake County.
All of this is relevant because of a controversy that has arisen in Lake County was in the news last weekend, with a story by Marisa Kwiatkowski of the NWI Times that began:
Lake Juvenile Court Judge Mary Beth Bonaventura is asking the Indiana Supreme Court to issue an order requiring her replacement be chosen through merit selection rather than seniority, according to letters obtained Friday by The Times.
This follow-up story was published the next day.

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

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Brian L. Spurlock, Sally M. Spurlock v. Morequity, Inc. (NFP)

NFP criminal opinions today (6):

Henry Keith Holloway v. State of Indiana (NFP)

Jennifer Duff v. State of Indiana (NFP)

Kevin Burrell v. State of Indiana (NFP)

Kenneth D. Helton v. State of Indiana (NFP)

John Ivy v. State of Indiana (NFP)

Gary Gardner v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court decides one today

In Curtis A. Bethea v. State of Indiana, a 14-page, 5-0 opinion, Justice David writes:

In his Petition for Post-Conviction Relief, Curtis Bethea argues he received ineffective assistance of counsel for failure to challenge the aggravating factors used by the trial court in determining his sentence. Specifically, he claims a trial court cannot aggravate a defendant’s sentence with an essential element of a charge that was dismissed pursuant to a plea agreement. We hold that the trial court finding that the injury suffered by the victim to be an aggravating factor was proper despite the plea agreement that dismissed that count. * * *

A plea agreement is voluntarily entered into between the State and the Defendant. It is a contract and when accepted by the trial court is binding. The parties are free to negotiate the terms and conditions of the plea agreement, and can agree to limit or otherwise exclude what may be considered by the trial court judge. Unless the evidence is forbidden by terms of the plea agreement, the trial court judge may consider all evidence properly before him. Therefore, we hold that Hammons does not apply to cases involving plea agreements. The post-conviction court is affirmed.

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

Ind. Decisions - Yet more on: Notre Dame sues feds over requirement to provide insurance coverage for contraceptives

Updating this ILB entry from Jan. 27th, Madeline Buckley of the South Bend Tribune has a story today headed "Notre Dame appeals HHS lawsuit dismissal." It begins:

SOUTH BEND — The University of Notre Dame is appealing a federal judge’s dismissal of a lawsuit that challenges a portion of the Patient Protection and Affordable Care Act that mandates employers cover birth control in health insurance plans.

The university filed a notice of appeal on March 1 following the dismissal of the suit earlier this year.

U.S. District Court Judge Robert L. Miller ruled on Jan. 2 that the lawsuit was premature due to a safe harbor period that excludes religious employers such as Notre Dame from the regulation until Aug. 1.

The case was docketed in the U.S. Court of Appeals for the Seventh Circuit last week.

Posted by Marcia Oddi on Tuesday, March 12, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Updating "Teacher Fired After Receiving Fertility Treatments"

Updating these earlier ILB entries, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

A federal judge allowed the lawsuit against the local Roman Catholic diocese to proceed – denying the diocese’s request that he rule on it in its earliest stages.

Filed nearly a year ago by Emily Herx, a former teacher at St. Vincent de Paul School in Fort Wayne, the lawsuit claimed the Diocese of Fort Wayne-South Bend violated her constitutional rights by firing her after she underwent in vitro fertilization.

Herx suffers from infertility, a protected disability under the Americans with Disabilities Act. She argues her termination was a violation of both the Civil Rights Act of 1964 as well as the Americans with Disabilities Act. * * *

A few months after the suit was filed, attorneys for the diocese asked a U.S. District Court judge to dismiss Herx’s complaint. The diocese argued that it is a religious employer that acted in a manner consistent with its belief when it decided not to renew Herx’s contract.

The Civil Rights Act and Americans with Disabilities Act make exceptions for compliance in certain areas for religious institutions, diocesan attorneys argued in court documents.

And even if Herx’s interpretation of the behavior as discriminatory was correct, application of the laws would then be a violation of the church’s constitutional right to practice its religion freely, diocesan attorneys argued.

After months of wrangling via court documents and a hearing Monday, U.S. District Judge Robert L. Miller denied the diocese’s request, saying the case will continue. Both sides will have a conference on how the case will proceed later this month.

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

Ind. Courts - "David Camm lawyers, prosecutor argue over Charles Boney testimony in next murder trial"

The latest news on the upcoming third trial of David Camm is reported today in a long story by Grace Schneider of the Louisville Courier Journal that begins:

ROCKPORT, IND. — Defense lawyers and prosecutors argued in court Monday over how much testimony Charles Boney should be allowed to give during former Indiana State Trooper David Camm’s third trial in the murder of his family.

Camm defense lawyers Richard Kammen and Stacy Uliana argued that Boney, who was convicted in January 2006 on charged in connection with the three slayings, slaughtered the family.

And they urged Special Judge Jon Dartt to give them leeway during the trial to argue that Boney’s criminal background suggests he carried out the murders by himself, without any help from Camm.

“We can’t have a fair trial … unless we can tell the jury the true extent” of Boney’s history as a violent criminal, Uliana said during the afternoon hearing.

Special Prosecutor Stanley Levco and a co-counsel Todd Meyer, the Boone County prosecutor, told Dartt that they intend to introduce evidence showing David Camm’s was involved both as a principal and as an accomplice in the murders.

[More] See also this March 11th story, with video, from WAVE, by Connie Leonard.

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

Law - New US News law school ranking out

Via this post at the Law Librarian Blog, here is the list.

The good news is IU-Mauer is in the Top 25, in fact it is 25th.

The other news is US News is only ranking by number the top 100 schools, and IU-McKinney is in a three-way tie for the bottom, all #98.

Here is last year's ILB post on the rankings.

Posted by Marcia Oddi on Tuesday, March 12, 2013
Posted to General Law Related

Monday, March 11, 2013

Ind. Decisions - Transfer list for week ending March 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, March 8, 2013. It is two pages (and 26 cases) long.

Five transfers were granted last week:

Notably, as posted here on March 8th, transfer was denied in Paul Henry Gingerich v. State of Indiana.

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

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Bay Colony Civic Corporation v. Pearl Gasper Trust and Bruce F. Waller, a 9-page opinion, Sr. Judge Shepard writes:

Two homeowners in a planned subdivision on a reservoir have been seeking to prevent their neighbors from using an easement for access to the reservoir.

The two homeowners own private boat docks, and they sued when the neighborhood association spent funds to create a path down through the easement to the water so that other residents could use the reservoir without encroaching on the docks. Concluding the trial court erred by entering judgment in favor of the two homeowners, we reverse.

In In the Matter of the Support of B.J.R.: B.J.R., by next friend, R.J.C. v. C.J.R., Sr., a 20-page opinion, Judge Kirsch writes:
R.J.C. (“Mother”) appeals the trial court’s order modifying the child support paid by C.J.R., Sr. (“Father”) for the benefit of B.J.R. (“Child”). Mother raises several issues on appeal that we consolidate and restate as:

I. Whether the trial court had subject matter jurisdiction to modify a Pennsylvania child support order when the initial filing was missing a certified copy of the foreign order but the order was supplied at a later date;
II. Whether the trial court erred in finding the Pennsylvania child support order was properly authenticated;
III. Whether the trial court erred in modifying the child support order retroactive to the date of registration of the Pennsylvania child support order when the registration did not occur at the same time as the request for registration; and
IV. Whether the trial court erred in modifying the child support order because insufficient evidence was presented of the parties’ economic circumstances at the time of the original order, Father’s rental income was not included in calculation of his income, and Father was given larger parenting time credit to offset travel costs associated with exercising his parenting time.

We affirm.

NFP civil opinions today (4):

John Brewer v. Cathy Jo Bowman (NFP)

Town of Clarksville, Indiana v. Chris Conte and Mary Ann Conte (NFP)

In Re The Guardianship of J.M.: Christina M. Martin (Kibalko) v. William P. Hitch and Georgia L. Hitch (NFP)

Term. of the Parent-Child Rel. of D.L., minor child, and D.S., mother: D.S. v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (7):

Mark A. Salisbury v. State of Indiana (NFP)

Gregory Leech v. State of Indiana (NFP)

Martin Reyes v. State of Indiana (NFP)

Dustin James Mahler v. State of Indiana (NFP)

Darvin McCallister v. State of Indiana (NFP)

Carlos Ulloa v. State of Indiana (NFP)

Michael Porter v. State of Indiana (NFP)

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

Courts - "Courthouse’s new security measures add estimated 30 minutes to entrance time"

The ABA Journal blog has this item.

Here is a quote from the Milwaukee Journal-Sentinel blog:

Visitors now must remove their belts and shoes, and show their waistbands to screeners. "Defendants, witnesses, litigants, victims and jurors all waiting in line together is already a stressful situation," read a statement from Barrett's office. "This is compounded by the vigorous screening practices."

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

Ind. Gov't. - Be careful what you ask for ...

That is the theme of CNHI's Maureen Hayden's column in the Monday Terre Haute Tribune Star, headed "Pence may find himself in a mess if he gets what he wants," recounting the experience of Gov. Sam Brownback of Kansas.

This follows on the Trib-Star's editorial yesterday that begins:

TERRE HAUTE — If Gov. Mike Pence gets his wish, incoming motorists will see “Welcome to Indiana” highway signs also bearing the phrase “the lowest taxed state in the Midwest.”

Let’s hope those visitors don’t hit a pothole as they momentarily divert their gaze.

We also hope the traffic inbound to the Hoosier state includes the Koch brothers — billionaires from Kansas and New York. It would be enlightening for both to physically drive a few dozen miles on the backroads and highways across our state, Indiana. Many of those byways are bumpier than any time in recent memory. Some are crumbling. Those problems matter here.

Posted by Marcia Oddi on Monday, March 11, 2013
Posted to Indiana Government

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

From Sunday, March 10, 2013:

From Saturday, March 9, 2013:

Posted by Marcia Oddi on Monday, March 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 3/11/13):

Thursday, March 14th

Next week's oral arguments before the Supreme Court (week of (3/18/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/11/13):

Tuesday, March 12th

Wednesday, March 13th Next week's oral arguments before the Court of Appeals (week of 3/18/13):

Tuesday, March 19th

Wednesday, March 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, March 11, 2013
Posted to Upcoming Oral Arguments

Sunday, March 10, 2013

Law - "LA Neighborhoods Seek to Banish Sex Offenders by Building Tiny Parks"

Ian Lovett has the long story in the Sunday NY Times. The subhead: "Because of limits on where such offenders can live, the measure is effective for a community, but may be counterproductive to public safety over all." The story begins:

LOS ANGELES — Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away. Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.

So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.

Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders. One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.

Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection. But even if no child ever uses its jungle gym, the park will serve its intended purpose.

Posted by Marcia Oddi on Sunday, March 10, 2013
Posted to General Law Related

Ind. Gov't. - "Regulatory oversight: Affected professions protest move to eliminate standards"

In this Feb. 26th ILB post, I said I did not understand the rationale behind SB 520, a bill creating a new statutory committee ("ERASER") to replace a very similar (and quite active) statutory committee created in 2010, the "Regulated Occupations Evaluation Committee" (ROEC).

