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Tuesday, April 30, 2013

Ind. Decisions - Supreme Court transfer lists

The ILB has been posting the Supreme Court's transfer lists since 2004. At that time the Court held its weekly conference each Thursday and the transfer list was available the following morning.

Somewhere along the way, the transfer lists from the Thursday conference started coming out late on Mondays, so we were a little bit behind.

In recent weeks, though, the Court appears to be holding conference or otherwise issuing transfer orders on some Mondays. But the transfer lists are not being prepared and made available until the following Monday, so the valuable news is a full week behind. It would be great if something could be worked out.

Posted by Marcia Oddi on Tuesday, April 30, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - "Developers suspend most Rockport gasification plant-related activities"

That is the headline to Eric Bradner's just posted story on the Evansville Courier & Press website. Some quotes:

INDIANAPOLIS — Developers of the proposed $2.8 billion Rockport coal-to-gas plant will see their ongoing legal battle through to its end, but are suspending all other activity related to the project.

The decision comes just three days after state lawmakers approved a tough new regulatory measure that those developers had warned would kill the state’s 30-year contract to buy and then resell the plant’s synthetic natural gas – and therefore the entire effort.

“The judgment of the state is very clear: Neither the legislature nor the governor support the contract or the project,” said Mark Lubbers, project manager for Indiana Gasification, the company being financed by Leucadia National Corp.

He said if the Indiana Supreme Court does not opt to weigh in on the battle between his company and a coalition of opponents led by Vectren Corp., “the project is dead.” If the five-member high court does take up the case, he said, developers could win there.

“If we win, however, only a clear reversal of position by the governor would enable the project to go forward,” Lubbers said.

The Indiana General Assembly approved a bill in the wee Saturday morning hours that would trigger a new regulatory review of the Rockport project if the courts order any changes at all to the original 30-year contract – and changes are seen as likely, since the Indiana Court of Appeals already ruled that 37 words must be struck from that deal.

The ILB also has obtained a copy of Mr. Lubbers' 2-page statement and comments on the Rockport Plant status.

Posted by Marcia Oddi on Tuesday, April 30, 2013
Posted to Indiana Government

Ind. Decisions - Two important environmental decisions today from the Court of Appeals

Today is the last day of the month and the Court of Appeals released 25 opinions today, 10 of them "for publication."

Included in this list is NRDC v. Poet Bio-Refining [7th case in list], where the panel ruled:

The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court.
Here is a preliminary IndyStar story on the ethanol ruling that begins:
Indiana environmental regulators improperly changed state rules to allow ethanol refineries to each emit an extra 150 tons of air pollutants a year, an appellate court ruled today.
The second case, Parker v. Obert's Legacy Dairy [9th case in list], involves CAFOs and the Right to Farm Act, and whether the Act bars a nuisance claim against the Dairy. The COA panel found for the Dairy, despite the Parkers arguments:
First, the Parkers assert the Act does not apply in a nuisance action between two agricultural operations. Second, they contend that the Oberts’ conversion of a specific part of their farm, from crops to a concentrated feeding operation, constitutes a significant change precluding the Act’s applicability. Finally, the Parkers argue that the Act has no applicability since they have resided at their property for years before the alleged nuisance began.

Posted by Marcia Oddi on Tuesday, April 30, 2013
Posted to Environment | Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 10 today (and 15 NFP)

For publication opinions today (0):

In Ruben Pazmino v. Bose McKinney & Evans, LLP, a 12-page opinion, Judge Barnes writes:

Ruben Pazmino appeals the trial court’s grant of summary judgment in favor of Bose McKinney & Evans, LLP, (“Bose”) in the amount of $11,174.20. * * *

There is a genuine issue of material fact regarding whether Pazmino was acting on his own behalf or on behalf of Buena Vista when he sought Bose’s services. Accordingly, neither party is entitled to summary judgment at this stage of the proceedings. We reverse and remand.

In Countrywide Home Loans, Inc. v. Robert Holland , Judge Friedlander's 17-page opinion begins:
This is at least the third installment in a series of appellate cases stemming from Robert Holland’s attempts to appropriate vacant residential properties by entering them without invitation and allegedly making improvements. This iteration differs from its predecessors in that Holland had some success on his claims; although the trial court dismissed Holland’s action to foreclose on a purported million-dollar, common-law lien against the property at issue in this appeal, he prevailed on summary judgment with respect to his action to quiet title, and he was ultimately awarded nominal damages in the amount of one dollar. Countrywide Home Loans, Inc. (Countrywide), the property’s mortgagee, appeals and raises the following issue * * *

Judgment reversed and remanded with instructions.

In Vincennes University by the Board of Trustees of Vincennes v. Daniel E. Sparks, a 16-page opinion, Judge Crone writes:
After an investigation into falsified information on a basketball recruit’s application to Vincennes University (“the University”), Daniel Sparks, who was the head basketball coach in August of 2003, agreed that in lieu of facing disciplinary proceedings, he would forfeit his tenure and be subject to a zero tolerance policy. Thereafter the University renewed Sparks’s contract for the 2004-2005 academic year, but then notified him that his contract would not be renewed for the 2005-2006 academic year.

Sparks sued the University, contending that the University had to continue to employ him as long as he did not violate the zero tolerance policy. Both parties moved for summary judgment. The trial court denied both motions, and the case was tried to a jury. After Sparks’s case-in-chief, the University moved for a directed verdict, which the trial court denied. The jury returned a verdict in Sparks’s favor.

The University appeals, arguing that, because Sparks surrendered his tenure, the University was free to decide not to renew his contract for any reason. The University therefore argues that the trial court should have granted its motion for summary judgment, and alternatively, that the trial court should have granted its motion for a directed verdict and that the evidence was insufficient to support the verdict. We conclude that there is no genuine issue of material fact, that the designated evidence indicates that Sparks was not guaranteed continued employment with the University, and that summary judgment should have been granted for the University. We therefore reverse the verdict.

In John A. Hutchinson v. The City of Madison , a 10-page opinion, Judge Barnes writes:
John Hutchinson appeals the trial court’s dismissal without prejudice of the counterclaim for appropriation of real estate filed by the City of Madison (“the City”). Hutchinson also appeals the trial court’s determination that an interlocal agreement between the City and Jefferson County (“the County”) was valid. We affirm.
In Phillip J. Troyer v. Tracy L. Troyer, a 35-page, 2-1 opinion, Judge Crone writes:
Husband contends that the trial court abused its discretion in valuing and dividing the marital estate; exceeded its statutory authority in retroactively increasing his child support and healthcare expenses; abused its discretion in denying his petition for attorney fees; and failed to rule on two issues that he raised below. Wife contends that the trial court abused its discretion in awarding the parties joint legal custody of K.T. She also asserts that Husband’s appeal is frivolous or in bad faith such that she is entitled to attorney fees pursuant to Indiana Appellate Rule 66(E).

We conclude as follows: (1) the trial court did not abuse its discretion in valuing and dividing the marital estate; (2) the trial court exceeded its statutory authority in retroactively increasing Husband’s child support and healthcare expenses; (3) the trial court did not abuse its discretion in denying Husband’s petition for attorney fees; (4) the trial court did fail to rule on Husband’s request for Wife to reimburse him for her share of K.T.’s private school expenses; (5) the trial court did not abuse its discretion in awarding the parties joint legal custody of K.T.; and (6) Husband’s appeal is neither frivolous nor in bad faith, and therefore Wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Consequently, we affirm in part, reverse in part, and remand. * * *

BROWN, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 34 of 35] I concur with my colleagues in Parts I, II, III, IV, and VI of the majority opinion. I respectfully dissent, however, from Part V regarding the order for joint custody.

In In the Matter of: R.S. (Minor Child), Child in Need of Services, and S.S. (Mother) & B.M. (Father) v. The Indiana Dept. of Child Services, an 8-page opinion, Judge Riley writes:
Appellants-Respondents, S.S. (Mother) and B.M. (Father), (Collectively, Parents), appeal the trial court’s determination that their infant daughter, R.S. (R.S.), is a child in need of services (CHINS). * * *

Here, it is apparent that Parents have made positive changes in their lives. This is something for which we should applaud them rather than condemn them through coercive action. See In re V.H., 967 N.E.2d 1066, 1073 (Ind. Ct. App. 2012). Accordingly, we reverse the trial court’s order determinating that R.S. is a CHINS.

In Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC; Poet Biorefining-Cloverdale, LLC; Central Indiana Ethanol, Inc., et al., a 13-page opinion (don't miss the attorney lineup on the first page), Judge May writes:
In 2010 the Indiana Department of Environmental Management (IDEM) issued permits to some fuel-grade ethanol production facilities. The permits did not categorize the facilities as “chemical process plants”, as such facilities had been categorized in the past. Facilities identified as “chemical process plants” are permitted to emit only 100 tons of certain air pollutants per year, while facilities not so identified may emit up to 250 tons of certain air pollutants per year.

The Natural Resources Defense Council (NRDC) challenged IDEM’s classification of the ethanol production facilities outside the category of “chemical process plants,” and IDEM’s Office of Environmental Adjudication (OEA) determined the facilities should have been categorized as “chemical process plants.” The facilities appealed to the Marion Superior Court, which reversed the OEA’s determination such that the plants again were excluded from the category of “chemical process plants.”

The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court.

[ILB note] The opinion refers to "IDEM’s Office of Environmental Adjudication (OEA)," but the OEA is a separate agency.]

In John Gresser and Janice Gresser, et al. v. The Dow Chemical Company, Inc.; Dowelanco n/k/a Dow Agrosciences LLC; and Reliable Exterminators, Inc., a 23-page opinion, Judge Pyle writes:
John and Janice Gresser, individually, and as parents and natural guardians of Elizabeth and Rebekah Gresser, filed a product liability action against The Dow Chemical Company, Inc., and DowElanco n/k/a Dow Agrosciences LLC and a negligence action against Reliable Exterminators, Inc. * * *

[Issues] 1. Whether summary judgment for Dow is warranted under the Indiana Product Liability Act (“IPLA”).
2. Whether the trial court erred in denying Reliable’s motion to exclude or strike the evidence proposed by the Gressers’ causation experts.
3. Whether the trial court erred in denying Reliable’s motion for summary judgment on the Gressers’ negligence claim.
4. Whether the trial court erred in denying Reliable’s summary judgment motion on the issue of punitive damages.
5. Whether the trial court erred in determining that this case is preempted by federal law. * * *

The trial court correctly granted Dow’s summary judgment motion on the Gressers’ failure to warn claims under IPLA. However, the trial court erred in denying Dow’s related summary judgment motion on the Gressers’ failure to satisfy IPLA requirements. In addition, the trial court improvidently granted Dow’s summary judgment motion pertaining to federal preemption.

The trial court correctly denied Reliable’s motion to exclude the Gressers’ expert witnesses. The trial court also correctly denied Reliable’s summary judgment motions pertaining to the Gressers’ negligence claims and to the possibility of a punitive damage award. The trial court erred by granting summary judgment in favor of Reliable on the issue of federal preemption.

Affirmed in part, reversed in part, and remanded for further proceedings.

In Glenn Parker, As Trustee Under the Revocable Declaration of Trust Agreement of Glenn Parker, Individually and Phyllis C. Parker, Individually v. Obert's Legacy Diary, LLC , a 12-page opinion, Judge Riley writes:
Appellants-Plaintiffs, Glenn Parker (Glenn), individually and as Trustee under the Revocable Declaration of Trust Agreement of Glenn Parker, and Phyllis C. Parker (Phyllis) (collectively, the Parkers), appeal the trial court’s grant of summary judgment in favor of Obert Legacy Dairy, LLC (the Dairy). We affirm.

The Parkers raise one issue on appeal which we restate as follows: Whether the Indiana Right to Farm Act bars their nuisance claim against the Dairy. * * *

On June 28, 2011, the Parkers filed their complaint for nuisance, which was amended on May 14, 2012. The Parkers alleged that the Dairy’s concentrated feeding operation produced offensive odors, devalued their property, and caused them “discomfort, inconvenience, and personal injury.” (Appellants’ Amended App. p. 106). On August 22, 2011, the Dairy filed its answer asserting the Indiana Right to Farm Act, Ind. Code § 32-30-6-9, as an affirmative defense. * * *

On appeal, the Parkers make three arguments that the Act does not bar their nuisance claim. First, the Parkers assert the Act does not apply in a nuisance action between two agricultural operations. Second, they contend that the Oberts’ conversion of a specific part of their farm, from crops to a concentrated feeding operation, constitutes a significant change precluding the Act’s applicability. Finally, the Parkers argue that the Act has no applicability since they have resided at their property for years before the alleged nuisance began. * * *

The Parkers argue that the legislature could not have intended the Act to apply to long-time residents whose daily, rural life suffers at the hands of a “factory-like ‘mega-farm.’” However, it is clear that the Act insulates the Oberts’ expansion of their dairy farm from nuisance suits under these circumstances. In sum, we affirm the trial court’s grant of summary judgment in favor of the Dairy.

CONCLUSION. Based on the foregoing, we conclude that the Act bars the Parkers’ nuisance claim and the trial court properly granted summary judgment to the Dairy. Affirmed.

In Kendall Johnson v. State of Indiana , a 7-page opinion, Judge May concludes:
The trial court did not abuse its discretion when it denied Johnson’s request to have the jury instructed on reckless homicide because the evidence did not support such an instruction. Additionally, Johnson’s sentence was not inappropriate based on his character and the nature of the offense. Accordingly, we affirm.
NFP civil opinions today (8):

Donna Chapman and Lora Hoagland v. Central Indiana Educational Service Center and Franklin Township Community School Corporation (NFP)

In the Matter of the Termination of the Parent-Child Relationship of R.R. and T.R.; R.R. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of A.S.: K.S. v. Indiana Department of Child Services (NFP)

Term. of the Parent-Child Rel. of K.C., a/k/a R.L., and A.L., Minor Children; S.L., Father v. Indiana Dept. of Child Services (NFP)

Juan Murillo Bravo v. Silvia Bravo and Rancho Bravo, Inc. (NFP)

Allstate Insurance Company, As Subrogee of Juan R. Lopez, III v. Brenda J. Faulkner (NFP)

In the Matter of the Guardianship of the Person of H.M., S.M.M. and M.M., and S.E.M. v. D.L.M. v. In the Matter of the Paternity of H.M., S.E.M. v. D.L.M. (NFP)

In the Matter of the Civil Commitment of: D.P. v. Richard L. Roudebush Veterans Affairs Medical Center (NFP)

NFP criminal opinions today (7):

John F. Girvin v. State of Indiana (NFP)

Jerry D. Boyce v. State of Indiana (NFP)

Edward Lay v. State of Indiana (NFP)

Nelson Rios v. State of Indiana (NFP)

Joshua D. Gaunt v. State of Indiana (NFP)

Douglas R. Bartel v. State of Indiana (NFP)

Shawn E. Voorhies v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 30, 2013
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS says states may bar information requests from nonresidents"

Updating this ILB entry from yesterday, How Appealing has collected a number of stories on yesterday's SCOTUS decision in McBurney v. Young.

Here is Lyle Denniston's analysis at SCOTUSblog.

Posted by Marcia Oddi on Tuesday, April 30, 2013
Posted to Courts in general

Monday, April 29, 2013

Ind. Law - "Indiana General Assembly missed much more than it hit"

That is the headline to this unsigned opinion column from the Indianapolis Star.

But it looks like the IndyStar also "missed much more than it hit" here.

Their first miss can be seen in the "Editor's note" preceding the story:

An earlier version of this article cited as a Miss the so-called “ag-gag” bill. That legislation died in the final hours of the legislative session.

That's one. Number two is in the column's description of the first "Hit":

Hit: Let’s start with the positive. Lawmakers not only completed their constitutional duty of drafting and approving a two-year budget, they also did the work on time and passed a spending plan free of the accounting gimmicks that were once common in the Statehouse.
"Where does the Indiana Constitution say that?" That was the heading of this Jan. 7, 2007 ILB entry that began:
I thought we'd put this old saw to bed! But the Indianapolis Star's Mary Beth Schneider writes today [2007] on the paper's front page: "But only one job is a must-do, mandated by the constitution: passing a new two-year state budget."

The ILB posed this question a number of times in 2005, when variations of the supposed mandate, including Pat Bauer's "That’s really our only constitutional duty,” were repeated, without question, in a number of reporters' stories.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Indiana Law

Courts - "Woman facing misdemeanor for video recording Utah slaughterhouse"

That's the headline to this story by Jim Dalrymple II posted this afternoon by The Salt Lake Tribune. A few quotes:

Amy Meyer, 25, faces a class B misdemeanor for agricultural operation interference. Prosecutors filed the charge in Draper’s justice court Feb. 19 after Meyer reportedly used her cell phone to film the Dale T. Smith and Sons Meat Packing Co. 11 days earlier. * * *

In a written statement sent to the Salt Lake Tribune on Monday, Meyer explains that she went to the slaughterhouse because she heard bystanders on public property could "witness the horror of cows struggling for their lives as they were led to their violent deaths."

Defense attorney Stewart Gollan said Monday that as Meyer stood on public property she used her cellphone to capture video of the facility.

The story links to the police report.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Courts in general

Ind. Decisions - Tax Court decides one today

In Kooshtard Property VIII, LLC v. Shelby County Assessor, a 7-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board correctly found that Kooshtard failed to establish a prima facie case that its land was overassessed. The Court finds that it did. * * *

The Indiana Board’s final determination that Kooshtard did not make a prima facie case must stand: Kooshtard offered nothing more than conclusory statements and previously rejected arguments in challenging the propriety of its land assessments. Accordingly, the final determination of the Indiana Board is AFFIRMED.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending April 26, 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 April 12, 2013 list.]

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Indiana Transfer Lists

Courts - SCOTUS upholds Virginia public records law [Updated]

From this SCOTUSblog post re today's opinion:

In McBurney v. Young, a unanimous Court (in an opinion by Justice Alito) held that Virginia’s Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, does not violate [the Constitution].
[Updated] See also this story by Richard Wolf, USA TODAY.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Courts in general

Ind. Decisions - Respondent wins disciplinary action re fee agreements

In re Canada is a 2-page "Published Judgment in Favor of Respondent," filed April 26th. Some quotes, although this should be read in full:

Upon review of the report of the hearing officer, the Honorable Barbara L. Brugnaux, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court concludes that the Commission has not met its burden of proving by clear and convincing evidence that Respondent engaged in professional misconduct. Accordingly, the Court enters judgment for Respondent. * * *

Client made it clear to Respondent that he wished to resolve the case through a plea agreement. Client and his father signed a fee agreement entitled "Contract for Legal Services" to engage the services of Respondent. The fee agreement stated that Respondent would take the case to conclusion for a "flat fee" of $10,000, to be paid from a cash bond posted by the father. The agreement stated: "This fee is non-refundable because of the possibility of preclusion of other representation, and to guaranty priority of access. The fee is non-refundable unless there is a failure to perform the agreed legal services." * * *

We therefore find no infirmity with the fee agreement itself. * * *

The remaining issue is whether Respondent improperly collected and failed to refund an unearned part of the flat fee. Client was, of course, free to discharge Respondent at any time and retain a different attorney. Respondent was not permitted to keep any part of his fee that he did not earn. The only question is whether any part of Respondent's fee was unearned. According to the evidence, Client made it clear from the outset that he wished to resolve the case through a plea agreement. Respondent spent considerable time on the case and negotiated a plea agreement that Client initially viewed with favor. Client then changed his mind and hired replacement counsel to negotiate a somewhat different plea agreement. Under these circumstances, we conclude that the Commission has not proven by clear and convincing evidence that Respondent did not fully earn his flat fee. See Admis. Disc. R. 23(14)(i) (misconduct must be proven by clear and convincing evidence); cf. O'Farrell, 942 N.E.2d at 808 (record insufficient to prove that some amount of flat fee was unearned when the attorney-client relationship ended before work was completed).

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Swami, Inc., et al. v. Franklin Drywall II, LLC (NFP)

Renee Tripp v. William Bockman (NFP)

NFP criminal opinions today (4):

Anthony Minney v. State of Indiana (NFP)

DeMarkus Adams v. State of Indiana (NFP)

Tony Campos v. State of Indiana (NFP)

Raymond Carter v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indianapolis airport racks up legal bills in third attempt to stop off-site parking lot"

Jon Murray's long story (3 "pages")today in the Indianapolis Star begins:

The Indianapolis Airport Authority’s spending of tens of thousands of public dollars to stop a private company’s plans for an off-site parking lot has stoked outrage by some public officials and other critics who view the effort as an unfair intrusion upon free enterprise.

Legal fees have reached at least $45,000 as the city-owned airport continues its effort to stop Cincinnati-based Chavez Properties and Parking. The company seeks to develop a 3,700-space parking lot south of I-70, near the main freeway entrance to the airport.

The airport, which draws more than a quarter of its operating income from its own parking operations, has lost two rounds in its legal fight and now awaits action by the Indiana Court of Appeals.

Already facing competition from one off-site lot, airport officials say a land-use plan for the Ameriplex industrial park, where the new lot would open, called for development that would complement the airport, not compete against it.

Some government officials view the airport’s challenge, which began more than a year ago, as an act of desperation.

That the Airport Authority is fighting a private developer is “fundamentally unfair,” said Robert Lutz, a Republican on the City-County Council who represents a Far-Westside district north of the airport.

The development would generate property taxes, is not looking for any tax abatement and “the citizens of Decatur Township want it,” he said.

Pat Andrews, a neighborhood advocate who chairs the Decatur Township Civic Council’s land use committee, has railed against the airport’s ferocity and willingness to challenge parking competition.

“This is the most outrageous thing out of all the things I’ve seen in city government,” Andrews said. “They’re taking a very typical business that locates near airports, and they’re saying, ‘We’re going to do this (as a monopoly).’ It really is outrageous.”

More from the story:
In February 2012, the Metropolitan Development Commission voted 6-2 in a zoning case to allow the private parking lot. A trial court judge later backed the commission’s authority to make such a decision.

The Airport Authority appealed to the state Court of Appeals last fall. Throughout the challenges, the airport’s legal bills have mounted.

From August 2011 through January, according to legal bills obtained by The Indianapolis Star through a public records request, the airport’s attempts to stop the competing lot racked up $45,740 in charges for work by outside law firms.

The most recent bill provided to The Star, from January, doesn’t reflect the preparation of two legal briefs that the airport’s Indianapolis attorneys since have filed in the Court of Appeals. The owner of the Ameriplex land, Midwest Logistics Partners, is seeking to uphold the previous decisions.

The airport’s agreement with the most recent law firm, Doninger Tuohy & Bailey, set an initial cap on fees at $70,000.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Indiana Government

Ind. Decisions - From the London Daily Mail, a long feature on Paul Gingerich

Extensive coverage and many photos in a long story headed "The boy who was jailed for life at the age of 12: Story of the Justin Bieber look-a-like who was tried as an adult after helping kill friend's stepfather."

And from deep into the story, this item: "His harrowing story is the subject of a new documentary by filmmaker Zara Hayes which is due to be aired on Channel 4 later this week."

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Indiana Decisions

Ind. Law - Sex offender verification of residence requirement in action

Amy Lavalley of the Gary Post-Tribune reports today in a story headed "Most registered offenders in Porter County where they should be":

VALPARAISO — The majority of the county’s registered sex or violent offenders were in compliance with the county’s registry during checks conducted by the Porter County Sheriff’s Department from April 15 to 19, which included a verification of residence for the offenders living within the county.

Officers checked 95 registered offenders at various times of the day and night and found 84 were compliant with the registry. Six offenders were already incarcerated prior to the check. Two offenders were in violation and reports were sent to the prosecutor’s office requesting charges be filed for registry violations. Three offenders require further investigation.

State statute requires law enforcement to personally visit each sex or violent offender at the offender’s listed address at least once a year. Law enforcement is also required to visit each sex or violent offender who is designated a sexually violent predator at least once every 90 days.

State statute requires only a minimum number of residence checks. However, this does not prevent law enforcement from making additional random checks to ensure that the offender stays compliant with the sex or violent offender registry guidelines.

Posted by Marcia Oddi on Monday, April 29, 2013
Posted to Indiana Law

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

From Sunday, April 28, 2013:

From Saturday, April 27, 2013:

From late Friday, April 26, 2012:

Posted by Marcia Oddi on Monday, April 29, 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 (4/29/13):

Next week's oral arguments before the Supreme Court (week of 5/6/13):

Thursday, May 9th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/29/13):

Tuesday, April 30th

Wednesday, May 1st

Thursday, May 2nd

Next week's oral arguments before the Court of Appeals (week of 5/6/13):

Wednesday, May 8th

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, April 29, 2013
Posted to Upcoming Oral Arguments

Sunday, April 28, 2013

Ind. Courts - Allen County Superior Court candidates tout experience

Updating this ILB post from April 26th, identifying the three finalists for the Allen County Superior Court vacancy, Rebecca S. Green has a long story in the Sunday Fort Wayne Journal Gazette with bios and photos of each of the three finalists. A few quotes:

FORT WAYNE – Among the eight candidates were a long-distance runner, a hockey mom, a published author and a long-time prosecutor.

But after hours of interviews and a few private meetings, the Allen County Judicial Nominating Commission, which is itself an eclectic group, picked three individuals as potential candidates for the vacant position of civil division judge on the Allen Superior Court bench.

Those three people – two magistrates and a local attorney in private practice – now await the decision by Gov. Mike Pence to determine who will replace Allen Superior Court Judge Dan Heath. * * *

The three candidates awaiting the governor’s decision are Allen Circuit Court Magistrate Craig Bobay, Allen Superior Court Magistrate Jennifer DeGroote and Michael Michmerhuizen.

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Courts

Ind. Law - Recaps of the 2013 General Assembly

The 2013 General Assembly adjourned sine die early Saturday morning. Several big items were decided in the last few hours. Here are some of the stories published this weekend.

"What happened to key legislation?" - The Indianapolis Star has this useful look at bills that made it, and those that didn't. Unfortunately, like other stories in Gannet publications, not only is it behind a paywall, but it is broken up into six "pages", meaning you just can't easily scroll through it, or even print it ("print" is disabled) - I'd like to see some figures on how many people only read the first "pages" of these stories.

Here are two Star wrap-up stories, the first by Mary Beth Schneider and Chris Sikich, (5 "pages")is a survey; the second (4 "pages") by Schneider alone, is an analysis.

"This session showed a kinder, gentler legislature" is Lesley Weidenbener's Sunday column in the Louisville Courier Journal.

"Here’s a look at how the key issues of the General Assembly’s 2013 session were sorted out in its final days and what these measures will do if Gov. Mike Pence signs them into law" writes Eric Bradner of the Evansville Courier & Press in this survey article.

A second story by Bradner gives a detailed look at the new budget, HEA 1001 (not yet available but here is the adopted CCR). Bradner gives coverage to an important development not mentioned in other stories, except in passing:

Among the last-day developments in the budget, Republican lawmakers dropped a proposal to cut Indiana public employees’ retirement benefits.

The benefit cut was vaguely referenced in a previous draft of the spending plan approved by the Senate, but was only specifically spelled out in the version legislative leaders unveiled on Thursday – and the idea was short-lived.

The Indiana Public Retirement System currently allows retired teachers and state workers to receive monthly annuity payments – an option about 60 percent of retirees choose, but that the spending plan nearly blocked.

Senate Appropriations Chairman Luke Kenley was pushing a plan to require those who leave their jobs after 2013 to shift their money into private plans, which offer a 3 percent interest rate on those annuities – much less generous than the state’s 7.5 percent rate.

The state is “paying a richer benefit than they can afford. So we just put language in there that says they can’t do that,” said Kenley, R-Noblesville. “The purpose is to avoid creating any unfunded liabilities.”

However, supporters of the current system say the state can afford better benefits because it does not have to earn a profit. So Kenley’s plan was dropped.

House Speaker Brian Bosma, R-Indianapolis, said he asked – and Senate budget-writers agreed – that the retirement benefit cut be eliminated from the final budget so that the change could be publicly aired and debated.

“There wasn’t adequate discussion about it,” Bosma said. “I requested that that be removed from the final conference committee report so it could be discussed in a public meeting at a future date.”

These proposed changes can be seen in the first CCR draft, available here, from pp. 127-138. The changes do not appear to apply to legislators' pensions, or those of other elected officials.

"Leaning right, pragmatically: Bosma says legislative session featured 'wise decisions'" is the heading to this story by Tom LoBianco of the Associated Press.

Finally, Niki Kelly's Sunday story (NOT "paged") in the Fort Wayne Journal Gazette is headed "Reviews mixed on Pence’s first session."

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Law

nd. Courts - "Lawsuit against malpractice program certified class action"

From Tim Evans' long report in the Indianapolis Star April 26th:

A state medical malpractice insurance program has accumulated more money than it will ever need to pay claims and should return more than $30 million to the health-care providers who’ve paid into the fund since 2000, according to a lawsuit in Marion Superior Court.

Superior Judge Michael Keele this week granted class certification and appointed the Indianapolis law firms Cohen & Malad, LLP and Coots, Henke and Wheeler as counsel in the civil lawsuit filed against the Commissioner of the Indiana Department of Insurance and the Indiana Residual Malpractice Insurance Authority.

The certification means the court finds a class action case is the appropriate way to move forward with the the lawsuit.

The state Department of Insurance oversees the IRMIA, which provides malpractice coverage for health-care providers who cannot obtain insurance through other sources. The program is run by private sector insurers and operates with no government or taxpayer funds.

“The money is just sitting there gathering dust,” said Irwin B. Levin, the lead attorney on the case. “According to their own numbers, there is $30 (million) to $40 million that they will never have to use, and they won’t give it back.”

Levin said the money cannot be spent for anything else. * * *

“These ‘undistributed funds’ are monies paid by the health-care providers for insurance coverage that will never be used for anything. In essence, IRMIA is holding over $19 million in funds paid by health-care providers that, by its own accounting, IRMIA will never have a use for, and funds that should be refunded to the health-care providers,” the lawsuit says.

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Courts

Ind. Courts - "Supreme Court Justice Loretta Hogan Rush said judges 'bring all our life experiences' to the bench"

The Richmond Palladium-Item this weekend has a long, interesting feature on Justice Loretta Rush, reported by Louise Ronald. A sample:

As Rush leafed through the 1976 RHS yearbook Monday, she recalled involvement with the student newspaper, Honor Society and Homecoming court, as well as student government and Model Legislature.

“She was interested in those kinds of things even in high school,” [Michelle] Avery said.

Rush herself doesn’t seem so sure.

“I wanted to be a forest ranger,” she said during taping of the “P-I Live!” Legacy Series, a joint effort of the Palladium-Item and WCTV.

That idea was one of many, Rush recalls. She went to Purdue University planning to study engineering, but ended up changing her major several times. It wasn’t until her senior year there that she decided to go to law school.

She certainly “never would have imagined” serving on the Indiana Supreme Court when she was in high school, Rush said. But her busy schedule at RHS might have been great preparation for the job.

“I have about half my body height in briefs” to read each week, said Rush, who is just over 5 feet tall. The high court reviews 20 to 25 cases a week and justices have a variety of administrative duties.

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Courts

Ind. Courts - "David Bisard, awaiting trial in 2010 fatal alcohol-related crash, is arrested on a new DUI charge"

The most recent ILB entry on David Bisard is from March 8 and is headed "Indianapolis police Officer David Bisard's trial set for October." It quotes a story by Jack Rinehart of WRTV6 that 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.

Today's long story, by Robert King and John Tuohy, begins:
David M. Bisard, the suspended Indianapolis police officer already facing charges from a 2010 alcohol-related crash that killed a motorcyclist, was arrested again Saturday on a DUI-related charge.

Bisard, 39, was arrested in Lawrence after police there responded to a report of a truck running into a guardrail in the 10000 block of Indian Lake Boulevard South, said Captain of Administration Curtis Bigsbee.

Officers asked Bisard to take a portable Breathalyzer test. It showed Bisard had a blood alcohol level of 0.17, a law enforcement source said. That’s more than twice the level at which Indiana drivers are considered impaired.

Bisard was charged with operating a vehicle while intoxicated.

The crash took place around 2:30 p.m., according to Bill Owensby, the president of the Fraternal Order of Police.

Bisard told Lawrence police he'd been drinking since noon, then begged them to let him go and promised never to drink again after they came to the scene of the crash at 2:15 p.m., according to a Lawrence Police Department report.

"I know you know who I am. I messed up today. If you guys cut me a break, I promise I will never drink again," Bisard told Lawrence Officer Dan Rhoton, according to his report.

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Courts

Ind. Law - Column: "Rockport plant will never be"

Eric Bradner's Sunday column in the Evansville Courier & Press follows up on his story from the day before, which was headed "After Rockport bill's passage, developers say project will die." It begins:

INDIANAPOLIS Developers of the proposed Rockport coal-to-gas plant told Indiana lawmakers that their votes early Saturday morning amounted to an up-or-down referendum on the $2.8 billion project.

If the House and Senate approved a bill that required the project’s advocates to jump through a host of new hoops, Rockport project manager Mark Lubbers repeatedly said, there would be no way it could go forward.

Still, even as the votes were cast and the bill approved, many lawmakers believed that Lubbers was crying wolf that he and other developers in the Indiana Gasification LLC project, including financier Leucadia National Corp., would find a new way to make it work.

I suspect they’re wrong. Barring some dramatic turn of events, the plant will never be built, as opponents of the plant intended when this year’s session started.

There are two key sections of the bill, and both impose standards on the Rockport project that were not in place when the deal was struck.

One would throw it into the kind of constant regulatory oversight that developers sought to avoid when they negotiated a 30-year contract with the Indiana Finance Authority to have the state buy and then resell their synthetic natural gas, with the gains or losses when that pre-negotiated price is compared to the open-market rate passed on to Hoosier gas customers.

The other section, which requires an in-depth new regulatory review of the project, doesn’t take effect if the Indiana Supreme Court delivers Leucadia a victory on every front.

That, though, seems unlikely, since the Indiana Court of Appeals already cited a 37-word provision that shouldn’t have been included and as a result, voided the Indiana Utility Regulatory Commission’s approval of the contract.

If the state’s high court decides not to take up the case, upholds the appeals court’s decision or orders any further changes, it triggers the new review.

That review would likely be a fatal blow for the plant’s developers for a number of reasons.

Posted by Marcia Oddi on Sunday, April 28, 2013
Posted to Indiana Law

Saturday, April 27, 2013

Ind. Law - "Bill to Protect Hoosier Children Online Moves to Governor’s Desk"

That is the headline to this news release the ILB received this morning.

Interestingly, the release links to the introduced version of SB 347. However, the bill was extensively amended during the course of the session.

This Jan. 31st ILB post quotes a story from Charles Wilson of AP that begins:

A bill rewriting an overturned Indiana law banning sex offenders from social networking sites is just the same tiger wearing new stripes, legal experts said Wednesday. * * *

The Senate Committee on Corrections and Criminal Law on Tuesday merged the bill with another one authored by Sen. Randy Head, R-Logansport, [ILB - that would be SB 347] which would increase the penalty for child solicitation if the offender uses a computer network and travels to meet the child.

Senator Head's amendments, with some modifications, are retained as SECTION 7 (see p. 4) of SEA 347, which will be effective July 1, 2014.

Posted by Marcia Oddi on Saturday, April 27, 2013
Posted to Indiana Law

Ind. Law - "After Rockport bill's passage, developers say project will die"

Here is Eric Bradner's story this morning in the Evansville Courier & Press, on SB 487, on its way to the Governor after it is enrolled. The story begins:

INDIANAPOLIS — A tough set of oversight measures for the proposed Rockport coal-to-gas plant has won Indiana lawmakers’ approval despite developers’ warnings that the new standards would surely scuttle their $2.8 billion project.

The legislation’s passage in the House and Senate in the wee Saturday morning hours could ease new Republican Gov. Mike Pence’s path out of the 30-year contract inked two years ago by his predecessor, former Gov. Mitch Daniels.

Though the state’s deal to buy and then resell the Rockport plant’s synthetic natural gas is the subject of a legal battle currently pending before the Indiana Supreme Court, developers said even a victory there could not save the project.

“We would have never spent a dime on this plant if the law passed tonight had been in place,” said Mark Lubbers, the project manager for Indiana Gasification LLC, which is being financed by New York-based Leucadia National Corp.

The votes marked the conclusion of a hard-fought battle on what House Speaker Brian Bosma, R-Indianapolis, identified as the most complicated issue of the General Assembly’s 2013 legislative session.

It pitted the developers and their allies in the coal and labor lobbies against an unusual coalition of opponents that included business, consumer and environmental groups that was led by Vectren Corp.

Lubbers said the resulting bill would force the plant through new hurdles that would delay construction by at least two years, and it would put in place the kind of constant regulatory review that developers had sought to avoid.

As a result, he said, the project cannot go forward.

From later in the story:
The measure, contained in Senate Bill 494 and carried by Sen. Doug Eckerty, R-Yorktown, and Rep. Suzanne Crouch, R-Evansville, won the Senate’s approval on a 43-7 vote and cleared the House, 70-28, on its last vote before adjourning for the year.

“We have an opportunity today – a very small window of opportunity – to take another look at a deal we started making six years ago, and it’s a deal that will affect 2 million ratepayers in each and every one of our districts,” Crouch said.

Rep. Matt Pierce, D-Bloomington, said he “messed up” years ago when he voted in favor of the Rockport project and felt the “need to correct my mistake.”

“This is the only opportunity we have and likely will have to give our ratepayers a fighting chance,” Pierce said.

Posted by Marcia Oddi on Saturday, April 27, 2013
Posted to Indiana Law

Ind. Law - Still more on "Jury is still out on effect of SB 213 on Indy’s anti-discrimination protections"

In yesterday's post, the ILB wondered whether anything had happened to remedy the perceived problem with SEA 213. After bill bill had passed both houses in March, problems had been raised about its impact. From this March 26th post, quoting a Star story by Jon Murray and Chris Sikich:

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.”

This morning Jon Murray forwarded to me a note from Indiana Equality headed "Indiana Equality Action thanks lawmakers, Governor for correcting bill that might have invalidated local human rights ordinances across Indiana." It reads:
INDIANAPOLIS — Chris Paulsen, president of Indiana Equality Action, released the following statement thanking lawmakers, Gov. Mike Pence and mayors across Indiana for working to correct legislation that might have invalidated local human rights ordinances statewide. Senate Bill 213, which addresses local wages and benefits, passed both chambers before lawmakers and mayors realized it might jeopardize human rights ordinances.

Once the unintended consequence came to light, Gov. Pence said he would work with lawmakers to prevent potentially invalidating locally approved protections against employment discrimination based on sexual orientation and gender identity.

The correction was included in the budget bill, which passed both chambers early this morning before lawmakers ended this year’s session. The budget now heads to Gov. Pence for action.

“We’re grateful to the Governor, state lawmakers and mayors across our state who worked together to fix this problem after it came to light. Indiana Equality Action and our partner organizations have spent years working with cities to embrace protections against employment discrimination based on sexual orientation and gender identity.

“It became clear that the authors of the original bill didn’t intend to harm these human rights ordinances, and we were relieved that so many different elected officials and groups were able to work together.

"The legislative process moves quickly and bills can wind up containing language that creates instead of solving problems. In this instance, the problem has been corrected, and these local protections will remain in place."

ILB: Where is the correction? It is in SECTION 336 of the budget bill (at p. 263 of this CCR). It adds a new "Section 4" to the currently three sections of IC 22-2-16 added by SEA 213. It will read:
Sec. 4. Nothing in this chapter shall be construed to prohibit a city, town, or county from adopting an ordinance under IC 22-9-1-12.1 relating to a category or class in addition to the categories and classes described in IC 22-9-1-2.

Posted by Marcia Oddi on Saturday, April 27, 2013
Posted to Indiana Law

Friday, April 26, 2013

Ind. Law - SB 373 is dead for the session

Niki Kelly @nkellyatJG of the FWJG tweets: Sen. Travis Holdman says he will not call the ag-gag concurrence. The bill is dead for the session.

Mary Beth Schneider ‏@marybschneider of the IndyStar tweets: Sen Long confirms that SB373 ag gag bill is dead for this year.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Law

Ind. Law - More on "Jury is still out on effect of SB 213 on Indy’s anti-discrimination protections"

What has happened with this?

For background, see Jon Murray's story from April 14 and this post from March 26th.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Law

Ind. Law - Another update on the ag-gag bill - SB 373: Restricted access/expungement meets employment application fraud

CCR 373-2 passed the Senate this afternoon, but in the midst of the debate in the House, the CRR (NOT the bill) was pulled. That means the conferees could come back with a new CRR, or another opinion would be for the Senate to withdraw its dissent to the version that passed the House, meaning the bill would be ready for enrollment.

The House version is not an "ag-gag" bill. Instead, it expands the definition of "denied entry" in the trespass law, which now includes a posted notice, oral or written personal communication, or a court order, to include the existence of "a fence, a wall, or other constructed barrier that reasonably implies entry is prohibited."

Additionally the House-passed version includes the change I discussed earlier this afternoon in this post. It would add a new section to IC 35-43-5, a criminal statute which covers "Forgery, Fraud, and Other Deceptions," creating this new crime - "employment application fraud":

Sec. 21. A person who knowingly or intentionally:
(1) submits an application to a prospective employer to secure employment with the prospective employer; and
(2) makes a false statement about a material fact or conceals a material fact in the application in order to secure employment with the prospective employer;
commits employment application fraud, a Class A misdemeanor.
This provision could impact anyone applying for a job.