Today, a Fort Wayne Journal Gazette editorial by Tracy Warner gives the answer. From the long editorial:

The state already has in place a credible review process. In late 2011, that panel issued its first round of reviews and recommended deregulating five professions, including barbers and hair stylists. After the stylists descended upon the Statehouse to protest a bill that would have achieved exactly what the panel recommended, lawmakers quickly ran away from the proposal, and the sponsor withdrew it.

The new bill might suggest another example of “those who ignore history are doomed to repeat it,” but sponsoring lawmakers are clever this time. If adopted, the bill would again require a review of certain occupations, but instead of requiring a legislative vote to eliminate an occupation from licensing, it would automatically eliminate the occupation unless the legislature voted to continue licensing.

The new bill is titled ERASER, for Eliminate, Reduce and Streamline Employee Regulation. If it becomes law, over the next five years the targeted occupations would no longer be regulated and subject to licensing unless the legislature votes otherwise. The targets include real estate agents, home inspectors, dietitians, land surveyors, massage therapists, certified surgical technologists, behavioral analysts and – yes – beauticians.

Lack of licensing means an end to requiring minimum training requirements or knowledge. It would become much easier for anyone – qualified or not – to hang up a shingle and start a business selling real estate, cutting hair or inspecting homes.

Posted by Marcia Oddi on Sunday, March 10, 2013
Posted to Indiana Government

Ind. Courts - Lake County death penalty trial budgeted at $750,000

Susan Brown writes today in the NWI Times in a long story that begins:

CROWN POINT | Lake County officials say the tab for the Kevin Isom death penalty case is capped at $750,000, and any more will have to be borrowed.

In the wake of a five-week trial, Isom, 46, was formally sentenced to death Friday for the murders of his wife and two stepchildren in August 2007.

The county had increased this year's appropriations to help defray costs, Lake County Council President Ted Bilski, D-Hobart, said.

"Last year, we budgeted for death penalty cases approximately $500,000," Bilski said. "For 2013, we took $250,000 from riverboats, (adding it) to the $500,000 for a total of $750,000."

"If they go through that, there's no other recourse here," he said. "They have to go to our borrowing committee."

Reducing the burden on the county will be reimbursements from the Indiana Public Defender Commission for 50 percent of defense-related costs; the non-capital reimbursement rate is 40 percent.

According to the commission, the county was reimbursed about $190,000 as of Sept. 19, 2012, with no further claims presented as of last week.

The reimbursements to the county are funded at the state level by a combination of court fees and appropriations from the state general fund.

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

Ind. Law - Bills of interest to the judiciary heard in committee during Week 9 of the General Assembly

Here is the ninth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session. These are bills being heard in the SECOND house committee.

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

Ind. Courts - More on "Outgoing Lake County judge questions process of filling juvenile court vacancy"

Updating yesterday's ILB entry, Marisa Kwiatkowski of the NWI Times has a follow-up story today. Some quotes:

Chief Judge John Pera said he is preparing a written response to Lake Juvenile Court Judge Mary Beth Bonaventura's letters seeking intervention from the Indiana Supreme Court.

Bonaventura, who is leaving the bench to become director of the Indiana Department of Child Services, wrote letters asking the Supreme Court justices to require her replacement be chosen through merit selection rather than a transfer, letters obtained by The Times show.

Last month a Lake Superior Court memo indicated Judge Nicholas Schiralli would take over the juvenile division based on seniority. Judge Gerald Svetanoff, the longest-serving judge in Superior Court, had first choice but declined the job. Schiralli, who was next in line, accepted it.

Bonaventura argues Schiralli's move to juvenile court would violate a Lake County-based rule and a number of Indiana laws, including one that states a judge who has not been appointed through merit selection is ineligible to transfer, according to her letter dated Feb. 25.

Through merit selection, a Judicial Nominating Commission interviews applicants and chooses three finalists to present to the governor, who has final choice. Proponents of merit selection believe the process emphasizes judicial competence over political influence.

Bonaventura was appointed to the bench through merit selection.

"I believe that the merit selection process is not only the statutorily appropriate method, but the only method that will ensure efficient, effective and judicially sound operation of the juvenile court for the benefit of Lake County's children," she wrote in her Feb. 25 letter to the Supreme Court.

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

Saturday, March 09, 2013

Ind. Courts - "Outgoing Lake County judge questions process of filling juvenile court vacancy"

Absolutely fascinating must-read story this morning by Marisa Kwiatkowski in the NWI Times. Some quotes:

Lake Juvenile Court Judge Mary Beth Bonaventura is asking the Indiana Supreme Court to issue an order requiring her replacement be chosen through merit selection rather than seniority, according to letters obtained Friday by The Times.

Bonaventura is leaving the bench to become director of the Indiana Department of Child Services.

Last month a Lake Superior Court memo indicated Judge Nicholas Schiralli would take over the juvenile division based on seniority. Judge Gerald Svetanoff, the longest-serving judge in Superior Court, had first choice but declined the job. Schiralli, who was next in line, accepted it.

In her letter to the Supreme Court, Bonaventura asked the justices to intervene and require her job be filled by merit selection instead. Through merit selection, a Judicial Nominating Commission would interview applicants and choose three finalists to present to the governor, who would have final choice.

The long story includes links to the two letters.

Here are earlier, related ILB entries:

Posted by Marcia Oddi on Saturday, March 09, 2013
Posted to Indiana Courts

Friday, March 08, 2013

Ind. Courts - "Indianapolis police Officer David Bisard's trial set for October"

Jack Rinehart of WRTV6 has video and the story here this evening. It begins:

FORT WAYNE, Ind. - The trial of Indianapolis police Officer David Bisard, who's accused of causing a fatal 2010 crash while driving drunk, is set for October.

Allen Superior Judge John F. Surbeck Jr. will hear the case after concerns about pre-trial publicity in Marion County, where Bisard was on duty when he struck a group of motorcyclists in 2010, killing 30-year-old Eric Wells and seriously injuring two others, police said.

At an initial hearing Friday, Surbeck set Bisard's trial date as Oct. 15.

The judge set aside four weeks in mid-October and November to hear testimony from witnesses and weigh evidence.

A pre-trial date was set for May 31, and the judge said all motions must be filed by then. The judge has also set a June deadline for the discovery process.

See Feb. 15th ILB entry here.

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

Ind. Courts - "Fort Wayne lawyer admits DWI, gun charges"

Jeff Wiehe reports the story late this afternoon at the Fort Wayne Journal Gazette website. It begins:

A local public defense attorney pleaded guilty to two misdemeanor charges against him Friday, both of which stemmed from an encounter with a former client at a bar in September.

Mitchell W. Hicks, 55, admitted to operating a vehicle while intoxicated and to carrying a handgun without a license in Allen Superior Court. He did so without the benefit of a plea agreement.

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

Ind. Courts - "Two Indianapolis attorneys facing criminal charges: Marion Co. Prosecutor files unrelated cases for estate theft, tax evasion"

Here is the news release from Marion Co. Prosecutor Terry Curry.

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

Ind. Courts - More on: Supreme Court suspends Delaware Co. deputy prosecutor

The disciplinary order discussed in this ILB post this morning has not been posted online by the Court. It is: In the Matter of Louis W. Denney.

The three-page order is worth reading in full. The Commission's complaint consists of nine counts alleging misconduct occurring from 2003 through 2010 ...

Posted by Marcia Oddi on Friday, March 08, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court denies transfer in Gingerich [Updated]

Updating this ILB entry from this morning, Charles Wilson of the AP now has a story with some comments from Gingerich's attorney:

INDIANAPOLIS (AP) — A northern Indiana boy convicted in adult court at age 12 in the killing of a friend's stepfather will get a second chance to be tried in juvenile court after the state's top court refused to hear his case.

A Kosciusko County court sentenced Paul Henry Gingerich in 2010 to 25 years in prison, saying he and two other boys conspired to fatally shoot 49-year-old Phillip Danner in a plot to run away to Arizona.

In December, the Indiana Court of Appeals threw out Gingerich's guilty plea and sentence, saying a juvenile court judge rushed when he waived the case to adult court. The appellate court ordered a new hearing to determine if Gingerich should be retried in a juvenile court.

The Indiana attorney general's office appealed to the Supreme Court, arguing that Gingerich had signed a plea agreement and waived his right to appeal his conviction. On Thursday, the state Supreme Court upheld the appellate court's decision.

Gingerich's attorney, Monica Foster, said Gingerich phoned her from prison Friday.

"He's a very, very quiet kid, but he was very happy," she said.

Foster said the next step will be another waiver hearing in juvenile court to decide whether Gingerich should be retried as an adult.

"They'll be looking at it as if he were a 12-year-old," she said. But, she added, his behavior in prison would weigh in his favor.

While the state could ask the U.S. Supreme Court to hear the case, Foster doubted the justices would take it up because it involved state law.

[Updated at 3 pm] Tim Evans of the IndyStar has now filed a long story including reactions from Monica Foster, Gingerich's appellate attorney, and the Indiana Attorney General's office.

Posted by Marcia Oddi on Friday, March 08, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court suspends deputy prosecutor

Although it has not, as of this writing, been posted on the Court list of disciplinary actions, the Muncie Star-Press report is this morning, in a long story by Douglas Walker, that begins:

MUNCIE — A veteran local attorney has been suspended from the practice of law for three years.

The Indiana Supreme Court this week announced the suspension of Louis W. Denney, 65, who has been both a deputy prosecutor and a public defender in recent decades.

Denney has been on Delaware County Prosecutor Jeffrey Arnold’s staff since January 2011, and also was a deputy for some of Arnold’s predecessors as prosecutor, including Richard Reed.

“As a deputy prosecutor, Lou has done a great job,” Arnold said Thursday. “It’s a shame that this has to come now.”

The attorney’s suspension, for what the Supreme Court called “professional misconduct,” stemmed from cases in which Denney acted as a defense attorney.

A complaint filed by the Supreme Court’s disciplinary commission consisted of nine counts alleging misconduct between 2003 and 2010. A hearing officer who heard two days of testimony about the allegations later submitted a 56-page report to the Supreme Court.

There is much more in the story.

A check of the new Roll of Attorneys revealed this CCR, that concludes:

FOR RESPONDENT'S PROFESSIONAL MISCONDUCT, THE COURT SUSPENDS RESPONDENT FROM THE PRACTICE OF LAW IN THIS STATE FOR A PERIOD NOT NOT LESS THAN THREE YEARS, WITHOUT AUTOMATIC REINSTATEMENT, BEGINNING APRIL 15, 2013. * * *

BRENT E. DICKSON, CHIEF JUSTICE

ALL JUSTICES CONCUR, EXCEPT RUCKER, J., WHO DISSENTS IN PART AND WOULD IMPOSE A ONE-YEAR SUSPENSION WITHOUT AUTOMATIC REINSTATEMENT, AS RECOMMENDED BY THE HEARING OFFICER;
AND DAVID, J., WHO DISSENTS IN PART AND WOULD DISBAR RESPONDENT.

Posted by Marcia Oddi on Friday, March 08, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In In the Matter of the Supervised Estate of Evelyn Garrard; Ronald Garrard v. Debra L. Teibel and Douglas Grimmer and Debra Lindsay , a 15-page decision with a pro se appellant, Judge Pyle writes:

Throughout these proceedings, Garrard, who represented himself, was repeatedly warned by the trial court about using language in his pleadings that impugned the trial court and opposing counsel. Garrard was ultimately held in contempt of court for failing to comply with the trial court’s orders. * * *

Issue. Whether Garrard has waived appellate review of his arguments. * * *

Here, Garrard’s noncompliance with the Appellate Rules—most notably his failure to provide cogent argument—substantially impedes us from reaching the merits of this appeal. Thus, we find that he has waived all issues in this appeal. See, e.g., Ramsey, 789 N.E.2d 486 (holding that the appellant’s substantial noncompliance with rules of appellate procedure resulted in waiver of his claims on appeal). See also Thacker, 797 N.E.2d at 345 (finding that appellant waived summary judgment challenge where his unsupported assertions were “too poorly developed to be understood”).

In KOA Properties, LLC v. Laura Matheison , a 9-page opinion, Judge Friedlander writes:
KOA Properties LLC (KOA) appeals the denial of its motion to set aside the default judgment entered against KOA in a small claims action filed by Laura Matheison. KOA presents the following consolidated and restated issues on appeal:

1. Did the small claims court abuse its discretion by appointing appellate counsel for Matheison?
2. Did the small claims court err in denying KOA’s motion to set aside the default judgment?

We affirm.

NFP civil opinions today (7):

Cheryl L. Schlimpert v. Timothy M. Schlimpert (NFP)

Clark Sales & Service, Inc. v. John D. Smith and Ferguson Enterprises, Inc. (NFP)

In the Matter of the Supervised Estate of George Lee Coon, Mark A. Coon v. Allen W. Coon, Donald L. Moster, Jr., and Beverly S. Moster (NFP)

Davion Peterson v. Sandra Owen (NFP)

Gateway West Townhouse Association, Barry J. Stern and Judy C. Stern v. Metropolitan Development Commission of Marion County v. SF Industrial Properties-Indianapolis, LLC (NFP)

Scott Rose v. J.Z. and J.Z. (Adoptive Parents) (NFP)

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group Inc./Ticor Title Insurance Co. v. The Ross Group Inc., Benito Gamba, Hilda Gamba, et al. (NFP)

NFP criminal opinions today (7):

Curtis Porter v. State of Indiana (NFP)

Ivan Gonzalez v. State of Indiana (NFP)

Oo Aka v. State of Indiana (NFP)

Andrew Abbott v. State of Indiana (NFP)

Allen G. Parker v. State of Indiana (NFP)

Jamie Farmer v. State of Indiana (NFP)

J.W.S. v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court denies transfer in Gingerich

On Feb. 6th the ILB reported that AG Zoeller had announced that his office would appeal the COA decision "regarding Paul Henry Gingerich, who was 12 when he pleaded guilty to conspiracy to commit murder in the death of his friend’s stepfather" (quoting the AP).

This morning the following order of the Supreme Court was entered on the appellate docket:

GINGERICH, PAUL H. V. STATE OF INDIANA

YOU ARE HEREBY NOTIFIED THAT THE SUPREME COURT HAS ON THIS DAY, 03/07/2013, ORDERED AS FOLLOWS:

THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A DECISION BY THE COURT OF APPEALS. THE PETITION WAS FILED PURSUANT TO APPELLATE RULE 57.

THE COURT HAS REVIEWED THE DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT WAS SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW, ALONG WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE COURT OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH THE REQUEST TO TRANSFER JURISDICTION.

EACH PARTICIPATING MEMBER OF THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING MEMBER HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE'S VIEWS ON THE CASE IN CONFERENCE WITH THE OTHER JUSTICES.

BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLEE'S PETITION TO TRANSFER OF JURISDICTION.

BRENT E. DICKSON, CHIEF JUSTICE

ALL JUSTICES CONCUR.

Posted by Marcia Oddi on Friday, March 08, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Prosecutors seek limits on spectators at Bei Bei Shuai rat poison death trial"

In a brief AP story today, Charles Wilson writes:

Prosecutors want an Indianapolis judge to bar courtroom spectators from wearing buttons expressing their opinions about a woman who gained international attention when she was charged with the murder of her premature baby after she ate rat poison while she was pregnant.

But a legal expert says that and some other ground rules requested by prosecutors who charged Bei Bei Shuai with murder don’t pass legal tests.

Indiana University law professor Shawn Boyne says the Constitution and legal precedent protect spectators’ free speech rights as long as they aren’t disruptive.

Marion County prosecutors say the requests are routine in such cases.

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

Law - Still more on: After 8 years, Michigan courts are still litigating the meaning of the November 2004 constitutional amendment re same sex marriage

Updating this ILB entry from yesterday, today John Wisely of the Detroit Free Press reports in a story headed: "Judge delays ruling on gay marriage ban, will wait for Supreme Court decision."

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

Ind. Decisions - "State AG wants Smith conviction reinstated" [Updated]

Attorney General Zoeller has filed a petition to transfer in the case of Christopher Smith v. State of Indiana, according to this story today by Douglas Walker in the Muncie Star Press.

[Update] Here is the Attorney General's petition to transfer.

Here is the ILB summary of the January 30th 2-1 ruling (3rd case). The question in the case was whether ex-Central principal Chris Smith failed to immediately report child abuse or neglect. The majority ruled:

An allegation that an individual has engaged in child abuse is a serious claim, and a reasonable investigation made in good faith of such an allegation prior to making a report is not improper and does not deprive the person required to make such a report of statutory immunity. See Phillips v. Behnke, 531 N.W.2d 619, 623 (Wis. Ct. App. 1995) (“An allegation that an individual has engaged in improper sexual behavior with a child is extremely damaging both to the individual’s reputation and career. Accordingly, investigating the reasonableness of one’s belief that a teacher has engaged in sexual misconduct prior to making a report is proper and does not deprive the individual of immunity.”).
Judge Vaidik dissented, writing:
I believe that doing so disregards the evidence most favorable to the verdict and undermines Indiana’s child-abuse reporting statute. Further, the majority cites with approval case law from other jurisdictions that permits verification of a child’s allegations of abuse before making a report. I believe such a verification process is contrary to statute and, if permitted, may have the highly undesirable result of suppressing or deterring reports of abuse.
For background, see this ILB entry from Jan. 31st.

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

Thursday, March 07, 2013

Ind. Decisions - More on: Court of Appeals issues 2 today (and 8 NFP)

At least two of the NFP opinions issued today might well have been "for publication." (Recall that a NFP opinion may not be cited as precedent.)

With the CHINS case (K.W. and B.W.), the issue on the out-of-state placement may be publication-worthy because there are no other cases on-point. Re the translator case (Ponce), there is only one other case that has dealt with the translator issue, and this ruling adds to that discussion somewhat.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. courts - Suit claims "BMV Indiana overcharged millions of Hoosiers for driver's licenses"

Tim Evans story this morning at IndyStar.com also includes a link to the 20-page complaint. From the story:

The class action complaint filed by Irwin B. Levin of the Indianapolis law firm Cohen & Malad seeks a return of the alleged overcharges to individuals across the state.

The lawsuit alleges the BMV charged drivers under the age of 75 from $4 to $7 more that Indiana law allows when they obtained or renewed licenses.

“There is specific authority for how much they can charge and what they did instead was, apparently, just made up a number,” said Levin. “They just disregarded it.”

Levin said he did not know how much Hoosiers were overcharged.

“The state is going to have to give us that,” he said. “But based on our calculations, the number could be as high as $30 or $40 million.” * * *

Drivers currently are charged $21 for a six-year licnese, $19.50 for a five-year license and $18 for a four-year license. The suit says the maximum the BMV is allowed to charge under Indiana law, however, is $15 for a six-year license, $13.50 for a five-year licenes and $14 for a four-year license.

“They would have to go through the proper legal process and allow public comment or go through the legislature to raise fees,” he explained.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Indiana Courts

Law - More on: After 8 years, Michigan courts are still litigating the meaning of the November 2004 constitutional amendment re same sex marriage

Updating this ILB entry from Jan. 9, 2013, see this post today from How Appealing with a number of interesting links, starting with one from NPR's Morning Edition.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Joseph Matheny v. State of Indiana , a 16-page opinion, Judge Crone writes:

Joseph Matheny appeals his conviction for class D felony auto theft. When Matheny was being arrested, a police officer asked him where he lived, and Matheny told the officer. At trial, Matheny’s response was used as evidence against him because his residence was close to the location from which the car was stolen. On appeal, he argues that his statement was obtained in violation of his constitutional privilege against self-incrimination and that the trial court abused its discretion in admitting it. He also argues that the trial court abused its discretion in refusing his tendered jury instructions regarding the presumption of innocence. We conclude that the police officer did not violate Matheny’s constitutional rights by asking him for his address, and therefore the trial court did not err in admitting his statement at trial. We further conclude that although the trial court erred in refusing one of Matheny’s tendered jury instructions, the error was harmless. Therefore, we affirm.
In Marcus Willis v. State of Indiana , a 4-page opinion, Judge Bailey writes:
Marcus Willis (“Willis”) appeals his conviction for Criminal Trespass, as a Class A misdemeanor. We reverse.

Willis presents two issues for review, one of which is dispositive: whether there is sufficient evidence to support his conviction. * * *

From this testimony and Deputy Harper’s earlier testimony that she had observed Willis’s name on the list, the fact-finder could reasonably infer that some event occurred that caused Willis’s name and identifying information to be placed on a no-trespassing list. This list was available to security officers. However, there is a complete absence of evidence that Willis was aware of this list or that he had otherwise been denied entrance to the property in a manner required by the relevant statute.

The State must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970). Here, the State failed to prove a material element of Criminal Trespass within the meaning of Indiana Code section 35-43-2-2(a)(1), specifically that Willis had been “denied entry” as defined therein. As such, the State failed to show that he willfully trespassed on the property of another.

NFP civil opinions today (4):

In Re The Matter of K.W. and B.W., Children in Need of Services: A.W. v. Indiana Dept. of Child Services (NFP)

Kenneth Hunter v. Deborah Goodrich and Paul Goodrich (NFP)

Indiana Public Employee Retirement Fund (PERF) v. Robert O. Effner (NFP)

In the Matter of the Termination of the Parent-Child Relationshp of: A.A., S.T., and C.P.; and A.A. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

Dale Hite v. State of Indiana (NFP)

Q.P. v. State of Indiana (NFP)

Victor Ponce v. State of Indiana (NFP)

Imani Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts one this morning, re grandparent visitation

In In Re: Visitation M.L.B.: K.J.R. v. M.A.B., an 8-page, 5-0 opinion, Justice Rush writes:

A child’s relationship with his grandparents is important, and can deserve protection under the Grandparent Visitation Act. But grandparent-visitation orders necessarily impinge, to some degree, on a parent’s constitutionally protected rights. An order granting grandparent visitation must therefore include findings that address four well-settled factors for balancing parents’ rights and the child’s best interests, and must limit the visitation award to an amount that does not substantially infringe on parents’ rights to control the upbringing of their children.