Ironically, under a statute that is in effect right now, the restricted access law, the General Assembly has enabled job applicants in certain circumstances to lie about their past criminal history. See for example this April 25, 2012 ILB post.

That restricted access law (IC 35-38-5-5.5 and IC 35-38-5) would be repealed by the newly passed expungement law, HEA 1482, effective July 1, providing it is approved by the governor.

If that happens, and if the Senate decides to concur in the House amendments to SB 373, which also would take effect July 1, the result might be that:

On June 30th, a job applicant who has gone through the statutory process to have the access to his past criminal history restricted under the current law could legally say he had no past convictions.

But the next day, on July 1, to do the same would be to commit the new crime of employment application fraud!

[More] What happens to people whose conviction records were restricted under the current law, once HEA 1482, the expungement law, goes into effect? The new expungement law doesn't seem to cover this.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Law

Ind. Courts - "Myers’ attorney tells how he took the murder case"

That is the headline of the long story today presenting continuing comprehensive coverage of the John Myers PCR hearing, reported by Laura Lane of the Bloomington Herald-Times.

This story from Stan Jastrzebski of Indiana Pubic Media also reports on Thursday's hearing. Some quotes:

What was supposed to be the next-to-last day of the post-conviction hearing for the man found guilty of killing IU student Jill Behrman turned out to be just a middle round of sparring Thursday.

In a high-pitched, slightly scratchy voice which required him to frequently sip from a water bottle, attorney Patrick Baker – a member of Myers’ original defense team — seemed almost to enjoy a five-hour back-and-forth with defense lawyer Anne Burgess. * * *

But the day ended before the defense could finish its questioning of Baker. And since a previous agreement was in place stating he is unable to testify Friday due to personal concerns, the hearing will continue beyond the end of the week.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Courts

Ind. Law - Bill on school tranfers on way to governor

Niki Kelly of the Fort Wayne Journal Gazette reports:

Public schools would be limited on why they could deny transfer students under a bill that received final approval Thursday.

Transfers among public schools have become increasingly popular since the state took over all operating funds of K-12 schools. But some allege that schools are “cherry-picking” only the high-performing students and rejecting less-desirable applicants.

House Bill 1381
, sponsored by Sen. Jim Banks, R-Columbia City, would still allow local school boards to decide if they want to accept transfer students.

But if they do, the district must set a number of open slots that are available for transfers and choose children by a lottery if more than that number apply.

Schools would not be allowed to deny transfer to a student based on attendance, test scores, disabilities or overall academic record.

There are some limitations on kids who have been suspended or expelled.

“We need to be fair to all schools,” said Sen. Carlin Yoder, R-Middlebury. “Urban schools should be allowed to keep their better students. If a school wants to pull them out then they should have to take everyone, not just the ones who perform the best.”

But those opposed argued public schools will stop accepting transfers at all for fear new students might bring their school ranking down.

The House passed the bill 77-19 Wednesday, and the Senate followed with a 36-14 vote Thursday.

The bill now heads to the governor.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Law

Ind. Courts - More on: Eight applicants announced for upcoming Allen County judicial position

Updating this April 10th ILB entry, as reported here in the Fort Wayne Journal Gazette:

Three finalists for the seat of Allen Superior Court Judge Dan Heath were named on Friday.

The names will be forwarded to Gov. Mike Pence, who will have 60 days for choose a replacement for Heath, who is moving from the court’s Civil Division to family court – taking over the post of Judge Stephen Sims.

The finalists are Circuit Court Magistrate Craig Bobay, Magistrate Jennifer DeGroote and local attorney Michael Michmerhuizen.

The Allen County Judicial Nominating Commission, headed by Indiana Supreme Court Justice Steven David, made the recommendation.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Courts

Ind. Law - Update story on the ag-gag bill [Updated][Updated again]

Updating this ILB entry from yesterday, Mary Beth Schneider has posted this new story to the IndyStar early this afternoon. A new conference committee report for SB 373, more stringent than the linked yesterday, has now been filed in both the House and Senate (it is identified as 0373-2). From Schneider's story:

Secretly taking videos or photos that make a business look bad would be a crime, with no defense even for a person who turned those images over to law enforcement, under the latest changes to Senate Bill 373.

That measure, dubbed the “ag-gag bill,” is undergoing last minute changes in the legislature and will be voted on later today by the House and Senate. The legislature is facing a self-imposed deadline of today to finish the 2013 session.

The bill has drawn national attention. Animal rights activists, labor unions and news media organizations argue that it punishes those who expose animal abuses and work safety issues instead of the perpetrators. Supporters, including the Indiana Farm Bureau and business groups, say it is needed to protect private property rights.

The bill makes it a Class A misdemeanor, punishable by up to a year in prison, to take videos or photos on private property without permission in order to harm a business. Earlier versions gave people as long as five days to turn over the video or photos to police or a regulatory agency to avoid prosecution.

ILB: The CCR would also add a new section to the criminal statutes. At IC 35-43-5, which covers "Forgery, Fraud, and Other Deceptions," the CCR would add this crime:
Sec. 21. A person who knowingly or intentionally:
(1) submits an application to a prospective employer to secure employment with the prospective employer; and
(2) makes a false statement about a material fact or conceals a material fact in the application in order to secure employment with the prospective employer;
commits employment application fraud, a Class A misdemeanor.
How this meshes with the expungement law would be but one thing to look at ... This provision could impact anyone applying for a job, it has nothing to do with whistleblowers.

[Updated at 3 PM] The CCR just passed the Senate, 29-21. Must also be passed by House.

[Updated at 4:40 PM] After much debate of the CCR in the House, Speak Bosma pulled it. Only option would be to for conferees to agree on and file a new version that would meet all the objections raised in the past two hours.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Law

Ind. Gov't. - New rules to be exempt from Governor's Executive Order?

The latest issue of Indiana Legislative Insight ($$$) asks:

Is anyone keeping track of how many enrolled acts will require detailed new rules and major additions to the Indiana Administrative Code . . . despite the Governor’s professed disdain for the bulk of administrative rulemaking and its resultant burden on Hoosiers? Asa we were pondering this, we noticed a section in the budget bill which determines that all rules “necessary or appropriate to carry out legislation enacted in the 2013 session of the general assembly shall be treated as permissible rules excluded from the suspension of rulemaking imposed by Executive Order 13-03, so long as the notice of intent to adopt a rule ... is filed by December 31, 2014" and adopted in normal fashion.
You can find this language at SECTION 373 of the HB 1001 CCR, at p. 284.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Indiana Government

Ind. Decisions - Volokh writes about a 2001 Indiana Supreme Court opinion

The post, titled "Don't try this at home,"is kind of interesting. And there are 50 comments.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "COA sides with Canadian couple who sued adoption agency over drug-addicted baby"

Yesterday's Not for Publication opinion in Jessica and Gerson Urbina v. Tina Klinkose-Kyler, Laronda Southworth and A Bond of Life Adoptions, LLC (NFP) is now the focus of a long WRTV story. Some quotes from the story:

The Indiana Court of Appeals has sided with a Canadian couple who was set to adopt a baby in Noblesville before learning the infant was born addicted to drugs, information the adoption agency did not share.

Jessica and Gerson Urbina, of Canada, were working with Zionsville-based adoption agency A Bond of Life Adoptions, or ABLA, when a prospective match was found with a pregnant woman in Noblesville.

After the baby was born, the couple traveled to Indiana and spent time with the newborn at the hospital, choosing a name and sending pictures of the baby to their friends and family, according to their complaint.

It was then that a social worker told the couple that the baby was being monitored for withdrawal symptoms caused by the birth mother's methadone use during pregnancy, according to the complaint.

The same information had been passed along to the adoption agency several days earlier, but ABLA did not inform the Urbinas, according to the complaint.

From the 17-page opinion written by Judge Friedlander:
[W]e must decide whether the Urbinas would be entitled to establish under any set of facts admissible under the allegations of the complaint that the Agreement imposed upon ABLA a duty to divulge the contents of the social worker’s call at some point between the time ABLA was apprised of it and when the Urbinas discovered independently that the infant might be suffering from chemical withdrawal. * * *

Having found the existence of a duty to divulge pertinent medical information to the Urbinas on contractual grounds, we need not determine whether such a duty arose upon alternate bases such as the duties of an agent to its principal or fiduciary duties that arose by virtue of the relationship between the Urbinas and ABLA. We reiterate that those theories of duty ultimately derive from the contract that we have concluded imposed a duty upon ABLA to disclose to the Urbinas any information it gathered about an identified candidate for adoption.

All of that said, we express no opinion as to the merits of the Urbinas’ claim for damages based upon the breach of that duty with respect to any of the theories of recovery in the Urbinas’ complaint for damages. We merely hold that in the current posture, i.e., a T.R. 12(B)(6) motion to dismiss, and considering only the facts alleged by the Urbinas in the complaint, the Urbinas might be entitled to establish under some set of facts that the Agreement imposed upon ABLA a duty to divulge to the Urbinas the contents of the social worker’s call. * * *

Judgment reversed and remanded with instructions.

The ILB adds this opinion to its "running list of cases designated as NFP that perhaps should not have been," last discussed in this April 19th post.

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (3):

In Platinum Construction Group, LLC v. Christopher Collings , an 11-page opinion, Judge Crone writes:

Platinum Construction Group, LLC (“Platinum”) appeals an order of the Worker’s Compensation Board (“the Board”) awarding benefits to former Platinum construction supervisor Christopher Collings for injuries he suffered to his back, neck, and hip during a 2009 accident on the job. Platinum contends that the Board erred in awarding Collings sums for temporary total disability (“TTD”). Platinum also challenges the sufficiency of the findings supporting the Board’s order awarding Collings sums for permanent partial impairment (“PPI”). * * *

In short, the Board’s findings are adequate for review and support its conclusions, and the conclusions support the judgment. Accordingly, we affirm the Board’s judgment in all respects.

In Shari (Ellis) Lovold v. Clifford Scott Ellis , a 15-page opinion, Chief Judge Robb writes:
Shari (Ellis) Lovold (“Mother”) appeals the trial court’s order denying her request for contribution from Clifford Ellis (“Father”) towards the college expenses of their son, C.E. She raises the issue of whether the trial court abused its discretion by finding that C.E. repudiated his relationship with Father. On cross-appeal, Father appeals the trial court’s order modifying child support. He raises the issue of whether the trial court erred in its child support calculation by requiring him to pay child support for the time C.E. lived on campus. Concluding that the trial court did not abuse its discretion with regard to the repudiation finding but that it erred in the child support calculation, we affirm in part, reverse in part, and remand. * * *

Thus, it is clear that while a court may order college expenses and child support, living expenses for a child living on campus should be included in the educational support order and not in the child support order.

We hold that living expenses for a child living on campus should similarly not be included in the child support order when, as here, the child has repudiated the parent and the parent is therefore not required to contribute to the child’s post-secondary education. To hold otherwise would render repudiation no longer a complete defense to the payment of college expenses.

In Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission, a 12-page 2-1 opinion, Chief Judge Robb writes:
Lebamoff Enterprises, Inc. (“Lebamoff”), appeals the trial court’s dismissal of its petition for judicial review. Lebamoff raises three restated issues for our review: 1) whether the trial court erred in dismissing Lebamoff’s petition for failure to file the agency record in a timely fashion; 2) whether, excluding the agency record, Lebamoff submitted sufficient materials for judicial review; and 3) whether deficiencies in the administrative law judge’s (“ALJ”) findings of fact require that the case be remanded. Concluding that Lebamoff did fail to timely file the agency record, but that the original submission contained sufficient material to enable judicial review, we reverse and remand. * * *

Lebamoff is an Indiana corporation that operates liquor stores in northern Indiana and holds a liquor dealer permit, the scope of which is detailed at Indiana Code section 7.1-3-10-7. Beginning in 2008, the Indiana Alcohol and Tobacco Commission (“ATC”) issued six citations to Lebamoff alleging violations of its permit, stemming from Lebamoff’s use of common carriers to transport product to customers for sales generated through fulfillment companies. * * *

Concluding that Lebamoff did not meet the timing requirements of the AOPA with regard to filing of the agency record, but that the materials submitted with the petition were sufficient for judicial review of the question of law at issue, we reverse and remand to the trial court for resolution of the issue on the merits. Reversed and remanded.

VAIDIK, J., concurs.
KIRSCH, J., dissents with opinion: I respectfully dissent. The Administrative Orders and Procedures Act as adopted by our General Assembly is the exclusive means for judicial review of an administrative action. * * *
The mandates of the Administrative Orders and Procedures Act as adopted by our General Assembly are clear. The Appellant simply failed to follow them. It failed to file the agency record within the time period set forth in the Act, and it failed to seek an extension of that time. That failure was cause for dismissal, and accordingly, I would affirm the trial court’s dismissal.

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of C.R. (Minor Child) and T.R. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, April 26, 2013
Posted to Ind. App.Ct. Decisions

Thursday, April 25, 2013

Law - "The Shadow Lobbyist: There has been a quiet upheaval in the lobbying industry"

A long column in the NYT Opinionator ("exclusive online commentary") from Thomas B. Edsall. The Times says this is Prof. Edsall's new column on demographic and strategic trends in American politics which will appear every Thursday in the Times. (h/t Election Law Blog)

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to General Law Related

Ind. Law - Status report on Rockport bill

No sign of a CCR on the Rockport coal-gasification project. Again, if there is no action before the session ends, the Rockport project will continue. The bill where the CCR is reportedly to be inserted is SB 494, which currently is about taxes, but that language would be stripped out, according to Eric Bradner, reporter for the Evansville C&P. A look at the bill at 9:00 PM shows that no CCRs have been filed.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Law - Here is the Ag-Gag Conference Committee Report

Here is is, the Senate has filed its CCR. From the Digest:

This conference committee report: (1) adds language providing that a person who does not have a contractual interest in the property of another person, and who knowingly or intentionally enters the real property and commits an overt act on the real property with the intent to harm any business that operates on the real property commits criminal trespass; (2) removes language that for the purposes of criminal trespass, a person has been denied entry to property when the person has been denied entry by means of a fence, wall, or other constructed barrier that reasonably implies entry is prohibited; and (3) makes a technical correction.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Law - You gotta love it! The Budget [Updated]

The Conference Committee Report on HB 1001, the budget, was placed on the desks of House members at 7 PM and will be eligible for a vote tomorrow evening, which will be 24-hours after the filing and laying on the desks.

By the way, this CCR was accessed by the ILB from the House Republican website, NOT from any of the OFFICIAL sources listed in this post from earlier today.

[Update at 4/26/13]
The budget CCR isn't filed, according to the Star story this morning, because the conferees haven't signed off yet.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Law - "Indiana lawmakers restoring most of 'ag-gag' bill"

So reports the IndyStar's Mary Beth Schneider in this story filed at 4:30 PM. Certainly worth reading in full. A sample:

To pave the way for it to be voted upon, Republican legislative leaders have removed the Democratic conferees who balked at signing it.

That is a typical legislative move in the last hours of a legislative session, with the majority party removing minority party members who are standing in the way of a deal. It takes four signatures on a negotiated version — two from the House and two from the Senate, usually one from each party — for a bill to get the final votes it needs to go to the governor.

But Sen. Karen Tallian, the Portage Democrat who was removed from SB 373, accused Republicans of “dirty rotten kind of blackmail technique” to try to get her to approve the bill.

She said she had talked the penalty down to an infraction -- akin to a speeding ticket -- rather than a misdemeanor that carries a penalty of up to a year in jail.

“They came to me and said, ‘Make the choice. Either you sign it and it will stay an infraction with the Senate version or don’t sign it, and all this other stuff is going in,” Tallian said. “We agreed uanimously (in the Democratic caucus) that we weren’t buying this. It’s a bad bill and we’re not signing.”

This bill has drawn national attention and opposition from animal rights activists, labor unions and others who say it punishes those who are exposing wrongdoing and shielding those who should be punished. Supporters of the bill, including the Indiana Farm Bureau and the Indiana Chamber of Commerce, say it protects private property rights and stops farms or factories from being maligned by edited videos, sometimes taken by people who had gotten jobs solely for that purpose.

Note that as of 5:35 PM the Action List does not indicate that Tallian has been removed.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Courts - "Bei Bei Shuai talks with RTV6 about murder, attempted feticide charges in rat poison death case"

Story and video here, Derrik Thomas reporting.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Courts

Ind. Law - "Developer says emerging legislation would kill $2.8B Rockport plant"

Here is Tony Cook's Indianapolis Star story, filed at 2:43 PM. It begins:

After months of debate and fierce lobbying, legislation that a developer says would kill a proposed coal-gas plant in Rockport appears poised to move forward.

A conference committee of House and Senate members today announced plans to strip an unrelated bill and insert language that would require a new, more stringent regulatory review of the $2.8 billion project if a contract between the state and the plant’s developers is effectively voided in the courts, where it is under dispute.

The new review would require the Indiana Utility Regulatory Commission to approve, reject, or modify the contract using new guidelines intended to better protect ratepayers.

Three of the four conference committee members have supported similar legislation in the past, but all four must sign off on the latest version of the bill for it to move to a full vote before the House and Senate. Rep. Kreg Battles, D-Vincennes, opposed a previous but similar version of the bill.

That means the plant’s fate will likely be decided by House Speaker Brian Bosma, who could replace Battles with an alternative conference committee member. Bosma said Thursday afternoon that he hadn’t made a decision yet, but he said he encouraged the conference committee to use a substantially similar bill as the framework for their discussions.

The bill where the CCR is reportedly to be inserted is SB 494, which currently is about taxes, but that language would be stripped out, according to Eric Bradner, reporter for the Evansville C&P. A look at the bill at 4:20 PM shows that no CCRs have been filed. Check also the Action List. It is unknown how frequently the bill's data is updated.

If there is no action before the session ends, the Rockport project will continue.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Gov't. - Following bills in conference committee ... [Updated]

Some links for those of you interested in following bills in conference committee:

Check the time of the report - they are frequently updated so check back often.

Table of Bills in Conference - unfortunately this table gives no indication of when/whether it is updated

Last Action Report also lacks explanation, but appears to be constantly updated, unclear if whether by time or by event. (However I just looked at SB 373 [ag-gag bill] and it still reports that Bauer is a conferee, although the Star reported this morning that he had been removed by Speaker Bosma)

You can watch the activity online. It is sporadic at best. Use these: the House & Senate Committee Meeting Schedules and the House & Senate Conference Committee Meeting schedules.

Follow activities on Twitter: @indianalawblog @marybschneider @ChrisSikic @nkellyatJG @ericbradner to name a few.

[More] When a conference committee has reached agreement, duplicate conference committee reports (must be signed by all 4 conferees) are filed in each house. By rule (#163 in House) they are to lay on the legislators' desks for 24 hours before being voted on (may be suspended by 2/3 vote). The Time Filed is noted on the House and Senate calendars.

Once filed, you should be able to access the CCR. Here, for instance, is HB 1006 (criminal code). Scroll to the end and you will find links to the duplicate CCRs filed in each house. As/if they are passed by each house, those links are added. At the point when the CCRs have been adopted by both houses, the bill is "sent to enrollment" and, as an Enrolled Act, is ready to be sent to the governor.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Government

Ind. Law - "Indiana lawmakers restoring most of 'ag-gag' bill"

This newly filed (12:19 PM) IndyStar story by Mary Beth Schneider begins:

Taking unwelcome video or photos of a farm or business would be a crime under legislation nearing final negotiations between the House and Senate.

To pave the way for Senate Bill 373 — dubbed the “ag-gag bill” — to become law, House Speaker Brian Bosma, R-Indianapolis, removed Democrat Rep. Pat Bauer from the conference committee debating a final version of the bill.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Courts - "Wendy Owings apologies to Marilyn Behrman at John Myers' hearing"

That is the headline of the story today presenting more comprehensive coverage of the John Myers PCR hearing, reported by Laura Lane of the Bloomington Herald-Times. From far into the story:

Former FBI agent Tony Siedl testified Wednesday morning, confirming other police officers who said Owings and Sowders had “made a lot of statements” to people implicating themselves. One of them was Owings’ mother, Terri Magness, who testified Wednesday afternoon. “She got mad at me one night and said she was gonna kill my dog like she did Jill.” Magness said she believed her daughter was speaking the truth.

Another was Kimberly Enochs, who served time with Owings at the Morgan County Jail and the Indiana Women’s Prison. “She said they were in a vehicle that hit her, that they were all messed up and when the truck hit her it didn’t kill her,” Enochs testified.

Morgan Superior Court Judge Thomas Gray was furious when he learned that Enochs and [Wendy] Owings had violated a separation of witnesses order by spending much of Tuesday afternoon seated in the hallway outside the courtroom, catching up and discussing their upcoming testimony. Wednesday afternoon, Owings said Enochs apologized for what she would be saying about her in court. The judge chastised Murray and Green for waiting until late in the day to inform their witnesses they could not speak to one another about the case.

“I made sure I always told my witnesses to keep their damn mouths shut, and made sure it happened,” said Gray, who took a 10-minute break to cool off. “I don’t understand why you would jeopardize four years of work.”

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Courts

Ind. Law - Sierra Club: "Little time to fight unfair ‘Leucadia tax’ - State on hook for company’s risky coal-gasification scheme"

Steve Francis, chairperson of the Hoosier Chapter of the Sierra Club, has this long editorial column in today's Fort Wayne Journal Gazette. Just a sample:

Simply put, Hoosiers are being sold a raw deal. Leucadia’s coal gasification project would lock Hoosier families across the state into a future of higher bills and less money in their pockets. Doubling down on coal in Rockport would also add further toxic pollution in a place where pollution from its existing coal-fired power plant contributes to 140 deaths, 210 heart attacks and 2,300 asthma attacks each year, according to the Clean Air Task Force.

At a time when families are struggling to make ends meet, we cannot afford to take on all of the risk and pay the costs for Wall Street’s risky bet.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

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

In EMILIO MARTINO v. WESTERN & SOUTHERN FINANCIAL GROUP (ND Ind., Springmann), a 22-page opinion, Judge Williams writes:

Emilio Martino, a naturalized United States citizen born in Italy, worked briefly as a sales representative for Western & Southern Financial Group (“W&S”). Less than two months after W&S hired Martino, the company terminated his employment. Martino sued W&S for religious discrimination under Title VII and for defamation. Martino alleged, among other claims, that W&S discharged him based on his religious beliefs. W&S countered that Martino’s termination was due to his failure to provide documents verifying his eligibility for employment in the United States. The district court granted summary judgment to W&S, and we affirm. Martino’s evidence neither calls into doubt W&S’s explanation for his discharge nor establishes a prima facie case of defamation.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law "Legislators close to deal that developers say would kill Rockport gasification plant"

Eric Bradner of the Evansville Courier & Press reports at 10:13 AM in a long story that begins:

INDIANAPOLIS — After a push from Gov. Mike Pence, Indiana lawmakers are finalizing a measure that developers of the $2.8 billion Rockport coal-to-gas plant say would kill their project "times four."

House and Senate negotiators are currently putting the finishing touches on the bill. If it wins the approval of both chambers by Friday, it would mark a victory for opponents of the plant and a stinging defeat for its advocates.

Lawmakers unveiled the latest draft of the bill at a Thursday morning conference committee meeting. Mark Lubbers, the project manager for the Indiana Gasification plant being financed by New York-based Leucadia National Corp., said the new version would force the Rockport plant through too many new hoops.

He called it "a good indication that our $3 billion investment isn't wanted" and said that while he's not sure whether developers would continue to advocate for their effort in an ongoing court battle, he does not believe the project could survive the new standards the bill would impose if it becomes law.

"It's not even a close call," Lubbers said. "We don't want to be someplace we're not wanted."

The debate is over the wisdom of the Indiana Finance Authority’s 30-year contract to buy the Rockport plant’s synthetic natural gas at a pre-negotiated rate and then resell it on the open market, with the gains or losses passed on to ratepayers.

As long as the Indiana Supreme Court upholds an appellate court’s decision, the legislation that top-ranking Republicans met twice Wednesday to hammer out would put the project through a tough new review by the Indiana Utility Regulatory Commission.

The Rockport plant’s developers argue that the new review included in the new legislation would force them to meet ratepayer savings standards throughout the life of the contract and comply with other regulatory procedures that were not in place when their deal with the state was signed in 2011. Thus, they say, they could no longer finance the project.

However, lawmakers involved in the negotiations said the second review is what Pence wants. House Speaker Brian Bosma said Pence’s administration has encouraged them to pursue that option and leave the final yes-or-no decision in the hands of utility regulators.

“They’ve been very actively involved,” Bosma, R-Indianapolis, said of the governor’s legislative aides.

There is much more to the story, which concludes:
Lawmakers are set to conclude their 2013 legislative session by Friday night and the House requires that its members get 24 hours to review each bill before casting votes. That leaves just hours to decide whether to step into the Rockport deal.
ILB: If they don't act, the project will continue.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Indiana Law

Ind. Decisions - Another Supreme Court disciplinary opinion posted

From the now-posted opinion, filed April 19th, In the Matter of Mark E. WATSON:

Stipulated Facts: Respondent admits to five counts of misconduct occurring from 2009 through 2011. Respondent converted $1,500 in client fees paid to Respondent's law firm, he converted nearly $6,900 in money orders given to him by several clients for payment to the trustee in their bankruptcy cases, and he made unauthorized charges for personal use on the firm's credit card. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 18 months, without automatic reinstatement, beginning May 31, 2013.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Martin Meehan v. State of Indiana , an 11-page opinion, Judge Crone writes:

Martin Meehan was convicted of burglary and being a habitual offender. The only evidence tying Meehan to the crime was a glove found at the crime scene that contained his DNA. On appeal, Meehan argues that there was insufficient evidence that he was the perpetrator, that the trial court erred by allowing the State to file an untimely habitual offender charge, and that the trial court erred by ordering his sentence to be served consecutively to another sentence with a habitual offender enhancement. Because there was no evidence that would support an inference that Meehan’s DNA was found on the glove because he handled it during the burglary, as opposed to some other time, we conclude that the burglary verdict was based on speculation and must be reversed. Because we are reversing the underlying conviction, we do not reach the issues that Meehan raises regarding the habitual offender enhancement. * * *

In sum, in all the cases discussed, there was eyewitness or circumstantial evidence that explained how the DNA or fingerprint evidence ended up at the crime scene. In these cases, the totality of the circumstances made it unlikely that there was an innocent explanation for the presence of the DNA or fingerprint evidence at the scene.

In many cases, DNA is compelling evidence of identity. In this case, however, there was no evidence that would support an inference that Meehan’s DNA was found on the glove because he handled it during the burglary, as opposed to some other time. Therefore, the guilty verdict was based on speculation and must be reversed. As our supreme court has said, a conviction “may not be based on guess or speculation.” Smith v. State, 256 Ind. 546, 551, 270 N.E.2d 743, 745 (1971). Were we to affirm, we would be creating a precedent that would make it relatively easy for criminals to frame other individuals; all they would need to do is obtain an object with someone else’s DNA and leave it at the crime scene. We reverse Meehan’s conviction for burglary and the resulting habitual offender enhancement.

NFP civil opinions today (2):

Jessica and Gerson Urbina v. Tina Klinkose-Kyler, Laronda Southworth and A Bond of Life Adoptions, LLC (NFP)

Richard J. Bond v. Knox County Drainage Board and Dick Vermillion, As Knox County Surveyor (NFP)

NFP criminal opinions today (6):

James Edwin Goris v. State of Indiana (NFP)

Walter Fisk v. State of Indiana (NFP)

Antonio A. Burgos, Sr. v. State of Indiana (NFP)

Charles E. Justise, Sr. v. State of Indiana (NFP)

Brenda Varo v. State of Indiana (NFP)

E. Paul Haste v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to Ind. App.Ct. Decisions

About the ILB - Another ILB birthday, and another plea, please read!

The ILB is repeating this plea because this is serious. The ILB needs more supporters, particularly major (front page) supporters. Those would likely be organizations, bar sections, law firms, or those who do business with law firms. (The most obvious potential supporter turned the ILB's direct plea down flat last week for the second times in 3 years.)

The Indiana Law Blog had its 10th Birthday on March 16th, 2013! To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the New Blog Site - the one you are reading now.

I believe the ILB has made a significant impact in its 10 years of existence.

You are able to read the ILB because of, and thanks to, these major supporters:

Plus these individuals/firms who also help assure the continuation of the ILB: Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB.

As I am not an heiress or otherwise independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

It is easy to become an annual ILB supporter and be listed here. Simply fill out this supporter agreement and mail it to the ILB, along with your check. You may elect to pay quarterly or annually. You will be listed here along with a link to your website, if you so elect.

If your firm or organization would like to be listed on the front page (top right) of the Indiana Law Blog, alongside the ISBA, Doxpop, and the ISBA Litigation section, the $$ requirements are listed on the bottom of the supporter agreement.

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support.

To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email address if you'd like an acknowledgment of receipt and a thanks. Many thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to About the Indiana Law Blog

About this Blog - Follow ILB Twitter link as well as the ILB

If you don't already, you might want to follow both the ILB and the ILB Twitter link. The ILB has the detailed posts, while Twitter gives the alerts for new postings.

In addition, on Twitter I highlight many others' tweets of interest to ILB readers, as they occur.

Posted by Marcia Oddi on Thursday, April 25, 2013
Posted to About the Indiana Law Blog

Wednesday, April 24, 2013

Ind. Courts - "Cost Of Sullivan Court Room Goes Up Again"

So reports WIBQ, Terre Haute. More:

It seems like an unwritten law of construction.

What ever you build, it will cost more than you thought it would.

The new courtroom in SullivanCounty will take another $102,000 to complete, bringing the total bill to about $450,000.

Part of the cost will include a new handicap accessible ramp on the south side of the new room.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Courts

Ind. Law - Former Indiana House Speaker arrested on DUI charge

John Tuohy of the Indianapolis Star reports late this afternoon in a detailed story that a Boonville attorney and:

... former speaker of the Indiana House was arrested on drunken driving charges last night in the Circle Centre parking lot after crashing his red Cadillac into a pay booth.

Police said Michael K. Phillips registered a .16 percent blood alcohol content on a portable breathalyzer test at about 11:45 p.m. in the garage, 49 W. Maryland St.

The legal limit for intoxication is half that level, .08

Phillips, 69, told Indianapolis Metropolitan Police Department officers he had “a couple glasses of wine” at an off-track betting parlor.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Law

Ind. Law - More on the ag-gag bill, thoughts of one of the conferees

SB 373, the ag-gag bill, is currently in conference committee. Rep. Bill Friend is a House conferee. He has posted his thoughts about the bill online today:

Senate Bill 373 will be worked through conference committee this week. The author, Senator Travis Holdman (R-Markle), has dissented on the bill and wishes to return it to language as it left the House Agriculture Committee. That means he wants to include the photography language.

I am not sure how the bill will end up. It has attracted nationwide attention and will be discussed for some time to come. I would like to get it passed and tested in the legal community. Taking unauthorized photographs and posting them on the Internet just seems to be a violation of personal property rights. Property owners should have rights as well as random visitors with no authorization.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In State of Indiana v. Darrell Keck, an 8-page opinion, Judge May writes:

Darrell Keck was stopped after police saw him driving on the left side of a county road. He was charged with operating a vehicle while intoxicated1 and operating a vehicle with a blood alcohol level of .08 or more,2 both Class C misdemeanors. Keck moved to suppress evidence arising out of the stop, arguing police should not have stopped him because road conditions were so bad he could not safely drive on the right side of the road. In granting Keck’s motion to suppress, the trial court determined “driving left-of-center has become a necessity” because of poor road conditions in the county, and police therefore did not have reasonable suspicion to stop Keck. The State appeals, arguing the police had reasonable suspicion to stop Keck because he was driving left of center. We affirm.
In Joshua McCaine Pillow v. State of Indiana , a 4-page opinion, Judge May writes:
Joshua McCaine Pillow appeals his conviction after a bench trial of Class C felony operating a motor vehicle after his driving privileges had been forfeited for life. Pillow argues the evidence was insufficient to convict him. We affirm. * * *

There was sufficient evidence Pillow operated a motor vehicle and his driving privileges had been forfeited for life, which is all the State is obliged to prove under section 9-30-10-17. Brock, 955 N.E.2d at 205. We accordingly affirm.

In Ryan Shelby v. State of Indiana , a 42-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in denying Shelby’s motion to view the crime scene, nor did the trial court’s denial of Shelby’s motion to certify its order for interlocutory appeal constitute reversible error.

As to alleged cumulative error, there was no Brady violation. The manner in which the police chose to investigate the crime does not constitute legal error on appeal. The presentation of inconsistent testimony is a factual issue for the trier of fact to resolve. The trial court did not err in instructing the jury. The prosecutor did not engage in misconduct. Thus, since none of Shelby’s claims of error were in fact error, there was no cumulative effect of these alleged errors requiring reversal.

The trial court did not abuse its discretion in admitting Shelby’s statements to the police. And to the extent that the trial court erred in limiting the testimony of Shelby’s expert witness, the error was harmless in light of the testimony that was presented by the witness.

Lastly, even if the trial court did abuse its discretion in failing to consider Shelby’s proffered mitigator of “residual doubt,” we would not remand for resentencing because Shelby’s advisory sentence of fifty-five years for the brutal murder of his stepdaughter is not inappropriate. Affirmed.

NFP civil opinions today (3):

In Re the Marriage of: Lisa C. Medley v. Frederick A. Medley (NFP)

Robert L. Johnson, Barbara Johnson, Peace Building Communities, The Professional Groups of the Millennium, LTD., and God's New Covenant Church v. Peace Baptist Church, Inc. (NFP)

Inner Circle Properties, LLC v. Jeffrey Beeks (NFP)

NFP criminal opinions today (3):

Dennis Barnett v. State of Indiana (NFP)

Michael Pollack v. State of Indiana (NFP)

Wanda Strickler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues order imposing reciprocal discipline

In In re Bruce Carr, an order filed April 19th, the Court writes:

The Indiana Supreme Court Disciplinary Commission filed a "Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause," advising that Respondent was disciplined by the State of Illinois and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On January 28, 2013, this Court issued an "Order to Show Cause," to which Respondent has not responded.

Respondent was admitted to practice law in Indiana and in Illinois. On November 19, 2012, the Supreme Court of Illinois found Respondent's conduct violated that jurisdiction's rules of professional conduct. For this misconduct, Respondent was suspended from the practice of law in Illinois for nine months, effective December 10, 2012.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Illinois, Respondent may file a "Motion for Reinstatement" pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge rules ousted Carroll County commissioner's home is where he sleeps"

Reminiscent of another recent case? Here Ron Slavens is fighting to recover his Carroll County commissioner's district 1 seat. Chris Morisse Vizza reports for the Lafayette Journal Courier. From the story:

Slavens is fighting the Carroll County Council’s decision to declare his seat vacant, and the Carroll County Republican Central Committee’s election of John Brown to fill the vacancy.

During an April 12 hearing in Carroll Circuit Court, Slavens admitted that, because of a heart condition, he, his wife and granddaughter have spent almost every night in a mobile home at 43 Rhineland Drive in Delphi since May 25, 2010. Delphi is outside District 1, which Slavens represents.

Still, Slavens maintained that he had not moved from the family farmhouse at 12018 North County Road 600 West, which is in District 1.

In handing down his decision, Mohler ruled that Slavens and his attorney, Christine DeSanctis, had not met the burden of proving any of the four criteria required to receive a preliminary injunction.

“Slavens’ conduct — where he sleeps, where his family lives, where he returns after work — supports the conclusion that he lives at the Rhineland home,” wrote Mohler.

The judge also agreed with case law cited by Jerry Withered, counsel for the Republican county party, that a county office holder must physically reside in the area he or she is elected to represent.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Ind. Trial Ct. Decisions | Indiana Decisions

Ind. Law- "High-fenced hunts face uncertain fate"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

A move to legalize five high-fenced hunting preserves in the state is hanging precariously.

The controversial language was added to Senate Bill 487 in the House. But Senate President Pro Tem David Long, R-Fort Wayne, opposes the canned hunting provision.

The bill is in conference committee where four lawmakers attempt to negotiate a compromise for both chambers to vote on. But there have been no public meetings on the bill. * * *

Lawmakers have now moved the original unrelated language from Senate Bill 487 to another House bill, which is set for final votes in both chambers.

That leaves Senate Bill 487 dangling, with the possibility it could die.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Law

Ind. Gov't. - " 'Cold case' playing cards sent to prisons IDOC hopes cards lead to solved cases"

Fascinating story by Maureen Hayden of CNHI, today in the Kokomo Tribune. It begins:

Indiana state prison officials are using customized playing cards for a deadly serious purpose — to help unlock the mysteries of unsolved murders and persons gone missing.

On Tuesday, the Indiana Department of Correction released the third edition of the “Indiana Cold Case Homicides Playing Cards” – a deck of cards that profile 52 unsolved cases that have gone cold for lack of evidence or leads.

The “cold case” cards have a targeted audience. The 10,000 decks printed with each edition are only available for purchase by inmates in the state’s 25 prison facilities.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Government

Ind. Courts - More on "John Myers' appeal of his murder conviction in Jill Behrman's killing begins Tuesday"

Updating yesterday's ILB entry, Laura Lane reports today in the (subscription only) Bloomington Herald-Times in a long story that begins:

MARTINSVILLE — The man [Uriah Clouse] first suspected of being involved in the killing of Jill Behrman testified Tuesday he had nothing to do with her death and was harassed by police who did not believe his alibi. * * *

It was a woman named Wendy Owings who implicated Clouse, and her friend Alisha Sowders, in Behrman’s death. Tuesday afternoon, retired FBI agent Gary Dunn, who worked around the clock the first two months Behrman was missing, recalled what Owings told him in 2002 — almost two years after Behrman disappeared — in her confession.

The story today concludes:
The investigation then took a novel-like turn when a father and son hunting turkeys stumbled upon Behrman’s remains a year after Owings confessed to police. The body was more than 20 miles from where Owings had said it was, and the back of the skull had a gunshot blast. Indiana State Police Detective Rick Lang took over the investigation then, and the focus soon shifted to Myers. He had been reported as a possible suspect early on and was questioned by Bloomington police, Dunn said, “but for whatever reason, we did not pursue him as a suspect at that time.”

Lang is scheduled to testify in this week’s post-conviction relief hearing. So is Myers’ grandmother, who told the detective she suspected her grandson killed Behrman.

Here is the Indianapolis Star's Eric Weddle's coverage of yesterday's hearing. Some quotes:
Eric Behrman, the victim’s father, was among the first to speak at Tuesday’s hearing. He testified about the day his daughter disappeared as Myers watched him from the defendant’s table, wearing an orange jumpsuit. Behrman described the spot in a field where his daughter’s bike was found as “not a normal situation.”

A former Bloomington police detective, retired FBI agent and ex-girlfriend of a onetime suspect in the case all testified Tuesday. Anne Murray Burgess, a deputy public defender representing Myers, questioned each about the early days and months of the investigation and why some people were considered suspects.

Others involved in the investigation — including Wendy Owings, who implicated herself and others in Jill Behrman’s disappearance but later said she lied — are scheduled to testify this week.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Courts

Ind. Gov't. - More on "Attorney General's office will handle DCS appellate court cases"

Readers may remember this news from last September - Tim Evans reported in the Indianapolis Star that:

Attorney General Greg Zoeller said Thursday he will reassume responsibility for Department of Child Services appellate court cases in the wake of a controversial attempt by DCS to block a newspaper from publishing information about a call to the agency’s child abuse hotline.

Zoeller, who earlier criticized DCS’ move as “inconsistent with the First Amendment,” cited a need for better communication, as well as more consistency and expertise in representing the interests of the state.

The new approach, which Zoeller announced will take effect by Jan. 1 at the latest, will replace the current process in which the attorney general’s office had granted permission for staff attorneys from DCS to handle cases in the Court of Appeals.

Attorneys from DCS will continue to represent the agency in cases at the local court level. * * *

Zoeller said attorneys in his office have more expertise and experience in appellate matters, and that such cases set precedent that can affect other state agencies and interests.

“It’s not just due to the errors,” he said, “but really the numbers, the volume and the complexity of some of the cases. It’s just better to bring it all back in house.”

Zoeller said he was caught off guard by the motion DCS filed against the South Bend Tribune and thinks his own office could have done a better job of communication. “That’s one that I learned about on a Saturday,” he said, which is not the kind of communication that he wants and needs.

In hindsight, Zoeller said, the change “is probably something I should have done earlier.”

Here is the entire Sept. 13, 2012 AG news release. Here also is the hand-delivered letter of the same date "formally outlining the new consent arrangement, reserving appellate representation of DCS to the Attorney General’s Office and trial representation of the agency to DCS." In other words, much was made of this change at the time.

That was seven months ago. I was surprised this morning when a reader has sent me this document prepared by the Court of Appeals staff for an oral Argument at Taylor University, which took place on April 13, 2013. DCS is the Appellee, and as can be seen in the 4-page brochure, DCS is represented, not by the Attorney General's office, but by the DCS Deputy General Counsel, who oversees trial/practice development and appeals for DCS, and has been at that agency for six years.

Also interesting: The use of legal counsel other than the AG by state agencies was the focus this ILB entry from Jan. 23, 2013, quoting a Fort Wayne Journal Gazette story by Niki Kelly.