In this case, the trial court’s grandparent-visitation order failed to meet either requirement. To provide the trial court with an opportunity to cure those defects, we remand for new findings and conclusions consistent with this opinion.

The opinion may serve as a primer on grandparent visitation, Troxel v. Granville, and the "four factors."

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Formal Swearing-In Ceremony Scheduled for U. S. Bankruptcy Judge Robyn L. Moberly

From the news release:

INDIANAPOLIS, Indiana (March 7, 2013): The United States District Court for the Southern District of Indiana announced that a formal swearing-in ceremony for United States Bankruptcy Judge Robyn L. Moberly will be held Friday, March 8, 2013, at 3:00 p.m. Chief Judge Richard L. Young will preside over the ceremony in the William E. Steckler Ceremonial Courtroom (Courtroom 202) of the Birch Bayh Federal Building and United States Courthouse in Indianapolis. Judge Moberly fills the vacancy created by the retirement of Judge Anthony J. Metz III on November 1, 2012. * * *

United States Bankruptcy Judges are appointed by the Judges of the United States Court of Appeals for the Seventh Circuit for a term of fourteen (14) years and are eligible for reappointment to successive terms.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Indiana Courts

Ind. Gov't. - "Memories taxed by old traffic citations"

Bloomington Herald-Times ($$$) Hotline columnist Rod Spaw yesterday answered a question from a reader:

Q: On Oct. 14, 2004, a Bloomington policeman waved me over after leaving work shortly after 7 a.m. Said one of my headlights was out ... Anyway, fix it and go to the station to show them it has been repaired, were the instructions from the officer. Which I did, and to me, at least that was the end of it.

So today comes a collection letter from Eagle Accounts Group Inc. asking for $154.05 because of the headlight.

OMG, what kind of fraud is this? I didn’t move from Bloomington until June of 2012.

The issue of the headlight was satisfactorily settled the morning of Oct. 14, 2004. I have never received an order, as the collection agency claims, to pay the clerk of the court.

The answer, it turns out, is that the reader is not alone:
Monroe County Clerk Linda Robbins said the Eagle collection agency is helping her office track down and collect on as many as 22,000 unpaid traffic tickets — some of which have been collecting dust on the clerk’s office shelves since the 1980s.

Notices on the first batch of 2,000 tickets recently were mailed, but Robbins is aware that not all of those will turn out to be actual outstanding debts. She said her office knows there will be cases where tickets were dismissed but the information didn’t get back to the clerk’s office as it should have.

Robbins said the purpose of the collection effort is two-fold: One, to clean up the clerk’s records; and two, to collect any money the county and courts system legitimately are owed.

Robbins said people who wish to dispute an unpaid ticket notice should contact the collection agency or her office. She said people can check the case number on the letter they received against the state’s online court database to see if there is a record of the citation being dismissed. They also may contact the clerk’s office at 349-2614 with the case number to see if there is a record of dismissal.

Good news in your case, L.W. Hotline checked the database and found that your citation for a faulty headlight officially was dismissed on Oct. 19, 2004.

ILB: Here is a similar story from 2011, involving a different county.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Indiana Government

Ind. Law - "HB 1411 – You want citations with that judicial opinion? It’ll cost ya."

That is the heading to Doug Masson's interesting post this morning on HB 1411. The bill is in second house committee. Here is the current digest:

Court staff attorney pilot program. Creates the circuit and superior court staff attorney pilot program (pilot program) to provide assistance to courts with preparing orders for complex motions. Requires the judicial center to administer the pilot program and to report to the commission on courts (commission) concerning the pilot program. Requires the commission to receive reports concerning the pilot program, and allows the commission to make recommendations and to propose legislation concerning the pilot program.
ILB: I have another issue with the bill -- I think it violates the separation of powers between the legislative and judicial branches and would set a bad precedent for the future, at least insofar as the judicial branch is concerned. If this is okay, then why not a bill requiring cameras in the trial courts?

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Indiana Law

Ind. Courts: Is It Too Early to Ask: Did Governor Daniels Reshape the Indiana Supreme Court?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Today marks Justice Rush’s three-month anniversary on the Indiana Supreme Court, which seems like an appropriate time to consider trends in Supreme Court decisions. As discussed in this January 29 post, the period since Justice Sullivan’s July 31, 2012, departure has been one of remarkable unanimity on the Indiana Supreme Court. From August through December of 2012, 95% (18/19) of the Court’s opinions were unanimous; the sole exception was a dissent from Chief Justice Dickson in a sentencing case.

Updating those statistics, the Court has issued twelve opinions so far in 2013, ten of which have been unanimous.* Therefore, since August 1, 2012 — the period during which half or more of the justices were appointees of Governor Daniels — the Court has been unanimous in more than 90% (28/31) of its opinions, which compares to a recent historic average of about 66%.

During that period the three Daniels’ appointees have been aligned and in the majority in every case. The most notable was yesterday’s Holiday Hospital insurance coverage opinion, which was written by Justice David, who was joined by Justice Massa and Justice Rush. Justice Rucker dissented, and Chief Justice Dickson wrote a concurring opinion agreeing in part with that dissent.

In a criminal restitution case, the other non-unanimous case, Chief Justice Dickson dissented from the majority’s view that remand was appropriate to allow the State a second chance to present evidence to support the victim’s property loss.

Although the focus above has been on Indiana Supreme Court opinions, Indiana jurisprudence is also shaped by cases where the Court denies transfer and allows the Court of Appeals’ opinion to serve as the final word on an issue. On that score, the Court’s denial of transfer in Wells v. State, a severance case, is noteworthy. The Court granted transfer on February 2, 2012, and heard oral argument on March 22, 2012. Nearly a year later, on February 21, 2013, the Court issued an order vacating transfer and reinstating the Court of Appeals’ opinion. Justice Rucker wrote a forceful dissent, joined by Chief Justice Dickson: “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.” I suspect the Rucker dissenting opinion would have been a majority opinion without the recent change in membership on the Court.

Nevertheless, the 90% unanimity rate in opinions is more remarkable than these minor differences. For example, after my January oral argument in K.W. v. State in which every justice asked questions and seemed to have a variety of different concerns, I was impressed but somewhat surprised by a unanimous opinion less than six weeks later. The justices are obviously working well together in crafting opinions that focus on common grounds for agreement. The high rate of unanimity stands in stark contrast to the opinions immediately after Chief Justice Shepard’s retirement and Justice Massa’s appointment, when only 50% of the opinions were unanimous and Justice Massa was in the minority in more than half of the cases.
________________

*I have counted Gonzalez v. State as a unanimous opinion; Justice Rucker concurred in the result without a separate opinion.

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind. Decisions - "Court of Appeals says EVSC and its foundation violated state's Public Bidding Laws"

Yesterday's 2-1 Court of Appeals opinion on the actions of the Evansville Vanderburgh School Corp.is the subject of a story today in the EC&P. Some quotes:

[T]he Indiana Court of Appeals said in a 2-1 decision that the Evansville Vanderburgh School Corp. violated the state’s Public Bidding Laws when it renovated a Walnut Street building for its administrative offices.

Judges James Kirsch and Rudolph Pyle found that the EVSC’s plan to sell the building to its non-profit EVSC Foundation, then award a $6.5 million construction project to Industrial Contractors, Inc., without soliciting bids, was planned and paid for using public funds.

Pat Shoulders, attorney for the EVSC, said it appeared that the ruling is limited to the unique circumstances of the project and didn’t apply to other actions of the EVSC Foundation.

He said that while he hoped the ruling would be appealed to the Indiana Supreme Court, that decision had not been made by the EVSC yet.

The judges wrote in their decision: “This scheme has not been authorized by our General Assembly and, indeed, violates the public bidding laws that it has enacted.” * * *

The case focused on how the school district went about renovating a former warehouse building on Walnut Street to house EVSC administrative offices. The school district, which is subject to competitive bidding laws, in January 2011 transferred ownership of the building to the EVSC Foundation.

Then, the foundation hired Industrial Contractors, Inc. of Evansville for $6.5 million in construction work. The foundation solicited no other bids. It was not legally obligated to do so, according to the summary judgment signed in December 2011 by Judge Gregory Smith of Daviess County, Ind., because the rules did not apply to private entities such as foundations.

However, on Wednesday, the Indiana Court of Appeals disagreed with Smith’s decision.

The EVSC broke the transaction into six smaller parts “to accomplish their goal of renovating the Building with public money, yet evading public scrutiny and input,” the court wrote.

The appeals court continued: “The fact remains, however, that, notwithstanding the six contracts, this was one transaction — the renovation of a building owned and paid for by (the EVSC) using public funds. This was (the EVSC’s) project and not (the foundation’s) project.”

Posted by Marcia Oddi on Thursday, March 07, 2013
Posted to Ind. App.Ct. Decisions

Wednesday, March 06, 2013

Ind. Courts - More on: Over a dozen challenges filed in federal court to Indianapolis smoking ban

Updating this ILB entry from June 13, 2012, the City of Indianapolis' smoking ban now has been upheld by the United States District Court - here is the WTHR report.

Here is the 33-page March 6th opinion in Goodpaster v. City of Indianapolis, where Chief Judge Young concludes:

Plaintiffs have not established actual success on the merits of their claims. The 2012 Smoking Ordinance advances the public interest, and the legislative choice to include bars and taverns is constitutionally sound. Even if Plaintiffs could succeed on the merits, Plaintiffs have not established that the balance of harms weighs in their favor.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Motion for a Preliminary and Permanent Injunction is DENIED and that judgment on the merits shall issue in favor of the Defendants and against the Plaintiffs.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Ind Fed D.Ct. Decisions

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

Grace Schneider has a story this evening on the Louisville Courier Journal site that includes:

Floyd County Attorney Richard “Rick” Fox apologized to county officials during a meeting Tuesday and promised that he won’t again make the mistake of drinking and driving.

Fox gave a statement at his first meeting since taking personal leave after his arrest on drunken driving charges in Clark County early last month. * * *

Fox pleaded guilty Feb. 19 to an amended charge of misdemeanor public intoxication. He was arrested in Clarksville and jailed Feb. 7 on drunken driving charges.

Clark County Magistrate Ken Abbott sentenced Fox to six months in jail, which was suspended, and to six months probation. He also was ordered to undergo a drug and alcohol assessment, follow any treatment recommendations arising from the assessment and pay court costs and probation fees.

Two other misdemeanor charges — operating while intoxicated and operating while intoxicated with alcohol concentration equivalent to .15 or more — were dismissed under the deal, according to court records.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Courts

Courts - "Should the papers of the Justices of the SCOTUS be treated as governmental property?"

That is the heading to this post at Prof. Josh Blackman's Blog, pointing to this great-sounding new paper ("Judges and Their Papers") by Kathryn A. Watts, University of Washington - School of Law.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Courts in general

Ind. Courts - Comprehensive Rules for Electronic Filing in the Courts?

A brief article in the latest issue of Court News reports:

[T]he Division of State Court Administration has convened a temporary, advisory committee to study and recommend rules that would enable all Indiana courts to initiate e-filing.

The federal court system and many state court systems have already gone through this process, so that there are many e-filing rule packages that Indiana could use as models.

The tasks for the our advisory committee are:

  • to decide what Indiana needs to do in order to enable e-filing and e-service in all our courts;

  • to examine the e-filing rules in other states and federal system;

  • to see if Indiana could borrow from other successful practices; and

  • to produce a product of conceptual or exact language for rule amendments.
The e-filing committee will submit the final product to the Supreme Court Rules Committee for its review, publication for public comment, and presentment to the Supreme Court.

The advisory e-filing committee consists of appellate and trial judges, court clerks, court administrators, and the practicing bar. It is staffed by the Division of State Court Administration. The committee will be meeting monthly until the tasks set out before them are complete. Once the recommendations have been forwarded to the Rules Committee, this temporary advisory committee will be disbanded.

The ILB has asked the court staff for a list of the members of the advisory e-filing committee.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Courts

Ind. Law - More on: Legalizing and regulating midwifery should better ensure that practicing midwives are well trained

Updating this ILB entry from March 5th, quoting the Fort Wayne Journal Gazette re HB 1135, today the FWJG has this story by Archie Ingersoll that begins:

DeKalb County prosecutors have accused a 55-year-old St. Joe woman of helping deliver babies without a midwife’s license.

Barbara S. Parker told an investigator that she assisted in 48 deliveries in 2012 and that she has averaged 60 to 70 deliveries a year over the past five years, according to court papers.

Parker faces three felony counts of practicing midwifery without a license. The charges stem from three deliveries she performed in early August.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Law

Ind. Courts - Must read article on Chronological Case Summary (CCS) Records

This Sept. 26, 2012 ILB post linked to a Court Times article on Chronological Case Summary and Record of Judgments and Orders.

The newest issue of Court Times links to a much more "hands on" CCS article which, in my opinion, should be read very carefully by practitioners.

Some high points [emphasis added by ILB] from the long article:

The CCS is a key, official record. It provides in one place an accurate summary of what has transpired in a case, without the need to search files for pleadings and orders. Thus, the accuracy and timeliness of CCS event entries is of critical importance to an accurate court record. This means that the date of every notation on the CCS should be the date that the notation is made, regardless of the date the motion is filed or an order is signed. It also means that the CCS entry is not a substitute for a court order; the CCS is a brief description of the motion, order or other event that happened.

In most modern automated case management systems (CMS), such as the state Odyssey CMS, the user is guided to a drop-down list from which he must select the CCS description that best reflects the event. CCS entries, once made, should not be amended. In order to amend a CCS event, the user must make another entry explaining the change and when it was made. Furthermore, the date an action is entered on the CCS is the date from which all time limits run (except in a few criminal case instances). As more and more courts post their CCS records on the Internet, compliance with these rules is critical in order to assure the integrity of the court record. * * *

A local rule with clear statements of the courts’ policies and deadlines can help assure the accurate and prompt entry of CCS event. For example, such a local rule should:

  • state what office (clerk or court) and what positions (not the particular names) are responsible for the CCS entries;

  • establish a “paper flow” process if the making of CCS entries involves the passing of orders, motions and other paper from one office to another;

  • require lawyers to submit proposed entries or designate the particular event from the CMS drop down menus;

  • set a specific time from the date of the filing of an order and other papers, within which the persons making the CCS entry must complete the task in the system;

  • provide instructions about what and when special judges, judges pro tempore, senior judges and other “visiting judges” have to do to get their events entered on the CCS.
The Senior Judge Committee strongly recommends that courts provide senior judges “instructions” about specific guidelines and expectations. For instance, the courts could prepare a special instruction sheet for “visiting judges” telling them to whom, how and when they must send or email the CCS entries.

If the clerk’s staff will be responsible for CCS entries, the courts should engage the clerk and his/her staff in figuring out a reasonable but also timely period within which CCS entries must be made. Input from the local bar, particularly if the court will require lawyers to propose CCS entries, would also be helpful. Having all the parties at the table should go a long way to achieve buy-in from all.

ILB: One line jumped out at me:
In most modern automated case management systems (CMS), such as the state Odyssey CMS, the user is guided to a drop-down list from which he must select the CCS description that best reflects the event.
Two observations:Illustrating the importance of the CCS, here are some references in recent cases:

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Alva Electric, Inc., Arc Construction Co., Inc., Danco Construction, Inc., Deig Brothers Lumber & Construction Co., Inc., et al. v. Evansville Vanderburgh School Corp., and EVSC Foundation, Inc. , a 35-page, 2-1 opinion, Judge Kirsch writes:

Eight contracting firms (“Contractors”),1 on behalf of themselves and all similarly situated taxpayers within the district of Evansville Vanderburgh School Corporation (“School Corporation”), sued School Corporation and EVSC Foundation, Inc. (“Foundation”) for declaratory judgment and injunctive relief, claiming that School Corporation’s renovation of an administration building should have been subject to the competitive bidding procedures required for a public work project under Indiana Code section 36-1-12-4 and that the actions taken to accomplish the renovation constituted an antitrust violation under Indiana Code section 24-1-2-3. Contractors filed a motion for summary judgment and School Corporation and Foundation each filed cross-motions for summary judgment. The trial court denied Contractors’ motion and granted summary judgment in favor of School Corporation and Foundation.

On appeal, we address the following consolidated and restated issues:
I. Whether the issues before this court are moot;
II. Whether the trial court erred in granting summary judgment in favor of School Corporation and Foundation on Contractors’ claim:
(A) under Indiana’s Public Lawsuit Statute (“Public Lawsuit Statute”), Indiana Code sections 34-13-5-1 through -12, because the renovation of the administration building constituted a public work project that should have been subject to the public bidding laws of Indiana Code chapter 36-1-12; and
(B) because the combination of the six contracts used to renovate the administration building was a “scheme, contract, or combination to restrain or restrict bidding for the letting of any contract for a private or public work,” in violation of Indiana’s Antitrust Act (“Antitrust Act”), Indiana Code sections 24-1-2-1 through -12.

We reverse and remand with instructions. * * *

[Re I, mootness] Accordingly, we will address this case upon the merits regardless of whether it is technically moot. See Save Our Sch., 951 N.E.2d at 246-47 (regardless of whether moot, court addressed question concerning closing of public school for stated budgetary reasons because, as question of great public interest, it was likely to recur). * * *

[Re II(A), public lawsuit statute] The trial court concluded, and we agree, that School Corporation “selected a contractor to renovate a public building according to plans prepared by an architect selected by the School and fully intended to pay for the project and in fact is paying for the project with public funds, without following the public bidding laws.” Id. This scheme has not been authorized by our General Assembly and, indeed, violates the public bidding laws that it has enacted. * * *

[Re II(B), antitrust act] The trial court concluded that there was no violation of the Antitrust Act because it found no violation of the Public Bidding Laws ... Because we hold that the scheme utilized by the School Corporation and the Foundation did, indeed, violate the Public Bidding Laws, we vacate the trial court’s judgment and remand for further proceedings consistent with this decision.

Reversed and remanded with instructions.

PYLE, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that begins, at p. 30 of 35] Because I believe the actions of School Corporation and Foundation were lawful and not subject to competitive bidding procedures, I respectfully dissent.

NFP civil opinions today (4):

The First Baptist Church of Hammond v. Felipe Andrade, a minor, by his mother and custodial parent, Manuela Andrade (NFP)

City of Muncie v. Stanley Benford (NFP) - forfeiture at issue

In the Matter of: B.G., a Child in Need of Services; B.T. v. Indiana Department of Child Services (NFP)

Christopher Groce and Tracey Groce v. American Family Insurance Company and Michael A. Meek (NFP)

NFP criminal opinions today (4):

Damion Martin v. State of Indiana (NFP)

Brian Rinearson v. State of Indiana (NFP)

Leonard Beaty v. State of Indiana (NFP)

Calvin Horton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today, so far, from the Supreme Court

In Holiday Hospitality Franchising, Inc. v. Amco Insurance Company, a 15-page, 4-1 opinion, Justice David writes:

A motel and an insurance company entered into an insurance contract that specifically excluded several categories of injury and harm—including harm resulting from acts of sexual molestation by motel employees. After an off-duty motel employee (now convicted for his crimes) molested a young motel guest, the motel’s insurer sought a declaratory judgment to enforce its reading of the contract disclaiming coverage for, and its duty to defend against, a civil complaint brought by the motel guest. The trial court granted summary judgment in favor of the insurer, and the Court of Appeals reversed. We now affirm the trial court. * * *

The Court of Appeals reversed and remanded, concluding that an “occurrence” took place under the terms of AMCO’s insurance policy, and that there remained a genuine issue of material fact as to whether R.M.H. was “in the care, custody or control” of Holiday Inn Express at the time Forshey molested him. Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 955 N.E.2d 827, 836 (Ind. Ct. App. Oct. 13, 2011).

On rehearing, the Court of Appeals clarified that its reversal applied only to Holiday Hospitality, Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 963 N.E.2d 1125, 1125–26 (Ind. Ct. App. Jan. 18, 2012), because even though Appellate Rule 17(A) made S.H., Holiday Inn Express, and Megha “parties to the appeal,” that did not relieve them of their Rule 9(A) obligation to file a notice of appeal within thirty days after a final judgment was entered against them or forfeit appellate relief, id. at 1126.

We granted transfer, thereby vacating the two Court of Appeals decisions. * * *

AMCO sought summary judgment based on two distinct provisions of the contract. First, it said that the contractual definition of “occurrence” did not extend to Forshey’s criminal conduct or Holiday Inn Express’s decision to hire and retain him. Second, it argued that the policy specifically excluded coverage for acts of abuse and molestation, as well as coverage for any negligence in hiring or retaining someone committing those acts. Because we find this second issue dispositive on appeal, we need not address the first. * * *

However, given the scope and context of the insurance policy, we believe the facts are sufficient to show, as a matter of law, that R.M.H. was in the “care” of Holiday Inn Express (as that term was used in the policy) at the time the molestation occurred. It is undisputed that R.M.H. was molested by Forshey while R.M.H. was a guest at Holiday Inn Express, staying in a room rented to the mother of R.M.H.’s friend. It is further undisputed that R.M.H. was in that guest room, behind a door locked by an electronic key provided by Holiday Inn Express, when Forshey entered and molested him. It is also undisputed that at this time—because of R.M.H.’s status as a guest—Holiday Inn Express owed him a duty of care by law. * * *

Simply put, we believe these facts reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract. In fact, if these facts did not reflect the contemplated exclusion, we would struggle to imagine what reasonably could and still remain within the confines of an ordinary motel business. * * *

We therefore affirm the trial court’s grant of summary judgment.