Posted by Marcia Oddi on Wednesday, April 24, 2013
Posted to Indiana Government

Tuesday, April 23, 2013

Ind. Courts - More on "Wabash College lawsuit raises questions about who polices fraternity hazing"

Updating this ILB entry from April 17th, today the Supreme Court held a rare traveling argument, in Richmond. Brian Zimmerman of the Richmond Palladium-Item has the long story. A few quotes:

The Indiana Supreme Court heard oral arguments Tuesday at Indiana University East in Richmond with its newest court justice, a 1976 Richmond High School graduate who became a successful attorney in northwest Indiana.

“It’s a pleasure to be in Loretta Rushville, AKA Richmond,” Justice Steven H. David said to applause, referring to his colleague Loretta Rush, who was appointed by former Gov. Mitch Daniels in December 2012.

The story includes a long summary of the oral argument.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Indiana Courts

Courts - "SCOTUS Rules for Immigrant on Deportation in Drug Case "

Adam Liptak reports on today's SCOTUS opinion in Moncrieffe v. Holder. The story begins:

WASHINGTON — “The social sharing of a small amount of marijuana” by immigrants lawfully in the United States does not require their automatic deportation, the Supreme Court ruled on Tuesday.

“Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understanding of trafficking, which ordinarily means some sort of commercial dealing,” Justice Sonia Sotomayor wrote for a seven-justice majority, partly quoting from an earlier case.

The case arose from a traffic stop in Georgia in 2007 during which Adrian Moncrieffe, a Jamaican citizen, was found with 1.3 grams of marijuana — “the equivalent,” Justice Sotomayor wrote, “of about two or three marijuana cigarettes.”

Mr. Moncrieffe pleaded guilty to possession with intent to distribute, a felony under Georgia law, and was sentenced to five years of probation. Saying the conviction established that Mr. Moncrieffe had committed an “aggravated felony,” federal authorities sought to deport him.

Tuesday’s decision was the third in a series of Supreme Court cases considering whether a given state drug crime amounted to an aggravated felony under the immigration laws. If it does, the government has no choice but to deport the defendant. If it does not, the attorney general has the discretion to show leniency.

The question in all of the cases was how to understand state drug convictions in light of a part of the immigration laws that defines aggravated felonies to include drug offenses that would be punishable by more than a year in prison under the federal Controlled Substances Act.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Courts in general

Environment - Two federal "appeals court rulings go against coal industry"

James Bruggers of the Louisville Courier-Journal has posted this long story this evening. Be sure to go to the story, the photo is amazing. Some quotes:

Back-to-back appellate court decisions this week have shored up water quality protections at coal-mining operations across Appalachia, reversing lower court rulings that favored the coal industry.

On Monday, clean-water advocates celebrated an Earth Day ruling on a long-running court battle with the U.S. Army Corps of Engineers over mountaintop removal mining permits.

The U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, invalidated a 2007 version of a streamlined permit used by the Corps to authorize the dumping of coal-mining waste into hundreds of miles of Appalachian streams.

Environmentalists have argued in favor of case-by-case reviews of mining practices that explode the tops and sides of mountains, and result in waste rock being shoved into stream valley or hollows.

Then Tuesday, the U.S. Court of Appeals for the District of Columbia blocked another lower court’s ruling involving a Corps wetlands destruction permit issued to Arch Coal’s 2,300-acre Spruce Mine No. 1. in West Virginia. The EPA had vetoed the permit, prompting a legal challenge by the mining company.

The three-judge panel’s opinion was written by Circuit Judge Karen LeCraft Henderson, who determined that the EPA had authority to veto permits it found to be inadequate.

Both rulings are significant wins that bolster environmental protection, said Louisville environmental attorney Tom FitzGerald, who was not a part of either lawsuit but follows coal issues closely as director of the Kentucky Resources Council.

The 6th Circuit opinion, from April 22nd, is Kentucky Riverkeeper, Inc. v. Rowlette.

The DC Circuit opinion
, from April 23rd, is Mingo Logan Coal Company v. EPA.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Environment

Decisions - "7th creates circuit split on whether a non-spousal inherited individual retirement account is exempt from creditors' claims in bankruptcy"

See How Appealing post here.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Judge Sarah Evans Barker called the NEA’s reasoning that she reconsider one of her previous rulings 'both puzzling and preposterous.'”

That from this story this afternoon by Jeff Swiatek of the Indianapolis Star. More:

In her order from last week, the judge denied the reconsideration request in biting style.

“A party who finds himself paddling upstream after a ruling adverse to his interests may not use a motion for reconsideration as a life raft — especially not when his own strategic choices engendered his dilemma,” the judge wrote in her eight-page order.

The state is suing the NEA and its state affiliate, Indiana State Teachers Association, alleging securities fraud over the 2009 collapse of ISTA’s insurance trust that cost school districts around the state more than $24 million in losses.

Here is the 8-page April 17th order.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Ind Fed D.Ct. Decisions

Law - "Queen of Toxic Torts, Sheila Birnbaum, Decamps for Quinn Emanuel"

From the WSJ Law Blog, this post (which may be subscription only) begins:

Sheila Birnbaum, one of the most accomplished product-liability defense lawyers in the country and a stalwart at Skadden, Arps, Slate, Meagher & Flom LLP for over two decades is leaving the firm for Quinn Emanuel Urquhart & Sullivan LLP.
The post links to this long article in the 2011 NYU Law School Magazine, titled: "The Closer: When Fortune 500 companies are facing a massive wave of complex products liability or toxic torts cases, they call on Sheila Birnbaum ’65—master defense strategist, former law professor, and the Justice Department’s new special master of the September 11th Victim Compensation Fund."

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to General Law Related

Ind. Gov't. - Who is on the Indiana Finance Authority?

In this post from April 23 about the Rockport Coal-Gasification project, the ILB noted that it would be good if information was available about the membership of the Indiana Finance Authority, As is evident from their webpage, the IFA has hefty responsibilites:

In order to provide economic efficiencies and management synergies and enable the State of Indiana ("State") to communicate as one voice with the various participants in the financial markets, the Indiana Development Finance Authority, the State Office Building Commission, the Indiana Transportation Finance Authority, the Recreational Development Commission, the State Revolving Fund Programs and the Indiana Brownfields Program were consolidated into a new and separate entity called the Indiana Finance Authority ("IFA") on May 15, 2005. The Indiana Health and Educational Facilities Finance Authority was also merged into the IFA, effective July 1, 2007.

As the successor entity to these formerly separate debt-issuing entities, the IFA is authorized to issue revenue bonds payable from lease rentals under lease agreements with various state agencies and to finance or refinance the cost of acquiring, building and equipping structures for state use including state office buildings, garages, highways, bridges, airport facilities, correctional facilities, state hospitals and recreational facilities related to State parks. The IFA also manages the Wastewater and Drinking Water State Revolving Fund Loan Programs and the Indiana Brownfields Program.

Our mission is to oversee State-related debt issuance and provide efficient and effective financing solutions to facilitate state, local government and business investment in Indiana.

The Indiana Finance Authority statute, IC 4-4-11, provides at IC 4-4-11-4 that:
(b) The authority shall be composed of the following five (5) members:
(1) The budget director, or the budget director's designee, who shall serve as chairman of the authority.
(2) The treasurer of state, or the treasurer of state's designee.
(3) Three (3) members appointed by the governor, no more than two (2) of whom may be from the same political party.
(c) All members shall be residents of the state.
The following section, IC 4-4-11-5, provides that the appointments are for four years, and that an appointee continues to serve after expiration of the appointment until a successor is appointed and qualified; (3) is eligible for reappointment; and (4) may be removed from office by the governor with or without cause and serves at the pleasure of the governor.

The ILB has obtained, thanks to the Indiana Finance Authority, the biographies of the Authority members, which can be accessed through the following links:

Chris Atkins is the chair of the IFA. The appointment dates of the citizen members are: Stemler - 9/10/12, McNaught - 3/15/10, and Melton - 5/15/10, which means they all were appointees of then-Governor Daniels. Mr. Atkins worked in the Daniels administration.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Kenyatta Erkins and Ugbe Ojile v. State of Indiana , a 32-page opinion, Judge Crone writes:

Appellants appeal their convictions arguing that (1) the trial court erred in permitting the State to amend the charging information on the second day of trial; (2) the evidence was insufficient to support their convictions for class A felony conspiracy because no actual injury to S.M. occurred, and even if actual injury is not required to sustain their convictions, there was insufficient evidence that they intended and agreed to cause S.M. serious bodily injury; (3) the trial court abused its discretion in admitting the evidence gathered after they left the casino; (4) the trial court abused its discretion in admitting testimony that interpreted the slang used in their phone conversations; and (5) the prosecutor committed misconduct resulting in fundamental error during closing argument by referring to the possible murder of S.M. because it was unsupported by the evidence. Ojile also argues that his counsel provided ineffective assistance by failing to argue the defense of abandonment.

We conclude that (1) the amendment to the charging information was one of form, not substance, and therefore the trial court did not err in permitting the amendment; (2) the evidence was sufficient to show that Appellants intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, which is all that is required to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury; (3) the trial court did not abuse its discretion in admitting evidence gathered after Appellants left the casino; (4) most of the testimony interpreting Appellants’ conversation was helpful to the jury and therefore admissible, and any error in admitting inadmissible interpretations was harmless; and (5) the prosecutor did not present argument that was unsupported by the evidence and therefore did not commit misconduct let alone cause fundamental error. We also conclude that Ojile’s trial counsel did not render ineffective assistance. Accordingly, we affirm Appellants’ convictions.

In Paul Sparks v. State of Indiana, a 2-page opinion, Chief Judge Robb writes:
The State has petitioned for rehearing of this court’s decision in Sparks v. State, 983 N.E.2d 221 (Ind. Ct. App. 2013), in which we held that the trial court did not handle Sparks’s probation revocation hearing in a way that comports with his due process rights, and we reversed and remanded for a new probation revocation hearing. We grant the petition for rehearing for the sole purpose of clarifying what is required on remand, but affirm our opinion in all respects.
In Joanna S. Robinson v. State of Indiana , a 13-page opinion, Judge Crone writes:
A sheriff’s deputy observed Joanna S. Robinson briefly drive onto the fog line twice. The deputy decided to stop Robinson for “unsafe lane movement.” Tr. at 24. Based on evidence obtained from this stop, Robinson was convicted of operating while intoxicated and possession of marijuana. On appeal, Robinson challenges the admission of the evidence obtained from the stop, which she had sought unsuccessfully to exclude from trial on the basis that the traffic stop was not supported by reasonable suspicion. The State argues that the deputy had reasonable suspicion that she was impaired. We conclude that Robinson’s brief contact with the fog line – at night on a road with some curves – was not sufficient to establish reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted, and Robinson’s convictions must be reversed. * * *

Robinson filed a motion to suppress the evidence obtained from the traffic stop. The motion asserted that the video from Deputy Claeys’s vehicle showed that she stayed within her lane and that he therefore lacked reasonable suspicion to conduct a traffic stop. * * *

In this case, Robinson was driving late at night on a road with some curves. On two occasions, she briefly touched the fog line and then immediately returned to her lane. There is no indication that she swerved sharply or overcorrected. The trial court, which viewed the video several times, acknowledged that Robinson’s driving was not inconsistent with a driver who was momentarily distracted. While we give weight to the trial court’s findings of fact, the ultimate conclusion regarding reasonable suspicion is reviewed de novo. Lindsey, 916 N.E.2d at 238. Given the fact that it was dark, that the road had some curves, and that Robinson made only brief contact with the fog line, we conclude that the State failed to establish that the traffic stop was supported by reasonable suspicion that Robinson was impaired. Therefore, the evidence obtained from the stop should not have been admitted. We reverse her convictions, which were dependent on the improperly admitted evidence.

NFP civil opinions today (3):

Term. of the Parent-Child Rel. of J.L.W. (Minor Child) and S.R.W. (Mother), J.C.H. (Alleged Father), and Alleged Unknown Father v. The Indiana Dept. of Child Services (NFP)

In Re the Paternity of A.H., A.E., A.M., A.I., A.N.; A.G. v. A.H. (NFP)

Sungold Holdings, Inc., Midwest Auto Body, and Robert H. Gentry, III v. Donald Blair (NFP)

NFP criminal opinions today (3):

Ronald A. Bohannon v. State of Indiana (NFP)

D.S. v. State of Indiana (NFP)

Antwan Parks v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "John Myers' appeal of his murder conviction in Jill Behrman's killing begins Tuesday"

Laura Lane reports today in the (subscription only) Bloomington Herald-Times in a story that begins:

John Myers has spent more than six years at the Indiana State Prison for a murder he says he did not commit, blaming his conviction in the killing of 19-year-old Jill Behrman in part on his lawyer’s ineffective representation.

Two attorneys from the Indiana Public Defender’s Office assigned to Myers’ case have been working to construct an appeal of his 2006 conviction for murder. What is called a petition for post-conviction relief can be filed in cases where defendants claim their lawyers failed to adequately represent them. According to the statute, a judicial case review is available when “there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.”

Myers’ post-conviction relief hearing before Morgan Superior Court Judge G. Thomas Gray is set to begin Tuesday morning in Martinsville and is expected to continue through the week. Myers’ attorneys have indicated they might enter up to 200 exhibits into evidence. Gray was not the presiding judge at Myers’ trial. * * *

In October 2011, the Indiana Supreme Court’s disciplinary commission suspended Baker from the practice of law for six months, saying he could apply for reinstatement if there was “clear and convincing evidence of the attorney’s remorse, rehabilitation and fitness to practice law.”

The commission members determined that in the Myers case, Baker violated five of the state’s Rules of Professional Conduct. A hearing officer ruled Baker violated the rules by soliciting Myers as a client and also by misleading jurors while providing no proof to shore up his allegations. He also violated three other rules by telling Myers’ family they had to pay for appeal-related costs when they did not have to because Myers was indigent.

A judge had initially appointed Morgan County defense attorney William Van Der Pol as a public defender to represent Myers. But on the morning of Myers’ first court appearance, Baker visited Myers at the Morgan County Jail and offered his legal counsel for free.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Indiana Courts

Ind. Gov't. - More on "If governor signs bill, Griffith may get its chance to leave Cal Twp."

Updating this ILB entry from April 19th about HB 1585, Dan Carden reports today in the NWI Times in a story headed "Black lawmakers seek veto on Calumet Twp. spending limits." It begins:

INDIANAPOLIS | Northwest Indiana's black state lawmakers want Gov. Mike Pence to veto legislation that would force Calumet Township to reduce its administrative spending and potentially enable Griffith to leave the township.

State Sens. Earline Rogers, D-Gary, and Lonnie Randolph, D-East Chicago, told reporters Monday they have sent a letter to the Republican governor asking him to reject House Bill 1585.

Joining the two senators in opposing the measure — which passed the Republican-controlled House, 62-26, and the Republican-controlled Senate, 36-12 — were state Reps. Charlie Brown, D-Gary; Earl Harris, D-East Chicago; Vernon Smith, D-Gary; and several Indianapolis members of Black Legislative Caucus.

The group suggested that racism in general and specific hatred toward Calumet Township Trustee Mary Elgin, who is black, is at the core of the legislation.

"(Bill) 1585 certainly is one of the most discriminatory bills that we've had in this Legislature," Smith said. "It certainly is special legislation, which is prohibited by the courts, and it sets a dangerous precedent."

Rogers said if Griffith residents don't like how the township is being run they should make their case at the ballot box and not through "secession."

Under the legislation, if Calumet Township fails to reduce its spending this year, the Indiana Distressed Unit Appeals board would be empowered in 2014 to appoint an emergency manager to run the township, which includes portions of Griffith, Gary, Lake Station and unincorporated Lake County.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Indiana Government

Ind. Decisions - More on "Judge rules public can't access cause of death records"

Updating this ILB entry from Jan. 30, 2013, Mark Wilson of the Evansville Courier & Press reports today in a story that begins:

The Courier & Press and Pike County, Ind., resident Rita Ward are appealing a judge’s decision that the Vanderburgh County Health Department does not have to provide the public information about a person’s causes of death.

At issue is how conflicting state laws governing death records apply to local government.

Senior Judge Carl Heldt’s ruling on Jan. 28 addressed the contradicting state laws that govern who maintains the information and who can access it, but he sided with the health department saying that the law it cited was more specific.

Ward and the newspaper filed a lawsuit in Vanderburgh Circuit Court in August 2012 after the county health department denied access to cause of death information in separate requests. The newspaper had published causes of death from 2002 until May 2012 when the health department stopped including death causes in the information it provided to the newspaper.

In his decision, Heldt acknowledged the conflicting laws and wrote that the law cited by the county is more specific than that law cited by the Courier & Press and the Indiana Public Access Counselor, who earlier offered a nonbinding opinion in support of access to the information.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Law - "House OKs expunging of criminal past"

From Niki Kelly of the Fort Wayne Journal Gazette:

Thousands of criminal convictions could disappear under a bill given final approval by the Indiana House on Monday.
House Bill 1482 passed 78-19 and now goes to Gov. Mike Pence, who has not indicated his position on the legislation. * * *

The measure sets up the state’s first-ever law allowing Hoosiers to erase criminal convictions of various levels.

Hoosiers can file only one petition for expungement during their lifetime, though that petition can cover more than one crime.

Generally, most sex or violent offenders, those convicted of a homicide charge, and those who have committed official misconduct are not eligible to have their records cleared.

But some crimes involving bodily harm are eligible, including battery and driving while intoxicated causing death. * * *

The bill sets up processes for expunging various types of records, starting with arrest records for someone not prosecuted or whose conviction was overturned.

For misdemeanor convictions, a local court judge must expunge as early as five years after the conviction if the person petitioning has completed the sentence, has no charges pending and hasn’t been convicted of another crime in the last five years.

Similar proceedings exist for Class D felony convictions, which can be expunged eight years after conviction. The records are removed from public view, though law enforcement can still access them.

Next, the bill allows Hoosiers to seek expungement for more serious felonies eight years after the end of the sentence, but a judge has discretion whether to grant it.

And there is an opportunity for expunging for crimes resulting in serious bodily injury 10 years after a completed sentence, again at the discretion of a judge. In this category, the prosecutor must also consent.

For the serious and violent felonies, the records are available to the public but are marked as expunged.

The bill replaces a law that legislators passed a few years ago that shielded records from public view.

The legislation also changes how employers are allowed to ask about past criminal history. Now, prospective employees will be asked, “have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

In the FWJG Blog, "Political Notebook," Kelly's post begins:
Rep. Charlie Brown, D-Gary, might be the only lawmaker who gets to take advantage of an expansive expungement bill passed Monday.

That's why he had a very specific question when the legislation came up for final vote.

Does the bill apply to his 2003 misdemeanor convictions for "helping a colleague?" The answer was yes.

Back then Brown intervened in a 2002 traffic stop of Rep. Vernon Smith, D-Gary, and both men eventually were arrested.

Eric Bradner of the Evansville Courier & Press writes:
After waiting at least five years after their convictions, Hoosiers who commit minor crimes could have those convictions expunged, or removed, from their court records under a bill headed to Gov. Mike Pence’s desk.

The Indiana House voted 78-19 Monday to send House Bill 1482 on to Pence’s desk, where the Republican will decide whether to veto it or allow the measure to become law. The Senate had already approved the bill, 39-11. * * *

The bill allows those who were convicted of misdemeanor crimes to have their records expunged — with no judicial approval necessary — after five years, as long as they have not committed further crimes. Those who are convicted of lower-level Class D felonies can have their convictions expunged after eight years.

In those cases, lawmakers said, those offenders would get “real” expungements. Their records would only be accessible by law enforcement officials.

For higher-level felons, their convictions could be expunged after eight years and with a court’s approval. And for still more serious felons, they could seek expungements after 10 years, with both the prosecutor’s approval and a judge’s OK.

However, those convicted of sexual crimes and violent crimes, including murder and manslaughter, would never become eligible.

Posted by Marcia Oddi on Tuesday, April 23, 2013
Posted to Indiana Law

Monday, April 22, 2013

Ind. Gov't. - "Legislators to take another stab at crafting 'Rockport' bill"

Updating this ILB entry from April 21st, Eric Bradner of the Evansville Courier & Press reports this evening:

INDIANAPOLIS — Top House and Senate officials have identified a new bill into which they plan to insert legislation that could determine the fate of the $2.8 billion coal-to-gas plant proposed to be built at Rockport, Ind.

After they finalize that measure — which could be a tricky and hotly-contested process — it will go into Senate Bill 494, House Speaker Brian Bosma, R-Indianapolis, said Monday.

The move comes after House leaders decided to let another bill dealing with Rockport die [SB 510]. That happened because they are seeking another regulatory review of the project and determined that changes made to the bill on the chamber’s floor had watered it down to the point of ineffectiveness.

Bosma said he wants negotiations over a final draft of the legislation to start with the much tougher version that passed the House Utility Committee, before those changes took place. Opponents of the Rockport project favored that version, while developers said it would kill the plant.

Essentially, that legislation would require the Indiana Finance Authority’s 30-year contract to buy and then resell the Rockport plant’s synthetic natural gas to go back to the Indiana Utility Regulatory Commission.

The panel would be tasked with making sure the deal guarantees that ratepayers would save money over its life. Developers say the House Utility Committee’s version of the bill would unfairly impose new standards.

The ILB has sent a note to the Governor's office asking for the names of the members of the Indiana Finance Authority. They are not on the agency's website. As I wrote yesterday:
Interestingly, all the ILB could find about the IFA was this:
The members of the IFA meet monthly; there are five statutory members. The members are the Director of the Office of Management and Budget, the Treasurer of the State, and three other members appointed by the Governor. No more than two of the Governor's appointees may be members of the same political party, and they all must be residents of the State.
In short, of the five IFA members, four are appointees of the Governor. The fifth is State Treasurer Richard Mourdock.
The Indiana Finance Authority has a great deal of responsibility - it would be good if the members' names were readily available.

Posted by Marcia Oddi on Monday, April 22, 2013
Posted to Indiana Government

Ind. Courts - "Federal Judge Robert Miller OKs defense team's early use of predictive coding"

From Law Technology News, via Law.com, this story that begins:

Judge Robert Miller Jr., of the United States District Court for the Northern District of Indiana, issued a ruling on April 18 in a feisty multi-district dispute over hip implant products, authorizing predictive coding by the defendant despite the fact that the defendant proceeded with e-discovery before the cases were centralized and ignoring plaintiff directives to not begin document production. The case is In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391).

Miller's order notes that Biomet has produced 2.5 million document to plaintiffs, and the Plaintiffs' Steering Committee believes production results should be close to 10 million documents. The cases were centralized in the summer of 2012.

Posted by Marcia Oddi on Monday, April 22, 2013
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Douglas A. Guilmette v. State of Indiana, a 13-page opinion, Sr. Judge Darden writes:

Guilmette contends that the trial court admitted the DNA evidence recovered from his shoe in violation of Article 1, Section 11 of the Indiana Constitution.1 Specifically, he argues that the shoe, taken incident to his theft arrest, was unconstitutionally searched for evidence of the murder. * * *

Nonetheless, the absence of any exigent law enforcement need tips the scale in Guilmette’s favor. We take no issue with the police taking his shoe at the time of his arrest. Nor was it any violation for the police to look at his shoe and discover in plain view spots that appeared to be blood. At that point, it was altogether reasonable that the police, in the course of the murder investigation, would want to subject the shoe to blood and DNA analysis. However, as Guilmette was initially arrested for the unrelated crimes of theft and not murder, the police should have obtained a warrant to do so. After all, Guilmette was already in custody, the police had the shoe in their possession, and there was thus little chance of contamination or destruction of evidence.

It is one thing to receive an inmate’s clothing for inventory and safekeeping during his incarceration while awaiting trial for a crime. But using that opportunity to investigate and test the clothing regarding an unrelated and uncharged crime triggers the constitutional protection of needing to obtain a warrant to do so. We conclude that the laboratory testing of Guilmette’s shoe, taken incident to his theft arrest, for evidence of the murder was an unconstitutional search under the Indiana Constitution. It was therefore error for the trial court to admit the DNA evidence. * * *

The DNA evidence from the shoe was not the strongest evidence of guilt. It merely consisted of testimony that a small stain on Guilmette’s shoelace tested presumptively for blood and that subsequent DNA testing gave a mixture from which both Piechocki and Guilmette could not be excluded. Moreover, the testimony of four separate and independent witnesses that Guilmette admitted killing Piechocki with a baseball bat constituted overwhelming substantial independent evidence of guilt. Thus, the erroneous admission of the DNA evidence from the shoe was harmless.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Gregory L. Saylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 19, 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 April 12, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, April 19, 2013. It is two pages (and 24 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, April 22, 2013
Posted to Indiana Transfer Lists

Courts - "SCOTUS declines review of judicial pay case"

Marcia Coyle has the report here, in The Blog of Legal Times. It begins:

The U.S. Supreme Court on Monday refused to hear the government's appeal of a decision finding that Congress violated the compensation clause when it withheld cost of living salary adjustments for federal judges in the 1990s and in 2007 and 2010.

Posted by Marcia Oddi on Monday, April 22, 2013
Posted to Courts in general

Ind. Decisions - More on: Indiana case is SCOTUSblog "petition of the day"

Despite being highlighted by SCOTUSblog last week, cert was denied today by the SCOTUS in the case of Ind. FSSA v. Bontrager (12-1037). Here is the list.

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

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

From Sunday, April 21, 2013:

From Saturday, April 20, 2013:

From Friday afternoon, April 19, 2013:

Posted by Marcia Oddi on Monday, April 22, 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 4/22/13):

Tuesday, April 23rd

Next week's oral arguments before the Supreme Court (week of (4/29/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/22/13):

Thursday, April 25th

Friday, April 26th

Next week's oral arguments before the Court of Appeals (week of 4/29/13):

Tuesday, April 30th

Wednesday, May 1st

Thursday, May 2nd

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, April 22, 2013
Posted to Upcoming Oral Arguments

Sunday, April 21, 2013

Ind. Gov't. - State agency responses slow to IndyStar public record requests

From the "Behind Closed Doors" column in the Sunday Indianapolis Star, this item [ILB emphasis added]:

Indiana’s leaders often say they want government to run “at the speed of business,” fast and efficient and responsive to the public.

But sometimes it doesn’t work out that way for reporters uncovering unflattering things about an agency.

The Indiana Department of Transportation recently took nearly three months to email a list of property records to The Indianapolis Star, and only after a reporter complained to the Indiana Public Access Counselor.

In January, The Star asked INDOT for a digital list that would show how much INDOT paid per acre for properties along the new I-69 route.

The request came as The Star was uncovering questions about land sales involving INDOT Chief of Staff Troy Woodruff and family members.

On March 1, The Star sent a follow-up letter to INDOT’s public records program director, Amy Miller, asking for an update on when the list might be released. She never responded.

So The Star asked Indiana Public Access Counselor Joseph Hoage to issue an opinion on the legality of the delay.

The list of properties — in an unsearchable PDF document — arrived just before Hoage issued his opinion last week.

Hoage ruled that the delay was unreasonable under Indiana law. He said the agency couldn’t offer a credible explanation for why it didn’t cough up the list earlier. Hoage also chided INDOT for not responding to The Star’s requests for updates.

Last week, The Star asked Miller for an update on another request — one that has been in the works since December. The Star also asked for an easier-to-search digital list of the properties.

We’re awaiting a response.

ILB: Here is the PAC response to "Informal Inquiry 13-INF-18; Indiana Department of Transportation," referenced above, issued April 15th.

The ILB is making an inquiry re the meaning of the phrase "an unsearchable PDF document" (highlighted above).

[More] Here is the answer re the PDF quality from the Star reporter: "We asked for an Excel file. They sent a terribly scanned PDF that our converters can't digitize."

Posted by Marcia Oddi on Sunday, April 21, 2013
Posted to Indiana Government

Ind. Gov't. - "Governor could have final say on Rockport as lawmakers finish session"

Eric Bradner of the Evansville Courier & Press has a long, complex story today about the negotiations going on re the Rockport coal-gasification project.

The up-shot seems to be that the General Assembly would, one way or another, put the final responsibility for another look at the Rockport deal on the Utility Regulatory Commission and/or the Indiana Finance Authority. (Recall that the General Assembly, the IURC, and the IFA had all signed off on the deal during the Daniels administration.)

There is plenty of information available about the IURC commissioners, including the possibility that at least one them may recuse herself on Rockport issues.

Interestingly, all the ILB could find about the IFA was this:

The members of the IFA meet monthly; there are five statutory members. The members are the Director of the Office of Management and Budget, the Treasurer of the State, and three other members appointed by the Governor. No more than two of the Governor's appointees may be members of the same political party, and they all must be residents of the State.
In short, of the five IFA members, four are appointees of the Governor. The fifth is State Treasurer Richard Mourdock. But the link to the names and bios of the members does not work as of this posting.

Some quotes from Bradner's story today:

Lawmakers are in near-universal agreement that the Rockport project deserves a second evaluation by the IURC. The questions, though, are what regulators would consider and whether the results of their review would be binding.

These are critical points – potentially the difference between killing the deal by re-starting the regulatory process with a new set of rules and allowing it to move forward mostly unencumbered.

Initially, legislative leaders favored a binding review no matter its consequences. Now, they appear to have eased up.

“We all are in agreement that the utility regulatory commission needs to take a substantive look at this,” said House Speaker Brian Bosma, R-Indianapolis.

“The concern is, is it a look that will lead to two years of extended litigation, which I don’t believe most of us desire? Or a look that is something short of that that gives a strong opinion to an authority that has the right to either say ‘yes’ or ‘no’ to this.”

That “authority” would be the Indiana Finance Authority, which under former Gov. Mitch Daniels negotiated the deal to buy 80 percent of the Rockport plant’s product over its first 30 years at a pre-negotiated price and then resell it on the open market.

That deal means Indiana residential and commercial gas customers, who would see 17 percent of their bills tied to the Rockport project’s rates, would benefit when those rates beat the market price and would pay more when they don’t.

The contract includes language that gives the Indiana Finance Authority a chance, “in its sole discretion,” to decide whether it is satisfied with a loan guarantee developer hope to secure from the U.S. Department of Energy.

Opponents of the project, led by Vectren Corp., said that was included as a procedural step and falls far short of giving Pence a final say.

“This provision in the contract only relates to the provisions of the federal loan guarantee. It has nothing to do with some type of overall veto power,” said Mike Roeder, vice president of government affairs and communications for Vectren.

However, Mark Lubbers, the project manager for Indiana Gasification LLC, the company started to helm the project being financed by New York-based Leucadia National Corp., said he negotiated the deal from its outset and disagreed with Vectren’s conclusion.

He said the contract was originally negotiated to give the state broad latitude to make a final decision, and suggested that his company would be willing to put that in writing – under certain conditions.

“If the government would like something that’s clearer, stronger, more tangible, I certainly understand that and it’s not an unreasonable request. But I’m not going to spend any time on it if people are still trying to kill the project,” Lubbers said.

That written agreement would be critical.

Bosma said in order for lawmakers to proceed with a non-binding review, the authority of Pence and the IFA to make a final decision after receiving that review would need to be clarified – and it would need to be clear that such a final decision would not put the state in legal jeopardy.

“There’s been some discussion that if that issue was clarified, and it’s clear that the IFA and hence the governor could make an absolute yes or no decision on this without financial consequence, then a strong advisory opinion by the IURC may be in order,” Bosma said.

“In any event, we’re going to have someone – either the IURC or the IFA – with a final ability to review and say, ‘this deal is appropriate for ratepayers.’”

Pence said last week that he would like the Rockport project to get “a fair second look.” But he would not specify whether he prefers that such a review have binding consequences or come in the form of an advisory opinion.

“What I’m interested in is making sure that we put Hoosier ratepayers and ultimately the very broad interests of Indiana in the forefront. I think that happens if we do a fair second look, and we’re in the process of discussions about how that takes shape,” Pence said.

“But I’ve expressed my support for having the Indiana Utility Regulatory Commission take a fair second look at this deal, and I’m not predisposed one way or the other about what the outcome of that review should be.”

The ILB has a long list of prior entries on Rockport, including this Sept. 30, 2012 ILB entry that asked:
My question - is there anything the next Governor of the General Assembly could do, if they wanted to, to stop or alter this project, or are the Indiana ratepayers already locked in?
The Rockport measure this session designed to address that question was in SB 510, but as described in this April 16th entry, that bill was pulled by the bill's sponsor after it was effectively neutered by a House floor amendment.

Posted by Marcia Oddi on Sunday, April 21, 2013
Posted to Indiana Government

Environment - "Chicago River becomes battleground test lab"

From the list of 2013 Pulitzer Prize winners and finalists, this story: "Deep Trouble: A High-Tech Hunt for Asian Carp" (Dan Egan • Milwaukee Journal Sentinel). The lengthy story is part of a series that ran in August, 2012.

Posted by Marcia Oddi on Sunday, April 21, 2013
Posted to Environment

Saturday, April 20, 2013

Ind. Courts - "David Camm case: Lawyers accuse each other of delays" [Updated]

From Grace Schneider of the Louisville Courier-Journal, this story, including a brief video with the attorneys. Some quotes:

ROCKPORT, IND. — Lawyers preparing for former Indiana State Trooper David Camm’s third murder trial sparred in court Friday, with both sides accusing the other of delaying and withholding information on expert witnesses and other details about evidence.

The trial is scheduled to begin Aug. 5 in Boone County, but both Camm defense lawyer Stacy Uliana and Special Prosecutor Stanley Levco conceded after the 45-minute session that a postponement is now a possibility.

Judge Jon Dartt said he would rule on several pending discovery motions early next week in order to keep the proceedings on track. Although he’d ordered the parties previously to cooperate on exchanges of discovery, “I will delineate it further” in additional orders if needed, Dartt said at the end of the session. * * *

The prosecution did score one small victory when Dartt granted a motion preventing an Indiana University student from attending future depositions in the case.

The student, Jordan Hochgesang, attended one of the depositions conducted by the defense team on future witnesses. Then, he was interviewed by a Louisville television station and shared his opinion that he thinks Camm is innocent.

Todd Meyer, Levco’s co-counsel, told Dartt that including a student who is not a lawyer or a paralegal in the deposition is inappropriate in itself, but for Hochgesang to make statements broadcast on TV is “highly prejudicial.”

Hochgesang did not attend the hearing, but Uliana said afterward outside the courthouse that Hochgesang has become “passionate” about Camm’s innocence and was allowed to sit in on the deposition.

The next hearing is set for May 8 at 9 a.m.

ILB: It is unclear from the story whether the "Indiana University student" was an undergrad, a certified legal intern on the case, or just an interested law student.

[Updated at 10:10 AM] A reader has pointed me to this February 27, 2013, story from Louisville's WDRB that gives more background on the IU student mentioned in the Camm case. Headed "SPECIAL ASSIGNMENT: Clearing Camm," the long story begins:

LOUISVILLE, Ky. (WDRB) -- Two juries convicted him, but there's a new effort to free David Camm. Now the former state trooper's future could depend on a group of college students.

Jordan Hochgesang is a senior criminal justice major at Indiana University, and he is on a mission -- not with a class assignment or preparing for graduation. Instead, he's passing out flyers he hopes will clear Camm's name and maybe even save his life. "This guy has been wrongfully convicted for the past 12 years," he says, "and we're just trying to get the word out."

The case: former Indiana State Trooper David Camm. Hochgesang says, "I took a wrongful convictions class and the David Camm case came about." That's when the case piqued his interest. "I don't think David Camm is guilty," he says.

Since then, he and some of his classmates have been working with licensed private investigator Bill Clutter and a non-profit organization called Investigating Innocence. It's an extension of the Innocence Project, which has played a part in overturning more than 300 wrongful convictions.

Posted by Marcia Oddi on Saturday, April 20, 2013
Posted to Indiana Courts

Courts - "Which Federal Appeals Court Cites Wikipedia Most Often?" [Updated & Revised]

An ILB reader reading the ILB blog about the Lisa Traylor-Wolff Supreme Court disciplinary order looked on Wikipedia for information about Pulaski County and found this:

Court: The county maintains a small claims court that can handle some civil cases. The judge on the court is elected to a term of four years and must be a member of the Indiana Bar Association. The judge is assisted by a constable who is also elected to a four-year term. In some cases, court decisions can be appealed to the state level circuit court.[6]
________
[6] Indiana Code. "Title 2, Article 10, Section 2". IN.gov. Retrieved 2008-09-16.
ILB: See the note at the end of this entry if you don't recognize that nearly everything in the Wikipedia entry is incorrect. In my experience, Wikipedia entries vary in quality and may change in content from day to day.

Given that, Wikipedia is increasingly cited in court decisions. To illustrate: "Which Federal Appeals Court Cites Wikipedia Most Often?" is the headline to this April 23, 2012 post by Joe Palazzolo on the WSJ Law Blog. Some quotes:

... We found that in the five years since that [2007] story, federal courts of appeals have cited Wikipedia about 95 times, including a case last month in which Judge Richard Posner of the Seventh Circuit pointed to Wikipedia’s entry on anal fissure – ”no fun at all,” he noted with understatement.

His colleague on the Seventh Circuit, Judge Diane Sykes, cited Wikipedia’s entry on the 1974 Mel Brooks comedy ”Blazing Saddles,” in a ruling earlier this year. Last year, Judge Terrence O’Brien of the 10th Circuit looked to Wikipedia for the definition of “happy hour,” which, according to the entry, occurs between four and seven in the evening. The Ninth Circuit, in a per curium opinion last August, relied on Wikipedia’s entry on Elvis Presley, as if to prove his status as “the King.”

Law Blog decided to look at which courts cited Wikipedia most often. We only recorded those instances in which an appeals court used Wikipedia for its own purposes, rather than citing it secondarily through a lower court or a party’s pleading.

The two court of appeals most comfortable with Wikipedia were the Seventh Circuit and the Ninth Circuit, with 36 citations and 17 citations, respectively. The 10th Circuit and Sixth Circuit recorded eight and six citations, respectively. The First, Second, Third, Fourth, Fifth, Eighth and 11th circuits all had five or fewer Wikipedia citations

__________
Note: Here is the real Pulaski County Courts homepage that Wipipedia might have referenced. It has both a Circuit Court and a Superior Court. As the Pulaski County Clerk's page states, these courts handle "Civil, Criminal, Adoptions, Juvenile, Estates, Guardianships, and Small Claims and Infractions as well as Protective Orders."

Re: "The judge on the court is elected to a term of four years and must be a member of the Indiana Bar Association," perhaps the writer meant the "Indiana State Bar Association," but even so, there is no such requirement.

Re: "The judge is assisted by a constable who is also elected to a four-year term," this is nonsense.

Re: "In some cases, court decisions can be appealed to the state level circuit court," Indiana has no state level circuit court, it has the state level Court of Appeals and Supreme Courts.

Posted by Marcia Oddi on Saturday, April 20, 2013
Posted to General Law Related

Friday, April 19, 2013

Law - "Can the Police Search My Home for a Bomber?"

Timely article by Katy Waldman of Slate. Worth reading.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to General Law Related

Ind. Decisions - More on: "Indiana Supreme Court suspends Bloomington lawyer"

Updating this ILB entry from April 18th, the Court has now uploaded its 3-page disciplinary order in In re David E. Schalk. A few quotes:

Discipline: Respondent's illegal attempt at a drug sting without the assistance of law enforcement, aggravated by his complete lack of any insight into his misconduct and his repeated and unfounded attacks on those involved in his criminal case and this disciplinary proceeding, demonstrate Respondent's need for a substantial period of suspension followed by a rigorous reinstatement proceeding before resuming practice.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than nine months, without automatic reinstatement, beginning May 24, 2013.

The "without automatic reinstatement" clause is most significant part of the penalty, as discussed in this Jan. 13, 2011 ILB post.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: How open, or isolated, are attorney-client meeting rooms?

Updating the ILB entry from earlier this afternoon, an attorney writes:

Good question you’ve raised about the layout of DOC conference rooms.

I can’t comment on Michigan City, since I haven’t seen a client there in five or six years. But at Miami, the conference rooms all have large windows facing into the common visiting area – very visible, but no sound. And as I recall, Rockville, Wabash Valley, and Newcastle are very similar – you’re seen, but not heard. Pendleton Correctional is comparable, except that the conference-room walls don’t go quite all the way up to the (very tall) ceiling of the common area – so even though I doubt normal conversation could be heard, loud sounds probably would be.

That certainly strikes me as the best way to do it. The easy visibility is good for prison security (and attorney safety), but the sounds that actually implicate attorney-client privilege are protected. Best of both worlds.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Courts

Ind. Gov't. - "If governor signs bill, Griffith may get its chance to leave Cal Twp."

Matt Mikus reports today in the Gary Post-Tribune in a long story that begins:

INDIANAPOLIS — Changes to the bill that allows Griffith a chance to leave Calumet Township were approved by the House Thursday.

When House Bill 1585 headed to the Senate, the bill was altered to give the township a chance to reduce its poor relief costs to below 12 times the state average. If they can’t reduce their costs in the first year, the state’s Distressed Unit Appeals Board will step in to try.

If the state is unable to reduce the costs to 12 times the state average, Griffith is allowed to begin the process of leaving the township.

The House voted largely on party lines, with Democrats calling the move “bad policy.”

“This is a terrible precedent for Indiana,” said Minority Leader Scott Pelath, Michigan City. “We’re saying as a matter of state policy, you can redraw the line so you can keep the poor people away.”

The bill is designed for one township, said State Rep. Charlie Brown, D-Gary, but someday it could affect another township. One community should not be allowed to back out of its contribution to government services.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Government

Ind. Courts - How open, or isolated, are attorney-client meeting rooms?