Massa and Rush, JJ., concur.
Dickson, C.J., concurs with separate opinion.
Rucker, J., dissents with separate opinion.

Dickson, C.J., concurring. I write separately because I believe that the proper understanding of "care" is determined by well-established Indiana law that a hotel guest is considered a business invitee and is entitled a duty of reasonable care. Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359, 360 (Ind. 1999). Here, the exclusion is phrased in the disjunctive, and excludes coverage when the victim is in the "care, custody, or control" of any insured. I agree with Justice Rucker's dissent with respect to the question of fact as to "custody" and "control." But in this case, "care" exists as a matter of law. As such, the exclusion applies, and the summary judgment for the insurer was correct.

Rucker, J., dissenting. The Court of Appeals concluded there is a genuine issue of material fact as to whether R.M.H. was “in the care, custody or control” of Holiday Inn Express. Holiday Hospitality Franchising, Inc. v. Amco Ins. Co., 955 N.E.2d 827, 836 (Ind. Ct. App. 2011). At least with respect to “care” and “control” I agree with the court’s conclusion and would thus deny summary judgment in favor of AMCO on this issue. Therefore I respectfully dissent.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More bar exam changes

IU-McKinney Law Prof Joel Schumm sends along this link.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Law

Ind. Gov't. - Indiana gambling revenue on a losing streak

Two interesting stories by Maureen Hayden of CNHI newspapers.

Today, in the Logansport Pharos-Tribune, a long story on the challenge posed by Ohio. Some quotes:

Ohio’s decision to get into the lucrative world of gaming is posing a serious threat to Indiana’s share of casino dollars and prompting a statehouse debate about how to respond.

As Horseshoe Casino Cincinnati officially opened, it is the fourth big-city casino launched in the Buckeye state in 10 months – and the closest one to the Indiana border.

In location and amenities, it’s designed to be enticing: Just a short hop off the interstates that run through the city, the upscale casino is fronted by a crystal-chandeliered, glass-walled entryway that offers a sweeping view of the city’s downtown. * * *

“Indiana is a gaming state,” said Senate Minority Leader Tim Lanane, whose district includes the Hoosier Park racetrack casino in Anderson. “That’s just the case.”

But fortunes are changing.

There are now 23 states with a cut of the action, and more than 1,200 commercial casinos competing for gaming dollars. More than half the states with legalized casinos have gotten into the game since 2008.

Indiana saw the problems coming. Three years ago, state fiscal analysts predicted the arrival of casinos in Ohio, coupled with casino expansion in Illinois and Michigan, would cut deeply into the competition for gambling dollars and the hefty tax revenue stream that helps fund essential public services in Indiana.

Now they’re witnessing their fears: In the short months they’ve been open, the casinos in Toledo, Columbus, and Cleveland have earned more than $404 million and generated $133 million in taxes. With Cincinnati, the total casino revenues in Ohio are predicted to hit almost $1 billion a year.

Meanwhile, Indiana is on a losing streak. Admissions and revenue are down over the last three years. * * *

Indiana legislators are trying to come to grips with the grim news. A bill that passed the state Senate last week would grant tax breaks to the state’s 10 riverboat casinos and allow them to relocate nearby to dry land. And it would give Indiana’s racetrack-casinos the ability to operate table games like craps, roulette, and blackjack.

But the complicated legislation, described by [Ed Feigenbaum, Indiana Gaming Insight] as a “Rube Goldberg device,” faces an uncertain future in the House.

March 3, in the Lebanon Reporter, a story that begins:
INDIANAPOLIS — Indiana lawmakers have been debating whether to give the state’s casinos more financial incentives to compete with the shiny new gambling palaces popping up in Ohio.

They’re fearful that fickle gamblers will take their dollars — and the millions in tax revenues they generate every year—across the border to one of the four big-city casinos that have opened in the Buckeye State in the last 10 months.

What should worry them more: How easy it is for you to sit at home in your underwear, using your laptop or mobile device to place your bets online.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Indiana Government

Ind. Decisions - "Lie on insurance application voids coverage"

Yesterday's Supreme Court decision in Michael Dodd and Katherine Dodd v. American Family Mutual Insurance Company (ILB summary here) is the subject of this story today in the Indianapolis Star, written by Tim Evans. The story begins:

The Indiana Supreme Court sent a warning today: Lying on your homeowner’s insurance application can void the coverage.

That message came in a ruling issued in a Clinton County case that pitted a Frankfort couple against American Family Mutual Insurance Company. The legal fight centered on coverage for a 2003 fire that destroyed the couple’s garage.

The Supreme Court decision upheld the initial ruling issued in Clinton Superior Court which allowed the insurance company to deny payment on the claim made by Michael and Katherine Dodd.

The basis of that denial was an answer Michael Dodd gave on his application for the the insurance policy in December 1998. The question: Had he or any other member of the household had any past or current property losses?

Court records indicate Dodd “answered in the negative,” despite having been paid a settlement earlier that year from Farm Bureau in connection with another fire that destroyed his home.

Posted by Marcia Oddi on Wednesday, March 06, 2013
Posted to Ind. Sup.Ct. Decisions

Tuesday, March 05, 2013

Ind. Decisions - Late this afternoon, a second opinion from the Supreme Court

In Kimberly Heaton v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Dickson writes:

The defendant-appellant, Kimberly Heaton, challenges the trial court's revocation of her probation and its order that she serve eighteen months of her previously suspended twenty-four month sentence. Heaton's appeal raises the question of what legal standard is to be applied in a probation revocation proceeding where the State claims that the probationer committed a new criminal offense while on probation. We hold that the correct legal standard is the statutorily- mandated preponderance of the evidence standard. * * *

Because it is unclear which standard the trial court used in this instance, we remand the case to the trial court for reconsideration of whether the defendant violated her probation and if so, what sanction, if any, is appropriate.

Conclusion. We vacate the trial court's order finding that the defendant violated her probation and or-dering her to serve a portion of her previously suspended sentence. This cause is remanded for a new determination of whether the defendant violated the conditions of her probation by a pre-ponderance of the evidence pursuant to Indiana Code Section 35-38-2-3(e) (2008) and, if so, the appropriate sanction for such violation.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Michael Dodd and Katherine Dodd v. American Family Mutual Insurance Company, a 4-page, 5-0 opinion, Chief Justice Dickson writes:

After a fire at a home resulted in an insurance claim, the insurance company denied cov-erage on grounds that the insureds had failed to disclose prior fire losses on their insurance appli-cation. In the ensuing litigation, the trial court granted the insurance company's motion for summary judgment and the Court of Appeals affirmed the trial court in part, reversed in part, and remanded for further proceedings. Dodd v. Am. Family Ins. Co., 956 N.E.2d 769 (Ind. Ct. App. 2011). We granted transfer and now affirm the trial court's grant of summary judgment. * * *

We affirm the trial court's grant of American Family's motion for summary judgment, and the final judgment entered thereon. We further direct the trial court to release and return the tender of premiums to American Family.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 2011-2012 Annual Report of the Indiana Supreme Court

The 56-page 2011-2012 Annual Report of the Supreme Court is now available online. Although caseload statistics were released on Oct. 30, 2012, the ILB had not seen the remainder of the Report.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Indiana Courts

Ind. Law - Legalizing and regulating midwifery should better ensure that practicing midwives are well trained

That is the takeaway from this editorial today in the Fort Wayne Journal Gazette re HB 1135. Some quotes:

Indiana’s ban on midwifery is aimed at protecting newborn babies and their mothers. But in practice that ban results in an unregulated system without standards where midwives still help with births – making them criminals.

State law permits midwifery only if the midwife is also a registered nurse. Indiana is one of just 10 states that prohibit trained women from assisting with home births.

Midwifery is legal – and regulated – in about half the states, while the remaining states neither outlaw nor regulate the practice.

The Indiana House voted 63-32 last week to allow trained, nationally certified midwives who lack a nursing degree to assist women with pregnancy and childbirth.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Indiana Law

Ind. Courts - "Former Harrison County prosecutor pleads not guilty to welfare fraud"

Grace Schneider has the complex story in the Louisville Courier Journal.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Indiana Courts

Courts - Missouri: "Should an attorney’s service on a merit selection commission force the entire firm to be recused out of cases?"

Bill Raftery of the blog Gavel to Gavel looks at this issue. He writes that under a bill pending in the Missouri legislature:

... a judge would be required to recuse if a party or the attorney for a party was on the commission that recommended the judge for appointment. Moreover, the ban would go further and extend to all lawyers in the attorney’s entire firm.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Courts in general

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

For publication opinions today (1):

In Nelson Julian Santiago v. State of Indiana,a 7-page opinion, Chief Judge Robb writes:

Nelson Julian Santiago appeals his conviction of neglect of a dependent, a Class A felony. Santiago raises one issue: whether the trial court abused its discretion in refusing to give his proposed jury instruction regarding the presumption of innocence. Concluding that the trial court did not abuse its discretion, we affirm the conviction.
NFP civil opinions today (2):

Jerome Kleber v. Carla (Kleber) Butorac, and Ashlyn P.A. Kleber (NFP)

In the Matter of the Termination of the Parent-Child Relationship of H.M., and R.M. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Ind. App.Ct. Decisions

Courts - "A New Lease for Old Judges "

Ashby Jones of the WSJ has a story today (subscription required) that begins:

State lawmakers across the nation are pushing to raise—or eliminate altogether—mandatory retirement ages for judges, citing longer life spans and a desire to keep experienced jurists on the bench.
As ILB readers know, within the past few years Indiana has eliminated mandatory retirement ages for trial court judges and, this year, a bill is pending (SB 124 - which may have some issues as written) to abolish any retirement age for Indiana appellate court judges. The current requirement is retirement at age 75.

More from the WSJ today:

"Very competent jurists are being forced to retire in the primes of their careers," said Pennsylvania state Sen. Stewart Greenleaf, a Republican and the sponsor of a bill to eliminate the judicial retirement age. "And when this happens, you have to get their replacements trained, and you lose a good amount of time and experience."

Critics also point to a common practice that undercuts the rationale for mandatory retirement: Retired judges are often allowed to return to the bench to lend a hand at reducing caseloads. In these types of arrangements, judges are often paid by the day. * * *

Not everyone is content to leave the issue to the political process. Last November, six Pennsylvania judges facing mandatory retirement sued the state, alleging age discrimination. Pennsylvania's mandatory retirement provision perpetuates stereotypes that older people are "senile, incompetent, lack productivity, suffer from rigid thinking," the complaint says.

In federal court filings, the state moved for dismissal, saying the U.S. Supreme Court in rulings has allowed such retirement policies. The case is pending. * * *

Others feel that older judges should be forced to make way for new blood. "Age restrictions really are a proxy for term limits," said Charles Geyh, a law professor at Indiana University, Bloomington, and an expert on the judiciary. "There's a fair argument to make that incumbents get entrenched, and one way to usher in new blood is to enforce age restrictions."