Updating this April 10th ILB entry headed "Senior judge banned from judicial service," which included this link to the Lisa Traylor-Wolff Supreme Court disciplinary order, dated April 9th, Tim Evans has an Indianapolis Star story today on the decision, headed "Part-time judge who had sexual relations with inmate banned from judicial service." A few quotes from the story:

The charges stem from a "physically intimate relationship with a 26-year-old client" who Traylor-Wolff had been appointed to represent as a public defender * * *

Traylor-Wolff was representing the defendant on felony charges when the alleged sexual activity took place in an attorney-client visitation room at the Miami Correctional Facility.

From a Christian Science Monitor story:
The disciplinary charges say Traylor-Wolff continued to represent Wampler as he appealed his conviction and developed a more personal relationship with him, giving him books, making cash deposits to his prison account, sending him personal emails and completing a Bible study with him.

The charges allege the two developed a romantic relationship in May 2012. The charges say she kissed Wampler three times at the Miami Correctional Facility, including once while sitting on his lap. The charges say Traylor-Wolff and Wampler met in a private attorney-client visitation room at the prison on June 15 and correctional officers observed them at the end of the meeting "engaged in excessive fondling."

The charges say that contact "meets the definition of 'sexual relations'" as defined under the Indiana Rules of Professional Conduct. Wampler was written up for the incident and, following a hearing, was sanctioned with a loss of jail credit time, according to the charges.

ILB: How open, or isolated, are attorney-client meeting rooms?

The ILB has received correspondence from several defense attorneys after the Traylor-Wolff discipline:

Other experiences?

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Razien McCullough v. State of Indiana , an 8-page opinion, Judge Bradford writes:

Appellant-Defendant Razien McCullough lived in Indianapolis with Lawrence Miles, Kharisma Archie, and Archie’s two young children. Late on December 8, 2010, or early the next morning, McCullough shot and killed Miles and Archie. McCullough shot both Miles and Archie in the head and also shot Archie in the thigh. McCullough concealed the bodies on the back porch of the residence and contacted police the next day. McCullough told police in a statement that he had acted in self-defense. The State charged McCullough with two counts of murder, a jury found him guilty as charged, and the trial court sentenced him to an aggregate term of 115 years of incarceration. McCullough contends that the State failed to produce sufficient evidence to disprove his claim of self-defense and that his sentence is inappropriately harsh. We affirm.
In State of Indiana v. Douglas E. Shipman , an 11-page opinion, Judge Mathias writes:
The Orange Circuit Court granted a motion to suppress filed by Douglas E.
Shipman (“Shipman”), resulting in suppression of the evidence seized during the
execution of a search warrant of Shipman’s home. The State of Indiana appeals and presents three issues, which we renumber and restate as: (1) whether the trial court erred in concluding that the search warrant was not supported by probable cause, and (2) whether the trial court erred in concluding that the good faith exception to the exclusionary rule did not apply. Concluding that the search warrant was supported by probable cause, we reverse and remand. * * *

Conclusion. The trial court erred in granting Shipman’s motion to suppress the evidence seized during the execution of the search warrant issued based upon K.G.’s statement to the police. K.G.’s statements were contrary to his penal interest and therefore sufficiently reliable to support a finding of probable cause to issue the search warrant. Even if K.G.’s statements were not contrary to his penal interest, however, the officers could have relied on the warrant in objective good faith, and there was no reason to suppress the evidence pursuant to the exclusionary rule. We therefore reverse the order of the trial court granting Shipman’s motion to suppress and remand for further proceedings consistent with this opinion.

NFP civil opinions today (1):

Darius Washington v. Indiana Department of Correction (NFP)

NFP criminal opinions today (6):

Gregory Garrett v. State of Indiana (NFP)

Eddie Hargrow v. State of Indiana (NFP)

David Smigielski v. State of Indiana (NFP)

Michael Warren v. State of Indiana (NFP)

Philip M. Reed v. State of Indiana (NFP)

Kenneth Schaefer v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New addition to ILB's "running list of cases designated as NFP that perhaps should not have been"

The ILB has recently begun pointing out opinions designated by a Court of Appeal panel as "Not for Publication" (NFP) that arguably may not meet the criteria of Appellate Rules 65(A):

Rule 65. Opinions And Memorandum Decisions

A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.
This ILB post on Feb. 17th points to two COA opinions, designated as NFP, ruling that "a Vanderburgh County judge correctly denied injunctions requested by a group of tavern owners and private clubs against Evansville's smoking ban, which took effect last April."

This ILB post on March 19th points to a COA opinion, designated as NFP, upholding the continuation on the books, without enforcement, of Hammond gun ordinances negated by state statute. [This 3/15/13 opinion was reclassified as for publication on 4/3/13.]

Yesterday, April 18th's, decision in Maximilian Spiegel v. State of Indiana (NFP), is a new addition to the list. The issue in this case involved claims of prosecutorial misconduct. Here is Judge Friedlander's concurring opinion:

I fully concur in the panel’s opinion, but write separately to express a few thoughts on the issue of prosecutorial misconduct in the present case. We correctly conclude that the prosecuting attorney in this case crossed the line of acceptable advocacy not once, but four times. She called Spiegel a liar on the witness stand, commented upon possible penal consequences of a verdict of “guilty”, highlighted the disparate roles of prosecuting and defense attorneys, and intimated to the jury that a vote of “not guilty” was tantamount to societal condemnation of unspecified other children to suffer similar abuse at the hands of other perpetrators, without recourse. We also conclude that these transgressions do not merit reversal because they were waived and because of the strength of the evidence of guilt.

In reaching these conclusions, we do not go so far as to explicitly “condemn” the prosecuting attorney’s actions, although we could, and perhaps should. Be that as it may, there is cause to doubt the efficacy of even an official condemnation of such behavior. Our appellate courts have on occasion issued condemnations of prosecutorial misconduct. See, e.g., Splunge v. State, 641 N.E.2d 628 (Ind. 1994) (the Supreme Court condemned the prosecutor’s attempt to remind the jury that the defendant did not testify, but nevertheless affirmed because of the overwhelming evidence of guilt) ; see also Bernard v. State , 540 N.E.2d 23, 25 (Ind. 1989) (prosecutor’s comments on the defendant’s failure to testify were described as “condemnable”). Yet, instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis. At some point, I will be forced to conclude that our condemnations lack sufficient deterrent effect, and that only reversal will provide sufficient impetus for adhering to the well-settled boundaries of propriety in these matters.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Ind. App.Ct. Decisions

Courts - Two somewhat surprising lawsuits

Libel suit over a BNA case summary - From the Blog of Legal Times, the lengthy entry begins:

Yorie Von Kahl was convicted of second degree murder in the 1983 fatal shooting of two deputy U.S. marshals in North Dakota. Kahl was sentenced to life in prison, but he scored a recent win from a Washington federal judge who found that Kahl could proceed with a libel suit against The Bureau of National Affairs, Inc. (BNA) over a summary of his case published by the company.

In a March 30 opinion, U.S. District Judge Richard Roberts denied BNA's motion for judgment and for reconsideration of a September 2011 ruling in which he rejected summary judgment motions filed by both sides. Roberts found that Kahl offered enough evidence of possible defamation to survive this stage of the case.

Lawsuit over eBay feedback - Eugene Volokh of The Volokh Conspiracy writes today about:
... how Med Express filed suit against a woman based on that woman’s true statement about a problem with the firm’s deliveries (“Order arrived with postage due with no communication from seller beforehand”)

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Courts in general

Ind. Courts - More on: Supreme Court receives certified question from 3rd Circuit re racino slots

This April 5th ILB post reported that the 3rd Circuit had sent this 3rd Circuit Petition for Certification of Question of Law, dated March 1st, to the Indiana Supreme Court.

It turns out now that the Supreme Court, in an order indicating it was filed on April 2nd, wrote that "rather than accepting or refusing the certified question at this time, the Court respectfully holds in abeyance the Petition for Certification, pending a resolution by the Third Circuit whether appeal No. 12-1582 is moot." The order sets out the circumstances that lead to the Court to conclude that the appeal may be moot.

There is more about this in the newest issue of the subscription-only Indiana Gaming Insight.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Courts

Ind. Law - "Disagreements stall criminal code reform bill "

Maureen Hayden of CNHI reports today in the Batesville Herald Tribune:

INDIANAPOLIS — Negotiations over the final language in a bill [HB 1006] that rewrites Indiana’s criminal code may come down to the last week of the legislative session.

The House authors of the bill aren’t happy with the changes made by the Senate that toughen penalties for some crimes and give judges less latitude in sentencing.

Those disagreements have pushed the bill into a House-Senate conference committee, where legislators from both chambers have to hammer out their differences before the session ends April 29.

Republican state Rep. Greg Steuerwald of Avon, who carried the bill in the House, is concerned the Senate changes may undermine one of the bill’s major goals: less incarceration and more rehabilitation at the local level of low-level offenders that are crowding the state prisons.

But Republican state Sen. Randy Head, a former deputy prosecutor from Logansport who pushed for the Senate changes, said the bill’s purpose “should be to sentence smarter, not necessarily to sentence lesser.”

“If someone needs to go to prison, they need to go,” Head said.

Steuerwald and Head disagree on a provision in the original bill that would have given judges more discretion to make that decision. That measure did away with some of the mandatory prison sentences now in the criminal code and gave judges more latitude to suspend a prison sentence and opt for alternative community-based treatment and correction programs.

In the House version of the bill, the only crimes ineligible for suspended sentences were the worst crimes, such as murder. The Senate changed that provision to restrict judges from suspending sentences of those convicted of all but the lowest level of felonies if the offender has a previous conviction.

Still, there are big areas of agreement on the legislation, including tougher penalties for violent and sex crimes and lower penalties for drug and theft crimes.

The biggest unresolved issue is money: The $30 billion budget bill that’s still being hammered contains no additional funding for the local jails, community corrections and probation departments that will have to absorb the biggest impact of the criminal code reform bill.

And there’s no additional funding for the substance abuse and mental health treatment programs that the bill’s supporters want used to help reduce the recidivism rates of low-level offenders whose crimes are tied to drug abuse and mental illness.

Steuerwald and Head agree on that. Both have been pushing for more dollars to go back to the local communities where more low-level offenders will be doing their time.

“In order for this entire concept to work, we need to get the funding to community corrections programs and local jails to run the rehabilitation programs for low level offenders,” Head said.

So far, the roadblock has been Senate Appropriations Chairman Luke Kenley, a Republican from Noblesville and one of the chief budget makers in the legislature.

There is more to read in the lengthy story.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Law

Ind. Gov't. - "Lake County officials cancel trash-to-ethanol contract"

Updating a long list of earlier ILB entries, some of them under the heading "Continuing saga of politics of trash in Lake county," Marc Chase of the NWI Times reports today, "Lake County officials cancel trash-to-ethanol contract." The story begins:

After four years of failed attempts to get a Lake County trash-to-ethanol plant off the drawing room floor, waste district officials unanimously canceled the contract Thursday with a would-be developer.

The 19-0 vote by the Lake County Solid Waste Management District Board to cancel the contract came after years of collapsed financing plans, missed deadlines and the recent retreat of a local construction consortium that had once planned to take over the contract.

In November 2008, the waste district inked a contract with Evansville-based Powers Energy of America under which the company was to build and operate a facility that would consolidate the county's trash collections and convert carbon-based garbage into ethanol.

The facility also was supposed to sort out all metals, plastic and other recyclables to sell for a profit and pay millions of dollars in host fees back into the district and the town of Schneider, where it was to be located.

However, the repeated inability of Powers to secure financing and show the process to be viable finally caught up with the plan Thursday, some waste district board members said.

Expressing disappointment in what he called Powers Energy's failure to deliver, Lake County Commissioner Gerry Scheub — once the project's biggest political supporter — made the motion to terminate the contract. Scheub's motion also asked for the district to seek reimbursement from Powers Energy for costs associated with vetting the project.

Posted by Marcia Oddi on Friday, April 19, 2013
Posted to Indiana Government

Thursday, April 18, 2013

Law - "For those whose real crime is outsmarting the authorities, severe punishment awaits."

Earlier this month, the ILB had this post, headed "By using someone else's 'HBO Go' password, reporter violating same law Adam Schwartz did accessing JSTOR." It began:

See how easy it is to violate the Computer Fraud and Abuse Act, which "makes it a crime 'to obtain without authorization information from a protected computer.'”
Several years ago, in a post mentioning the "hacker" who "broke into" 9th Circuit Judge Kosinski's personal website, the ILB wrote:
Is truncating the URL of a website and typing into into your search bar illegal "hacking"? If it is, many of us are guilty of doing what some readers of Underneath Their Robes did after viewing the bungy jumping video the Judge had sent the link to: http://alex.kozinski.com/stuff/jump.avi. Using their browsers, they truncated the link to http://alex.kozinski.com/stuff/ to see what else was in the directory. They were rewarded, because the Judge did not put an index page in the directory.

[A]n entry I read some years ago on Phillip Greenspun's Weblog shows that Harvard business school, at least in 2005, considered truncating a website address to be "hacking" that would result in denial of admission to the school:

[The Harvard business school admissions setup was such that truncating] the URL in the “Address” or “Location” field of a Web browser window would result in an applicant being able to find out his admissions status several weeks before the official notification date.

This would be equivalent to a 7-year-old being offered a URL of the form http://philip.greenspun.com/images/20030817-utah-air-to-air/ and editing it down to http://philip.greenspun.com/images/ to see what else of interest might be on the server.

Someone figured this out and posted the URL editing idea on the BusinessWeek discussion forum, where all B-school hopefuls hang out and a bunch of curious applicants tried it out.

Now all the curious applicants, having edited their URLs, are being denied admission to Harvard. * * *

Thanks to Harvard Business school the term now means “people of average IQ poking around curiously by editing URLs on public servers and seeing what comes back in the form of directory listings, etc.”

More recently, on April 13th of this year, Peter Ludlow, professor of philosophy at Northwestern University, had a long, powerful opinion piece in the NY Times, headed "Hacktivists as Gadflies." A few quotes:
For some reason, it seems that the government considers hackers who are out to line their pockets less of a threat than those who are trying to make a political point. Consider the case of Andrew Auernheimer, better known as “Weev.” When Weev discovered in 2010 that AT&T had left private information about its customers vulnerable on the Internet, he and a colleague wrote a script to access it. Technically, he did not “hack” anything; he merely executed a simple version of what Google Web crawlers do every second of every day — sequentially walk through public URLs and extract the content. When he got the information (the e-mail addresses of 114,000 iPad users, including Mayor Michael Bloomberg and Rahm Emanuel, then the White House chief of staff), Weev did not try to profit from it; he notified the blog Gawker of the security hole.

For this service Weev might have asked for free dinners for life, but instead he was recently sentenced to 41 months in prison and ordered to pay a fine of more than $73,000 in damages to AT&T to cover the cost of notifying its customers of its own security failure.

When the federal judge Susan Wigenton sentenced Weev on March 18, she described him with prose that could have been lifted from the prosecutor Meletus in Plato’s “Apology.” “You consider yourself a hero of sorts,” she said, and noted that Weev’s “special skills” in computer coding called for a more draconian sentence. I was reminded of a line from an essay written in 1986 by a hacker called the Mentor: “My crime is that of outsmarting you, something that you will never forgive me for.”

When offered the chance to speak, Weev, like Socrates, did not back down: “I don’t come here today to ask for forgiveness. I’m here to tell this court, if it has any foresight at all, that it should be thinking about what it can do to make amends to me for the harm and the violence that has been inflicted upon my life.”

He then went on to heap scorn upon the law being used to put him away — the Computer Fraud and Abuse Act, the same law that prosecutors used to go after the 26-year-old Internet activist Aaron Swartz, who committed suicide in January.

The law, as interpreted by the prosecutors, makes it a felony to use a computer system for “unintended” applications, or even violate a terms-of-service agreement. That would theoretically make a felon out of anyone who lied about their age or weight on Match.com.

The case of Weev is not an isolated one. * * *

In a world in which nearly everyone is technically a felon, we rely on the good judgment of prosecutors to decide who should be targets and how hard the law should come down on them. We have thus entered a legal reality not so different from that faced by Socrates when the Thirty Tyrants ruled Athens, and it is a dangerous one. When everyone is guilty of something, those most harshly prosecuted tend to be the ones that are challenging the established order, poking fun at the authorities, speaking truth to power — in other words, the gadflies of our society.

[More] See also Ryan Tate's March 20th piece in Wired, headed "How Weev’s Long Prison Term Makes You More Vulnerable."

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to General Law Related

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

From UNITED STATES OF AMERICA v. JOHNNIE C. COLLINS (ND Ind., Springmann), a per curiam opinion:

Johnnie Collins fled police officers by car and then by foot after he was stopped for speeding. An officer kicked Collins repeatedly and dosed him with pepper spray, but Collins did not stop resisting until another officer deployed his Taser. Afterward, the officers discovered a bag containing crack and powder cocaine that Collins had discarded during the foot chase, as well as a wad of cash in his pocket. After Collins was charged with possession of crack and powder cocaine with intent to distribute, he moved to suppress the drugs and money on the principal ground that they were obtained through the use of excessive force. The district court denied the motion to suppress, explaining that under United States v. Watson, 558 F.3d 702, 705 (7th Cir. 2009), the use of excessive force during an arrest is not a basis for suppressing evidence. Moreover, the court reasoned, the drugs and money were not seized as a result of the alleged use of excessive force. On appeal Collins challenges this ruling, specifically arguing that we should overturn Watson. We reject his arguments and affirm the judgment.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Ind. (7th Cir.) Decisions

About this Blog - Follow ILB Twitter link as well as the ILB

If you don't already, you might want to follow both the ILB and the ILB Twitter link. The ILB has the detailed posts, while Twitter gives the alerts for new postings. In addition, on Twitter I highlight many other tweets of interest to ILB readers, as they occur.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In TPUSA, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development, a 10-page opinion, Sr. Judge Barteau writes:

TPUSA owns and manages call centers around the country. It is owned by Teleperformance Group Inc., a Florida holding company. In 2009, TPUSA operated a call center in Fishers, Indiana. After September 30, 2009, TPUSA no longer had employees in Indiana, and the Fishers facility officially closed on October 31, 2009. TPUSA made contributions to the Department for unemployment insurance for its employees until the facility closed. TPUSA submitted its 2009 fourth quarter wage report showing that it had no employees and had paid no wages. Having no operations or employees in the State of Indiana in 2010, TPUSA did not file any quarterly payroll reports with the Department for that year. * * *

For the reasons stated, we conclude that the LALJ erred by determining that TPUSA owes $125,666.33 in unemployment insurance contributions, interest, and penalties for 2010 when TPUSA had no employees in Indiana in 2010 and paid no wages in Indiana in 2010. Reversed and remanded.

In William Wressell v. R.L. Turner Corporation, a 16-page opinion, Judge Bradford writes:
Between September 15, 2009, and June 20, 2010, William Wressell was employed by R.L. Turner Corporation (“RLTC”) as a concrete foreman and worked on two of RLTC’s construction projects. Both projects were public works projects subject to the Indiana Common Construction Wage Act (“CCWA”), and Wressell was classified and paid as a skilled cement mason pursuant to the CCWA. Wressell eventually brought suit against RLTC, claiming that he was significantly underpaid by RLTC for his work. The trial court granted summary judgment in favor of RLTC, and Wressell now appeals. Wressell argues that the trial court erred in granting summary judgment because the designated evidence shows that much of the work he did for RLTC was that of either a skilled carpenter or a skilled laborer, work that, overall, entitled him to a higher wage and higher fringe benefits. RLTC responds to these arguments and cross-appeals, contending that Wressell has flagrantly disregarded the Indiana Rules of Appellate Procedure such that it is entitled to an award of attorney’s fees. Concluding that the trial court erred in entering summary judgment in favor of RLTC, we reverse the judgment of the trial court and remand for further proceedings. We further conclude that RLTC is not entitled to an award of attorney’s fees.
In Casey Walker v. State of Indiana , a 13-page opinion, Judge Baker writes:
In this case, appellant-defendant Casey Walker was convicted of class A felony Manufacturing Methamphetamine1 and sentenced to thirty years of incarceration. Evidence presented at Walker’s trial included evidence obtained from a warrantless search of a residence that police officers conducted after obtaining the consent of Walker’s wife, an occupant of the residence, and Walker’s mother, the owner and an occupant of the residence.

On appeal, Walker argues that the State failed to establish an exception to the warrant requirement because his mother is incapable of giving consent in that she suffers from Alzheimer’s disease. Walker requests that the evidence seized from the search be suppressed, and consequently, his conviction reversed.

We conclude that Walker has failed to establish that his mother was incompetent to give consent to search the residence. Moreover, there was undisputed testimony at trial that Walker’s wife gave verbal consent to search the residence, and Walker points to no evidence that he explicitly told the police that they could not enter his residence. Accordingly, we find that the police had consent to search the residence, and the trial court did not err by admitting the evidence. Thus, we affirm the judgment of the trial court.

NFP civil opinions today (2):

Tory Simmers v. United Farm Family Mutual Insurance Company (NFP)

Maura Leonard v. David Leonard (NFP)

NFP criminal opinions today (8):

J.S. v. State of Indiana (NFP)

Scott Miller v. State of Indiana (NFP)

Tyronne J. Noel v. State of Indiana (NFP)

Maximilian Spiegel v. State of Indiana (NFP)

Mark Vickery v. State of Indiana (NFP)

Timothy J. Taylor v. State of Indiana (NFP)

Jane M. Burkhart v. State of Indiana (NFP)

Jevante Lancaster v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Ind. App.Ct. Decisions

Courts - More on "Judge Strikes Down Age Limits on Morning-After Pill"

Updating this ILB entry from April 5th, Linda Greenhouse of the NYT has a lengthy Opinionator column today that begins:

If you read only one judicial opinion this year, you might consider skipping the Supreme Court entirely and going right to a decision issued early this month by Judge Edward R. Korman of Federal District Court in Brooklyn.
Later:
As I said, this opinion, Tummino v. Hamburg, was hardly ignored when it was issued on April 4. But it’s worth reading in full by anyone who wants to observe the judicial process at its finest. “Speaking truth to power” is a hackneyed phrase, and no doubt it’s what the district judges who struck down the Affordable Care Act thought they were doing. But Judge Korman, a 70-year-old senior judge who took his seat in 1985 after a distinguished career in private practice and government service, shows how it’s done, with meticulous attention to facts and context. If I were teaching a law school course on administrative law — the law of the juncture between citizens and the federal executive branch — I would assign this opinion as homework for the first class and then spend the rest of the semester unpacking it.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Courts in general

Ind. Decisions - "7th Circuit reinstates claim v. Carthage College over dorm sexual assault"

Bruce Vielmetti of the Milwaukee Journal Sentinel has the story today about the 7th Circuit's April 16th opinion in KATHERINE LEES v. CARTHAGE COLLEGE and LEXINGTON INSURANCE COMPANY. [H/T @AppellateDaily]

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "ALEC's best friend: The Indiana General Assembly"

That is the headline to this long post by Karen Francisco, senior editorial writer for Fort Wayne Journal Gazette, in the paper's "Learning Curve" blog.

The ILB has had many entries with references to "ALEC".

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Indiana Law

Ind. Decisions - "Acapulco owner’s bond reduced " Appellate Rule 65(E) at issue

Updating this April 8th ILB entry headed "Bond reduction denial reversed today by COA in Acapulco restaurant chain raids," Erika Schmidt Russell reported yesterday in the Dearborn County Register:

Last week, the Court of Appeals of Indiana instructed Dearborn Circuit Court “set a reasonable bond amount based upon the relevant statutory factors” in the case of Adolfo Lopez who was charged with four class D felonies in September 2012 after an investigation by Indiana State Excise Police into several Acapulco Mexican Restaurants’ tax practices. [ILB: COA opinion here]

A legal tennis match ensued, with volleys of hearings, objections, and petitions finally culminating in Dearborn-Ohio Circuit Court Judge James D. Humphrey reducing Lopez’s bond to $100,000 surety Tuesday, April 16, to comply with the appeals court ruling.

In late September 2012, Humphrey set Lopez’s bond at $3 million surety plus $250,000 cash.

Lopez’s attorney, Doug Garner, filed a motion for bond reduction in late October 2012. The motion was denied Nov. 21, 2012, and the decision was appealed.

Garner credits the dedication of local appellate attorney Leanna Weismann with getting the bond reduction for his client.

Lopez bonded out of the Dearborn County Law Enforcement Center Tuesday evening, April 16. * * *

Magistrate/Judge Pro Tem Kimberly Schmaltz held a hearing to reduce the bond Wednesday, April 10.

Dearborn-Ohio County Prosecutor Aaron Negangard objected to the hearing. In his filing, also on April 10, it notes in accordance with Appellate Rule 65E “The trial court ... and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.”

Weismann filed a petition Thursday, April 11, with the court of appeals for relief to grant an immediate bond reduction hearing, rather than wait for the certification and/or transfer process if the Indiana Attorney General’s office would choose to request the appeal be taken up by the Indiana Supreme Court.

In the petition Weismann notes “ while ordinarily Indiana Appellate Rule 65(E) would require certification of this opinion prior to action by the trial court, in equity and law, courts have the inherent authority to require immediate compliance with their orders and decrees in order to give effective relief.”

The matter is a constitutional one, and “Lopez asks this Court to use its inherent equitable power to intervene to assure that bond is set in a reasonable timeframe.”

More filings came in April 16. The court of appeals ordered a bond hearing within 10 days of receiving the order or bond be set at $100,000 surety with a 10 percent cash option.

The court of appeals order by chief Judge Margret Robb states “In light of the significant constitutional and liberty interests involved in this case, and given that ‘courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief....”

Negangard filed a motion to withdraw the objection to a bond hearing for Lopez April 16, as well.

In the motion Negangard notes his office was notified by the Attorney General’s office it would not be seeking a rehearing.

Humphrey writes in his order reducing Lopez’s bond, “... further considering the direction of the Court of Appeals to reduce Defendant’s bond, and the Court therefore finds that Defendant’s bond, given all these considerations, shall be a surety bond in the amount of One Hundred Thousand Dollars ($100,000.00). The Court considers the factors cited in the opinion of the Indiana Court of Appeals and also this Court’s original opinion.”

The order also notes references to other court’s bond schedules do not take into consideration all the factors involved in the Lopez case, “... including multiple charges and other factors cited. In fact, bond schedules from other jurisdictions in some Counties appear to require substantially higher cash payments than may be required by this Court.”

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions

Environment - " Delay and denial in Pines. A small Indiana town is stuck in a slow-motion cleanup of coal ash pollution."

From an April 8th story (including a 3-part audio) by Lewis Wallace of WBEZ 91.5, Chicago Public Media.

The ILB has been posting about the contamination of water wells in the Town of Pines, which is on Lake Michigan, between Chesterton, where I grew up, and Michigan City, since 2004. Here are the posts.

The lengthy WBEZ story concludes:

“The coal industry wants a free hand to dispose of this stuff how they see fit,” said George Adey, the Pines Town Council president. “Our community is a perfect example of why we need a stronger EPA and stronger regulation for coal ash.”

That kind of sentiment’s drawing more attention lately, especially after the Kingston disaster. That incident reminded environmentalists and lawmakers that towns such as Pines had been treated like coal ash dumps, though it hasn’t led to much action. The EPA has been sitting on two proposed regulations on the disposal of coal ash since 2010, and the states offer a hodge-podge of guidelines. As it stands, the states regulate the disposal of coal ash in more than a thousand ponds and landfills around the country, many of them unlined.

Coal remains a major source of energy in the Chicago region as well as the entire nation. And environmentalists say “clean coal” is a fallacy if you consider the continued production of unregulated coal ash.

New regulatory developments are likely to pass Pines by, since NIPSCO no longer dumps ash there. The clock, though, will still be running on the cleanup. The EPA says it expects to announce what cleanup requirements it will impose on NIPSCO and Brown in early 2015.

Meanwhile, the Yard 520 landfill still sits at the edge of the town. There’s a marshy ditch right next to Yard 520 that captures most of the contaminated runoff from the area and carries it through the town of Pines and through Indiana Dunes National Lakeshore.

The final destination? Lake Michigan.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Environment

Ind. Courts - Allen Co. Judge extending hope to meth addicts

The Fort Wayne Journal Gazette has a long editorial column this morning by Gina Zimmerman about Allen Superior Court Judge Wendy Davis and the Hope Probation program. Some quotes:

Marisa Hanlon, 40, was arrested in Allen County two years ago when she attempted to buy a case of commercial-strength Drano – an essential methamphetamine ingredient. At home, she had stockpiled battery acid, lye, ephedrine, pesticide, insecticide, butane, brake fluid, ether and cold packs – all for her personal meth production.

Methamphetamine has spread beyond rural neighboring counties and into urban areas like Allen County. Local law enforcement officials are overwhelmed. And Allen County judges and court officials, with very full dockets, are working overtime to come up with creative solutions for overcrowded jails and limited rehabilitation resources.

After her criminal sentencing, Hanlon became a part of the Hope Probation program, an innovative program implemented by Superior Court Judge Wendy Davis that allows nonviolent offenders to enter house arrest or transitional housing. With stringent accountability and zero tolerance, offenders must attend rehabilitation, counseling and maintain a drug- and alcohol-free lifestyle.

“Meth addicts have an impossible time recovering on their own,” says Davis. “Court-ordered services, combined with judicial sanctions for noncompliance, help drug offenders take personal responsibility to become clean and sober … or risk going to prison.”

Davis assumed the bench in 2011 after a stunning upset victory over a 19-year veteran judge. [ILB: See 2010 story] Since then, she has been recognized for having one of the five busiest (out of 500) courtrooms in Indiana. In 2012 alone, she oversaw 147 meth-related cases.

Hope was born out of Davis’s interest in alternative sentencing. Two years ago, she spent a vacation day shadowing Judge Steven Alm, the brainchild behind Hawaii’s successful Hope program. Armed with this knowledge and in close collaboration with the Allen County sheriff and the Probation Department, Davis has introduced nonviolent defendants like Hanlon to less expensive and more effective treatment solutions.

Hope Probation and other Allen County Criminal Court initiatives, including the Drug Court and the Re-Entry Court, have become a unique lifeline for recovering nonviolent drug users. Unwittingly, the court has become a change agent, often ensuring that offenders are not living where they were living and not traveling around in the same groups that first got them into trouble.

Through these unique local court initiatives, recidivism is decreasing. And overcrowded jails are experiencing some relief.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court suspends Bloomington lawyer"

Laura Lane reports today in the Bloomington Herald-Times concerning a ruling that is not online as of this post. Some quotes:

The Indiana Supreme Court has sanctioned Bloomington lawyer David Schalk for professional misconduct and suspended him from practicing law for at least 9 months.

A state hearing officer determined Schalk, admitted to the Indiana Bar in 1990, violated two Indiana Professional Conduct rules when he assisted a client in purchasing marijuana in order to prove that a police informant involved in the case was a drug dealer. The two rules he violated: committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer and engaging in conduct prejudicial to the administration of justice.

In 2009, Schalk was convicted of a misdemeanor, conspiracy to commit possession of marijuana, in connection with the case. He appealed the conviction, but it was upheld by the Indiana Court of Appeals, which said it in its ruling “an attorney is not exempt from the criminal law even if his only purpose is the defense of his client.”

The state supreme court denied Schalk’s request to argue his case before the court and imposed the suspension.

“Respondent (Schalk’s) illegal attempt at a drug sting without the assistance of law enforcement, aggravated by his complete lack of any insight into his misconduct and his repeated and unfounded attacks on those involved in his criminal case and this disciplinary proceeding, demonstrate his need for a substantial period of suspension followed by a rigorous reinstatement proceeding before resuming practice,” Chief Justice Brent E. Dickson wrote.

Here is the Feb. 8, 2011 Court of Appeals opinion in David E. Schalk v. State of Indiana.

Posted by Marcia Oddi on Thursday, April 18, 2013
Posted to Ind. Sup.Ct. Decisions

Wednesday, April 17, 2013

Ind. Decisions - Indiana case is SCOTUSblog "petition of the day"

The case is Ind. FSSA v. Bontrager. Details here.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - "Court Rules Warrants Are Needed to Draw Blood in Drunken-Driving Cases" [Updated]

Adam Liptak of the NY Times reports on today's SCOTUS opinion in Missouri v. McNeely.

[Updated] Here is an Opinion Recap by Lyle Denniston of SCOTUSblog.

Orin Kerr has a post here at The Volokh Conspirary, headed "Missouri v. McNeely and Exigent Circumstances to Conduct Blood Tests for Drunk Driving Cases."

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: T.P. (Minor Child), and D.P. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Earlie B. Berry, Jr. v. State of Indiana (NFP)

Donald Dowdell v. State of Indiana (NFP)

David Meece v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues order in Lake County judges dispute

The Supreme Court has posted this order, dated yesterday, which answers a question posed by Cordell Frank, the attorney representing the three magistrates. Frank asks for an "order that in effect waives any appearance of impropriety and thus allows counsel to resume practicing in the Lake Circuit Court and all divisions of the Lake Superior Court except a part of the Juvenile Division." The Court finds:

1. A judge who is named as a respondent in an original action is not required to disqualify from other matters in which the counsel for a relator in such original action has also appeared. The nature of original actions often requires such actions to name judges as responding parties, but this does not necessarily create a reasonable perception of partiality on the part of that judge as to other matters in which the relator's attomey is involved.

2. While such disqualification is not systematically required, each judge named as a respondent in an original action may nevertheless determine that disqualification is appropriate pursuant to Indiana Code of Judicial Conduct Rule 2.11 (A), due to the individual circumstances of any particular case as applied to such judge.

3. If any judge or group of judges named as respondents in an original action disqualifies from other actions in which an appearing attomey also represents a relator in an original action against such judge or judges, such disqualification does not preclude that attorney from practicing in any court because any such disqualification will be filled with a replacement judge as provided by law.

In other words, the Court has issued an order, but not the order.

For background, start with this post from April 1st.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Indiana Appeals Court Upholds Stop For Dim License Bulb"

The April 4th Court of Appeals opinion by Judge Brown in Thomas Porter v. State of Indiana is the topic of a story today in theNewspaper.com ("A journal of the politics of driving"). The story begins:

Police may stop drivers of cars with functional, but dim, bulbs illuminating the license plate, Indiana Appeals Court rules.

The burned out license plate light has long been a favorite charge used by law enforcement to pull over drivers when the officer has a hunch about some other form of wrongdoing. Drivers rarely inspect these bulbs, so it is easy for them to burn out, unnoticed. Earlier this month, the Indiana Court of Appeals decided to expand the precedent to include stopping cars with functional, but dim, license plate lighting.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals panel rules against LaPorte County tourism bureau" in domain name dispute

The Court of Appeals decision April 15th in Serenity Springs, et al. v. The LaPorte County Convention and Visitors Bureau is the subject of a story today in the NWI Times, written by Stan Maddux. The story begins:

The LaPorte County Convention and Visitors Bureau has lost the latest round of a legal fight over its bid to lay claim to a website address, visitmichigancitylaporte.com.

The Indiana Court of Appeals on Monday ruled in favor of Serenity Springs, a resort in the area of Interstate 94 and U.S. 20 just east of Michigan City.

Jonathan Watson, of South Bend, an attorney for the resort, said Serenity Springs is cleared to resume using the website address, something that nearly landed his client, Laura Ostergren, in jail.

"They're free to start using the web address again," said Watson.

The dispute began in September 2009 when the LCC&VB unveiled Visit Michigan City LaPorte as the new branding identifier for the area following a study by a private marketing firm.

A representative of Serenity Springs attended.

Immediately after the meeting, a Serenity Springs employee registered the domain name "visitmichigancitylaporte.com" and set it up to redirect Internet traffic to the Serenity Springs website.

The LCC&VB the next day tried registering the same domain name but discovered it already had been purchased and was being used as the resort's website address.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Wabash College lawsuit raises questions about who polices fraternity hazing"

Brian Yost v. Wabash College, which will be argued before the Supreme Court Tuesday, April 23rd, at Indiana University-East (Richmond), in a rare traveling argument, is the subject of a good front-page story today in the Indianapolis Star, reported by Tim Evans. (You can find the case details at the ILB's Upcoming Oral Arguments.) The long Star story today begins:

A case before the Indiana Supreme Court this month could set the stage for the state’s first jury trial examining the responsibility that colleges and fraternities have to protect students from hazing.

Before that can happen, though, the state’s high court must decide a more basic question: Does the personal injury lawsuit filed by former Wabash College student Brian Yost even merit a trial?

Yost’s broader case centers on whether Wabash or Phi Kappa Psi (known on campus as Phi Psi) had a duty to ensure his safety — specifically after a string of hazing and alcohol-related problems at the private school in Crawfordsville. More than a half-dozen incidents since 2000, including the deaths of two underage students who had been drinking, prompted sanctions against fraternities.

If the high court grants Yost his day in court, it will be the first case in Indiana to address civil liability in connection with hazing.

And should Yost prevail, the case could significantly expand the limited legal duty colleges and universities have to safeguard students.

“Institutions are going to need to understand that there could be greater consequences for their failure to more actively engage in the behavior of institutions that are on university-owned property,” explained Andrew R. Klein, a professor at Indiana University Robert H. McKinney School of Law in Indianapolis.

Indiana courts traditionally have declined to hold colleges and universities accountable for protecting students from injuries on campus. It is a point attorneys for Wabash make in a brief filed with the Supreme Court.

“The broad, all-encompassing duty, if created (in Yost’s case),” Wabash contends, “is such a dramatic change from existing Indiana law that if it is to be established, it is a matter for the General Assembly.”

Wabash is not alone in struggling with Greek hazing issues, but two factors could differentiate Yost’s case from others in which courts found schools did not have a broad duty to protect students, said Carmel personal injury attorney Stephen M. Wagner.

Unlike most fraternity and sorority houses on other Indiana campuses, which are owned by the organizations, Wabash owned the fraternity house where Yost was injured. The college and fraternity also were aware of past hazing and alcohol abuse, and had taken steps to monitor and discipline violators.

Wagner, who has lawsuits pending against Wabash in the deaths of students in 2007 and 2008, said the school’s landlord status could form a stronger basis for liability. That’s because Indiana law requires property owners to protect guests from “reasonably foreseeable” dangers. The knowledge of past incidents and the actions taken by Wabash and the fraternity to address them, he added, could bolster the argument that Yost’s injuries were foreseeable.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Indiana Courts

Ind. Decisions - Still more on: Which Circuits identify the attorneys on their opinions?

Updating this ILB entry from April 16th, Michelle Olsen of @AppellateDaily sent this note last evening:

I enjoyed your post today on the attorney listings by circuits. I did a quick check in the D.C. and Federal Circuits just now. From that sample, they both list attorneys.
So that gives this total:
The 1st, 2nd, 3rd, 4th, 6th, 9th, 10th, DC and Federal Circuits' opinions name the attorneys.

The 5th, 7th, 8th, and 11th Circuits' opinions do not.

Posted by Marcia Oddi on Wednesday, April 17, 2013
Posted to Ind. (7th Cir.) Decisions

Tuesday, April 16, 2013

Ind. Law - "Advocates worried children will be arrested for bad behavior"

Supplementing this ILB entry from April 12th re SB 1, Maureen Hayden of CNHI has this story today in the Kokomo Tribune. Some quotes:

Indianapolis — Now that a controversial measure requiring armed personnel in every Indiana school is gone from Senate Bill 1, some youth advocates want legislators to focus on unrelated provisions in the bill giving school police more power.

They worry the legislation aimed at putting more police in schools to keep students safe from outside threats will have an unintended consequence: more children arrested for bad behavior rather than being sent to the principal’s office.

“We need safeguards against over-policing children,” said JauNae Hanger, an Indianapolis civil rights attorney and chair of the Children’s Policy and Law Initiative. * * *

[The full House] voted Monday to return the bill to its original intent: creation of a state school safety board and a matching grant program that local schools could tap to hire a trained school resource officer who is armed and has full law enforcement powers.

The bill also contains a provision that gives school resource officers the power to arrest students for resisting law enforcement if they pull back or balk at being at handcuffed or detained.

Hanger sees that provision as a recipe for disaster: a misbehaving but frightened student who ends up in the juvenile justice system and tossed out of school.

“If we’re going to take the opportunity to put more police in schools, we need to take a step back to make sure they’re well-trained and that we have the best practices in place,” Hanger said.

State Sen. Pete Miller, a Republican from Avon who authored Senate Bill 1, was glad to see the legislation return to its original intent. Miller noted his bill includes a 40-hour training requirement in dealing with students and school facilities for police officers hired to work as school resource officers. “That’s an important part of the legislation,” Miller said.

He also said the amendment giving school resource officers the power to arrest students for resisting law enforcement will be one of the issues taken up by a House-Senate conference committee that has to negotiate the final language of Senate Bill 1.

Similar concerns about the impact of increased police presence in schools have been voiced by juvenile court judges in other states, who’ve seen a surge in arrests of students for non-violent behavior that, in the past, would have been handled by school discipline policies.

In January, the National Council of Juvenile and Family Court Judges released a statement warning about unintended consequences of putting more armed police in schools.

The judges noted the accompanying sharp rise in the number of students arrested or given criminal citations at schools each year for relatively minor offenses. And they noted recent studies that show black and Hispanic students and those with disabilities are disproportionately impacted. * * *

Andrew Cullen, legislative liaison for the Indiana Public Defender Council, said schools that employ police as school resource officers need to develop policies differentiating security issues from discipline issues.