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Courts in general

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

Updating this ILB entry from Feb. 19th, this item today from the Fort Wayne Journal Gazette's Tracy Warner explains why the position may suddenly attract more applicants:

The number of applicants for the pending opening for an Allen Superior Court judge will most likely grow, perhaps significantly, now that the duties have shifted.

Judge Dan Heath’s decision to move to the Family Relations Division to replace the retiring Judge Steve Sims will mark a significant change for Heath. The family-relations position requires knowledge of not just civil family law but juvenile criminal law as well, an expertise not that many of the county’s lawyers have.

And the position carries a heavy administrative workload, with responsibility for overseeing the Allen County Juvenile Detention Center in addition to the significant juvenile caseload.

Heath, now entering his 17th year on the bench, decided he was ready for new challenges and said he has already begun preparing for the new role.

Not to diminish the importance of the Civil Division seat that Heath and three other Superior Court judges hold, but his new job will be a lot harder. And the vacancy on the Civil Division will draw a lot more interest from local attorneys than the complex and wide-ranging Family Division seat.

That could well make for more work for the local commission comprised of Supreme Court Justice Steven David, three local attorneys and three non-attorneys. To replace Sims, the commission would most likely have reviewed a handful of applications to choose three finalists to submit to Gov. Mike Pence. To replace Heath, the applicant pool will probably be larger, perhaps much larger.

Posted by Marcia Oddi on Tuesday, March 05, 2013
Posted to Indiana Courts

Monday, March 04, 2013

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

Updating this ILB entry from Feb. 27th, Jon Murray of the IndyStar reports on today's hearing re the "City-County Council Democrats’ legal challenge of a redistricting plan signed by Republican Mayor Greg Ballard." A few quotes:

During the brief hearing, Judge Heather Welch, who is presiding over the case, and her colleagues sorted through the housekeeping issues of setting deadlines for legal briefs, scheduling the June 17 hearing and deciding which issues the lawyers would argue, and when.

Democrats contend in their suit that new GOP-drawn boundary lines for the council’s 25 district-based seats — passed by the outgoing Republican council majority in 2011 — failed to satisfy a state law requiring the council to redraw boundaries in 2012. Ballard contends that the redistricting plan met the requirement because he signed it on Jan. 1, 2012; he later vetoed a competing redistricting plan passed late last year by the council’s new 16-13 Democratic majority.

The redistricting challenge echoes a legal case a decade ago that resulted in the Indiana Supreme Court drawing the boundaries that will be replaced by the new boundaries in the 2015 election.

Today, Welch, a Democrat, alluded to that case in vowing to avert the partisan strife that consumed Marion County’s judges in 2003. All 29 judges heard that case before deciding, along party lines, to adopt the then-Republican council majority’s plan, rejecting the one offered by then-Mayor Bart Peterson, a Democrat. The Supreme Court threw out the decision and drew a map from scratch.

Since then, the General Assembly has amended the law to require the random selection of a five-judge panel in Marion Superior Court for redistricting cases, rather than putting them before all of the court’s judges. * * *

The judges will convene the June 17 hearing in the City-County Building’s Public Assembly Room, which serves as the council chambers, as was done in the 2003 case. They can ask questions as each side gets 30 minutes to argue over the Democrats’ planned motion for summary judgment, which is a way of deciding legal issues more quickly, without the need for a trial, when each side agrees on the facts of a case.

Before the hearing, each side will submit written briefs setting out their arguments by May 1, with responses due in early June.

Indiana law allows the judges, potentially, to redraw the boundary lines. Any decision may be appealed directly to the Indiana Supreme Court, bypassing the Court of Appeals.

But the judges and the lawyers decided today that they will focus in the first round of arguments only on the legal question about timing that was raised by the Democrats — and then address the fallout if the judges decide to throw out the Republican-drawn maps.

Posted by Marcia Oddi on Monday, March 04, 2013
Posted to Indiana Government

Law - "Michigan's Law School 'Debt Wizard' Captures National Attention"

See the post here at the State Bar of Michigan blog.

Posted by Marcia Oddi on Monday, March 04, 2013
Posted to General Law Related

Ind. Decisions - Transfer list for week ending March 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, March 1, 2013. It is one page (and 5 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, March 04, 2013
Posted to Indiana Transfer Lists

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

In this Feb. 22nd entry, the ILB wrote about proposed changes to the GA website, and promised more about "how these changes potentially may affect you and I as end users." For instance:

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.
First, what would be the impact of dropping the HTML version of the Indiana Code? Here are some observations:

Second, what would be the impact of dropping the HTML version of bills? Here are some observations:

Posted by Marcia Oddi on Monday, March 04, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Michael Williams, Jr. v. State of Indiana , a 16-page opinion, Judge Vaidik writes:

Michael Williams, Jr., appeals his convictions for Class B felony burglary, Class B felony conspiracy to commit burglary, and Class C felony carrying a handgun without a license. During his jury trial, a deluge of Williams’ prior criminal acts were admitted into evidence without objection and used by the State to argue Williams’ propensity to commit the crimes for which he was charged. Because of this, we find that Williams’ trial counsel’s performance was deficient. We also find that Williams was prejudiced by his counsel’s deficient performance, so we reverse and remand for a new trial. * * *

Williams argues that his trial counsel was deficient by failing to object under Indiana Evidence Rule 404(b) to the admission into evidence of his previous bad acts and convictions. We agree. * * *

The extent of the prior bad acts admitted into evidence at Williams’ trial was breathtaking. Evidence of his felony conviction for possession of cocaine and a firearm – a conviction not admissible for impeachment under Indiana Evidence Rule 609 – was disclosed. Evidence of his previous arrest for possession of marijuana, possession of a controlled substance, and carrying a handgun without a license was also admitted. State’s Ex 27-29. The jury learned that Williams had marijuana in his system and possessed heroin, guns, and a stolen IMPD taser while he was on home detention. Tr. p. 252-53, 260. And the jury learned of unspecified burglaries, robberies, and trafficking in weapons that Williams admitted to Officer Wolfe that he had committed. Id. at 260.

NFP civil opinions today (2):

In Re the Involuntary Termination of S.H. and E.H., N.H. v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)

In Re the Involuntary Termination of the Parent-Child Relationship of T.J.: S.J. v. The Indiana Department of Child Services and Child Advocates, Inc. (NFP)

NFP criminal opinions today (4):

Antonio Highbaugh v. State of Indiana (NFP)

David S. Healey v. State of Indiana (NFP)

Anthoney D. Coveleski v. State of Indiana (NFP)

Glenda Howell v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 04, 2013
Posted to Ind. App.Ct. Decisions

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

From Sunday, March 3, 2013:

From Saturday, March 2, 2013:

Posted by Marcia Oddi on Monday, March 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 (3/4/13):

Thursday, March 7th

Next week's oral arguments before the Supreme Court (week of 3/11/13):

Thursday, March 14th

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, March 6th

Next week's oral arguments before the Court of Appeals (week of 3/11/13):

Tuesday, March 12th

Wednesday, March 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, March 04, 2013
Posted to Upcoming Oral Arguments

Sunday, March 03, 2013

Ind. Gov't. - "While many lawmakers may not like the state’s involvement in the Rockport project, they aren’t willing to use their authority to halt it, either"

That is the conclusion of Eric Bradner's Sunday column in the Evansville Courier & Press. The headline:"All signs point to a Rockford plant." The long story begins:

INDIANAPOLIS — The Rockport coal-to-gas plant once looked like it could be derailed entirely during the Indiana General Assembly’s 2013 legislative session.

Now, that plant and the state’s 30-year deal to buy its product at a pre-negotiated price and then resell it on the open market, with Hoosier customers benefiting if its rates beat market prices and taking a hit if those rates don’t seems increasingly likely to emerge with only a few scratches and bruises.

It’s early yet. This year’s legislative session doesn’t end until April 29, and anyway, complicated issues often aren’t worked out until the two final frenetic weeks of the session, when joint House and Senate conference committees meet.

But signs are emerging that key legislative leaders prefer to keep their hands out of the deal, leaving key decisions about its future to the state’s courts and to the Indiana Utility Regulatory Commission.

Chief among those signs was a comment by House Speaker Brian Bosma, R-Indianapolis. He told reporters Tuesday that the Rockport plant has dominated his time more than all other issues in recent months, and that his “recent epiphany” is that Indiana made a deal with the plant’s developers and now ought to keep it.

“It’s a very thorny issue,” the speaker, who has questioned whether lawmakers would approve the whole deal in its current form again even though they have green-lighted various portions of it in recent years, said last week.

“The state made a deal, and whether it’s a fair deal or not today, we made a deal and we passed the statutes. So, my inclination would be not to overturn a deal but I also believe it might be productive for the utility regulatory commission to take one more, fast look at it to be certain that long-term, this deal is good for ratepayers.”

ILB: Here is a long list of some of the earlier ILB posts on the Rockford project. The list includes this prescient editorial from the Evansville C&P from four years ago urging caution.

Posted by Marcia Oddi on Sunday, March 03, 2013
Posted to Indiana Government

Courts - Two interesting federal sentencing articles

Sentencing Law Blog points to two interesting sentencing articles today. The first, from the NY Times, is quoted in this blog entry, headed "Drug courts come to federal system ."

The second, from a story in the Columbus Ohio Post-Dispatch headed "Seniors argue for less time in prison: Should defendants’ age, health issues be sentencing factors?" is quoted in this blog entry.

Posted by Marcia Oddi on Sunday, March 03, 2013
Posted to Courts in general

Ind. Law - "We don't need a vigilante group with cameras and video cameras taking pictures of things we just don't like." [Updated]

Supplementing earlier entries on SB 373, most recently this one from Friday, the heading today is a quote from the bill's author, contained in this long story by Virginia Black in the Sunday South Bend Tribune.

[Updated 3/4/13] "Whistleblower gag would remove component of food safety" is the heading of an opinion piece by Dave Menzer in the FWJG today.

Posted by Marcia Oddi on Sunday, March 03, 2013
Posted to Indiana Law

Environment - National Pipeline Mapping System

beSpecific points to "the NPMS Public Map Viewer [, which] enables the user to view National Pipeline Mapping System (NPMS) data one county at a time."

Posted by Marcia Oddi on Sunday, March 03, 2013
Posted to Environment

Saturday, March 02, 2013

Ind. Courts - How does the Marion County Clerk make special judge assignments?

That was apparently the objective of a formal complaint (13-FC-64) to the Indiana Public Access Counselor, resulting in this March 1, 2013 response. Some quotes:

In your formal complaint, you provide that on November 14, 2012, you submitted a written request to the Clerk for records related to Special Judge Assignments made by the Clerk under LR49-TR-79.1-227. On January 24, 2013, after speaking with representatives from the Clerk's office regarding the task of compiling the records that would be responsive to your request, you amended your request in writing. You request now sought a front and back copy of certain 3x5 index cards (“Cards”) maintained by the Clerk that contained information regarding each Special Judge in Marion County. You informed the Clerk if such copies were provided and if the Clerk were to confirm the accuracy of the records, you would consider your request for records to be satisfied. On February 9, 2012, you were informed via voicemail that you would be allowed to inspect the Cards, but the Clerk would not provide copies. Mr. Hohl allegedly stated that the Cards were not public record as they were “internal work-product.” You allege that Mr. Hohl failed to cite to a statute in denying your request for copies. You believe that the Cards are public record under the APRA and that the Clerk may not deny your request for copies.