“We need to make sure those resource officers are in schools to protect and serve the children of Indiana,” Cullen said. “And not to harass and arrest them for childish behavior.”

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Law

Ind. Law - "Law office manager bitten in dispute"

Bill McCleery has the detailed story this afternoon at IndyStar. This partcaught my eye:

After gathering information from Trujillo, police said, Gutierrez discussed the matter with a supervising manager and then informed Trujillo [that the firm] preferred not to handle the case. He assured the man the law firm, located in the 5700 block of South East Street, would not charge the man for the meeting, police said.

Trujillo became furious, however, and demanded that Gutierrez give back the personal information gathered during the initial consultation, the report states. Gutierrez told the man that as a matter of policy his firm kept such paperwork for record-keeping.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Law

Ind. Courts - More on: Bills affecting judges which didn't make it

Updating yesterday's ILB entry about the three judges' bills which died in 2nd house committtee, a reader writes to remind me that nothing is ever dead until its over:

Saw something on the blog yesterday I think that I think is incorrect. You referred to various Senate bills affecting the judiciary as now dead because they died in committee. Not true.

Once language has passed one chamber, it is eligible for conference committee. Thus, the Senate bills that died in the house would have passed the Senate and would be eligible for conference committee insertion. Often such bills (on any subject) are used as bargaining chips late in the session to get an author’s vote on something else.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides four Indiana cases today (3 are consolidated)

In RENEE S. MAJORS v. GENERAL ELECTRIC COMPANY (SD Ind., McKinney), a 25-page opinion, Judge Robert L. Miller, Jr. of the Northern District of Indiana, sitting by designation, writes:

Renee S. Majors, a long-time employee at General Electric Company’s Bloomington, Indiana plant, filed suit alleging that GE violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when it denied her temporary and permanent positions to which she was otherwise entitled under the seniority-based bidding procedure the plant used to fill vacant positions. Ms. Majors also alleged that GE retaliated against her, in violation of Title VII, for filing Equal Employment Opportunity Commission charges of discrimination when she was denied overtime hours and the opportunity to work “lack of work” Fridays, and that GE constructively discharged her when she elected to retire. The district court granted GE summary judgment on all claims. Ms. Majors appeals that decision with the exception of her Title VII discrimination claim. We affirm.
In ROBERT LEIMKUEHLER, as trustee of and on behalf of the LEIMKUEHLER, INC. PROFIT SHARING PLAN, and on behalf of all others similarly situated v. AMERICAN UNITED LIFE INSURANCE CO. (SD Ind., Magnus-Stinson), a 20-page opinion, Judge Wood writes:
This case presents a challenge to the practice known in the 401(k) services industry as “revenue sharing”—an arrangement allowing mutual funds to share a portion of the fees that they collect from investors with entities that provide services to the mutual funds, the investors, or both. Although the practice has been commonplace for years, until quite recently it was opaque to both individual investors and many 401(k) plan sponsors. As the existence and extent of revenue sharing has become more widely known, some have expressed concern that the practice unduly benefits mutual funds and 401(k) service providers to the detriment of plan participants. This concern has fueled a number of lawsuits alleging that the practice violates the Employee Retirement Income Security Act of 1974 (ERISA). This is one such suit.

The district court awarded summary judgment to the defendant, American United Life Insurance Company (AUL), which is an Indiana-based insurance company that offers investment, record-keeping, and other administrative services to 401(k) plans. The court ruled that AUL was not a fiduciary of the Leimkuehler, Inc. Profit Sharing Plan (the Plan) with respect to AUL’s revenue-sharing practices. The Plan and Robert Leimkuehler, its Trustee, have appealed. Although very little about the mutual fund industry or the management of 401(k) plans can plausibly be described as transparent, we agree with the district court that AUL is not acting as a fiduciary for purposes of 29 U.S.C. § 1002(21)(A) when it makes decisions about, or engages in, revenue sharing. We find it unnecessary to express any view on the question whether revenue sharing yields net benefits to individual 401(k) investors, and we thus affirm the district court.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Ind. (7th Cir.) Decisions

About the ILB - Another ILB birthday, and another plea, please read!

The Indiana Law Blog had its 10th Birthday on March 16th, 2013! To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the New Blog Site - the one you are reading now.

I believe the ILB has made a significant impact in its 10 years of existence.

You are able to read the ILB because of, and thanks to, these major supporters:

Plus these individuals/firms who also help assure the continuation of the ILB: Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB.

As I am not an heiress or otherwise independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

It is easy to become an annual ILB supporter and be listed here. Simply fill out this supporter agreement and mail it to the ILB, along with your check. You may elect to pay quarterly or annually. You will be listed here along with a link to your website, if you so elect.

If your firm or organization would like to be listed on the front page (top right) of the Indiana Law Blog, alongside the ISBA, Doxpop, and the ISBA Litigation section, the $$ requirements are listed on the bottom of the supporter agreement.

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support.

To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email address if you'd like an acknowledgment of receipt and a thanks. Many thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - More on "Which Circuits identify the attorneys on their opinions?"

Re the ILB post from earlier today, Indianapolis attorney Gary Price writes:

Once again, your blog addresses an issue that has been, if not a puzzlement, then a peeve: why doesn't the 7th Circuit ID the lawyers? On the "benefit of a doubt" side, maybe the Circuit judges don't want to embarrass lawyers that end up on the losing side of cases where the opinion can be less than charitable on the performance of counsel.

On the other hand, we must take responsibility for our work, and the 7th Circuit actively promotes civility in the practice of law.

Leaving out the identity of the lawyers is like leaving out the identity of key ingredients on a product label.

It also seems inefficient (for those of the Chicago School) to require one to go to secondary sources to find the identity of key players in matters that may be of current interest to practitioners.

On balance I think we have one of the best circuits in the federal system. The judges should share the identity of the practitioners who make the work of the Circuit top tier.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

David Arnett v. Julia Arnett (NFP)

David Delong v. Kim Delong (NFP)

Harold M. Bacchus, Jr. v. Fazia Deen-Bacchus (NFP)

NFP criminal opinions today (2):

Enrique Perez v. State of Indiana (NFP)

Herman P. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Bill gives agency right to refuse to acknowledge a record's existence

Updating this ILB entry from earlier this morning, the ILB has learned that the Hoosier State Press Assocation testified in favor of SB 369.

The HSPA also testified in favor of HB 1175, the bill that would have allowed fees to be charged for access to public records.

The interests of the HSPA and those of the general public do not always coincide. No one should assume that they do.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Law

Ind. Decisions - Which Circuits identify the attorneys on their opinions?

With Indiana appellate opinions, the names of the attorneys are identified at the beginning of the ruling, as are the lower court and the judge.

With 7th Circuit opinions, this is not the case insofar as the identities of the attorneys involved are concerned.

Yesterday, for instance, the 7th Circuit granted a reversal and remand in TORRAY STITTS v. BILL WILSON. It turns out that Bloomington attorney Michael K. Ausbrook represented Mr. Stitts.

For the ILB, Mr. Ausbrook did a quick survey of opinions of other circuits. The result:

The 1st, 2nd, 3rd, 4th, 6th, 9th, and 10th name the lawyers.

The 5th, 7th, 8th, and 11th do not.

Mr. Ausbrook notes, and I agree: "I really don't understand why any court would leave them out."

From the survey:

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Bill gives agency right to refuse to acknowledge a record's existence

Doug Ross of the NWI Times writes today about SB 369, a bill which is on its way to enrollment:

On Senate Bill 369, however, shame on Reps. Jim Arnold, D-LaPorte, and Chuck Moseley, D-Portage, for leading the Indiana House of Representatives astray.

Arnold and Moseley are cosponsors of this legislation that would allow government agencies to refuse to confirm or deny the existence of public or criminal intelligence records if doing so would endanger an individual or threaten public safety. That brush is way too broad, creating a loophole large enough to fly a jetliner through.

Refusing to acknowledge a record's existence is even worse than refusing to release it, with or without redaction. Building the public's trust in government, not destroying what's left, should be the order of the day.

Government agencies must remember they are working for the public, not the other way around.

Here is SB 369; here is its digest:
Public records. Allows a public agency to withhold from public disclosure records criminal intelligence information. Allows a public agency to refuse to confirm or deny the existence of investigatory records of law enforcement agencies or criminal intelligence information, if the fact of the existence of the information would: (1) impede or compromise an ongoing law enforcement investigation or endanger an individual; or (2) reveal information that would have a reasonable likelihood of threatening public safety.

Allows a public agency to refuse to confirm or deny the existence of a record the disclosure of which would expose vulnerability to terrorist attack, if the fact of the record's existence or nonexistence would reveal information that would have a reasonable likelihood of threatening public safety.

Allows a person to file an action in court to appeal an agency's refusal to confirm or deny the existence of a record. Clarifies when a request for a record is deemed denied and appealable. Provides that when a public agency refuses to confirm or deny the existence of a record under certain circumstances, the name and title or position of the person responsible for the refusal shall be given to the person making the records request.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Law

Ind. Law - "Key lawmakers water down Rockport bill that could benefit their employers"

Sunday's ILB entry, "Of Rockport, the House division, and potential conflicts of interest," quoted from Eric Bradner's Sunday story in the Evansville Courier & Press, which raised the question of what would happen next to SB 510, after the House adopted on second reading (by a "division", a count which leaves no record) Rep. Matt Ubelhor's amendment that neutered the bill, a bill which had been intended to stop or slow down the Rockport coal-gasification project and its 30-year bargain with the state.

Bradner writes again today, in a C&P story headed "Lawmakers with coal ties criticized for weakening Rockport bill." Some quotes:

INDIANAPOLIS — As coal lobbyists work to make sure the proposed Rockport coal-to-gas plant goes forward, two Indiana lawmakers with professional ties to the industry have helped soften legislation that once would have nixed the project.

Rep. Matt Ubelhor, R-Bloomfield, is a coal mine manager for Peabody Energy, which owns five of Southwestern Indiana’s biggest mining complexes – including Bear Run, the largest surface mine east of the Mississippi River.

And Senate Utility Chairman Jim Merritt, R-Indianapolis, is the vice president of corporate affairs for the Indiana Rail Road Co., which spent $17 million to build a spur to Peabody’s Bear Run mine and negotiated an exclusive deal to haul its coal.

Since the state’s government is extending tax incentives worth more than $140 million over the next two decades to developers of the Rockport plant if that plant uses Indiana coal, the project could mean new business for both lawmakers’ companies.

The two have played key roles in directing legislation that could determine the fate of the plant and the 30-year contract that Indiana’s government negotiated to buy and then resell its product to Hoosier consumers – a deal that bets 17 percent of all ratepayers’ bills on its wisdom.

Their connections, though not illegal, amount to a troubling confluence of potential conflicts of interest, according to those who are fighting the Rockport project and still hope to get what they want during what will be a frenetic 10-day period of final negotiations.

“The whole point of conflict-of-interest statutes and ethics statutes is to remove the appearance of impropriety and give the public some confidence that these decisions being made at the Statehouse are being made with the public interest in mind,” said Kerwin Olson, the executive director of the Indianapolis-based consumer advocacy group Citizens Action Coalition, which is fighting to block the Rockport project.

“When you have a bill dealing with a highly controversial, very expensive Indiana coal plant, and it is weakened on two different occasions – once in a committee chaired by the vice president of the Indiana Rail Road Company, and again by an executive for Peabody – I can say that there is a questionable appearance in the eyes of the public about how the whole process went down.” * * *

The project is being financed by New York-based Leucadia National Corp. and spearheaded by Colorado-based E3 Gasification. It is operating in the state under the company name Indiana Gasification LLC.

After Indiana Gasification’s negotiations with state utilities fell through, former Gov. Mitch Daniels directed his administration’s Indiana Finance Authority to negotiate a deal to help the company secure financing – a controversial move itself, since the company’s Indiana project manager is Mark Lubbers, a former aide and close friend of Daniels.

The 30-year contract would have Indiana serve as the guaranteed buyer of 80 percent of the Rockport plant’s product, at a pre-negotiated price.

The state would buy that synthetic natural gas and then resell it on the open market. If those market rates are lower than the price the state negotiated, Hoosier gas customers would pay for the difference – and opponents, including Vectren Corp., estimate that those costs could be sky-high in the deal’s early years.

The contract has been tied up in legal battles for months. Late last year, the Indiana Court of Appeals voided state regulators’ approval of the deal, ruling that a 37-word provision needed to be removed. Both sides have asked the Indiana Supreme Court to take up the case.

The conflict-of-interest accusations come as the Indiana General Assembly works to decide whether and to what extent it will weigh in on the future of the Rockport plant.

Opponents of the plant’s construction are advocating a measure authored by Sen. Doug Eckerty, R-Yorktown. It would have forced major changes to Indiana’s contract with Leucadia that would beef up the deal’s ratepayer protection mechanisms – and in doing so, Lubbers said, it would kill the project.

The story goes on to detail how the bill was overhauled, "tweaked," then overhauled again as it passed through the Senate and then House. It continues:
For Ubelhor, the potential for a conflict is most direct. In addition to Bear Run, Peabody owns several other Southwestern Indiana mines, including the underground Francisco and Viking mines and the surface Wild Boar Mine and the Somerville Mine Complex.

“Since Peabody is the biggest coal miner in Indiana, I would think that they would be definitely in consideration for getting the contracts” to sell coal to the Rockport plant, said John Blair, an environmental advocate and head of Evansville-based Valley Watch.

Ubelhor brushed off the complaints.

“I’m a coal miner and proud of what I do,” he said, adding that he understands the criticism but wants to wait until lawmakers have addressed the Rockport project’s future before he answers more questions.

And as he pitched his amendment, he was open about both his employment and his intentions.

“Are we going to sit here and look at all these plant closings?” he asked, criticizing U.S. Environmental Protection Agency regulations.

“This adds about 3.8 million tons of coal production to our coal,” he said. “This will put the industry back on footing to compete with the markets that are out today, and that’s all we’re asking for as miners – if we can compete and be part of the next century.”

In fact, other House members touted Ubelhor’s work in the coal industry as the reason they voted for the amendment he offered.

“I think that Rep. Ubelhor has just demonstrated a perfect example of how important it is for all of us to bring our particular areas of expertise,” said Rep. Chuck Moseley, D-Portage. “I feel a heck of a lot more confident.”

From the long story's conclusion:
The passage of Ubelhor’s amendment last week was a surprise to House Speaker Brian Bosma, R-Indianapolis.

As a result, he and the House sponsor of Eckerty’s Rockport bill, Rep. Suzanne Crouch, R-Evansville, opted Monday to let the bill flounder without receiving a final vote, rather than risking the possibility that the bill with Ubelhor’s language in it would be defeated.

That parliamentary move gives lawmakers the option to try to find another home for Rockport-related language during joint House-Senate conference committee negotiations – the sessions where compromises on the toughest issues are typically hammered out.

"Key lawmakers water down Rockport bill that could benefit their employers" is the headline to another lengthy story today on SB 510, this one by Tony Cook of the Indianapolis Star. Some quotes:
A proposed coal-gas plant in Rockport could have a big impact on the pocketbooks of Indiana residents, but legislation that would introduce new ratepayer protections has twice been watered down at the hands of lawmakers whose employers could benefit from the project.

The lawmakers, Sen. Jim Merritt and Rep. Matt Ubelhor, both have strong ties to the coal industry, which wants to see the project move forward because it would open up a new market for their product. Demand for coal has been waning as aging coal-burning electric plants are shuttered and replaced with cleaner forms of energy production. * * *

The Rockport project would use 3.85 million tons of coal a year to create synthetic natural gas, according the plant’s developer, Indiana Gasification, a subsidiary of New York-based Leucadia National Corp. That coal isn’t required to come from Indiana, but tax incentives essentially give Indiana mines a $2 per ton advantage in competing to supply the plant, said Mark Lubbers, project director for Leucadia.

As a result of the potential new market for coal, the mining industry has lobbied hard for the project.

“This project, in my opinion, is very critical for coal’s future in Indiana,” Nat Noland, president of the Indiana Coal Council, a trade association for the state’s coal industry, told lawmakers.

But the project has drawn concerns from consumer advocates and some lawmakers because Indiana residents could see increases to their home heating bills under a deal the state struck with Leucadia.

The deal requires the state to purchase gas from the plant for a set rate. The state would then try to sell the gas on the open market. If it can’t make a profit, then all Indiana natural gas customers would have to make up for the losses on their monthly home heating bills.

That’s a real possibility because many experts expect natural gas prices to remain relatively low amid a U.S. shale gas boom. A new extraction method known as “fracking“ has opened up large reserves of natural gas, driving down prices. Critics of the project, led by Evansville-based gas and electricity company Vectren Corp., estimate the deal would cost ratepayers $1.1 billion during the plant’s first eight years of operation. That’s about $375 a year for the average gas customer. * * *

In response to skepticism about the deal, Sen. Doug Eckerty, R-Yorktown, introduced a bill that would effectively limit rate increases on consumers — a move that the developers said would kill the project. Specifically, the legislation would have required the developer to reimburse the state for any losses once every three years. Without that protection, ratepayers wouldn’t recoup any losses until 30 years after the plant opens in 2018.

“The intent of Senate Bill 510 is to protect all Hoosier natural gas customers from unnecessary increases in their monthly bills that could be associated with the state’s purchase of substitute natural gas,” Eckerty said when he introduced the measure.

The story then describes the bill's progress through the Senate and House.

Posted by Marcia Oddi on Tuesday, April 16, 2013
Posted to Indiana Law

Monday, April 15, 2013

Ind. Decisions - 7th Circuit decides three Indiana cases today (2 are consolidated)

In UNITED STATES OF AMERICA v. RONALD ZITT and JOSHUA WAMPLER (ND Ind., Lozano), a 10-page opinion, Judge Williams writes:

Ronald Zitt and Joshua Wampler were charged in a multi-count, multidefendant indictment alleging a heroin conspiracy and substantive counts of distribution. See 21 U.S.C. §§ 841(a)(1), 846. Zitt was convicted after a jury trial of conspiring to distribute, and distributing, heroin. Wampler pleaded guilty to conspiring to distribute heroin. Both filed notices of appeal, and we consolidated their cases.

On appeal Zitt challenges the denial of his motion for a mistrial. Because the district court properly exercised its discretion in denying that motion, we affirm the judgment.

Wampler’s appointed lawyer has concluded that Wampler’s appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Wampler waived his right to appeal as a condition of his plea agreement. We therefore grant counsel’s motion to withdraw, dismiss the appeal, and deny Wampler’s motion for substitute counsel.

In TORRAY STITTS v. BILL WILSON, Superintendent, Indiana State Prison (SD Ind., McKinney), a 22-page opinion, Judge Williams writes:
Petitioner Torray Stitts, who was convicted of murder in Indiana state court and sentenced to sixty years’ imprisonment, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Stitts asserts that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because before deciding not to present an alibi defense, he only interviewed one alibi witness, Stitts’s father, while unreasonably failing to investigate whether there might be any more. Without explicitly determining whether trial counsel in fact limited his alibi investigation to a single interview, the state court found that such a limited investigation would be sufficient under Strickland. We agree with Stitts that this was an unreasonable application of Strickland. Given that Stitts’s alibi was that he was at a nightclub, where there could be any number of potential alibi witnesses, the failure to explore that possibility is unreasonable. We also find that the state court unreasonably applied Strickland when it found no prejudice, because the prosecution’s case rested entirely on the shaky testimony of two witnesses which could have been neutralized by alibi witness testimony.

As the State suggests, however, that does not resolve the critical factual question concerning the actual extent of trial counsel’s alibi investigation. We have no state court finding to which we may defer, and the record is otherwise ambiguous. So we must remand to the district court to resolve it. If the district court finds that trial counsel performed no further investigation (and there was no other fact that would reasonably justify that conduct), then the district court should grant Stitts’s habeas petition. If the district court finds that trial counsel did more, then it must determine de novo whether that investigation was reasonable under Strickland. So we reverse and remand.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - More on: Can human genes be patented?

Updating this ILB entry from earlier today, Lyle Denniston of SCOTUSblog and Adam Liptak of the NYT have posted stories on the oral argument.

For more detail, here is the transcript of the oral argument in Myriad Genetics.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Courts in general

Courts - More on problems caused by SCOTUS not allowing cameras in the Courtroom

This April 1st ILB entry referenced the Election Law Blog April Fools column headed "Supreme Court Announces 'No Cuts' Policy, Wristband Policy Modeled after Springsteen Concerts."

It also quoted a Tony Mauro column headed "The compelling case for cameras: The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the high court's refusal to allow its proceedings to be broadcast."

Adam Liptak of the NY Times follows today with a column that describes the problem and that continues with possible solutions:

“Particularly for the public line,” she said, “allowing line standers privileges people who can pay or law firms and businesses that can. I wish the court would find better ways to handle the situation.”

Professor Carpenter made it into the courtroom for the first same-sex marriage argument, on March 26, but it was close. He got to court earlier for the second one the next day, arriving at 2:15 a.m. That time, though, he encountered a new phenomenon: Washington’s toniest lawyers were cutting the line.

They would arrive in groups of two or three and take the place of a single line stander, Professor Carpenter said. “We had no authority to appeal to,” he said. “It was a state of nature.” * * *

The demand for seats, in other words, far exceeded the supply, and the court basically let the marketplace allocate this scarce and valuable public commodity. What else might it have done?

One obvious partial solution would have been to allow live broadcasts of the arguments. That would have dampened but not eliminated the demand for seats. People still want to go to televised baseball games.

The second thing the court could have done is police the lines. “Just having a uniformed person walk around would help,” Professor Carpenter said. “I don’t think it would take a lot. Even just minimal monitoring would have an effect.” * * *

There are, of course, many steps the court could take to manage the lines. Lotteries, wristbands and nontransferable tickets linked to government-issued identification come to mind.

However it is accomplished, Professor Carpenter said, only people who actually stand in line should be allowed to sit in the courtroom.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 12, 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, April 12, 2013. It is two pages (and 18 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Indiana Transfer Lists

Ind. Courts - Bills affecting judges which didn't make it [Updated]

Three bills concerning the judiciary and their current status:

[Updated] But see this ILB follow-up from April 16th.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Indiana Courts

Ind. Courts - Tennessee takes a different approach

Much of the controversy over the Indiana Court's long efforts to impose a single, new automated case management system (CMS) on the courts of all 92 counties, regardless of their current systems (see this ILB entry from Jan. 4, 2010 for background), might have been avoided if Indiana had taken the approach to CMS that the State of Tennessee now appears to be taking toward e-filing. See this April 12, 2013 entry in Gavel to Gavel - some quotes:

As states move to efiling of court documents a dilemma can arise between individual counties seeking out their own efiling systems and the desire to have uniformity throughout a state.

[ILB: First, the entry reports, the General Assembly would have required a single system -" all courts in this state shall utilize the same system provider for operating an electronic court filing system. Such provider shall be determined by the administrative office of the courts." Now, however, a new approach is in process]

Under this language counties could use any system approved by the AOC and that met criteria and technical specifications set by the AOC.

Unless otherwise provided by law, all courts in this state that implement an electronic court filing system pursuant to Tennessee Supreme Court Rule 46 and Tennessee Rule of Civil Procedure 5B shall utilize only a system provider authorized by the administrative office of the courts. The administrative office of the courts shall establish technical standards with the goals of ensuring integrity of filings, assuring an environment that promotes uniformity and ease of filing, and providing the framework for future compatibility among e-filing solutions implemented by local and state courts. Nothing in this section shall require the administrative office of the courts to begin implementing a statewide e-filing system.
HB 1393, which would create a judicial technology oversight committee, and would raise the automated recordkeeping fee, has passed both houses.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Serenity Springs, et al. v. The LaPorte County Convention and Visitors Bureau, a 22-page opinion, involving a claim of domain name cybersquatting, Judge Friedlander writes:

Serenity Springs, Inc. and its principal owner, Laura Ostergren, (collectively, Serenity) appeal from the trial court’s order permanently enjoining Serenity from using the designation “Visit Michigan City LaPorte” and ordering Serenity to transfer the domain name registration for visitmichigancitylaporte.com to the LaPorte County Convention and Visitors Bureau (the Bureau). Serenity raises three issues, which we consolidate and restate as follows: Did the trial court err in concluding that Serenity committed trademark infringement and cybersquatting? The Bureau cross-appeals and requests an award of appellate attorney fees. Concluding that the Bureau did not establish that Serenity committed trademark infringement or cybersquatting because it failed to establish that it held a valid and protectable trademark in the designation “Visit Michigan City LaPorte,” we reverse the trial court’s judgment and remand with instructions to consider the Bureau’s remaining claims. Additionally, because Serenity has prevailed in this appeal, we deny the Bureau’s request for appellate attorney fees.
In Jose Guzman v. State of Indiana, a 16-page opinion, Judge Bradford writes:
On October 2, 2011, Appellant-Defendant Jose Guzman was involved in a traffic accident when his vehicle collided with a vehicle driven by Charity Bland. Bland died as a result of the injuries she sustained in the accident. Her passenger, Richie Austin, was also severely injured. On October 4, 2011, Guzman was charged with numerous offenses, including Class C felony reckless homicide, stemming from the October 2, 2011 accident. Guzman subsequently pled guilty to the Class C felony reckless homicide charge and, in exchange for Guzman’s guilty plea, the State agreed to drop the remaining charges. The trial court subsequently accepted Guzman’s plea, and on August 9, 2012, sentenced Guzman to an eight-year term of incarceration in the Department of Correction and ordered him to pay restitution to the Estate/Family of Bland and to Austin.

On appeal, Guzman argues that the trial court abused its discretion in ordering him to pay restitution to Austin and in sentencing him. Guzman also argues that his eight-year sentence is inappropriate. Concluding that the trial court acted within its discretion in ordering Guzman to pay restitution to Austin and in sentencing Guzman, and that Guzman’s sentence is not inappropriate, we affirm.

NFP civil opinions today (1):

John Roberts v. Stephen Buennagel and Allstate Insurance Company (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Dispute between Elkhart's mayor and the General Assembly over a 2nd reading amendment

Dan Spalding has the long story this morning in the Elkhart Truth. The story begins:

ELKHART — Elkhart County Commissioner Mike Yoder has asked a state lawmaker to withdraw an amendment being considered by the General Assembly that has angered Elkhart’s mayor.

Yoder said he’d like to see State Rep. Tim Wesco withdraw language from a bill that upset Elkhart Mayor Dick Moore who retaliated last week by establishing an immediate moratorium on new water and sewer connections outside of the city.

Wesco’s amendment to Senate Bill 385 is an attempt to protect business owners who say they are facing huge hikes in sewer fees by the city of Elkhart for service outside of the city.

The amendment would give customers a chance to appeal rates and fees to the Indiana Utility Regulatory Commission.

One day after the state House of Representatives approved the amendment, Moore announced the moratorium. Moore contends the amendment would inhibit the city’s ability to raise revenues when it sells sewer service.

A check of the bill's action record shows the bill passed the House and has been assigned to Conference Committee.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Indiana Law

Courts - SCOTUS avoids another gun case [Updated]

Lyle Denniston has just posted that, without comment this morning, the "Justices denied review of the latest attempt to test whether the Second Amendment right to have a gun extends beyond the home."

[Updated at 9:52 AM] According to an early AP story, it was:

... a strict New York law that makes it difficult for residents to get a license to carry a concealed handgun in public.

The court did not comment in turning away an appeal from five state residents and the Second Amendment Foundation. Their lawsuit also drew support from the National Rifle Association and 20 states.

Lyle Denniston has now expanded his story, including:
The denial of review in Kachalsky, et al., v. Cacace, et al. (docket 12-845) was the latest in a series of denials of attempts to get the Justices to explore the reach of the Court’s 2008 decision in District of Columbia v. Heller, recognizing a Second Amendment right to have a gun for personal self-defense. That decision, though, was limited to a right to have a gun ready to shoot inside one’s own home.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Courts in general

Courts - Can human genes be patented?

The ILB has had many posts on the Myriad Genetics case. Today it is being argued before the SCOTUS.

Nina Totenberg of NPR has an over-7-minute story this morning, headed "Supreme Court Asks: Can Human Genes Be Patented?." A quote:

Myriad Genetics, a Utah biotechnology company, discovered and isolated two genes — BRCA 1 and BRCA 2 — that are highly associated with hereditary breast and ovarian cancer. Myriad patented its discovery, giving it a 20-year monopoly over use of the genes for research, diagnostics and treatment. A group of researchers, medical groups and patients sued, challenging the patent as invalid.

There is no way to overstate the importance of this case to the future of science and medicine. In the view of Myriad and its supporters in the biotech and pharmaceutical industries, patents are the keys to making these medical discoveries possible. Their opponents, including leading medical groups and Nobel Prize-winning scientists, contend that Myriad's patent improperly puts a lock on research and medical diagnostic testing.

Lyle Denniston of SCOTUSblog has an argument preview here.

A story this morning
in the NY Times, by Andrew Pollack, begins:
The Supreme Court is poised to take up the highly charged question of whether human genes can be patented. But another question could trump it: Has the field of genetics moved so far so fast that whatever the court decides, it has come too late to the issue?

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Courts in general

Ind. Gov't. - "Medical fees are tough to discover; Consumer-driven health care often like driving blind"

Maureen Groppe of the Gannet Washington Bureau's story on medical costs is on the front page of today's Indianapolis Star. It begins:

WASHINGTON — Hoosiers have more incentive than residents of most states to pay attention to how much it costs to go to the doctor.

About 1 in 10 nonelderly Hoosiers with private health insurance have a “consumer-driven” plan that combines a high deductible with a savings account to help pay the remaining costs.

That’s the sixth-highest rate in the nation.

Although such plans are aimed at controlling costs by giving consumers “skin in the game,” it’s not easy to get the price information needed to make informed decisions.

Indiana, like most states, doesn’t require the level of price transparency needed, according to a recent report by the Catalyst for Payment Reform (a group formed by several large employers such as Boeing, AT&T and Wal-Mart) and by theHealth Care Incentives Improvement Institute, which promotes evidence-based medicine.

The report gave Indiana and 28 other states an “F” for transparency. Seven states got a “D.”

“You have consumer protection laws in almost every state on pricing of menus in restaurants and price tags on vehicles in car lots,” said Francois de Brantes, executive director of the Health Care Incentives Improvement Institute. “But some patients get bills that are far greater than the price of a car, let alone the price of a meal in a restaurant. And you get it after the fact.”

Cost transparency could become even more important in Indiana if the federal government agrees to Gov. Mike Pence’s request to use a consumer- directed plan that requires cost sharing for the approximately 400,000 Hoosiers who could be newly eligible for Medicaid under the 2010 healthcare overhaul.

Indiana law requires that hospitals report to the state what they charge for a patient’s stay. But that charge can be very different from the amount a patient’s insurance company has negotiated and doesn’t indicate the patient’s share.

It’s also unlikely Hoosiers can make much sense out of the annual consumer guide that the Indiana State Department of Health posts on its site. Called the “Hospital Discharge Data Files,” it’s a bunch of files that have to be downloaded into a spreadsheet and decoded to understand the meaning of columns headed “HOSPID” or “APRDRG” or “XC.”

ILB: See also this ILB entry from Feb. 22nd, and this one from Dec. 19, 2012.

Posted by Marcia Oddi on Monday, April 15, 2013
Posted to Indiana Government

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

From Sunday, April 14, 2013:

From Saturday, April 13, 2013:

From late Friday, April 12, 2013:

Posted by Marcia Oddi on Monday, April 15, 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 (4/15/13):

Next week's oral arguments before the Supreme Court (week of 4/22/13):

Tuesday, April 23rd

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/15/13):

Tuesday, April 16th

Thursday, April 18th

Next week's oral arguments before the Court of Appeals (week of 4/22/13):

Thursday, April 25th

Friday, April 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, April 15, 2013
Posted to Upcoming Oral Arguments

Sunday, April 14, 2013

Ind. Gov't. - "More women behind bars; drug use, mandatory sentencing blamed for the increase"

Kristine Guerra has this lengthy story today in the Indianapolis Star. Some quotes:

Indiana’s prisons now house more than twice the number of inmates than they did in the early 1990s. And though women still make up less than 10 percent of the overall prison population, they account for a disproportionate share of the continuing increase. While the male population is more than twice its level in 1990, the female population has nearly quadrupled.

The climb is also apparent in county jails.

Sheriff Doug Cox remembers the days when the Johnson County Jail hosted no more than a dozen women at a time. The number has quintupled to about 60 on any given day.

“We’re seeing a lot of females with drug issues, daily drug issues where they have to go out and commit crimes to pay for that daily drug habit,” said Cox, a veteran of three decades in law enforcement. “For years, the only people you’ve ever heard doing a residential burglary and breaking in someone’s home are men. We never saw a female involved, and now we do see it.” * * *

Experts say the War on Drugs and its get-tough-on-crime message has had a disproportionate effect on women, most of whom are typically charged with nonviolent, low-level offenses, said Marc Mauer, executive director of the Sentencing Project, a Washington, D.C.-based nonprofit that focuses on sentencing policy reforms.

“In the mid-1980s, when the War on Drugs took off in a big way, women were more likely to be involved in drug offenses," Mauer said. “As the number of drug prosecutions increased, that started to bring in women in much greater numbers."

The increase was especially sharp in Indiana in the two decades following the launch of the War on Drugs. Between 1999 and 2004, Indiana ranked among the nation’s top 10 states for increases in the female inmate population, according to a study commissioned by the Institute on Women and Criminal Justice.

When it comes to drug charges, Mauer said, women are usually subject to mandatory sentences that don’t necessarily take into consideration their roles in the crimes. In Indiana, a majority of female prisoners are convicted of Class C and D felonies, according to Department of Correction records. Theft is the most prevalent offense; the most common drug charges involve possession rather than distribution.

“Women generally are not the kingpin of the drug trade,” Mauer said. “Women are often involved with a boyfriend or an accomplice, or maybe related to a drug-related prostitution, or a pimp she works for.”

This is more commonly known among researchers as the “girlfriend problem,” referring to women entangled in drug rings with their partners. * * *

And because women generally don’t have major roles in the drug trades, they often don’t have much information to offer law enforcement officers that would result in a plea bargain or a more lenient sentence, said Julie Ajinkya, a policy analyst for the Center for American Progress, a nonpartisan educational institute based in Washington, D.C.

That leads to a focus on punishing rather than on healing, said Ajinkya, who focuses her research on gender, race, ethnicity and demographic change.

Judge Jose Salinas, who presides in drug cases in Marion Superior Court, agrees. He said courts should have more discretion to send hardcore criminals to prison and to give addicts charged with low-level crimes opportunities for treatment.

“I do believe that our sentencing structure needs to be modified to correctly reflect the drug issue,” Salinas said. “I think the lack of flexibility has contributed to more females being charged with maybe higher-level offenses that could’ve been a misdemeanor.”

Posted by Marcia Oddi on Sunday, April 14, 2013
Posted to Indiana Government

Ind. Law - Survey of status of some legislative issues

Education. "As conference committees start this week, here is where some key education issues sit" writes Niki Kelly in a good rundown of education bills today in the FWJG. Lesley Weidenbener writes in the LCJ: "Differences in Senate-House education proposals could be tough to iron out."

Expungement. "Criminal record expungement bill closer to law" is the heading to Maureen Hayden's CNHI story:

House Bill 1482 passed through the Senate Wednesday on a 39-11 vote and was sent back to the House for approval, because it was amended while in the Senate. On Thursday, the House author said he agreed with the changes made to the bill and would urge the House to follow suit.

The bipartisan-backed legislation allows for the court-ordered expungement of criminal records for mostly long-ago, low-level offenses. It’s been labeled as a “second chance” for ex-offenders whose past mistakes are immovable barriers to employment. * * *

Indiana currently has a criminal records “sealing” law that allows people with arrests or convictions for low-level, nonviolent crimes to get a court order to shield that record from public view after a number of years have passed. But it only applies to certain misdemeanors and some class D felonies.

The expungement bill goes further and covers higher-level felonies as well. There are limits: Most sex and violent crimes are excluded and persons seeking to have their record expunged have to show they’ve stayed out of trouble for a number of years.

Prosecutors would have to sign off on the expungement for some higher-level crimes, and public officials who’ve committed a crime would have to meet a higher standard to have that crime expunged.

There are some crimes that can’t be wiped clean under the bill, such as murder or incest. The bill also includes other provisions: Crime victims have an opportunity to object to the record expungement in some cases, and prosecutors will still have access to criminal records that have been expunged from court records.

A critical element of the bill: A potential employer can only ask job applicants if they’ve been arrested or convicted of a crime that has not been expunged by a court. But it also protects employers from being sued if they hire someone who’s had their record expunged but subsequently commits another crime.

Familiy planning clinics. "A measure that could block one Planned Parenthood clinic from prescribing an abortion-inducing drug and impose new regulations on all clinics that offer the drug is headed to Gov. Mike Pence’s desk. This is the lede to Eric Bradner's April 11th story in the Evansville C&P. Hayleigh Colombo of the Lafayette JC has a story on the bill's impact on the Lafayette Planned Parenthood clinic.

Welfare drug testing. "Court challenge likely for welfare drug-testing bill: Bills in other states have not stood up to legal challenges" is theading to Maureen Hayden's CNHI story today.

Medicaid. "Advocates are calling a proposed expansion of Medicaid a huge boost for Indiana’s economy, but Indiana Gov. Mike Pence isn’t wavering in his opposition. is the heading to Scott Smith's story today in the Kokomo Tribune.

Anti-discrimination protections. "Jury is still out on effect of bill on Indy’s anti-discrimination protections" writes Jon Murray in his IndyStar blog:

As they near the end of this year’s session, legislative leaders still are working out a dispute over how to fix the possible invalidation of part of Indianapolis’ human rights ordinance by an employment bill that’s already passed the House and the Senate. The bill is aimed at barring local governments from requiring private employers to provide benefits or working conditions that exceed state and federal standards. But in late March, Mayor Greg Ballard’s office said the city’s legal analysis suggested that the bill could end up nullifying a 2005 ordinance that, as in some other Indiana cities, prohibits employment discrimination based on sexual orientation or gender identity. * * *

Contrary to city lawyers’ view, a legal memo produced at the request of the Indiana Chamber of Commerce concluded that Senate Bill 213 “unambiguously does not regulate who may be protected from discrimination,” and so it wouldn’t affect anti-discrimination ordinances. Lawyers for the Indianapolis firm Bose McKinney & Evans produced the legal memo for the Chamber.

City leaders, including mayoral Chief of Staff Ryan Vaughn, would prefer to err on the side of caution by protecting such ordinances explicitly. Since the bill is headed to Gov. Mike Pence’s desk, that likely would mean adding an amendment to another pending bill, which, once Pence signs off, would add that change to the resulting law. A suggested fix that city officials have sent to House leaders would simply exempt from the proposed law’s restrictions a local government’s “ability to prohibit any form of discrimination.”

Pence, for his part, has told reporters that he has been assured the issue will be cleared up, and he will consider the effect of such a corrective amendment when he decides whether to sign SB 213.

Sentencing. "Justice system overhaul bill takes next step: Includes proportionate sentencing" was the heading of a Fort Wayne Journal Gazette story by Niki Kelly last week. "House Bill 1006, ... goes back to the House either for acceptance or further compromise."

Wrap-up. Finally, CNHI's Maureen Hayden has this wrap-up of many bills in this story headed " Legislature heads into final stretch: Differences to be resolved on key bills."

Posted by Marcia Oddi on Sunday, April 14, 2013
Posted to Indiana Law

Ind. Law - Of Rockport, the House division, and potential conflicts of interest

Updating this April 10th ILB entry, quoting a story headed "Indiana House drops legislation that could have killed Rockport gasification plant", and this follow-up headed "Correction/clarification of the use of a 'division' during a vote," Eric Bradner of the Evansville Courier & Press reports today [ILB emphasis] in a long story:

The coal and labor lobbies flexed their muscles at the Statehouse last week, surprising the House speaker and narrowly winning a vote that, for the moment, spared the Rockport coal-to-gas plant from the legislative chopping block.

The way it happened was fascinating political theater — one that involved a vote-counting tactic that should infuriate voters because it allows lawmakers to make critical decisions without having their positions counted on the official record.

The Indiana House was considering an amendment offered by Rep. Matt Ubelhor, R-Bloomfield. He was proposing to rewrite a bill that developers of the Rockport plant said would have killed their efforts in a way that is much more likely to result in the project going forward.

House Speaker Brian Bosma, R-Indianapolis, had expected Ubelhor’s amendment to be defeated. So did House Utility Chairman Eric Koch, R-Bedford, who had drafted the previous version of the bill, and the bill’s sponsor, Rep. Suzanne Crouch, R-Evansville.

But Bosma and House Minority Leader Scott Pelath, D-Michigan City, knew it was a tough call for their members either way. They seemed to be in sync in deciding that they didn’t want those members’ votes to be recorded through a roll call.

Instead, they used an option called a “division.” The supporters of Ubelhor’s amendment stood and were tallied by hand, and then the opponents stood and were tallied by hand, without any official record of who voted how.

As supporters of Ubelhor’s amendment stood, it became clear that Bosma had miscalculated. The amendment passed, 48-42.

ILB: Want to watch the division taking place? The ILB searched through the House video archive and found the second reading debate and voting on SB 510. It is here, in the House 2013 archives. Go to Wed., April 10th, Part 2. Then move the slider to 1:33:00, where you will see Rep. Matt Ubelhor closing debate on his amendment that will neuter the bill, followed by the vote count. Bradner's story is able to identify only a few of the voters on each side.

What will happen next with SB 510? Bradner writes:

Now, the question is what will become of the Rockport issue — and the answer suddenly seems much less clear.

The author and sponsor of Senate Bill 510 — Sen. Doug Eckerty, R-Yorktown, and Crouch — believe the bill they had championed, and which is scheduled for a vote in the House on Monday, is now useless.

The next few days will be important to watch.

Crouch could call the bill down for a vote in hopes of overhauling it later in a joint House-Senate conference committee, but that would carry the risk of the bill being defeated and the entire issue dying.

Or she could let the bill founder without a vote in hopes of amending its contents into another bill — possibly even the state’s budget — during the conference committee stage.

If a Rockport-related measure gets that far, the final votes in the House and Senate would pit Indiana’s most powerful outside interests against each other.

On the side of the plant’s financier, Leucadia National Corp., will once again be coal lobbyists and the Indiana State Building and Construction Trades Council, which handed lawmakers a set of talking points last week that touts the 1,500 construction jobs, 300 coal-mining jobs and 200 plant jobs it says the Rockport project would create.

Opposing the plant’s construction and seeking to get the bill back into the form that cleared the Senate or the House Utility Committee will be Vectren Corp. and a roster of allies that includes the Indiana Chamber of Commerce, the Indiana Manufacturers Association and several environmental and consumer groups.

The Senate — and particularly Senate President Pro Tem David Long, R-Fort Wayne — will now play a critical role in determining what happens.

Bradner closes his excellent Sunday story with a discussion of the interests represented by those involved with the bill:
Also an essential part of the Rockport debate — one that could hang a cloud over its outcome — are a series of what at least look like potential conflicts of interest.

Consider this:

Ubelhor, who pushed the pro-Leucadia amendment last week, manages Indiana coal mines for Peabody Energy — a company that could be a leading bidder to sell coal to be converted into natural gas at the Rockport plant.

Senate Utility Chairman Jim Merritt, R-Indianapolis, works as vice president of corporate affairs for the Indiana Rail Road Co., which carries coal from Peabody’s enormous Bear Run mine in Sullivan County and therefore could do business with the Rockport plant.

House Utility Chairman Eric Koch, R-Bedford, is heavily invested in dozens of energy companies, many of which are tied to the natural gas industry. There are no immediately apparent conflicts disclosed on the statement of economic interest form that Koch filed with the House. Still, as natural gas goes, so goes Koch’s portfolio — which at least offers an indication of his personal analysis.

Whether those potential conflicts affect the outcome of the issue, and whether they play into legislative leaders’ thinking as they decide how to handle it, will be key questions to watch as this year’s session enters its two final, chaotic weeks.

Posted by Marcia Oddi on Sunday, April 14, 2013
Posted to Indiana Law

Ind. Courts - "Presently 5 states have a tax court within the judicial branch to hear tax matters"

So writes Bill Raftery in this April 11th post in Gavel to Gavel.

Indiana's tax court is one of the five, according to the post, which discusses a Louisiana bill to make it the 6th state with a tax court in the judicial branch. He continues [emphasis by ILB]:

Under Louisiana’s [proposal] the new Tax Court, which would take the place of the existing Board of Tax Appeals, would serve “within the Louisiana Court of Appeals”, but it not clear if they would function as a court separate from the Court of Appeals (as in Indiana), as a sort of junior chamber, or as (in effect) an administrative agency within the Court of Appeals. The judges of the three judges of the Tax Court would not only have to be attorneys but would also have to be a certified as a tax specialist by the state’s Board of Legal Specialization.

What makes the Louisiana bill unique is the placement of the court in the judicial branch. “Tax courts” in most other states are executive branch or administrative agencies that perform quasi-judicial functions but are not formally parts of the judicial branch, such as in Maryland and Minnesota. The Tax Courts in Arizona, New Jersey, Oklahoma, and Oregon plus a specialized intermediate appellate court in Indiana, are all within the judicial branch.

Here are the Indiana statutes relating to the Indiana Tax Court.

What is the jurisdiction of the Indiana Tax Court? As spelled out on the Tax Court's website:

The Tax Court has exclusive jurisdiction over any case that arises under the Indiana tax laws and that is an initial appeal of a final determination made by the Indiana Department of State Revenue or the Indiana Board of Tax Review.*

In addition, the Tax Court has jurisdiction over certain appeals from the Department of Local Government Finance.

The Tax Court also hears appeals of inheritance tax determinations from the courts of probate jurisdiction.

Such cases are called original tax appeals.

Under IC 33-26-6-1, the tax court shall try each original tax appeal without the intervention of a jury.

Under IC 33-26-6-7, the decisions of the tax court may be appealed directly to the supreme court.
________
*Prior to its creation, the cases over which the Tax Court now has jurisdiction were heard in the Circuit or Superior Courts of the county of location of property in property tax cases or in the county of residence or place of business of the taxpayer in all other cases.

Contrast this with other administrative disputes. For example, appeals from decisions of the Indiana Department of Environmental Management (IDEM) are taken to the Indiana Office of Environmental Adjudication (OEA), another executive branch agency, for administrative review. Appeals are governed by the Administrative Orders and Procedures Act (AOPA), IC 4-21.5-3. Appeals from OEA are covered by IC 4-21.5-5-1, which establishes the exclusive means for judicial review of an agency action. Venue is generally in Marion County.

Posted by Marcia Oddi on Sunday, April 14, 2013
Posted to Ind. Tax Ct. Decisions | Indiana Courts

Ind. Law - Bills of interest to the judiciary heard in committee during Week 14 of the General Assembly

Here is the fourteenth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session. This was the last week for committee hearings.

Posted by Marcia Oddi on Sunday, April 14, 2013
Posted to Indiana Law

Friday, April 12, 2013

Ind. Courts - "'Phase out' of Marion County mental health court concern to many"

Kara Kenney of WRTV 6 has the story, with video. A few quotes:

The Marion County mental health court is being "phased out" of existence, said Chief Public Defender Bob Hill, concerning some who say the changes will end up costing taxpayers more in the long run.

"We really don't have a mental health court anymore," Hill said. "I'm concerned a lot of our clients probably aren't getting the attention and insight they should get."

Judge Barbara Collins previously presided over Court 8, or Mental Health Court, but retired at the end of 2012.

A mental health court helps mentally ill inmates with resources, counseling, medications and navigating their personal life.

"When Judge Collins retired, Court 8 started phasing out of existence," explained Hill. "Now I'm concerned we're not moving people with mental health issues through the system quickly enough." * * *

Judge Barbara Cook Crawford is leading a group of judges, attorneys and mental health providers who are working to come up with a solution.

Crawford told RTV6 the hope is to get a new mental health court off the ground by Oct. 1, one that will be inclusive to the mentally ill of the community.

"That gives us six months to get it off the ground," Crawford said.Judge Barbara Cook Crawford is leading a group of judges, attorneys and mental health providers who are working to come up with a solution.

Crawford told RTV6 the hope is to get a new mental health court off the ground by Oct. 1, one that will be inclusive to the mentally ill of the community.

"That gives us six months to get it off the ground," Crawford said.

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Indiana Courts

Ind. Decisions - Tax Court issues one today

In Hamilton Co. Assessor v. Allison Road Development, a 7-page opinion, Sr. Judge Fisher writes:

This case concerns whether the Indiana Board of Tax Review erred in determining that Indiana Code § 6-1.1-4-12 required a land developer’s property be assessed as agricultural land for the 2008 tax year despite the fact that it was not used for agricultural purposes. Finding the Indiana Board’s determination proper, the Court affirms. * * *

On appeal, the Assessor claims that the Indiana Board’s final determination is erroneous for two main reasons. First, the Assessor states that the Indiana Board used the wrong version of Indiana Code § 6-1.1-4-12 when it awarded the subject property the “developer’s discount” for 2002. Second, the Assessor contends that the Indiana Board erred in determining that the cessation of farming activities was not a “change in use” under Indiana Code § 6-1.1-4-12. * * *

For the foregoing reasons, the final determination of the Indiana Board, which required Allisonville Development’s parcels to be assessed as agricultural land for the 2008 tax year despite the fact that neither parcel was actively farmed, is AFFIRMED.

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Charlie White case gets new judge"

Updating this ILB entry from early this morning, a longish story by Carrie Ritchie has just been posted on the IndyStar site that begins:

Former Indiana Secretary of State Charlie White will get a new judge to hear his complaints about his criminal trial, which ended with a jury convicting him of six felonies.

White had petitioned for a new judge in March, claiming that Hamilton Superior Court Judge Steven Nation, who had handled his case since his 2011 indictment, was biased against him because of their dealings when White was chairman of the Hamilton County Republican Party. He said Nation’s opinion of him outside the courtroom led him to make several rulings against White throughout proceedings that culminated in White’s 2012 trial and conviction.

Nation granted White’s motion for a new judge this week, and his case has been re-assigned to Hamilton Superior Court Judge Daniel Pfleging.

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Indiana Courts

Ind.Courts. - "With Police in Schools, More Children in Court"

There is a timely article today in the NY Times, reported by Eric Eckholm. It begins:

HOUSTON — As school districts across the country consider placing more police officers in schools, youth advocates and judges are raising alarm about what they have seen in the schools where officers are already stationed: a surge in criminal charges against children for misbehavior that many believe is better handled in the principal’s office. * * *

[T]he most striking impact of school police officers so far, critics say, has been a surge in arrests or misdemeanor charges for essentially nonviolent behavior — including scuffles, truancy and cursing at teachers — that sends children into the criminal courts.

It follows the day after the Indiana House stripped "guns in schools" out of SB 1, which concerns school resourced officers.

One of the things SB 1, as it now exists after the excision, does is "Provides that for purposes of resisting law enforcement and disarming a law enforcement officer, a law enforcement officer includes a school resources officer and a school corporation police officer. "

In the Supreme Court decision in K.W., issued Feb. 22nd, the Court wrote in dicta:

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

We note, though, that it would be within the Legislature’s prerogative to conclude that evolving threats to school security and discipline warrant expanding the resisting law enforcement statute to apply to forcible resistance, obstruction, or interference “with a law enforcement[, school liaison, or school resource] officer[,] or a person assisting the officer[,] while the officer is lawfully engaged in the execution of the officer’s duties.” See I.C. § 35-44.1-3-1(a)(1). Not only is such a policy judgment about the changing role of school officers best reserved to a politically responsive branch of government, it would be less likely than common law to cause unintended Fourth Amendment consequences. The Legislature may wish to consider such a change.

SB 1 does not amend IC 35-44.1-3-1(a)(1). It does, however, add a new subsection (d) to IC 35-31.5-2-185, which defines "law enforcement officer" for all of Title 35, to include:
(d) "Law enforcement officer", for purposes of IC 35-44.1-3-1 and IC 35-44.1-3-2, includes a school resource officer (as defined in IC 20-26-18-1) and a school corporation police officer appointed under IC 20-26-16.

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Indiana Courts

Law- By using someone else's "HBO Go" password, reporter violating same law Adam Schwartz did accessing JSTOR

See how easy it is to violate the Computer Fraud and Abuse Act, which "makes it a crime 'to obtain without authorization information from a protected computer.'”

So reports Kashmir Hill today at Above the Law, in a fascinating entry with many links. Be sure also to read the NYT article from April 6th, headed "No TV? No Subscription? No Problem," that talks about a "crafty workaround" for watching Game of Thrones:

We were each going to use HBO Go, the network’s video Web site, to stream the show online — but not our own accounts. To gain access, one friend planned to use the login of the father of a childhood friend. Another would use his mother’s account. I had the information of a guy in New Jersey that I had once met in a Mexican restaurant.

Our behavior — sharing password information to HBO Go, Netflix, Hulu and other streaming sites and services — appears increasingly prevalent among Web-savvy people who don’t own televisions or subscribe to cable.

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to General Law Related

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

For publication opinions today (1):

In David R. Mertz v. City of Greenwood, Indiana, a 16-page opinion, Judge Najam writes:

David R. Mertz appeals the trial court’s order denying his petition to reverse the disciplinary action taken against him by the Greenwood Police Merit Commission (“the Commission”) following an evidentiary hearing. Mertz presents a single issue for review, namely, whether the Commission was authorized to hear the particular disciplinary matter against Mertz and impose discipline against him. We affirm. * * *

Mertz has not met his burden to show that the trial court determination, upholding the Commission’s interpretation of the relevant ordinances, is arbitrary and capricious, an abuse of discretion, or otherwise contrary to law. Woods, 703 N.E.2d at 1090. Therefore, Mertz has not met his burden to prevail on appeal, and we affirm the determination of the trial court that the Commission had authority to hear the disciplinary proceeding against Mertz, a former Assistant Chief of the Department, based on conduct that occurred while he was serving as Assistant Chief, and to impose discipline against him.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Amanda Spicer v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: New judge in Charlie White case?

Updating this ILB entry from mid-day yesterday, Reed Parker of WIBC is now reporting in a brief story that:

A new judge will be appointed in the case of former Secretary of State Charlie White.

White filed a request for a new judge, and also filed a request for a special judge. The court granted the removal of Judge Steven Nation, but denied the request for a special judge. White's attorney Andrea Ciobanu says they also requested the original trial dates be kept.

They hope to have their petition for post conviction relief (PCR) heard on August 15th. However, the date may change since a new judge will be appointed.

The CCC for State of Indiana vs. Charles White still does not reflect this update for Case No. 29D01-1103-FC-003107.

But Advance Indiana has a long post, filed last evening, headed "Judge Nation Recuses Himself From Charlie White Case After White's Attorney Filed Explosive Motion For Change Of Judge."

Posted by Marcia Oddi on Friday, April 12, 2013
Posted to Ind. Trial Ct. Decisions

Thursday, April 11, 2013

Law - Google introduces new "digital will" for Google accounts

Donna Tam has the story at CNet. Some quotes:

The company introduced a tool today called the Inactive Account Manager that lets you tell Google what you want done with your data hosted on its network after you die, or stop using your account for a long period of time. Think of it as an automated will for your digital assets.

"Not many of us like thinking about death -- especially our own," Product Manager Andreas Tuerk wrote in a blog post. "But making plans for what happens after you're gone is really important for the people you leave behind. So today, we're launching a new feature that makes it easy to tell Google what you want done with your digital assets when you die or can no longer use your account."

ILB: Valuable consideration for estate planning.

[More at 7 PM] Slate has now posted this story by Will Oremus about both Google and Facebook efforts re "the digital afterlife."

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to General Law Related

Courts - "Can Congress punish a former sex offender for failure to register?"

The question will be before the SCOTUS on April 17th - the case is U.S. v. Kebodeaux. Here is a SCOTUSblog argument preview by Steven Schwinn.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Courts in general

Ind. Decisions - New judge in Charlie White case?

The ILB is hearing that Hamilton County's Judge Nation this morning recused himself from the Charlie White case. The CCC, for Case No. 29D01-1103-FC-003107, does not show that, at least yet. The case is in the Petition for Post-Conviction Relief stage.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (1):

State Farm Fire & Casualty Company v. Joseph Martin Radcliff and Coastal Property Management LLC, a/k/a CPM Construction of Indiana (see ILB post here from earlier today)

NFP civil opinions today (0):

NFP criminal opinions today (1):

Jon J. Reid v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Is today the day for a transfer decision in Brewington?

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, writes:

The online docket shows the Brewington case was transmitted on transfer on March 26. The Court is meeting in its weekly conference today after hearing oral arguments in three cases this morning; it will likely be discussing transfer petitions in several cases.

Unlike the U.S Supreme Court docket, which shows the conference date at which a case will be discussed, the Indiana Supreme Court provides no public record of when a case will be discussed at conference. Past practice and careful review of the Court's weekly transfer disposition list--issued a couple of days after the weekly conference--suggests a typical lag of a little over two weeks or more between the transmission of a case and its discussion at conference. For example, the high profile Paul Gingerich case was transmitted on February 20 and discussed at conference on March 7--fifteen days later.

My best guess is that Brewington will be discussed today, and we will know whether transfer is granted later today or tomorrow morning. The Gingerich order denying transfer was issued Friday morning after a Thursday conference. Orders are sometimes issued late on Thursday afternoon. If the case is simply set for argument to decide whether to grant transfer, though, official word will not come for a few days. Instead, the Court will send a fax to the parties about the tentative argument date with instructions to promptly notify the Court of a conflict.
ILB: Here is the long list of ILB entries on the blogger Daniel Brewington free speech appeal.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Utility Center, Inc. d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, an 8-page, 5-0 opinion, Justice Rucker writes:

At issue in this case is the scope of judicial review where a property owner challenges the compensation awarded for condemnation of its property by a city’s board of public works under an eminent domain statute applicable to cities and towns. * * *

We find it inconsistent that the Legislature would on the one hand provide a municipality the option of short circuiting the detailed procedure for condemnation under Chapter 1, attendant with a full “trial and judgment as in civil actions,” but on the other hand provide for judicial review only of the record before the public works board when the municipality exercises that option.

Conclusion. We conclude that “rehear the matter of the assessment de novo” within the meaning of Indiana Code section 32-24-2-11(a) contemplates a new hearing with trial and judgment as in all other civil actions. And where a party so requests, a trial by jury. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Appeals Court affirms $14.5 million damage award against State Farm Insurance: Hail-damage claims led to suit, countersuit and jury verdict in Hamilton Superior Court"

In State Farm Fire & Casualty Company v. Joseph Martin Radcliff and Coastal Property Management LLC, a/k/a CPM Construction of Indiana, a 61-page opinion, Judge Vaidik writes:

In April 2006, central Indiana suffered a large hailstorm. Joseph Radcliff formed a company to repair the storm-damaged homes. State Farm Fire & Casualty Company began denying many of its policyholders’ claims even though other insurance companies were paying similar claims. Radcliff and his company offered to help the State Farm policyholders. Amid a flurry of bad publicity about State Farm’s claims response which in part was generated by Radcliff, State Farm launched an insurance-fraud investigation into Radcliff and his company. Radcliff was arrested on fourteen felony counts, but the charges were eventually dismissed pursuant to a diversion agreement with the State. State Farm then sued Radcliff and CPM for fraud and racketeering; Radcliff and his company counterclaimed for, among other things, defamation.

Following a nearly six-week-long jury trial before the Honorable Steven Nation in which over forty witnesses testified, a jury returned a $14.5 million verdict in favor of Radcliff and his company on their defamation counterclaim. This is one of the largest defamation verdicts in United States history. State Farm now appeals arguing that (1) it is entitled to judgment on Radcliff’s defamation counterclaim pursuant to two defenses: the public interest privilege for crime reporting and statutory immunity; (2) Radcliff failed to prove actual malice by clear and convincing evidence; and (3) it is entitled to a new trial on damages. Utilizing our standard of review for judgments on the evidence, we conclude looking to the evidence most favorable to Radcliff that State Farm is not entitled to judgment on either of the defenses. Also, utilizing a heightened standard of review for defamation cases, after an independent review of the record, we uphold the jury’s verdict that Radcliff proved actual malice by clear and convincing evidence and conclude that State Farm is not entitled to a new trial on damages. We therefore affirm the trial court.

From a news release just issued by the Indiana Court of Appeals:

INDIANAPOLIS – A unanimous Court of Appeals today affirmed a $14.5 million defamation verdict against State Farm Fire & Casualty Company in a case arising from a 2006 hailstorm that generated almost 50,000 State Farm claims in central Indiana.

The 61-page opinion upholds the jury’s verdict that Joseph Radcliff, who was sued by State Farm and then countersued, proved actual malice by clear and convincing evidence. The Court of Appeals also concludes that State Farm is not entitled to a new trial on damages, as the company had argued.

The opinion notes that State Farm’s appellant’s brief says the damage award is one of the largest defamation awards in U.S. history.

Background: After a hailstorm pounded central Indiana on April 14, 2006, a company called Coastal Property Management LLC (CPM) offered to help homeowners identify storm damage, make repairs and file insurance claims. Amid well-publicized complaints about State Farm’s claims response, the insurer launched an insurance-fraud investigation of CPM and owner Joseph Radcliff and sent its files to the National Insurance Crime Bureau, which forwarded its findings to the Indianapolis Metropolitan Police Department. The Marion County prosecutor filed 14 felony counts against Radcliff in 2008, including insurance fraud, corrupt business influence, criminal mischief and attempted theft.

In 2009, the Marion County prosecutor dropped all charges against Radcliff pursuant to a diversion agreement in which Radcliff admitted there was probable cause for his arrest for misdemeanor criminal mischief.

Independently, State Farm sued Radcliff and CPM in Hamilton Superior Court for racketeering and insurance fraud. Radcliff countersued, claiming defamation, and a jury awarded him $14.5 million after a nearly six-week trial that ended in June 2011.

State Farm raised three issues on appeal: (1) that its communications with NICB and IMPD were protected by statutory immunity and a common-law privilege for crime reporting; (2) that Radcliff failed to prove actual malice by clear and convincing evidence; and (3) that the damage award was excessive.

The Court of Appeals determined that the company failed on all three issues.

Documents filed in the appeal included 20 volumes of trial transcripts, more than 15 volumes of exhibits, 12 volumes of appendices, 10 claims notebooks and other materials.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Citing the U.S. Constitution and even the Bible, the 7th Circuit reversed a federal court in Indianapolis that said jurors could decide if Patricia Ann Fuller is or isn't a sister."

The 7th Circuit opinion yesterday in KEVIN B. MCCARTHY, et al. and LANGSENKAMP FAMILY APOSTOLATE, et al. v. PATRICIA ANN FULLER, et al. (ILB summary here) led to a post yesterday by Eugene Volokh headed "Canon Law in American Courts, or, Real Nun or Fake Nun?," and an AP story by Michael Tarm headed "A nun or not? Panel says it's not up to courts," which is the source of the heading to this post.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on "Indiana House drops legislation that could have killed Rockport gasification plant"

Updating yesterday's ILB entry, some quotes from The State House File story:

The changes to Senate Bill 510 came as a result of an amendment by Rep. Matt Ubelhor, R-Bloomfield, a coal miner who said the Rockport plant’s use of Indiana coal would bolster the jobs in that industry.

“I guess the big thing here for me is jobs,” he said. “This is an anti-jobs bill. I’m trying to turn it into a jobs-providing bill.”

Initially, the bill gave the Indiana Supreme Court the first crack at deciding whether a contract that would have the state buy the Rockport plant’s synthetic natural gas and then resell it is valid. If the court said no, that would have triggered a full new review by the IURC – with specific instructions from lawmakers to look at whether the deal makes sense for ratepayers.

Now that Ubelhor’s amendment has been approved, the bill would not require that second review. The bill could get a final vote in the House as soon as Thursday – although its specific language is likely to change as House and Senate leaders hash out a final version before the General Assembly adjourns for the year by April 29.

“There are people out here that want to see the project die, period. They want it to be dead immediately. There are those of us that want to see the project move forward. I happen to be one of them,” Ubelhor said. * * *

Wednesday’s changes frustrated opponents of the plant, who argue that the 30-year deal would put Hoosier ratepayers on the hook for risks that should be taken by private financiers.

“We take on all the risk. If we’re successful, we share half and we get to keep half the profits. Who would enter into a contract like that?” said Rep. Matt Pierce, D-Bloomington. “What in the world is the state going to do with a synthetic gas plant that produces a product that is not viable in the marketplace?”

House Utility Chairman Eric Koch, R-Bedford, said he opposed the changes to the measure his committee had just approved last week.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Indiana Law

Ind. Gov't. - "Training Cops and School Resources Officers (SRO's)"

The excellent, new Indiana Juvenile Justice Blog had this post yesterday "reflect[ing] on the training that these special officers and all police officers receive on interacting with juveniles."

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Indiana Government

Ind. Law - Correction/clarification of the use of a "division" during a vote

In the ILB post late yesterday afternoon, "Indiana House drops legislation that could have killed Rockport gasification plant," the ILB opined on the use of a "division," pointing to House Rule 81, Division of a Question.

Thanks to FWJG reporter Niki Kelly, the ILB has now been schooled in divisions.

"They happen all the time. A division is simply a division of the House or Senate. When a voice vote is taken both sides yell yes or no. The chair says the amendment passes or fails. If anyone on the floor feels the chair ruling might have been wrong they yell 'division,' which is always granted.

"Those in support stand first and a Republican and Democrat member walk together and count. Then the opposition. Highest number wins."

Kelly adds: "But no one is 'on the record' with how they voted."

As for a Rule 81 "Division of a Question," Kelly says she has only seen that once in more than a decade.

ILB: So yesterday's vote on Rep. Ubelhor’s 2nd reading amendment, the one that watered down SB 510, was taken by a division. Anyone could have called for a roll call vote, but they didn't. (Here is an example of a roll call vote on a 2nd reading amendment on the same bill that occurred in the Senate on April 10th.)

For reference, the rarely used "division of a question" would be offered to break a proposed 2nd reading amendment into parts where it really could have been framed as two different amendments.

Posted by Marcia Oddi on Thursday, April 11, 2013
Posted to Indiana Law

Wednesday, April 10, 2013

Ind. Law - "Indiana House drops legislation that could have killed Rockport gasification plant"

Eric Bradner of the Evansville Courier & Press reports on this afternoon's action on SB 510. Some quotes:

The Indiana House delivered developers of the Rockport coal-to-gas plant a major victory on Wednesday, watering down a measure that otherwise could have led to the project’s demise.

Rep. Matt Ubelhor, a Bloomfield Republican who manages coal mines for Peabody Energy, successfully pushed for changes that shield the project that he called a huge boon to Indiana’s coal industry from a second in-depth regulatory review.

As a result, the $2.6 billion plant – and the Indiana state government’s contract to buy and then resell its product – would be much more likely to survive legislative and legal challenges from a group of opponents led by Vectren Corp.

“This is an anti-jobs bill. I’m trying to turn it into a jobs-providing bill,” Ubelhor said. “I’m trying to make sure this plant moves forward.”

The changes frustrated opponents of the Rockport project, who argued that it could saddle ratepayers with higher bills. “This thing is a real danger to our economy,” said Rep. Ed DeLaney, D-Indianapolis.

There was no recorded roll call vote. Instead, the House voted using a parliamentary move called a “division.” [ILB: see note below] Supporters stood and were counted, and then opponents stood and were counted. Ubelhor’s amendment drew 48 members’ backing – enough to win approval, since some members were out of the chamber. * * *

The contract is the subject of an ongoing legal battle. The Indiana Court of Appeals voided state regulators’ approval of the deal, ordering one 37-word portion to be stricken. The Indiana Supreme Court could soon take up the case.

Under a measure approved by the state Senate, if the Supreme Court follows the appellate court’s lead and voids the deal, the entire regulatory process would be restarted – and this time, state regulators would have more specific instructions to make sure ratepayers are protected.

The House Utility Committee approved a similar measure last week. But the full House rewrote it Wednesday when it adopted Ubelhor’s amendment to Senate Bill 510.

Instead, the bill would now order the Indiana Utility Regulatory Commission to investigate by May 25 whether a shale gas boom has changed future prices of natural gas so significantly that the Rockport deal ought to be scotched. Critically, that review would be non-binding. * * *

Rep. Matt Pierce, D-Bloomington, ... called his initial vote in favor of the Rockport project “the biggest mistake I ever made” during his legislative career.

“If you vote for this amendment, Rep. Ubelhor’s, you strip out that opportunity for us to save our ratepayers … and you replace it with the IURC kinda giving us some friendly advice,” Pierce said.

Also splitting with Ubelhor was the Republican chairman of the House Utility Committee, Rep. Eric Koch of Bedford. * * *

If the House approves the revised version that includes Ubelhor’s amendment – a [3rd reading] vote that could come as soon as Thursday – it would then go to a joint House-Senate conference committee where legislative leaders would seek to iron out their differences.

That process is where the extent to which lawmakers step into the Rockport deal will ultimately be decided.

ILB: For background, start with this March 3rd ILB entry, headed "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".

Re a "division", the ILB has never seen that used in the General Assembly. It is described in the House Rules; it is Rule 81, on p. 9:

Division of a Question. Any member may call for the division of a question before or after the main question is ordered. The question shall be divided, if it contains propositions in substance so distinct that if one were taken away, a substantive proposition shall remain for the decision of the House. A motion to strike out and insert shall be deemed indivisible, but a motion to strike out being lost shall preclude neither amendment nor a motion to strike out and insert.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Law

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

In KEVIN B. MCCARTHY, et al. and LANGSENKAMP FAMILY APOSTOLATE, et al. v. PATRICIA ANN FULLER, et al. (SD Ind., Lawrence), an 18-page opinion, Judge Posner begins:

These three interlocutory appeals arise from a complicated and acrimonious litigation, charging RICO, trademark, and copyright violations along with Indiana torts, that has been percolating in the district court for almost five years. The origins of the litigation go back to 1956, when Sister Mary Ephrem (born Mildred Neuzil), a Catholic Sister of the Congregation of the Sisters of the Most Precious Blood of Jesus (often referred to just as the Congregation of the Sisters of the Precious Blood), had experienced a series of apparitions of the Virgin Mary, in the course of which Mary had told Sister Ephrem (according to the latter’s report): “I am Our Lady of America.” The Archbishop of Cincinnati (the chapel in which Sister Ephrem experienced the apparitions is, though located in Indiana, under his authority) was convinced of the truth of her report of the apparitions, and with his support an elaborate program of devotions to Our Lady of America was launched. Our Lady has been credited with healing sick people who appealed to her for a cure, although whether either the apparitions or the cures are authentic has not been ruled on by the Congregation for the Doctrine of the Faith, the body within the Roman Catholic hierarchy that is responsible for making such determinations.

Perhaps inspired by her visions, Sister Ephrem joined with other sisters within the Congregation of the Sisters of the Precious Blood in seeking to form a “contemplative cloister”—a “strictly cloistered house for members of the [Congregation] who were principally dedicated to a contemplative life.” In 1965 Pope Paul VI approved the creation of the cloister, in New Riegel, Ohio, designating it a “papal enclosure.” (We discuss the possible relevance of the designation later.) The New Riegel cloister lasted until at least 1977, when its three surviving members, including Sister Ephrem and Sister Mary Joseph Therese, left the Congregation of the Sisters of the Precious Blood and formed a new congregation that they called the Contemplative Sisters of the Indwelling Trinity, dedicated to promoting devotions to Our Lady of America.

The opinion concludes:
So, to conclude, the district court’s denial of McCarthy’s motion that the court take judicial notice of the Holy See’s rulings on Fuller’s status in the Church—the denial appealed from in appeal No. 12-2257—is reversed, with a reminder to the district court that federal courts are not empowered to decide (or to allow juries to decide) religious questions. The other two appeals are dismissed.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Senior judge banned from judicial service" [Updated]

Updating earlier ILB entries:

Kyle Bloyd of WLFI 18 is reporting:
A senior judge is permanently banned from judicial service after a settlement with the Indiana Supreme court. Lisa Traylor-Wolff, a senior judge and attorney in Pulaski and Fulton counties, will also not practice law for the next 45 days and is subject to 2 years of probation.
[Updated at 3:22 PM] Here is the 2-page order of the Supreme Court, dated Arpil 9th.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Decisions - 7th Circuit rules in student loan bankruptcy appeal

In SUSAN M. KRIEGER v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, a 10-page opinion in a case out of Illinois, Chief Judge Easterbrook writes:

Susan Krieger is destitute. Her entitlement to a discharge in bankruptcy is unquestioned. But her largest creditor—Educational Credit Management, which acts on behalf of some federal loan guarantors—asked the bankruptcy judge to exempt her student loans from the discharge, relying on 11 U.S.C. §523(a)(8). This subsection excludes educational loans “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor”. * * *

A bankruptcy judge concluded, following a trial, that this standard has been met. The evidence shows that Krieger cannot pay the debt now or in the foreseeable future. She is living with her mother, age 75, in a rural community where few jobs are available; mother and daughter between them have only a few hundred dollars (from governmental programs) every month. She is too poor to move in search of better employment prospects elsewhere, and her car, which is more than a decade old, needs repairs. She lacks Internet access, which coupled with the lack of transportation hampers a search for work. * * *

A district judge reversed and held that the educational debt cannot be discharged. * * *

The district judge did not doubt that Krieger has paid as much as she could during the 11 years since receiving the educational loans. Instead the judge concluded that good faith entails commitment to future efforts to repay. Yet, if this is so, no educational loan ever could be discharged, because it is always possible to pay in the future should prospects improve. * * *

In Roberson we boiled the three criteria down to “certainty of hopelessness”. 999 F.2d at 1136. That sounds more restrictive than the statutory “undue hardship,” but at all events the bankruptcy judge found that Krieger’s situation is hopeless. That may be unduly pessimistic, but a judge asked to apply a multi-factor standard interpreting an open-ended statute necessarily has latitude; the more vague the standard, the harder it is to find error in its application. The ultimate finding of “undue hardship” is neither clearly erroneous nor an abuse of discretion. The judgment of the district judge is reversed, and the case is remanded with instructions to reinstate the discharge issued by the bankruptcy judge.

Marion, concurring. [A quote] [W]ith many people struggling to make payments on their loans, will they see in this case and perhaps others like it an excuse to avoid their own student-loan obligations?

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Eight applicants announced for upcoming Allen County judicial position

Updating this ILB entry from March 24th (which has iiinternal links to earlier stories), the Supreme Court press office announces today:

The Allen County Judicial Nominating Commission received eight applications for an upcoming judicial vacancy. The following attorneys and judges have applied for the Superior Court, Civil Division vacancy:

Magistrate Craig Bobay
John Cowan
Magistrate Jennifer DeGroote
Laurie Gray
Carrie Hawk Gutman
Michael McAlexander
Michael Michmerhuizen
Patrick Proctor

On April 26, 2013 Judge Stephen Sims retires from his position in the Family Relations Division. State statute particular to Allen County (IC 33-33-2-39) allows Allen County Judge Daniel Heath to 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 seven-member Judicial Nominating Commission is required to nominate three candidates for appointment to the court. The Commission is made up of Edward Beck, James O’Connor, Jr., Suzan Rutz, Angela J. Moellering, Mark W. Terrell and Jonathan C. Ray. It is chaired by Indiana Supreme Court Justice Steven David. The Commission will send the names of three finalists to Governor Mike Pence. The Governor will make the final appointment.

Interviews, scheduled for April 25th and 26th, are open to the public.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Harold Haggerty v. Hoosier Energy Rural Electric Cooperative, Inc.; Merom Generating Station , a 10-page opinion involving injury to an independent contractor, Judge Pyle concludes:

Because Hoosier Energy successfully negated the element of duty in Haggerty’s negligence claim, we find the trial court did not err in granting summary judgment in favor of Hoosier Energy.Because Hoosier Energy successfully negated the element of duty in Haggerty’s negligence claim, we find the trial court did not err in granting summary judgment in favor of Hoosier Energy.
Valentin Escobedo v. State of Indiana , a 33-page opinion, Judge Pyle affirms the trial ourt on thefollowing issues:
1. Whether the trial court abused its discretion in its decisions regarding admission and exclusion of certain evidence.
2. Whether Escobedo’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
NFP civil opinions today (2):

In the Matter of A.W. & C.S., Children in Need of Services; and L.D., Mother v. The Indiana Dept. of Child Services (NFP)

Jeff Rolston and Jana Rolston v. Brad's Realty and Property Management, LLC, and Dan L. Bradbury (NFP)

NFP criminal opinions today (4):

Jake E. Estes v. State of Indiana (NFP)

Timothy Miller v. State of Indiana (NFP)

Demetrius Damon Taylor v. State of Indiana (NFP)

Kevin Hester v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - FWJG on fees for public records & ag-gag.

The Fort Wayne Journal Gazette has a long editorial today on the current status of HB 1175, and SB 373. Some quotes:

Hoosier lawmakers this week rightly moved to stop noxious proposals that would hinder free speech and access to public information. Their constituents will be best served if members of the General Assembly don’t revive the measures near the session’s end.

The best news was from the Indiana Senate, which rejected a proposal to charge fees to citizens who request public records that they are, by law, entitled to see. The bill, which the House wrongly passed, would have required citizens to pay the hourly wage of a government employee – up to $20 an hour – for any time over two hours it takes to locate documents. * * *

In the House, the Judiciary Committee made a good step to weaken an unnecessary bill that targeted whistleblowers who discover unacceptable activity on farms and in industries. The committee removed the most objectionable language from Senate Bill 373, nicknamed the ag-gag bill.

Committee members amended the bill to strike out penalties for recording activity on farms and industries with photographs and video, leaving the bill to focus on trespassing and providing false information to help obtain a job – acts that are already illegal.

The proposal, written by Holdman, R-Markle, was in response not to any problems that have occurred in Indiana but to further the agenda of the conservative American Legislative Exchange Council, a national group of state legislators and businesspeople funded mostly by corporations. ALEC pushes an ultra-conservative agenda and won passage of ag-gag bills last year in Iowa, Missouri and Utah. A similar bill is pending in Tennessee.

As the New York Times reported Sunday, the ag-gag bills came after animal rights activities shot video of animal mistreatment on farms, including workers deliberately burning horses with chemicals, kicking pigs and burning chicks.

While both of Monday’s actions were positive, Hoosiers should be diligent in monitoring whether some lawmakers attempt to resurrect these bad public-policy proposals as the session nears its end.

ILB: Note that the editorial begins and ends with cautions indicating that with our General Assembly, its not over until its over.

And sometimes, not even then. In past years, months after the GA has gone home, unexpected or unintended "legislative surprises" buried in new laws have been revealed, as the ILB has documented in the past.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Law

Environment - "The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston."

Thanks to @AppellateDaily for the heads up. Here is the story from Law & the Environment.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Environment

Ind. Courts - "No charges for van driver in buggy crash that killed 3"

This story today by Archie Ingersoll in the Fort Wayne Journal Gazette begins:

A grand jury in Adams County has declined to file criminal charges against a van driver who rear-ended a horse-drawn buggy almost a year ago, killing three children and seriously injuring their mother.

The jury heard three days of testimony on the collision that happened about 8 a.m. April 17, 2012, west of Monroe, county Prosecutor Christopher Harvey said Tuesday in a written statement.

According to a crash report, the van driver, Chandler Gerber, told investigators the sun’s reflection off the road made it difficult to see. He also said he was texting a relative and going about 60 mph just before the crash, the report stated.

Gerber, of Bluffton, was 22 years old at the time. He was not injured, the report said.

The six-member jury deliberated for several hours before announcing its decision Friday. “Ultimately, the grand jury found that, while Mr. Gerber was negligent, even grossly negligent in his actions, his conduct did not amount to recklessness under Indiana law,” Harvey said in the statement.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Courts

Law - Should your elderly parents still have a gun in their home?

See this interesting post today at the State Bar of Michigan blog.

A related topic for discussion would be driving by elderly parents ...

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Law

Ind. Decisions - "Trial overturned after too many delays: Late lab results invalidate conviction"

The Court of Appeals decision Monday in Halden Martin v. State of Indiana (ILB summary here, 5th case) is the subject of this story by Nick Cusack in the Shelby County News. Some quotes:

A Tennessee man had his drunk driving conviction in Shelby County thrown out by Court of Appeals of Indiana.

In the ruling issued Monday, the court said Halden L. Martin of Knoxville, Tenn., was not given a trial in the time allotted, violating his right to a speedy trial.

A series of delays from the Indiana State Department of Toxicology invalidated the Shelby County prosecutor's case, Martin's attorney John Fierek said Tuesday.

A defendant is supposed to go to trial within a year, unless the defendant causes a delay, then it can be extended. * * *

The problem with the state's case were the events leading up to the trial, the Court of Appeals of Indiana ruled.

Martin had several continuances and delays for different reasons, including a failure to appear.

But, the big delays in going to trial, the appellate court says, were delays in getting the blood test results, the delay in getting the blood re-tested, after the original tester left the state agencies and two no shows for a deposition with that state employee.

"We had argued at trial that that shouldn't be charged to the defendant," Fierek said.

Judge Jack Tandy of Shelby Superior Court I ruled during the trial that the Martin had several delays that were his fault, his "pattern of asking for continuances," a failure to appear and "failure to actively prepare for his case."

But the appellate court ruled that the delays due to the state lab's lack of timeliness should be charged to the state, which put Martin's amount of time without a trial well over a year.

"I don't think it was the prosecutor's fault," Fierek said.

He said the Indiana State Department of Toxicology was going through a rough patch at that point, and test now come back quicker.

"You still have problems with depositions," the Indianapolis-based attorney said.

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - " The debate over in-state college tuition for the children of undocumented immigrants is headed to the Indiana House"

Today Maureen Hayden, who covers the Statehouse for the CNHI newspapers in Indiana, reports in the Kokomo Tribune:

On Tuesday, the House Education Committee voted 8-4 in favor of a bill that would partially roll back a 2011 law banning undocumented students who grew up in Indiana from accessing the lower in-state tuition rate at the state’s public universities. The 2011 law, which requires they pay the more expensive out-of-state rate, led to hundreds of students dropping out.

The version of Senate Bill 207 that passed out of the House committee only covers the students who were enrolled in college when the ban went into effect two years ago.

But Republican bill backers want to expand the legislation’s language to cover more students. With support from Republican House Speaker Brian Bosma, they plan to introduce an amendment to do so when the bill comes up for debate in the full House.

“It really comes down to this: every child in our state needs the opportunity to have an education, “ said state Rep. Rebecca Kubacki, a Republican from Syracuse and the House sponsor of Senate Bill 207.