In response to your formal complaint, Mr. Hohl advised that the Clerk has been working with you for several months to address your concerns about the process employed for the random reassignment of judges in Marion County as well as other public records requests. Mr. Hohl provided that the process for assigning random judges is very rudimentary. The Clerk uses 3x5 index cards, one for each of the Courts in Marion County. The top card is removed and placed on the bottom of the pile, and the new "top" card is where the case is reassigned. The Clerk has allowed you to inspect the Cards and answered all of your questions concerning your request and the Clerk's processes. As the Cards are part of an internal court operation, Mr. Hohl does not believe that they are public record and therefore your request for copies was denied. Mr. Hohl advised that the Clerk has concerns that a copy of the Card could be used improperly if provided outside the agency.

Counselor Hoage's 3-page opinion concludes:
For the foregoing reasons, it is my opinion that the Cards are a public record of the Clerk pursuant to I.C. § 5-14-3-2(n). Further, it is my opinion that the Clerk acted contrary to section 9(c) of the APRA in denying your request by not citing to the specific exemption or exemptions that would allow it to withhold the record in question.

Posted by Marcia Oddi on Saturday, March 02, 2013
Posted to Indiana Courts

Ind. Decisions - District court dismisses antitrust action against NCAA

In a 25-page opinion filed yesterday, in the case of John Rock et. al v. NCAA (1:12-cv-01019-JMS-DKL), Judge Magnus-Stinson dismissed an antitrust action against the NCAA with prejudice as regards two of the parties and, with respect to Mr. Rock, concluded:

If counsel wants this claim to proceed, the moment has come to spend the time and undertake the potentially complicated task of the “proper identification” of a relevant market. Agnew, 683 F.3d at 346.

Mr. Rock may move to amend his complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) within 28 days if he can show good cause for doing so. Should he choose to move to amend, the Court ORDERS a review of Federal Rule of Civil Procedure 8(a), which requires a pleading to contain “a short and plain statement of the claim . . . .” Mr. Rock’s amended complaint should not make conclusory legal allegations or cite cases but, instead, should provide a short and plain statement detailing the necessary factual allegations supporting a plausible claim for relief. Failure to do so will result in the Court denying the motion to amend and closing this case.

Posted by Marcia Oddi on Saturday, March 02, 2013
Posted to Ind Fed D.Ct. Decisions

Friday, March 01, 2013

Ind. Law - Bills of interest to the judiciary at the mid-point of the 2013 General Assembly

From this week's post of the Indiana Courts' Legislative Update for the 2013 legislative session:

We have reached the mid-point of the legislative session and this week’s blog is a series of topical charts detailing the status of bills of interest to the judiciary heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Indiana Courts

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

In SEC v. First Choice (ND Ind., Miller), a 7-page opinion, Judge Posner concludes:

And as the judge explained and the appellees have demonstrated at length, $600,000 is a gross underestimate of the harm caused by SonCo’s contempt. SonCo had agreed as part of the “agreed order” to take over the operation of Alco’s wells within 90 days. By failing to do so for more than a year after the order was issued, SonCo exposed Alco to an estimated $490,000 to $780,000 in additional environmental compliance costs because the Texas Railroad Commission refused to authorize operation of the wells without costly rehabilitation, and, left nonproducing, the wells had to be capped as otherwise they would have continued to cause environmental damage for which Alco, as their operator, would have been liable. In addition, SonCo had agreed in the order to replace the $250,000 bond that Alco had been required to post with its own $250,000 bond, and it had not done so. Furthermore, as part of the agreed order the receiver had released either $375,000 or $2 million (the record is unclear on which figure is correct) in claims of fraud and disgorgement that had been lodged against SonCo in Eaton v. HMS Financial. The receiver has also charged $70,000 in additional receivership fees because SonCo’s procrastination prolonged the receivership. And he has incurred a further $30,000 in expenses of overseeing the property in receivership during the period of procrastination. The harm inflicted by the contempt exceeded $600,000 by a large margin. A plausible estimate of the total harm would be $2 million. SonCo has gotten off lightly.

The district judge remarked SonCo’s “record of truly brazen intransigence” in this protracted proceeding. That is an understatement. SonCo will be courting additional sanctions, of increasing severity, if it does not desist forthwith from its obstructionist tactics. AFFIRMED.

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Businesses, including large factory farms that are operating responsibly, don’t need – nor should they want – this bill to pass."

Updating some earlier ILB entries, some quotes from an editorial today in the Fort Wayne Journal Gazette:

Prosecuting Hoosiers for photographing or videotaping embarrassing or illegal activity at industrial operations would be, unfortunately, easier under a bill passed in the state Senate on Tuesday. The bill does little to protect citizens or business owners acting in good faith but instead shields from accountability operations engaged in bad business practices.

Senate Bill 373, authored by Sen. Travis Holdman, R-Markle, is comparable to a spate of bills cropping up all over the country linked to the conservative American Legislative Exchange Council [ALEC]. The Indiana legislation applies to all industrial sectors, but it is targeted to thwart undercover investigations of factory farms by environmental advocates and animal abuse activists.

Holdman proposed similar legislation last year, but Senate leaders had the good sense to let that bill die. * * *

This bill makes it less likely the public will ever hear about operations that are engaged in bad business practices that could contaminate food supplies, pollute the environment or equate to animal abuse or unfair labor practices.

[Kim Ferraro, Hoosier Environmental Council counsel] said: “This isn’t about being anti-agriculture. Every industry has to conduct itself within some standards. This is about making sure industry is conducted safely, and some in this industry want not to be held accountable.”

Businesses, including large factory farms that are operating responsibly, don’t need – nor should they want – this bill to pass.

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

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

NFP criminal opinions today (2):

Kedrin Sweatt v. State of Indiana (NFP)

Patrick Griesehop v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Executive Order "ordering a moratorium on regulations" simply more of the same?

Updating this Jan. 15th ILB entry that pointed to new Pence Ex. Order 13-03, "ordering a moratorium on regulations" (plus compiled together a number of the statutory requirements already in the law designed to lessen the impact of state rules on Indiana businesses), what has happened since?

It turns out that on Feb. 8, 2013 the OMB issued Circular #2013-01, spelling out the details of the new freeze.

(Hat tip to Indiana Legislative Insight, which leads with this story in its newest issue.)

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Indiana Government

Ind. Courts - "Lawyer challenges certification of breath test machines"

So writes Indianapolis Star reporter Tim Evans this morning, in a front page story that begins:

Breath tests administered to drunken-driving suspects since at least Jan. 1 are invalid, an Indianapolis attorney contends in about a dozen Central Indiana court cases.

Hundreds, if not thousands, of other drunken-driving cases across the state that hinge on breath test results also could be at risk if the challenges are successful, legal experts say.

The challenges center on the Indiana Department of Toxicology’s alleged failure to update rules and authorizations for validating breath-test instruments and certifying police officers who administer the tests.

Those updates were required as part of a transition that state lawmakers ordered in 2011 after mounting concerns about management and oversight issues within the department. Lawmakers also pulled the department from its longtime home at Indiana University School of Medicine and made it a stand-alone agency.

Under the legislation, the department had a year — until July 1, 2012 — to make the required changes. But that didn’t happen, according to legal motions filed by Indianapolis attorney John Tompkins.

As a result, Tompkins said, the department’s authority to certify breath-test machines and their use by law enforcement are no longer valid.

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Indiana Courts

Ind. Courts - "Judge could issue ruling on BSU-Hiatt dispute this month"

Remember the takings case involving Ball State and Hiatt Printing? From this Nov. 18, 2012 ILB post, headed "Should a highly respected Indiana trial judge, who was a star athlete for Ball State in the late 1970s, preside over a case involving the school?," quoting an opinion piece in the Muncie Star Press:

Last week saw the first official court hearing in Ball State University v. David and Jane Hiatt et al, the et al including directors of a trust and Chris Hiatt, operator of Hiatt Printing.

Hiatt Printing’s main office is on Wheeling north of Centennial, but a satellite office sits just off BSU’s campus on McKinley, exactly where the university envisions a $26 million hotel and immersive learning program for several majors related to travel, hospitality and food services among others.

Hiatt and family have declined to sell their property for $400,000, the last price Ball State offered. * * *

Given no sales agreement, university trustees authorized use of eminent domain condemnation through court, a controversial power government has to take property when needed to fulfill necessary government functions.

The process includes a court appointing a pair of appraisers to come up with a fair-market value for the property, which the government must pay. * * *

In large part, the hearing was for Circuit Court 1 Judge Marianne Vorhees to disclose to both sides — though nothing new to local counsel, such as Ball State’s attorneys Jim Williams and Scott Shockley of Defer-Voran — her connections to the university.

Judge Vorhess has since recused herself, as posted here. Back to the opinion piece:
The issue Hiatt’s side wants to address is “whether the taking is legitimate or not, which is central to the case,” [Hiatt's attorney Phil] Sever told the court. The defendants feel building and operating a hotel isn’t part of the educational mission of the school.

Ball State disagrees.

Arguments will focus on state law written after a 2005 U.S. Supreme Court ruling allowed governments to take private property from one owner and convey it to another owner if subsequent development benefits the community.

In response, several states, including Indiana, wrote new laws to prevent government confiscation for non-government use. Ball State vs. Hiatt appears to be the first to test exactly what Indiana’s law means.

Yesterday, Feb. 28, 2013, the court held a hearing on Hiatt's objection. Here are copies of the hearing briefs:Here is a story from today's Muncie Star Press reporting on yesterday's hearing. Douglas Walker's report begins:
MUNCIE — A judge could rule this month on whether Ball State University can continue its efforts to claim a campus-area property through an eminent domain lawsuit.

The university last Sept. 27 filed the suit against David, Jane and Chris Hiatt, seeking ownership of the property that now is the location of the family’s business, Hiatt Printing, at 506 N. McKinley Ave.

Court documents reflect the university — which hopes to build a $25 million hotel and conference center, also to contain some student housing, at the site — offered $400,000 for the property.

BSU officials claim they rejected a counter-offer seeking $1.25 million for the land.

An attorney for the Hiatts, Tonny Storey of Carmel, has filed a motion to dismiss the lawsuit, contending that BSU does not have the legal standing to claim the property because its plans for the land do not constitute “public use.”

The Hiatts contend Ball State will “ultimately transfer control of all or part of the mixed-use structure to commercial tenants and a third-party management company.”

In a “pre-hearing brief” filed Thursday, BSU attorney Scott Shockley contended “Ball State will own and operate McKinley Commons and will not be transferring it to a private entity.”

Posted by Marcia Oddi on Friday, March 01, 2013
Posted to Indiana Courts