House Education Committee Chairman Bob Behning, an Indianapolis Republican, wanted to amend the bill in committee to expand it to cover children who met the new federal Deferred Action for Childhood Arrivals policy. That policy stops the deportation of immigrant children who were brought to the U.S. by their parents illegally.

But he decided to pull the amendment back after meeting resistance from some other Republicans on the committee and will take the debate to the House floor instead. Behning said he has the support of Bosma, who’s been out of the Statehouse recovering from knee surgery.

Behning risks some political pushback for doing so. Opponents of the bill, including a group called IFIRE (Indiana Federation for Immigration Reform & Enforcement) argue that students who aren’t U.S. citizens have no right to the lower tuition rates.

“I’ve had some constituents writing me to say they don’t want me to move forward on this,” Behning said. “But to me, morally it’s the right thing to do.”

Here are some recent ILB entries on the out-of-state issue:

Posted by Marcia Oddi on Wednesday, April 10, 2013
Posted to Indiana Law

Tuesday, April 09, 2013

Ind. Law - HB 1175: A tree falls, but there is no one there to hear it...

Last evening HB 1175, the bill that would have allowed agencies to charge for filling public record requests, was defeated in the Senate, 21 Ayes to 28 Nays. The ILB posted the news at about 7 PM, shortly after it happened. A reader had emailed me with the vote.

But what transpired to cause the defeat? What kind of debate went on? This is the bill that failed third reading on March 26th by a vote of 23-23 and then, in an unusual parliamentary move was sent back to committee for revision so the sponsor could try third reading again.

Much has been written in the press about this bill in the past, but apparently last evening no reporter was covering the debate. The only story I have seen is this one today from Chris Sikich of the IndyStar, that recounts the vote total, but adds no new information.

The Senate has video archives online, but the most recent is from March 21st. (The House video archives, incidentally, are current.)

Anyone?

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Indiana Law

Ind. Law - Guns in schools moves to second reading [Updated]

Niki Kelly reported late this morning for the Fort Wayne Journal Gazette on SB 1:

The House Ways and Means Committee voted 16-7 Tuesday to require armed personnel in schools – sort of.

The bill would still require schools to have armed school protection officers though a waiver process was inserted. It requires schools to annually opt out of the mandate, and a local school safety board must approve that waiver.

All details about a waiver would be confidential, meaning no one would know for sure which schools have armed guards and which ones don’t.

“You’re making serious, serious mistakes,” said Rep. Linda Lawson, D-Hammond, a former police officer. “Don’t stick a civilian in a building with a gun. It’s wrong. Stop this now.”

No one testified in support of the bill except Rep. Jim Lucas, R-Seymour., who authored the controversial language in the first place.

“We have to get past the stigma that guns are bad,” he said.

During his remarks he focused on background checks and gun clip limitations, and even began comparing gun deaths to other causes of deaths, including abortion.

At that point, House Ways and Means Chairman Tim Brown, R-Crawfordsville, said “you’re excused.”

According to Senate Bill 1, a school protection officer could be a teacher or other school employee who has volunteered and undergone 40 hours of firearms training. Or the district might have to hire someone, though there is no money in the bill to train employees or hire outside guards.

There are more than 1,900 public schools in the state, including charter schools.

The base of the bill focuses on school resource officers, a separate designation of persons who are usually are full-time law enforcement officers assigned to a school from a local law enforcement agency to focus on overall school safety.

But they aren’t required by law, and it is estimated only one quarter to one third of Indiana school corporations have resource officers. * * *

At times it was clear the committee was confusing school resource officers with school protections officers, and misstating the training required for the latter.

The bill now moves to the full House for consideration.

Schools already have an option under current Indiana law to designate teachers as school safety officers, and allow them to bring guns inside schools.

ILB: Readers may recall a February Indiana Supreme Court opinion dealing with school resource officers.

[Updated at 2:48 PM]
Dan Carden of the NWI Times has a good story this afternoon on the Times site, headed "Schools may get secret waivers for gun mandate." It begins:
INDIANAPOLIS | Volunteers packing concealed, loaded firearms and known only to school board members soon may be patrolling the hallways of every public or charter elementary and high school in Indiana, or at least Hoosiers will be made to think so.

Senate Bill 1 was changed by the House Ways and Means Committee Tuesday to allow schools to exempt themselves from a pending mandate that at least one person in the school, called a school protection officer, be armed at all times.

However, the revised measure forces school boards to make that decision in a secret session, requires the state keep confidential which schools have opted out and prohibits schools from identifying their armed school protection officer, who does not have to be an employee.

ILB: Won't the parents insist on knowing? And doesn't this really put school boards on the spot? What if their armed officer acts unwisely? What if they elect to have no armed officer and a shooting incident happens?

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Indiana Law

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

From UNITED STATES OF AMERICA v. TRISTAN DAVIS (ND Ind., Moody), is a 12-page per curiam opinion, including a separate concurring opinion by Judge Rovner beginning on p. 3. From the majority opinion:

Two courts of appeals have sided with Davis’s contention that a court may direct the prosecutor to file a motion under §3E1.1(b) even if the prosecutor’s reason for withholding that motion does not violate the Constitution. United States v. Lee, 653 F.3d 170, 174–75 (2d Cir. 2011); United States v. Divens, 650 F.3d 343, 346–47 (4th Cir. 2011). Four courts of appeals have reached the same conclusion as Deberry. United States v. Collins, 683 F.3d 697 (6th Cir. 2012); United States v. Johnson, 581 F.3d 994, 1003 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8, 16–17 (1st Cir. 2008); United States v. Newson, 515 F.3d 374, 378–79 (5th Cir. 2008). This circuit could not eliminate the conflict by changing sides, so stare decisis supports standing pat. Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission. See Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc). AFFIRMED

[Judge Rovnor begins]: As the court correctly observes, and as Davis himself recognizes, the outcome of this appeal is controlled by our decision in United States v. Deberry, 576 F.3d 708 (7th Cir. 2009). I accept and respect Deberry as the law of this circuit. I write separately, however, to explain why I do not believe that section 3E1.1(b) of the Guidelines permits the government to insist that a defendant waive his appellate rights before it will ask the court to grant him an additional one-level decrease in his offense level for acceptance of responsibility.

In NANCIE J. CLOE v. CITY OF INDIANAPOLIS (SD Ind., Lawrence), a 29-page opinion (with J. Hamilton writing separately beginning on p. 27). Judge Kanne writes:
Nancie J. Cloe started working for the City of Indianapolis in April 2007. In March 2008, she was tragically diagnosed with multiple sclerosis (“MS”), a chronic, incurable neurological disorder that rendered her disabled and significantly impaired her day-to-day life. On June 29, 2009, the City terminated her, ostensibly for poor performance. Cloe sued under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging that the City (1) discriminated against her because of her disability; (2) failed to reasonably accommodate her disability; and (3) retaliated against her for requesting accommodations for her disability. The district court granted summary judgment in favor of the City. For the reasons that follow, we affirm the district court’s judgment on Cloe’s reasonable accommodation claims, but reverse on her discrimination and retaliation claims.

[Judge Hamilton begins]: I join fully in Judge Kanne’s opinion for the panel. I write separately to note that the employer’s unusual presentation of its motion for summary judgment in this case has highlighted an often overlooked aspect of the McDonnell Douglas method of indirect proof of employment discrimination: The plaintiff-employee cannot be expected to identify similarly situated comparators until the employer has identified its decision-maker and articulated its reason for the adverse employment decision.

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 17 NFP)

For publication opinions today (3):

In Danielle Helms v. Max H. Rudicel, M.D., Open Door/BMH Health Clinic (a division of Cardinal Health Systems), Cardinal Health Systems, d/b/a Ball Memorial Hospital, et al., an 18-page opinion, Judge May writes:

Danielle Helms filed a lawsuit in Delaware Circuit Court (hereinafter “trial court”) against Dr. Max Rudicel, the Open Door Health Clinic (“the Clinic”), Cardinal Health Systems d/b/a Ball Memorial Hospital (“BMH”), Nurse Practitioner Anna Steinbarger, and Emergency Physicians of Delaware County for malpractice related to treatment she received during her pregnancy. The Defendants filed a motion for summary judgment because a federal court had already determined Dr. Rudicel and the Clinic were federal employees,1 and the limitation period during which Helms could have filed suit had run under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2679.

The trial court determined the federal decision was res judicata as to negligence claims related to the Clinic or Dr. Rudicel’s work there. It also determined BMH was not vicariously liable for actions by the Clinic or by Dr. Rudicel while at the Clinic. The court therefore dismissed the action against the Clinic with prejudice. However, the trial court found a question of fact regarding whether BMH might be vicariously liable for actions at BMH of Dr. Rudicel and Nurse Practitioner Steinbarger.

Helms appeals, arguing (1) the federal decision is not res judicata because that court did not address the issue now before us, (2) the medical providers at the Clinic might have been apparent agents of BMH, and (3) BMH might be vicariously liable even though the Doctor and Clinic are immune from liability. On cross-appeal, BMH challenges the determination BMH might have vicarious liability, arguing BMH told Helms its healthcare providers were independent contractors. * * *

As the federal decision is not res judicata as to BMH’s potential liability as the Doctor and Clinic’s apparent principal and there is a fact question as to such apparent agency, summary judgment for BMH was error. The trial court correctly found BMH might be vicariously liable for any act of Dr. Rudicel or Nurse Practitioner Steinbarger at BMH. We accordingly affirm in part, reverse in part, and remand.

In Adam Morris v. State of Indiana , a 10-page opinion, Judge Barnes writes:
Adam Morris appeals the one-year sentence and order of restitution imposed following his conviction for Class A misdemeanor operating a vehicle while intoxicated (“OWI”). We affirm in part and reverse in part.

The restated issues before us are:
I. whether Morris’s guilty plea waived his ability to challenge his sentence on direct appeal;
II. whether Morris’s sentence is inappropriate; and
III. whether the trial court properly ordered Morris to pay $14,972.45 in restitution. * * *

We conclude that the purported waiver provisions in the boilerplate plea agreement drafted by the State here are ambiguous as to whether Morris was giving up his right to challenge his sentence as inappropriate under Rule 7(B). As such, we will construe that ambiguity against the State and give Morris the benefit of the doubt and address the appropriateness of his sentence. We also believe it is clear that any purported waiver could not preclude Morris from challenging a sentencing term that exceeded the scope of the plea agreement, as it would constitute a violation of the agreement itself by the trial court. * * *

It is clear that when a plea agreement is silent on the issue of restitution, a trial court may not order the defendant to pay restitution as part of his or her sentence; such an order exceeds the scope of the plea agreement. Sinn v. State, 693 N.E.2d 78, 80 (Ind. Ct. App. 1998). Thus, we reverse the order that Morris pay $14,972.45 in restitution.

Conclusion. Although we decline to find that Morris waived his challenge to the appropriateness of his sentence, we find that sentence to be appropriate. However, we reverse the restitution order against him.

In Virgil D. Cornelious v. State of Indiana, a 7-page opinion, Judge May concludes:
The State presented sufficient evidence Cornelious committed Class B felony aggravated battery because Vaughn’s injuries resulted in serious permanent disfigurement. Additionally, the trial court did not abuse its discretion when it enhanced Cornelious’ sentence by twenty years based on his adjudication as an habitual offender. Accordingly, we affirm.
NFP civil opinions today (6):

In Re: The Paternity of J.M., Jo.M. v. M.J. (NFP)

Tori R. Driver v. Todd W.A. Driver (NFP)

William Gordon v. Toyota Motor Manufacturing of Indiana (NFP)

In Re The Marriage of Laura R. Chickadaunce and Mark A. Chickadaunce; Laura R. Chickadaunce v. Mark A. Chickadaunce (NFP)

Dennis Fahlsing v. Shannon Fahlsing and Angela Taylor (NFP)

Robert Hamilton v. Jerry Ablitar (NFP)

NFP criminal opinions today (11):

Jorge L. Gonzalez v. State of Indiana (NFP)

Jeffrey L. Jones v. State of Indiana (NFP)

Antonio L. Freeling v. State of Indiana (NFP)

Darnell Chivers v. State of Indiana (NFP)

Stanley Short v. State of Indiana (NFP)

Darnell Tinker v. State of Indiana (NFP)

Termaine T. Fields v. State of Indiana (NFP)

John T. Haub, Jr. v. State of Indiana (NFP)

Justin M. Lewis v. State of Indiana (NFP)

Enri Franklin v. State of Indiana (NFP)

Martize Sevion v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Ind. App.Ct. Decisions

Courts - Chief justice of the Ohio Supreme Court writes that SCOTUS should allow cameras

Here is the long, op-ed column in the Sunday, April 7th Columbus Ohio Dispatch, written by Maureen O’Connor, the chief justice of the Ohio Supreme Court. Some quotes:

As the U.S. Supreme Court heard historic oral arguments same-sex marriage last week, a debate outside the courtroom centered on a timeless question facing the top court in the land: Should the justices respond to public opinion or lag behind as society moves forward?

What we witnessed last week leads me to the inescapable conclusion that the U.S. Supreme Court should catch up with the nation. It is time for the court to allow cameras in its courtroom. * * *

Regardless of one’s views on same-sex marriage, this week offered a spectacle of vivid images demonstrating that the justices are lost in the 19th century when it comes to being open and transparent to the public they serve. Rather than seeing lawyers in action before the justices, we saw citizens huddled in the cold for days, waiting for a ticket to have the privilege to watch our democratic system of justice in action. There are more than 300 million Americans, but only 500 seats in the Supreme Court gallery.

For most of us, after two days of arguments, we only have access to almost comical courtroom sketches of the proceedings rather than video or even still photographs. We are left with talking heads speculating on what they did not personally observe. These images serve no purpose but to further erode the public image of the court.

This entire column really should be a "must read."

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Courts in general

Ind. Law - Ag-gag, canned hunting bills advance in House

Senate Bill 373, the "ag-gag" bill, was amended yesterday in House Committee, according to this Indianapolis Star story by Mary Beth Schneider:

A bill aimed at shielding farms and industry from unauthorized videos and photographs was watered down considerably Monday by an Indiana House committee that shifted the focus to limiting trespassing. * * *

Rep. William Friend, the Macy Republican and farmer who sponsored the bill in the House, said attorneys had worked on the bill all weekend to try to address constitutional issues of free speech.

After the changes made today in the House Judiciary Committee, he said, it focuses only on criminal trespass and those who gain employment by giving false information in order to gain access to inside information.

It no longer mentions videos and photos at all, he said.

“This is what (attorneys) came up with so that they could keep it from being unconstitutional or violating the First Amendment,” Friend said. “Some folks say photography is a form of speech.”

But he expects the bill — which passed the committee 6-3 — to undergo further changes as it moves through the process. The legislature has until April 29 to complete work on all bills this session.

Sen. Travis Holdman, the Markle Republican who authored SB 373, called it “a work in progress.”

ILB: The new language is not available as of this writing.

Senate Bill 487, which was amended in House Committee to include high-fence hunting, was amended on 2nd reading yesterday to make what appear to be only minor changes. The bill is now on third reading.

Posted by Marcia Oddi on Tuesday, April 09, 2013
Posted to Indiana Law

Monday, April 08, 2013

Ind. Decisions - Commentary on today's Lopez decision

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Today's Lopez decision is one of a handful in the past few years that has reversed a trial court's bail decision. The final footnote of the opinion seems to highlight a split on the Court of Appeals on an important issue: "Bail should be established by the trial court and not by this Court on appeal. Reeves v. State, 923 N.E.2d 418, 422 (Ind. Ct. App. 2010)."

Other appellate case have included a specific amount of reduction, include Winn ("We reverse and remand with instructions that the trial court grant Winn’s motion [to reduce a $25,000 cash bond to a $25,000 10% bond]") and Sneed ("Sneed’s $25,000 bail is not excessive, but the trial court abused its discretion by requiring cash only bail and denying Sneed’s request for the option of a surety bond.").

These latter cases (Winn and Sneed) take the preferable approach. The Court of Appeals has before it more than ample information to make a decision, just as it does in reducing sentences to a specific term of years. Moreover, by failing to set a specific bail amount, another appeal seems quite possible. For example, the trial court in Lopez may decide the $3,000,000 surety plus $25,000 cash bond should be reduced to $2,000,000 or something still excessive. The defendants would then be required to initiate another appeal and wait months longer for a decision. The decision in today's appeal took more than five months from the filing of the notice of appeal, which is unusually quick for an appeal, but still a very long time for individuals confined to a jail cell instead of free on pretrial bail.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Ind. App.Ct. Decisions | Schumm - Commentary

Ind. Law - More on: Some geek observations about HB 1175, the bill that allows agencies to charge for filling public record request

The ILB has learned HB 1175 was just defeated in the Senate, 21 Ayes to 28 Nays. See this April 3rd post for background.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Law

Ind. Decisions - Bond reduction denial reversed today by COA in Acapulco restaurant chain raids

The decision by the Court of Appeals today in Adolfo Lopez v. State of Indiana (summary here) presents one aspect of an event the ILB has written about before. A Feb. 7th post, headed "State legislator appears to represent the State of Indiana in lawsuit", quoted from a story posted on the Eagle Country 99.3 FM website (see also the linked stories at the end of the Eagle report). From the story:

(Lawrenceburg, Ind.) - A lawsuit seeks to allow the State of Indiana to keep millions of dollars and property seized during an investigation into Acapulco Mexican Restaurants.

The Dearborn County Prosecutor’s Office recently filed the lawsuit on behalf of the State of Indiana against the owners of the southeast Indiana restaurant chain which was raided by Indiana State Excise Police in September. The litigation names Acapulco owners Adolfo and Maria Lopez, Benito Lopez, and others as defendants.

“The defendants have acquired real or personal property purchased with money that is traceable as proceeds of a violation of a criminal statute,” the complaint claims.

The prosecutor’s office seeks the forfeiture of $3.8 million and two homes. One is the Greendale residence of Adolfo and Maria Lopez while the other is the Batesville home of Benito Lopez. * * *

Adolfo Lopez and Benito Lopez are still awaiting trial on charges in connection with an Indiana Excise Police raid of their restaurants last September. Charges against 107 other people, many of them Acapulco employees, have been dismissed.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Ind. App.Ct. Decisions

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

In NES RENTALS HOLDINGS, INC., et al v. STEINE COLD STORAGE, INC. (ND Ind, MJ Cosbey, a 17-page opinion, Judge Williams writes:

Humberto Menendez tragically died from injuries he suffered while operating a fortyfoot boom lift. His employer, Steine Cold Storage, Inc., had rented the lift from NES Rentals. Menendez’s family filed suit against NES and others, alleging that their negligence caused the death. NES then sought indemnification from Steine pursuant to an indemnification clause in the rental agreement for the boom lift. Indiana courts allow a party to contract to indemnify for the other party’s own negligence but have said that doing so is a “harsh burden” that a party would not lightly accept absent express language in the agreement evidencing such an intention. We agree with Steine that the indemnification clause in the rental agreement does not expressly state, in clear and unequivocal terms as Indiana law requires, that Steine agreed to indemnify NES for NES’s own negligence. We therefore affirm the district court’s grant of summary judgment in favor of Steine.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "Tennessee legislature enters second decade of trying to remove Supreme Court’s power to appoint state’s attorney general"

Read the Gavel to Gavel entry by Bill Raftery.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 5, 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, April 5, 2013. It is one page (and 1 cases) long.

No transfers were granted last week.

One transfer was dismissed, in James A. Crouch v. State of Indiana, upon the Court's receipt and grant of appellant's motion to dismiss.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

For publication opinions today (7):

In Detona Sargent and One 1996 Buick, VIN 1G4AG55M3T6449095 v. State of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department , an 11-page opinion, Judge Najam writes:

Detona Sargent appeals the trial court’s grant of summary judgment for the State of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Police Department (collectively referred to as “the State”), on the State’s request that Sargent’s vehicle be forfeited pursuant to Indiana Code Section 34-24-1-1(a)(1)(B). Sargent raises two issues for our review, which we restate as follows: 1. Whether there was a sufficient nexus between the underlying crime and the seized property; and 2. Whether either Indiana’s statutory bankruptcy exemptions or Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. We affirm. * * *

The undisputed evidence shows that Sargent intended to leave her workplace in her car following the theft. She drove her car to work, and she allowed a co-worker to borrow her car on the express condition that the co-worker return in time for Sargent to leave. As such, there is a clear nexus between Sargent’s theft of the four iPhones and her car, which she intended for use to transport the stolen goods. That Sargent’s attempted theft was not successful is irrelevant to the State’s lawful seizure of the vehicle. * * *

In sum, we hold that the State demonstrated a sufficient nexus between the underlying crime and the seized property. We also hold that neither Indiana’s statutory bankruptcy exemptions nor Article I, Section 22 of the Indiana Constitution required the trial court to exempt Sargent’s vehicle from forfeiture. Accordingly, we affirm the court’s forfeiture order.

In Kevin Perry v. Unemployment Insurance Review Board of the Indiana Dept. of Workforce Development and Indiana Dept. of Workforce Development UI Claims Adjudication Center, a 10-page opinion, Judge Najam writes:
Kevin Perry1 appeals the order of the Review Board (“Review Board”) of the Indiana Department of Workforce Development, affirming the findings and conclusions of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade Adjustment Assistance (“TAA”) training program. Perry presents three issues for review, which we consolidate into a single issue, namely, whether the Review Board’s decision affirming the termination of Perry’s participation in the TAA training program is erroneous.
We affirm.
In Gary Hammerstone, Susan Hammerstone, Palmor Products, Inc., Northhampton Farm Bureau Cooperative Association, and Canns-Bilco Distributors, Inc. v. Indiana Insurance Company, a 12-page opinion, Judge Kirsch writes:
[Appellants] appeal the trial court’s order granting summary judgment in favor of Indiana Insurance Company (“Indiana Insurance”) and denying summary judgment in the favor of the Appellants. The Appellants raise the following dispositive issue for our review: whether the trial court erred in granting summary judgment in favor of Indiana Insurance because the umbrella policy was ambiguous due to the fact that the declarations page stated that there was product liability coverage and the policy denied coverage through a structural ambiguity in the language of the policy.
We reverse and remand. * * *

Finding an ambiguity in the Umbrella Policy, we must construe the Umbrella Policy strictly against the insurer. Lake States Ins., 743 N.E.2d at 318. Construing the Umbrella Policy against Indiana Insurance, we conclude that there is coverage for Palmor as to products-completed operations claims as a matter of law. Therefore, the trial court erred in granting summary judgment in favor of Indiana Insurance and in denying the Appellants’ motion for summary judgment. We reverse the trial court’s order and remand for proceedings consistent with this opinion, including findings by the trial court as to whether Northhampton and CBD qualify as indemnitees of Palmor under the Umbrella Policy and whether Northhampton, CBD, and the Hammerstones have assignee rights as part of the Hammerstone Claim.

In Lorenzo Reid and Larry Blake, a/k/a Larry Reid v. State of Indiana, a 19-page opinion, Judge Bradford writes:
Appellants-Petitioners Lorenzo Reid and Larry Blake seek post-conviction relief from their convictions and respective fifty-four and forty-four year sentences for murder and Class C felony attempted robbery. On September 21, 1990, Reid, Blake, and an unidentified third man were involved in an attempted robbery of a liquor store that resulted in the death of the owner of the liquor store. Following separate jury trials, both Reid and Blake were convicted of murder and Class C felony attempted robbery, and their convictions were affirmed on direct appeal. Reid and Blake subsequently requested post-conviction relief, and the instant appeal stems from the denial of these requests. Concluding that neither Reid nor Blake are entitled to post-conviction relief, we affirm the judgment of the post-conviction court. * * *

In sum, Appellants’ due process rights were not violated by the post-conviction loss or destruction of certain evidence, Appellants were not entitled to a new trial because the State failed to disclose before trial that one of its witnesses had a possible prior criminal conviction, and Appellants did not receive ineffective assistance of trial counsel. Accordingly, we affirm the post-conviction court’s denial of Appellants’ petitions for relief.

In Halden Martin v. State of Indiana , a 20-page opinion, Judge Vaidik writes:
Halden Martin appeals his conviction for Class A misdemeanor dangerous operating a vehicle while intoxicated. He appeals arguing that the trial court erred in denying his Criminal Rule 4(C) motion for discharge because his trial occurred more than one year after he was charged and arrested. Because the days that count toward the Rule 4(C) period exceed 365, we conclude that the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction. * * *

What this boils down to is what party should bear the responsibility of a State’s witness not showing up to two scheduled depositions at which the witness was subpoenaed both times. Martin says the State Department of Toxicology told him that Anderson was “unavailable” both times, and the State does not offer a contrary explanation on appeal. Moreover, the State does not allege that Martin did not provide Anderson with reasonable notice of the depositions, which is required by Trial Rule 30(B)(1). We find that the balance tips in favor of Martin and therefore conclude that the trial court abused its discretion in charging the delay to him. Thus, the 182 days from September 27, 2011, to March 26, 2012, count toward the Rule 4(C) period, bringing the total to 476 days.9 Because the days that count toward the Rule 4(C) period exceed 365, the trial court should have granted Martin’s motion for discharge. We therefore reverse the trial court and remand for vacation of his conviction.

In Darryl Shepherd v. State of Indiana , a 3-page opinion on a petition for rehearing, Judge Najam writes that its ruling is not impacted by the Indiana Supreme Court in Dye v. State, where:
In its opinion on rehearing, the [supreme] court clarified that its earlier holding was not intended to break new ground but, rather, was simply an application of the law announced in Mills v. State, 868 N.E.2d 446 (Ind. 2007). * * *

Mills
is established law and was available to Shepherd at the time he filed his initial brief on direct appeal, but Shepherd did not argue that Mills or related law applied in his appeal. “[I]t is well established that ‘any question not argued on appeal cannot be raised for the first time in a petition for rehearing.’” [cites omitted] Shepherd’s argument in his petition on rehearing that Mills or related law should be applied to him is waived.
In Adolfo Lopez v. State of Indiana, a 7-page opinion, Judge Crone writes:
Adolfo Lopez appeals the trial court’s denial of his motion for bond reduction. Lopez and 108 other individuals were charged with numerous nonviolent crimes involving a chain of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with six class C felonies and four class D felonies. The trial court set Lopez’s bond at $3,000,000 surety plus $250,000 cash. On appeal, Lopez asserts the trial court abused its discretion in denying his motion for bond reduction. Finding the bond excessive, we conclude that the trial court abused its discretion when it denied the motion for reduction. Therefore, we reverse and remand.
NFP civil opinions today (3):

Term. of the Parent-Child Rel. of S.B.: U.D. and L.B. v. Indiana Dept. of Child Services (NFP)

In the Matter of C.C., Child in Need of Services; C.C. (Father) v. Indiana Dept. of Child Services (NFP)

Tariq Qureshi and Mehnaz Qureshi v. Richard E. Coulter, Cox/Hammond Realty Group, and Darrell Cox (NFP)

NFP criminal opinions today (9):

Chad Lindstrom v. State of Indiana (NFP)

Jason Neal v. State of Indiana (NFP)

Franklin Allen v. State of Indiana (NFP)

Terrell Van Causey v. State of Indiana (NFP)

Theodore Fuentes v. State of Indiana (NFP)

Evia Jane Lee v. State of Indiana (NFP)

Samantha Richey v. State of Indiana (NFP)

Patrick Wiese v. State of Indiana (NFP)

John C. Kincade, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one April 5th

In Washington Township Assessor, Allen County Assessor, and Allen County Property Tax Assessment Board of Appeals v. Verizion Data Services, Inc. (NFP), a 9-page opinion, Judge Wentworth writes:

This matter concerns whether the failure of the Washington Township Assessor, the Allen County Assessor, and the Allen County Property Tax Assessment Board of Appeals’ (collectively Assessor) to serve the summons and petition directly on Verizon Data Services, Inc. bars this appeal. The Court finds it does not. * * *

The Court held a hearing on Verizon’s Motion on May 5, 2011. * * *

This decision is consistent with the Court’s “long-standing policy that cases should be decided on the merits and justice should not be defeated by [procedural] technicalities.”

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Notice of Proposed Rule Amendments by the Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment

Written comments are due by June 5th. There are several interesting proposals. Here is the list.

I admit I did find proposal #3, Electronically Filed Briefs, somewhat confusing, perhaps because no rationale or commentary is included:

Two proposed versions for submitting appellate briefs in electronic format are presented for public comment.

Version 1 permits the filing of electronic briefs, including, addenda to briefs, petitions, and appendices. However, a paper original and eight copies of briefs, addenda to briefs and petitions are still required. One paper copy of appendices is required. An exception to this requirement may be made based upon a showing of inability to comply with this rule.

Version 2 is similar to Version 1, but only requires one copy of briefs, addenda to briefs and petitions. Further it requires an original and eight (8) copies of all notices of additional authorities.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Courts

Law - "New Chicago firm to invest in lawsuits"

From Ameet Sachdev of the Chicago Tribune, a story that begins:

As law clerks to U.S. Supreme Court Justice Anthony Kennedy in 2008, Travis Lenkner and Ashley Keller helped draft opinions on significant legal disputes. Now they are placing bets on big lawsuits.

Lenkner and Keller have teamed up with Adam Gerchen, a former hedge fund portfolio manager, to open a nontraditional investment firm that will formally launch Monday in Chicago. What makes the firm unusual is the type of investments it plans to make — not stocks, bonds or anything else that can be traded on an exchange.

Gerchen Keller Capital LLC joins a handful of specialized investment funds that bankroll lawsuits, providing millions of dollars in exchange for a share of the eventual recovery. The firm is starting with deep pockets, with more than $100 million of committed capital, Gerchen said.

So-called litigation financing is similar to what personal injury lawyers have been doing for years. Personal injury lawyers finance lawsuits for clients by not charging by the hour but by taking 30 percent to 50 percent of the recovery if they win.

But traditional financiers have generally avoided gambling on lawsuits because the decisions of judges and juries can be hard to predict. The uncertainty makes pricing risks very difficult.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to General Law Related

Ind. Law - "Does the public's right to know trump an individual's right to a clean slate?"

That question is posed in a long story reported by Madeline Buckley in the Sunday South Bend Tribune. Some quotes:

A little-publicized bill wending its way toward final approval in the General Assembly would greatly reduce what the public is allowed to discover about a criminal's past.

The measure, House Bill 1482, is hailed by some who see the move as a step toward encouraging offenders to find jobs and turn their lives around. But the complicated bill worries others in the criminal justice system, including prosecutors.

The bill -- authored by State Rep. Jud McMillan, a Republican representing House District 68 -- was passed in the Indiana House and is awaiting a vote in the Senate.

It seeks to give those convicted of certain offenses a second chance by easing the path to expungement for some misdemeanor and felony convictions, sealing certain felony records from the public several years after a sentence is served.

Prosecutors across the state asked lawmakers to amend large portions of the bill that was initially opposed by the Indiana Prosecuting Attorneys Council. Yet some prosecutors and judges still call the bill problematic, saying it's overly complicated, could burden the courts and erase records that shouldn't be erased.

And at the center of the debate is the question: Does the public's right to know trump an individual's right to a clean slate?"

There is much more to read in this story. House Bill 1482 is slated to be read a second time on the Indiana Senate floor Monday afternoon.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Law

Ind. Courts - "Mulberry resident follows sovereign citizen doctrine"

Sophia Voravong of the Lafayette Journal Courier had a good story April 1st that the ILB missed earlier. Some quotes from the lengthy story:

[ Mulberry resident Jim Sanders] considers himself a “sovereign man” or a “freeman” — an ideology that has slowly gained traction across the United States and asserts that American-born citizens answer only to independent authority and not the government.

Its followers rely largely on common law to justify why they’re exempt from certain rules and regulations, such as speed limits and vehicle registration requirements.

“The U.S. Supreme Court has ruled that we are sovereign people, a sovereign nation made up of kings and queens having no subjects,” Sanders said, referencing a portion the U.S. Supreme Court case Chisholm v. Georgia. “Subject only to God, the Constitution and ‘lawful laws.’

“The Supreme Court has made many rulings … you can’t take a right and turn it into a privilege and make you get a license and charge you a fee for it,” he said. “They’ve also made a ruling that you have the right to travel freely and unencumbered.”

But Sanders is quick to note that he is not part of any larger sovereign citizen movement or group and does not support acts of violence that have been committed by some well-known sovereign citizens, such as Oklahoma City bombing conspirator Terry Nichols.
On FBI's radar

The FBI considers sovereign-citizen extremists to be domestic terrorists who may turn violent if their ideology is threatened.

“Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor. They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency,” an FBI law enforcement bulletin states.

“However, a closer look at sovereign citizens’ more severe crimes, from financial scams to impersonating or threatening law enforcement officials, gives reason for concern. If someone challenges (e.g., a standard traffic stop for false license plates) their ideology, the behavior of these sovereign-citizen extremists, quickly can escalate to violence.”

The sovereign citizen movement is perhaps most visible within the court system, as its proponents use the ideology to challenge criminal charges or traffic tickets.

“They file this gibberish, paperwork with things in them that make no sense whatsoever and try to make them legal documents,” said Coffey, who first heard about the movement two years ago, during a conference she attended. * * *

Sanders said he has a valid driver’s license and registers his vehicle with the state.

But he admits to purposely trying to get pulled over by police, so that he can use the sovereign man ideology to challenge traffic tickets in court. Thus far, Sanders’ attempts in Tippecanoe and Clinton counties in recent months have not swayed jurors. * * *

Last November, following a jury trial that lasted roughly eight hours in Tippecanoe Superior Court 6, a jury found Sanders liable for driving 65 mph in a 50 mph zone — resulting in the $153 fine he paid Feb. 28.

It was the longest jury trial for an infraction over which Judge Michael Morrissey has presided.

“My right to travel freely on the highways and roadways was violated. My right to life, liberty and property was violated,” Sanders wrote in a request for the court’s record of the trial, so he can appeal to the Indiana Supreme Court. * * *

Growing popularity of the sovereign citizen movement and other anti-government movements prompted the U.S. Attorney’s Office for the Southern District of Indiana to hold a training course last Tuesday for prosecutors across the state.

Some Tippecanoe County deputy prosecutors attended the training.

“Sovereign citizens seem to be popping up quite frequently in central Indiana,” said Tim Horty, spokesman for the U.S. Attorney’s Office. “They pose problems for us with voluminous pleadings, convoluted pleadings that are problematic and sometimes overwhelming to prosecutors.”

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Courts

Ind. Courts - "A different court for vets?"

Rebecca S. Green reports in the Sunday Fort Wayne Journal Gazette about Allen County's consideration of creating a veterans court. Some quotes from the lengthy story:

Allen County already has a number of problem-solving courts – Drug Court, administered by Superior Court Judge Fran Gull; Re-entry Court, administered by Superior Court Judge John Surbeck; and a mental health-focused Restoration Court, administered by Circuit Judge Tom Felts.

Both Restoration Court and Drug Court are beginning to see veterans with mental health and substance abuse problems come through their doors.

Gull is looking at whether a Veterans Court would fit into her Drug Court program. The few veterans who have made their way to her courtroom have shown that they face some unique challenges.

Many, Gull said, suffer from untreated PTSD, which has played into their substance abuse problem – which then led to their offense and brought them to her court.

This summer, Gull and her entire Drug Court staff will attend a national conference on drug courts and attend workshops on veterans courts.

Indiana officials encourage counties with problem-solving courts to put veterans in their own separate track, Gull said.

Posted by Marcia Oddi on Monday, April 08, 2013
Posted to Indiana Courts

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

From Sunday, April 7, 2013:

From Saturday, April 6, 2013:

Posted by Marcia Oddi on Monday, April 08, 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 4/8/13):

Thursday, April 11th

Next week's oral arguments before the Supreme Court (week of (4/15/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/8/13):

Monday, April 8th

Friday, April 12th

This week's oral arguments before the Court of Appeals (week of 4/15/13):

Tuesday, April 16th

Thursday, April 18th

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, April 08, 2013
Posted to Upcoming Oral Arguments

Sunday, April 07, 2013

Ind. Law - Bills of interest to the judiciary heard in committee during Week 13 of the General Assembly

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

Posted by Marcia Oddi on Sunday, April 07, 2013
Posted to Indiana Law

Courts - "Cases in which a defendant with lesser culpability draws the harshest sentence are not uncommon in Arizona and elsewhere around the country"

The NY Times this weekend had a long story by Fernanda Santos headed "Less Culpable, but With Longer Sentences." A sample:

“In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system,” said Richard Dieter, the executive director of the Death Penalty Information Center in Washington, which tracks the number of executions across the country.

“If you give the prosecution some help,” Mr. Dieter said of defendants in such cases, “you’ll get something out of it.”

In 1972, the Supreme Court voted 5 to 4 to invalidate all death penalty laws in the country because they had been too arbitrarily applied. One of the concurring justices, Potter Stewart, wrote that the Constitution could not “permit this unique penalty to be so wantonly and freakishly imposed.” States moved to rewrite their statutes, narrowing their definition of first-degree murder or the number of aggravating factors used to define a capital crime. The idea was to make sure the death penalty would be reserved for the worst of the worst.

Posted by Marcia Oddi on Sunday, April 07, 2013
Posted to Courts in general

Law - "Taping of Farm Cruelty Is Becoming the Crime"

That is the headline to this long, front-page story in the Sunday NY Times, reported by Richard A. Oppel, Jr. The story begins:

On one covert video, farm workers illegally burn the ankles of Tennessee walking horses with chemicals. Another captures workers in Wyoming punching and kicking pigs and flinging piglets into the air. And at one of the country’s largest egg suppliers, a video shows hens caged alongside rotting bird corpses, while workers burn and snap off the beaks of young chicks.

Each video — all shot in the last two years by undercover animal rights activists — drew a swift response: Federal prosecutors in Tennessee charged the horse trainer and other workers, who have pleaded guilty, with violating the Horse Protection Act. Local authorities in Wyoming charged nine farm employees with cruelty to animals. And the egg supplier, which operates in Iowa and other states, lost one of its biggest customers, McDonald’s, which said the video played a part in its decision.

But a dozen or so state legislatures have had a different reaction: They proposed or enacted bills that would make it illegal to covertly videotape livestock farms, or apply for a job at one without disclosing ties to animal rights groups. They have also drafted measures to require such videos to be given to the authorities almost immediately, which activists say would thwart any meaningful undercover investigation of large factory farms.

Critics call them “Ag-Gag” bills.

Deep into the story is this:
In Indiana, an expansive bill became one of the most controversial of the state legislative session, drawing heated opposition from labor groups and the state press association, which said the measure violated the First Amendment.

After numerous constitutional objections, the bill was redrafted and will be unveiled Monday, said Greg Steuerwald, a Republican state representative and chairman of the Judiciary Committee.

The new bill would require job applicants to disclose material information or face criminal penalties, a provision that opponents say would prevent undercover operatives from obtaining employment. And employees who do something beyond the scope of their jobs could be charged with criminal trespass.

An employee who took a video on a livestock farm with his phone and gave it to someone else would “probably” run afoul of the proposed law, Mr. Steuerwald said. The bill will apply not just to farms, but to all employers, he added.

Nancy J. Guyott, the president of the Indiana chapter of the A.F.L.-C.I.O., said she feared that the legislation would punish whistle-blowers.

Nationally, animal rights advocates fear that they will lose a valuable tool that fills the void of what they say is weak or nonexistent regulation.

ILB: Last week was the deadline for House bills in Senate committees. This Monday, I believe, is the last day for Senate bills in House committee. As of this writing, three House committees are meeting on Monday, Ways & Means, Public Health, and Judiciary.

Judiciary will meet at 10:30 AM in Room 156-D, and SB 373 is on the agenda. You likely will be able to watch the meeting here. Here is the current version of the bill; the redrafted version broadening the application of the proposed law, discussed in the NYT story, is not available.

For more, see this ILB post from April 5th, linking the ag-gag and fenced-in deer hunt bills.

Posted by Marcia Oddi on Sunday, April 07, 2013
Posted to General Law Related

Friday, April 05, 2013

Courts - "Judge Strikes Down Age Limits on Morning-After Pill"

Pam Belluck of the NY Times has an article on today's ruling by a federal district judge in Brooklyn. Some quotes from the long article:

A federal judge ruled Friday that the government must make the most common morning-after pill available over the counter for all ages, instead of requiring a prescription for girls 16 and younger. In his ruling, he also accused the federal government of “bad faith” in dealing with the requests to make the pill universally available, and said its actions had been politically motivated.

The decision, on a fraught and politically controversial subject, comes after a decade-long fight over who should have access to the pill and under what circumstances. And it counteracts an unprecedented move by the Obama administration’s Health and Human Services secretary, Kathleen Sebelius, who in 2011 overruled a recommendation by the Food and Drug Administration to make the pill available for all ages without a prescription.

In a decision in a lawsuit filed by advocates, the judge, Edward R. Korman of Federal District Court, ruled that the government’s refusal to lift restrictions on access to the pill was “arbitrary, capricious, and unreasonable.”

Judge Korman ordered the F.D.A. to lift any age and sale restrictions on the pill, Plan B One-Step, and its generic versions, within 30 days.

“More than 12 years have passed since the citizen petition was filed and 8 years since this lawsuit commenced,” the judge wrote. “The F.D.A. has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster.”

He added, “The plaintiffs should not be forced to endure, nor should the agency’s misconduct be rewarded by, an exercise that permits the F.D.A. to engage in further delay and obstruction.”

The F.D.A. and the Department of Health and Human Services declined to comment on the ruling or the judge’s harsh criticisms on Friday morning or to indicate whether the government would file an appeal, saying the decision, which was issued in the Eastern District of New York, was being reviewed. “The Department of Justice is reviewing the appellate options and expects to act promptly,” said Allison Price, a department spokeswoman.

Here is the 59-page opinion in Tummino, et al v. Hamburg.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Courts in general

Ind. Courts - Supreme Court receives certified question from 3rd Circuit re racino slots

A copy of the April 8th issue of the subscription-only weekly newsletter, Indiana Gaming Insight, leads with a long story headed "3rd Circuit punts tax Qs back home."

For background, see this June 25th, 2012 entry in the Indiana Tax Reporter, headed "Delaware Deciding Significant Issues of Indiana Tax Law in Casino Bankruptcy; Indiana Supreme Court Denies Transfer to Hear Matter."

A few quotes from the long story in Gaming Insight:

In case you were waiting on the Tuesday, April 23 oral argument before the U.S. Court of Appeals for the Third Circuit in Philadelphia in In re: Indianapolis Downs LLC, No. 12-1582, you should know that the case was removed from the federal appellate court’s calendar last month at the direction of the court.

But the reason for the cancellation of the oral argument is of immense interest: the court pulled the plug because it had decided to certify to the Indiana Supreme Court the question at the heart of the Indiana Department of Revenue’s appeal of the controversial ruling by the U.S. Bankruptcy Court for the District of Delaware on the 15% racino slot wagering tax set-aside: “Are the funds that racinos must distribute pursuant to Ind. Code § 4-35-7-12 included in ‘adjusted gross receipts received’ for purposes of the Graduated Wagering Tax, Ind. Code § 4-35-8-1?”

Here is a copy of the 3rd Circuit Petition for Certification of Question of Law sent to the Indiana Supreme Court, dated March 1, 2012.

The Gaming Insight story ends the suggestion that because:

as the Senate budget architect, Senate Committee on Appropriations chair Luke Kenley (R) of Noblesville, explained it, the reduction [in the Senate version of the budget unveiled Thursday] memorializes the private settlement reached between the Daniels Administration and the racinos over the disputed 15% set-aside to the horsemen ...
the issue posed to our Supreme Court may be soon mooted by our General Assembly's action.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Kentucky Gov. Steve Beshear will allow hemp bill to become law"

Interesting story in the Louisville Courier Journal.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to General Law Related

Ind. Decisions - More on "Judge Tinder finds his own opinion persuasive"

Updating this ILB entry from this morning, a long-time reader writes:

In my new role as "gadfly" I must take issue with your [earlier reader's] comments about this case. I agree that it is of great interest to evidence law "groupies", but it is also a remarkable use of "set theory" and "logic" to parse out the links of hearsay, "totem pole" hearsay, and "business records". This case should be mandatory reading for every lawyer who works in a court room, and every law student.

And, as noted by Judge Tinder, the horrible circumstances of the case could not overcome the intricacy of the oft lamented "hearsay rule".

I would suggest you tell your readers this is a "must read".

ILB: The ruling, again, is yesterday's 7th Circuit opinion by Judge Tinder in the case of Jordan v. Binns.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Opposition building to fenced-in deer hunts; Senate chief vows to kill it" Impact of the ag-gag bill ...

Niki Kelly has the story today in the Fort Wayne Journal Gazette. Some quotes:

Senate President Pro Tem David Long is wading again into the debate over high-fenced deer hunting in Indiana, saying the provision inserted into a Senate bill while in House committee will be removed.

The Fort Wayne lawmaker said a fellow senator who previously worked at the Indiana Department of Natural Resources has helped educate him on the issue, including showing him a video that is appalling. * * *

Last year, Long similarly quashed a move to legalize canned hunts. That bill would have legalized the activity completely.

The amendment added to Senate Bill 487 this year focused on legalizing only five existing hunting preserves caught in a legal and regulatory quagmire.

It faces a full House vote next week before the Senate could see the legislation again. * * *

Gov. Mike Pence said Thursday he would be open to legislation allowing the five existing preserves to continue operating, though with appropriate standards in place.

“My focus is on jobs in the Hoosier State. And I’m open to allowing these small number of rural businesses to continue to remain open,” he said.

Hunters, wildlife and conservation groups also held a news conference Thursday urging defeat of the bill.

Ryan Sabalow has a similar story today in the Indianapolis Star. He has a similar quote to that I've highlighted in Kelly's story:
Long compared the regulations preventing hunters from shooting deer trapped behind fences to laws prohibiting dog fights. He said his position against the practice was solidified when shown an “appalling” video by Republican Sen. Michael Crider, a former Indiana conservation officer. Long said the video showed “docile” farm-raised deer being shot by hunters paying $20,000 for the privilege.
ILB: So the obvious question here is, would this video even have been possible if we had the ag-gag bill on the books?

Doug Masson's Blog yesterday pointed out that the ag-gag bill, SB 373, has been recommitted to House Judiciary. This is in line with earlier reports that Speaker Bosma has constitutional concerns about the bill.

However, as the ILB pointed out in an earlier post, passage this year and the subsequent ratification of SJR 7, which creates a constitutional right to hunt, fish, and farm, could make enactment of statutes such as the two detailed above, unnecessary. Currently, SJR 7 also is in House Judiciary.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Indiana Law

Courts - "Federal district judge in Brooklyn lifts age restrictions on over-the-counter sales of morning-after pill"

Debra Cassens Weiss of the ABA Journal Blog has the story, along with a link to the opinion.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Courts in general

Ind. Law - Joe Donnelly speaks in support of marriage equality

Well, not exactly in person, but in a Facebook entry posted a few minutes ago:

“In recent years, our country has been involved in an important discussion on the issue of marriage equality. While serving in the House of Representatives, I had the opportunity to act on a core belief of mine: we are a stronger country when we draw on the strengths of all Americans. I voted to repeal ‘don't ask, don't tell’ and was an original supporter of the bill that would make it illegal to discriminate against someone in the workplace because of their sexual orientation. It is also for that reason that I oppose amending either Indiana’s or our nation’s constitution to enshrine in those documents an ‘us’ and a ‘them,’ instead of a ‘we.’ With the recent Supreme Court arguments and accompanying public discussion of same-sex marriage, I have been thinking about my past positions and votes. In doing so, I have concluded that the right thing to do is to support marriage equality for all.”
-Joe

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Indiana Law

Ind. Law - More on "Argument over state’s role in immigration enforcement not over"

Updating this ILB entry from April 1st, Maureen Hayden reports today in the Kokomo Tribune:

Supporters of a national coalition of conservative clergy, law enforcement and business leaders are calling on Indiana lawmakers to roll back the state’s ban on in-state college tuition for the children of immigrants who came here illegally.

The ban was put into place two years ago, as Republicans in the Indiana Statehouse were pushing a massive anti-immigration bill that has since been partially struck down.

“From a legal status, they are aliens,” said Glenn Tebbe, executive director of the Indiana Catholic Conference. “But they are not aliens to the our human family.”

Tebbe, along with other supporters of a national network known “Bibles, Badges and Business for Immigration Reform,” came out in support of Senate Bill 207 during an event Wednesday at the Central Library in Indianapolis.

The legislation, which went to the House Committee on Education Thursday, only applies to undocumented students who were enrolled in college when the ban went into effect in 2011.

Some key Republican supporters of the bill, including House Education Committee Chairman Bob Behning, have been working to expand the bill to cover more students.

Tebbe called it a critical piece of legislation that conservatives should support. “This is a moral issue,” he said.

Supporters of the in-state tuition ban argue it doesn’t deny access to college for undocumented students. But opponents like Tebbe argue that it creates a huge obstacle

because it significantly boosts the cost of tuition. The out-of-state tuition rate is up to three times higher than the in-state rate.

Angela Smith Jones, director of public policy for the Greater Indiana Chamber of Commerce, urged opponents of the tuition ban to contact Republican leaders who control the Statehouse.

“Too often, those of us who are on the right side of whatever the issue is, we stay silent,” she said. “Those on the opposite side of this issue have the loudest voice.”

Megan Ritter, director of public policy for the Indiana Farm Bureau, said laws that block access to education “are creating an underclass that doesn’t need to be there.”

SB 207 remains in the House Education Committee; the final day for bills to move out of committee in the House is approaching - the deadlline was yesterday, April 4th, in the Senate.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Indiana Law

Ind. Decisions - "Judge Tinder finds his own opinion persusasive"

The ILB has received this note from a reader, re yesterday's 7th Circuit opinion by Judge Tinder in the case of Jordan v. Binns (3rd opinion):

A light-hearted observation about the 7th Circuit’s decision in Jordan v. Binns (an opinion that only an evidence professor would find interesting), authored by our own Judge John Tinder. At pages 8-9, he discusses the only authority cited for a particular point, a district court decision called In re Greenwood Air Crash. He acknowledges that the district court decision is not binding, “but our analysis of the issue leads us to the same conclusion ...”.

Not too surprising, as the district judge who wrote that decision was none other than -- Judge Tinder!

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Gammage appointed St. Joe Circuit Court magistrate"

Quotes from a story Madeline Buckley reported April 3rd in the South Bend Tribune:

In a way, obtaining a judgeship has been a dream 20 years in progress for Andre Gammage.

Gammage made the shortlist for a Superior Court bench vacancy four times before St. Joseph Circuit Court Judge Michael Gotsch appointed him a magistrate judge on Wednesday.

He narrowly lost an election for judge of the St. Joseph Probate Court in the general election last fall.

The managing partner for Gammage & Berger will replace current Magistrate Judge Elizabeth Hurley on May 3.

A graduate of Valparaiso University and Valparaiso Law School, Gammage also serves as an administrative law judge for the city's Department of Code Enforcement. He was previously a deputy prosecutor and a public defender.

He is the third black attorney to serve as a judge in St. Joseph County.

Early in his career as an attorney, Gammage submitted his name for a couple of bench openings on the county's Superior Court in the early 1990s, and the St. Joseph County Nominating Commission selected him as a finalist twice.

In fact, he was a finalist -- along with Gotsch -- for the seat held by St. Joseph Superior Court Judge John Marnocha.

But another vacancy came up after that, and he chose not to apply again.

"I began to grow my practice," Gammage said. "I didn't pursue it." * * *

And now, Gammage said, his children are grown too and are attending college.

Because his children's educational futures are secure, Gammage said this was the right time to again pursue a judgeship.

In recent months, the St. Joseph County Nominating Commission selected him as a finalist for two bench openings on the Superior Court.

"I have other talents at this point in life that are better served on the bench," Gammage said in an interview Wednesday.

As a Circuit Court magistrate, he will handle many divorce and child custody cases. The Circuit Court handles mostly civil cases.

During his campaign for the Probate Court bench, it was revealed that Gammage had accrued more than a hundred parking tickets in the city.

A Tribune story showed that Gammage received a total of 153 parking tickets for parking beyond the two- or one-hour time limits allowed on streets near the St. Joseph County courthouse from 2008 to 2012.

Gammage eventually paid the tickets after multiple notices from the city throughout the years, according to Tribune reporting.

Asked about the issue, Gammage reiterated an apology he gave at the time.

"I've served the community, strived to be perfect and continue to strive every day to be perfect but I've made mistakes," Gammage said.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Indiana Courts

Courts - "Judicial selection should return to its roots"

That was the heading of a column published March 29th in USA Today, authored by G. Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University-Camden, and Brian Fitzpatrick, professor of law at Vanderbilt Law School. Here are some quotes from the article:

Initially, most states selected and retained judges as the U.S. Constitution prescribes for federal judges: appointment by elected officials with life tenure. Nothing has changed at the federal level, but nearly all the states formally abandoned life tenure early on, and since then have gone through three reform movements: first to partisan elections, then to nonpartisan elections, and last to the so-called "Missouri Plan" (also known as "merit selection").

What is the Missouri Plan? It is selection of judges by a small commission followed by the functional equivalent of life tenure. A nominating commission first submits a list of names to the governor, who must appoint judges from that list. In most states, the legal profession has a disproportionate, sometimes dominating, voice on these commissions. Then, judges periodically stand for a retention vote before the electorate. But they have no opponents, and rarely lose.

Today, dissatisfaction with the Missouri Plan is growing. The Tennessee legislature recently approved a constitutional amendment that would replace it with a system like the one in the U.S. Constitution. In Kansas, Gov. Sam Brownback signed legislation to similarly replace it for the Court of Appeals (and the legislature may soon approve a constitutional amendment to do the same for the Supreme Court). Arizona, Oklahoma and even Missouri are also weighing proposals to scrap Missouri Plans. We believe the rest of the nation may not be far behind.

Why are people increasingly disenchanted with the Missouri Plan? One reason is that it has not delivered on its promises. Supporters insist that a commission of "experts" is less political and can pick better judges than voters or public officials. But scholars have found no evidence that these lawyer commissions ignore politics or pick better judges. Another reason is the lack of public accountability. If a judge is incompetent or corrupt or doesn't follow the law, what can citizens do? It is virtually impossible to defeat incumbent judges during retention votes because they have no opponents. It is also difficult to change who gets selected as a judge in the first place because so many commission members are selected by the bar rather than by voters or their elected representatives.

But if the Missouri Plan is bad, what is better? Sometimes the best solution to a problem is the one that has been in front of you all along. So it is here: we believe states ought to follow the lead of Tennessee and Kansas and return to the system in the U.S. Constitution.

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Courts in general

Ind. Gov't. - "Embattled LaPorte athletic director receives two awards for his work"

Marisa Kwiatkowski reported this week in the NWI Times that in a story that begins:

LAPORTE | Embattled LaPorte High School Athletic Director Ed Gilliland received awards this year for merit and distinguished service, according to the Indiana Interscholastic Athletic Administrators Association.

The awards were announced at a time that Gilliland faces criminal misdemeanor charges of failure of duty for not reporting an inappropriate relationship between a junior varsity volleyball coach and an underage girl, court records state.

He and head volleyball coach MaryBeth Lebo are accused of having reason to believe a relationship between the girl and Robert Ashcraft, a former girls assistant volleyball coach, was happening but not reporting it to law enforcement or child protective services between August 2007 and October 2008, court records state.

Ashcraft was found guilty in 2011 of three counts of sexual misconduct with a minor and one count of child seduction, court records show. He is serving a 21-year prison sentence.

Here is a list of earlier ILB entries mentioning "Gilliland".

Posted by Marcia Oddi on Friday, April 05, 2013
Posted to Indiana Government

Thursday, April 04, 2013

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

In U.S. v. Steven Dotson (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:

The defendant, arrested after reportedly having assaulted a woman and pointed a pistol at her, was prosecuted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was found guilty in a bench trial and sentenced to 188 months in prison. The only question presented by his appeal is whether the pistol was a firearm, defined (so far as bears on this case) as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon.” §§ 921(a)(3)(A), (B). The pistol is a Hi-Point .380 caliber semi-automatic. It was certainly designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken components which make it inoperable.” * * *

The question for us is whether nevertheless the defendant’s gun “is designed” to expel a projectile by means of an explosive. The district judge found that it is. * * *

The gun in this case, although in bad condition, neither was redesigned to be something other than a gun nor is so badly damaged that it can no longer be regarded as a weapon designed to fire bullets. And just as a very ill person can look entirely normal on the outside, the outward appearance of the defendant’s gun is normal. Designed to be a gun, never redesigned to be something else, not so dilapidated as to be beyond repair, the gun fits the statutory definition and the judgment must therefore be AFFIRMED

In U. S. v. GEOFFRIE ALLEN LEE DILL (SD Ind., Pratt), a 9-page opinion, Judge Williams writes:
Officers found methamphetamine and a loaded .38 Cobra handgun on Geoffrie Allen Lee Dill during a routine traffic stop and he was charged with various drug and firearm offenses. Following a two-day jury trial, the jury found him guilty. Dill’s sole argument on appeal is that the district court committed reversible error when it allowed an alternate juror to be present in the jury deliberation room. Dill’s attorney did not object to the alternate’s presence at the time, but now argues that it affected his substantial rights at trial. Federal Rule of Criminal Procedure 24(c)(3) provides that a “court may retain alternate jurors after the jury retires to deliberate” but the court “must ensure that a retained alternate does not discuss the case with anyone.” Though the parties agree that the rule prohibits alternates from deliberating with the regular jury, Dill has offered no evidence to suggest that the alternate juror participated in deliberations. Since there was no plain error here, we affirm Dill’s conviction.
In BETTY M. JORDAN and THEODORE R. JORDAN v. KELLY D. BINNS and U.S . XPRES S, INC. (SD Ind., Lawrence), a 33-page opinion, Judge Tinder writes:
This diversity action arises out of a tragic accident in which Betty Jordan ultimately lost both of her legs at the knees after the motorcycle she was operating on an interstate highway collided with a semi tractor-trailer operated by Kelly Binns. Betty and her husband, Ted Jordan (collectively, the Jordans or the plaintiffs), sued Binns and his employer, U.S. Xpress, Inc. (collectively, the defendants), for negligence and loss of consortium under Indiana law. A jury trial resulted in a defense verdict. The Jordans seek a new trial on grounds that several of the district court’s evidentiary rulings ran afoul of the rule against hearsay, Fed. R. Evid. 802. We affirm.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "LaPorte County Jail turns to video visitation"

Fascinating. Stan Maddux of the NWI Times reports:

LAPORTE | People will soon be able to visit loved ones in the LaPorte County Jail from a computer screen without leaving home.

The LaPorte County Commissioners approved a three-year contract Wednesday with Securus Technologies to provide video visitation at the jail.

There will be no cost to the county with Securus footing the entire $250,000 installation cost, said LaPorte County attorney Shaw Friedman.

Sheriff Mike Mollenhauer said loved ones from any location will be charged $20 for 20 minutes to visit an offender from their personal computer.

Each cell block will have a kiosk and offenders will be directed from their cells to the kiosk for visitation during a set time period.

He said personal visits with loved ones and offenders separated by a glass wall will be terminated, saving on the cost of staffing those visitations.

Mollenhauer said the county spent about $400,000 over the last six years installing the wiring needed to operate video visitation.

He said those dollars were taken out of a fund derived from the sale of snacks and other products offenders can purchase from the jail commissary.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Government

Ind. Law - "Reject cynical bill to ‘protect’ livestock"

The ag-gag effort is not limited to Indiana, it appears to be part of a nation-wide effort. But it may be being sold differently in different states. For example, here is an editorial from the Riverside, California Press-Enterprise that begins:

State law should not address wrongdoing by targeting those who report it. A new bill purports to fight animal abuse, but takes direct aim at people who uncover the misconduct. That logic shows the bill is more about protecting the agriculture industry than animals — and legislators should reject this misguided measure.

Assemblyman Jim Patterson, R-Fresno, is pushing AB 343 at the behest of the California Cattlemen’s Association. The bill would require anyone who photographs, records or videotapes animal cruelty to provide copies of the material to local law enforcement within 48 hours — or face a fine of $250.

The ostensible purpose of the legislation is to ensure prompt official attention and a quick end to any mistreatment of animals. But cracking down on the people who expose abuses is an odd approach to reaching that goal. The bill seems more intent on avoiding embarrassing revelations about agricultural misconduct than ensuring humane treatment of animals.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Law

Ind. Decisons - Supreme Court decides one today

In Daniel Ray Wilkes v. State of Indiana, a 20-page, 5-0 opinion, Chief Justice Dickson writes:

The defendant, Daniel Ray Wilkes, has appealed the post-conviction court's denial of his claim that he was deprived of his constitutional rights to an impartial jury and effective assistance of counsel. We affirm the post-conviction court.

The defendant was convicted by a jury of the 2006 murders of Donna Claspell and her two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike. The State sought the death penalty and, in the penalty phase of the trial, the jury found all four charged statutory aggravating circumstances and that the aggravating circumstances outweighed the mitigating circumstances but reached no agreement on a sentencing recommendation. In accordance with statute, Ind. Code § 35-50-2-9(f), the trial court then conducted the sentencing, independently found that the aggravating circumstances outweighed the mitigating circumstances, and sentenced the defendant to death. The defendant appealed, and we affirmed. Wilkes v. State, 917 N.E.2d 675 (Ind. 2009).

The defendant then petitioned for post-conviction relief on various grounds. The post-conviction court denied relief on all but one of the defendant's claims, modifying the defendant's sentence from death to life imprisonment without the possibility of parole. While succeeding in obtaining relief from his death sentence, the defendant now appeals from the denial of his addi-tional post-conviction request for new trial, claiming (a) that his trial counsel were constitutional-ly ineffective for failing to fully investigate and present certain exculpatory evidence; (b) that his trial counsel were constitutionally ineffective for failing to question a specific juror ("Juror A") during voir dire; (c) that his trial counsel were constitutionally ineffective for inadequately pre-serving for appeal the defendant's objection to the trial court's time limitation on voir dire there-by depriving the defendant of an impartial jury; (d) that, by declining to fully answer two ques-tions on the juror questionnaire, Juror A committed misconduct and deprived the defendant of his right to an impartial jury; and (e) that the post-conviction court erred in denying the defend-ant's motion for discovery or in camera review of materials relating to Juror A's family.

Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). Post-conviction proceedings do not offer a super-appeal, "[r]ather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules." Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002) (citing P.-C.R. 1(1)); Ben-Yisrayl, 738 N.E.2d at 258. Those grounds are limited to "issues that were not known at the time of the original trial or that were not available on direct appeal." Ben-Yisrayl, 738 N.E.2d at 258. "Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata." Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Allen v. State, 749 N.E.2d 1158, 1163 (Ind. 2001)); see also Ben-Yisrayl, 738 N.E.2d at 258. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post-conviction proceedings. See Pruitt, 903 N.E.2d at 906; Allen, 749 N.E.2d at 1164, 1166; Ben-Yisrayl, 738 N.E.2d at 259.

Because the defendant is appealing from the denial of post-conviction relief, he is appeal-ing from a negative judgment and bears the burden of proof. Ben-Yisrayl, 738 N.E.2d at 258. Thus, the defendant "must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Id. "In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did." Stevens, 770 N.E.2d at 745. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law. Id. at 746 (citing Ind. Trial Rule 52(A)).

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 9 NFP)

For publication opinions today (7):

In Welty Building Co., LTD. and, Ohio Farmers Insurance Company v. Indy Federeau Company, LLC, et al. , a 21-page opinion, the sole issue was "whether the trial court properly concluded that Welty was not entitled to demand that its disputes with its subcontractors be submitted to arbitration." Judge Barnes concludes:

In sum, we conclude Welty’s conduct here has been very unlike conduct courts have found in other cases to constitute a waiver of the right to arbitration. * * *

Welty did not waive its right to insist upon arbitration of its disputes with the subcontractors. We reverse and remand for arbitration between Welty and the subcontractors, and for the trial court to assess whether the litigation between OFIC and the subcontractors should be stayed pending that arbitration.

In John V. Sebring v. Air Equipment and Engineering, Inc., Donaldson Co., Inc., William W. Meyer and Sons, Inc., Newton Conveyors, Inc. and Emerson Power Transmission Corp. , a 14-page opinion, Judge Crone writes:
John V. Sebring was injured while using a dust collector at his workplace in Fort Wayne, Indiana. A component of the dust collector was manufactured by Newton Conveyors, Inc. (“NCI”), a Texas corporation. Sebring sued NCI and several other defendants in Indiana. NCI filed a motion to dismiss for lack of personal jurisdiction, which the trial court granted.

Sebring appeals the dismissal. NCI’s role in the manufacturing process took place entirely within Texas, and the manufacturer of the final product unilaterally decided to ship the product to Indiana. Under these circumstances, NCI’s contact with Indiana is too attenuated to support jurisdiction. Therefore, we affirm.

In Deutsche Bank National Trust Co., as Trustee under the pooling and servicing agreement dated as of Nov. 1, 2002, Morgan Stanley ABS Capital I Inc. Trust 2002-HE3 v. Patricia Harris and Shawn Harris, a 23-page opinion, Judge Brown concludes:
For the foregoing reasons, we reverse the trial court’s April 28, 2011 Quiet Title Decree and the court’s March 28, 2011 entry dismissing the Bank’s lawsuit and remand with instructions that the trial court reinstate the Bank’s cause of action and for further proceedings consistent with this opinion.
In Thomas Porter v. State of Indiana , an 18-page opinion, Judge Brown concludes:
For the foregoing reasons, we affirm Porter’s conviction for operating a vehicle after a lifetime suspension, reverse the trial court’s suspension of Porter’s driving privileges for life, and remand for proceedings consistent with this opinion.
In Sterlen Shane Keller v. State of Indiana , a 35-page opinion, Judge Barnes concludes:
Keller waived his right to challenge the State’s amendment of the charging information. He has not shown that his right to a speedy trial was violated, that the admission of his statements to police was improper, or that the trial court abused its
discretion in instructing the jury. Pursuant to the single larceny rule, the convictions for theft of the Social Security check and for theft of the two rings must be vacated. Although there is sufficient evidence to support the auto theft, theft, and burglary convictions, there is insufficient evidence to support the failure to report a dead body conviction as charged by the State. Keller’s modified sentence of twenty-nine years does not violate the statutory limit on consecutive sentences, and he has not shown that his sentence is inappropriate. We affirm in part, reverse in part, and remand.
In Edward W. Clemons v. State of Indiana , a 12-page opinion, Judge Riley writes:
Appellant-Defendant, Edward Clemons (Clemons), appeals his conviction for Count I, possession of an animal for purposes of an animal fighting contest, a Class D felony, Ind. Code § 35-46-3-8; Count II, possession of animal fighting paraphernalia, a Class B misdemeanor, I.C. § 35-46-3-8.5; and Count III, promoting an animal fighting contest, a Class D felony, I.C. § 35-46-3-9.5. * * *

Based on the foregoing, we conclude that the State presented sufficient evidence to support Clemons’ convictions for possession of an animal for purposes of an animal fighting contest, possession of animal fighting paraphernalia, and for promoting an animal fighting contest.

In Robert Lawrence Albores, Jr. v. State of Indiana , an 8-page opinion, Chief Judge Robb writes:
Robert Lawrence Albores, Jr., appeals his conviction of murder, a felony. Albores raises one issue for our review: whether the trial court abused its discretion by 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):

R.D. v. A.W. & M.W. (NFP)

In Re: The Paternity of B.L.E.; M.T.R. and M.J.R. v. A.E. (NFP)

NFP criminal opinions today (7):

In State of Indiana v. Bobby Walden (NFP), a 7-page opinion, Judge Riley "conclude[s] that the trial court abused its discretion by granting Walden’s motion to dismiss. Reversed and remanded.

Jordan Heimansohn v. State of Indiana (NFP)

Brian G. Sachs v. State of Indiana (NFP)

Rodney Juan Willis v. State of Indiana (NFP)

Aaron Lee Anderson, III v. State of Indiana (NFP)

James Rice v. State of Indiana (NFP)

Justin Deon Coates v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Disciplinary order on misuse of attorney trust account

In the Matter of Edgardo J. Martinez Suarez, issued April 2nd, is a 5-0 order approving the following discipline:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning on the date of this order, all stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:
(1) Respondent will maintain his trust account consistent with the practices set forth in a document entitled "Trust Account Management: Handling Client and Third Party Funds."
(2) Respondent's trust account will be monitored by a Certified Public Accountant approved by the Commission, who will make quarterly reports to the Commission.
(3) If Respondent violates his probation, the Commission will petition to revoke his probation. If his probation is revoked, the stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).
Notwithstanding the expiration of the minimum term of probation set forth above, Respondent's probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(17.1).

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "DOC is crying wolf at criminal code reform"

Yesterday the ILB posted this entry quoting from an Anderson Herald Bulletin editorial that began:

The Indiana General Assembly has been working on revamping the criminal code for more than a year. Many believe that we are putting too many people in jail who don't need to be there: low-level, nonviolent offenders, mostly related to drugs.

Now that a bill has been crafted, Gov. Mike Pence and his Department of Correction deputy commissioner Randy Koester are coming out against the bill, saying it would nearly double the inmate population in the next decade.

In response, a reader wrote to the ILB last evening:
You posted an editorial about the Governor and the DOC speaking out against the criminal code reform bill. The editorial seemed confused about why the bill would increase the prison population. The editorial also expressed confusion over why the Governor waited so long to oppose the bill.

I have a possible answer: because the current version of the criminal code reform bill is not the version that was originally proposed. The current version now includes a requirement that inmates serve 75%, not 50%, of the sentences that they receive. The current version also removes several important time cuts that inmates often earn to reduce their sentences.

Unless the sentencing ranges for the various felony levels are greatly reduced from the current ranges, inmates will actually spend longer in prison than they currently do for many offenses.

As much as it pains me to say this (!!), the Governor and the DOC are right.

The ILB has checked, and the reader is correct on the bill's changes.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Government

Ind. Law - "Panel approves stricter rules in midwife bill"

Updating earlier ILB entries on midwives, Niki Kelly of the Fort Wayne Journal Gazette has a long, thorough story today on the current status of HB 1135.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Law

Ind. Courts - FWJG opines on the Lake County judge selection bruhaha

But in a good way. Here are some quotes from the editorial:

The Supreme Court’s push for Lake County officials to resolve the matter themselves with the help of a mediator is understandable, and [Frank] Sullivan – a former Supreme Court justice intimately familiar with both the state’s legal system and its politics – is a good choice for mediator.

But there is also reason to question that decision. The judge seeking the transfer had never gone through the nominating process previously, and Lake County law makes clear that such a judge “is not eligible to be reassigned, rotated, or transferred to the other divisions of the court.” But he “may apply to fill a vacancy in another division of the court through” the nominating commission and gubernatorial appointment process.

The question in Lake County is not how that law should be interpreted. Lake County’s chief judge has simply said the law is unconstitutional and refuses to follow it.

The entire issue demonstrates the inconsistency in laws governing courts in Indiana counties. State law has 92 sections for dealing with local courts, one for each county. In Allen County, for example, Superior Court Judge Dan Heath could transfer from the civil to the family division to replace Judge Stephen Sims without going through the nomination process, as he would have had to in Lake County.

Allen Superior Court judges are chosen in non-partisan elections. But candidates in some other counties run on party label, and still others are chosen by nomination commissions. And while some of the laws reflect different needs in different counties, others are blatant political power plays.

This inconsistency was noted in a 2010 report by the Indiana Judicial Conference. “At least seven different selection processes exist in the State of Indiana,” the report noted. “This creates a confusing landscape for the average citizen and outside observer.”

And, apparently in the case of Lake County, for the judges themselves.

The current dispute may seem like yet another case of Lake County politics, but it has repercussions for the system of justice statewide. At the very least, it should cause Hoosiers and lawmakers to seek consistency – and fairness – in how judges are selected.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Courts

Ind. Decisions - Still more on the blogger Daniel Brewington appeal

At the end of this ILB entry from March 13th, which collected links to the filings in the Brewington appeal, the ILB wrote:

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.
Last evening Eugene Volokh, who also has been following the case at The Volokh Conspiracy, posted a link to the reply brief.

Here is a collected list of ILB "Brewington" entries.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. App.Ct. Decisions

Law - More on "Alabama Undermines its Post-Kelo Eminent Domain Reform Law"

Updating yesterday's ILB entry, which mentioned "what may have been [Indiana's] first test of its 'post-Kelo' statute with the ruling issued by a trial court Wednesday in a dispute over a Ball State taking of property through eminent domain," Nick Sibilla has this post for the Institute for Justice blog, discussing the Delaware County trial court ruling in the Ball State University -Hiatt Printing dispute.

ILB: The ILB would be pleased to post a copy of Circuit Court 5 Judge Thomas Cannon's ruling, if anyone has access to it.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Lake County prosecutors host mock trial to showcase technology"

Susan Brown reports in the NWI Times about cutting edge technology in the Lake County prosecutor's office.

Posted by Marcia Oddi on Thursday, April 04, 2013
Posted to Indiana Law

Wednesday, April 03, 2013

Ind. Decisions - Rare written dissent filed in transfer vacated as improvidently granted

Oral argument was held March 7th before the Supreme Court in the case of Andrew J. Humphreys v. State of Indiana. Here is the summary posted before the argument:

Andrew J. Humphreys v. State of Indiana (79S04-1212-CR-670) - In the Tippecanoe Superior Court, Humphreys was convicted of conspiracy to manufacture methamphetamine, dealing in methamphetamine, and possession of substances with intent to manufacture methamphetamine. He was also found to be an habitual offender. Citing Owens v. State, 929 N.E.2d 754 (Ind. 2010), the Court of Appeals rejected Humphreys’s argument that IC 35-50-2-8(b)(3), which limits application of the general habitual offender rule when the instant offense is a “drug offense,” applied to him. The Court of Appeals addressed other arguments, and in a memorandum decision, affirmed the trial court in part and reversed in part. Humphreys v. State, No. 79A04-1112-CR-677, slip op. (Ind. Ct. App. Sept. 24, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a Sept. 24, 2012 NFP COA opinion

A one-page published order dated March 28, 2013 has now been posted:
By order dated December 10, 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 not-for-publication memorandum decision, Andrew Humphreys v. State, No. 79A04-1112-CR-677 (Ind. Ct. App. Sept. 24, 2012), should be reinstated as a memorandum decision. See Appellate Rule 65(D). Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.
But the vote was 3-2, with Dickson, C.J., and David and Massa, JJ., concurring, and with Rush and Rucker, JJ., dissenting.

Furthermore, "Rush, J. dissents with separate opinion in which Rucker, J., concurs." The three-page dissent begins:

I respectfully dissent from vacating the grant of transfer. The Court of Appeals held that even though Defendant’s sentence for actually dealing methamphetamine may not be enhanced under our habitual offender statute, his sentence for conspiracy to deal may be. It based that conclusion on Owens v. State, 929 N.E.2d 754 (Ind. 2010), when Owens actually compels the opposite conclusion — not just because penal statutes must be strictly construed against the State, but as a matter of legislative intent. I would therefore reverse Defendant’s sentence enhancement.
The dissent concludes:
In sum, I would find that enhancing a sentence for conspiracy to commit an offense that could not itself be enhanced contravenes well settled principles of strict construction, misapplies Owens, and is contrary to legislative intent. Rather than permitting that result to stand, the Court should retain jurisdiction on transfer and reverse Defendant’s habitual offender enhancement.
ILB: In the ILB entry Monday on the transfer list for the week ending March 28, 2013, I commented: "Note that the vote on cases denied transfer is becoming more interesting with the new court makeup."

I was alluding to the fact that in 8 of the cases denied transfer, J. Massa was the lone vote objecting to denial of transfer in one case, J. Rucker in one, Justice David in one, and Justice Rush in four. In the eighth case, both J. Rush and J. David objected to the denial.

The totals: 24 cases were considered at the March 28th conference. Three were granted transfer. Thirteen were denied transfer, and in eight of those, denial of transfer was contested by at least one justice.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Alabama Undermines its Post-Kelo Eminent Domain Reform Law"

Indiana had what may have been its first test of its "post-Kelo" statute with the ruling issued by a trial court Wednesday in a dispute over a Ball State taking of property through eminent domain.

A post today
by Ilya Somin of The Volokh Conspiracy may provide some context. It begins:

In the aftermath of the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, which ruled that state and local governments could condemn property for transfer to private parties for “economic development,” 44 states passed eminent domain reform laws intended to curtail abusive condemnations. Many of the new laws only pretended to curb the use of eminent domain without actually doing so. But Alabama was one of the exceptions, passing one of the nation’s better post-Kelo reforms. Unfortunately, as John Ross of Reason explains, the Alabama state legislature has now largely reversed its post-Kelo reform law ...

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to General Law Related

Ind. Courts - "Judge Fee Pitches Renovated Courtroom To Commissioners"

From WLKI 100.3, this story Monday:

(ANGOLA) - Steuben Superior Court Judge William Fee asked County Commissioners on Monday to get the ball rolling in order to create more space in the second floor courtroom at the County Courthouse. Things were rather cramp in the courtroom during the recent Zao Burrell murder trial and Judge Fee said another high profile case is scheduled to go to trial soon. There were so many prospective jurors for the Burrell trial that it took a couple of days to select a jury because there was not enough room to seat everybody. There was also a discussion about making the courtroom more handicapped accessable. Commission Chair Ron Smith told the judge he would have his answer within 45 days after they have had a chance to discuss funding with the County Council.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Courts

Ind. Gov't. - "DOC is crying wolf at criminal code reform"

This editorial in the South Bend Tribune appears to have originated in the Anderson Herald Bulletin. Some quotes:

The Indiana General Assembly has been working on revamping the criminal code for more than a year. Many believe that we are putting too many people in jail who don't need to be there: low-level, nonviolent offenders, mostly related to drugs.

Now that a bill has been crafted, Gov. Mike Pence and his Department of Correction deputy commissioner Randy Koester are coming out against the bill, saying it would nearly double the inmate population in the next decade. * * *

Let's see if we understand the DOC's position: By reforming the criminal code to keep low-level offenders out of the prison system, the inmate population will rise by 20,000 in the next 10 years. Well, it certainly doesn't pass the logic test, so let's ask Koester why he says that. When the legislative committee did just that, Koester said he didn't have the information with him.

Seriously? He expects to go unprepared into a committee meeting, have no data to back up his claims and expect to be taken seriously. State Sen. Brent Steele called Koester's claim "ninja smoke." That's one way of putting it.

Despite the new opposition, Steele and his House co-author, Rep. Greg Steuerwald, both Republicans, plan on keeping the bill alive.

The point is, why did the governor and Koester take so long to object to this bill, which also stiffens some sentences for violent crimes? Your guess is as good as ours. But here are a couple of policy points to keep in mind.

Republicans are normally tough on crime: Do the crime and do the time, three strikes and you're out, etc. But Republicans are understanding the negative aspects of locking up nonviolent offenders. Besides wasted lives, the cost is enormous, and a state struggling with its budget needs to look at areas to cut.

A fracturing in the Republican Party seems evident during this session, first with the Pence-proposed 10 percent tax cut and now with criminal code reform. There seems to be a divide between Republicans who are fiscally conscious (supporters of the criminal code bill and opponents of the tax cut) and those who think the money is in seemingly endless supply (Pence and his legislator allies).

Another possibility could be looking ahead to more privatization of state prisons, a program started under Mitch Daniels. In order for private companies to run prisons and make a profit, they must keep an endless supply of inmates in which to bill the state. Low-level offenders or violent criminals, the company doesn't care because each body means money. The fewer bodies -- due to criminal code reform -- the less money.

But these are speculative reasons. The fact is, criminal code reform makes a lot of sense. The U.S.'s dubious distinction of being the world's top incarcerator is something that cries out for reform. In the big picture, Indiana's attempt at reform is just a ripple. Let's hope it spreads.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Government

Ind. Law - "Have you noticed a familiar face on Elkhart County billboards?"

Check out this story by Sharon Hernandez, in the Elkhart Truth, with photo. It begins:

ELKHART — You may have seen a familiar face while driving around Elkhart County these last few days.

The Elkhart County Prosecutor’s office has placed new billboards throughout the county announcing their revamped website.

The billboards, located on heavily-traveled roads such as U.S. 33, W. Franklin St. and Benham Ave. display a photo of Curtis Hill, Elkhart County’s prosecuting attorney, along with a short message or phrase. The bottom of the billboards have the address to the website, elkhartcountyprosecutor.com.

BTW, the website itself is also replete with photos of the prosecutor.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Law

Ind. Law - "Abortion restriction bill passes Indiana House: Bill could lead to Lafayette Planned Parenthood clinic no longer dispensing abortion-inducing drugs"

Here is Mary Beth Schneider's story on yesterday's action. It begins:

A bill that would block at least one Indiana clinic from dispensing abortion-inducing drugs passed the House today on a vote of 70 to 26, likely sending the measure to Gov. Mike Pence.

Sen. Travis Holdman, the Markle Republican who authored the bill, said he is “inclined” to go along with changes made in the House and send the bill directly to the governor. Those include the removal of any mandate that a woman have an ultrasound before an abortion.

Rep. Sharon Negele, the Attica Republican who sponsored the bill in the House, said physicians already do an ultrasound to determine the fetal age and whether any medical problems exist.

Holdman, in a statement, said: “My objective with this bill was to enact prudent safety regulations for abortion-inducing drugs and the clinics that offer them. These have previously not been regulated by our state, and I believe that places women’s lives at risk.”

Under legislative rules, the chamber where a bill originated — in this case the Senate — must concur with any changes made in the bill by the other chamber. Otherwise, the Senate and House negotiate differences in a final version in the final days of the session.

Senate Bill 371 would make any clinic that dispenses a drug that causes an abortion — such as RU 486 — meet the same standards as a surgery.

Those standards include wider halls and doorways, recovery rooms, surgical and sterilization equipment and other restrictions.

All that “just to give a pill,” argued Rep. Sue Errington, a Muncie Democrat who formerly worked at Planned Parenthood of Indiana.

Planned Parenthood has said that the bill will apply to only one clinic in Indiana, in Lafayette. If it cannot make the building changes that the bill requires by Jan. 1, the clinic would no longer be able to prescribe the abortion drug at that clinic, though it would remain open for other health services for women.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Term. of the Parent-Child Rel. of E.B., minor child, and T.S., biological father; T.S. v. Indiana Dept. of Child Services (NFP)

Christopher Snyder v. Classic Restaurant Services, LLC (NFP)

NFP criminal opinions today (4):

Albert Lee Baker v. State of Indiana (NFP)

John W. Taylor, IV v. State of Indiana (NFP)

Benjamin A. Hankins v. State of Indiana (NFP)

Jason R. Derry, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Some geek observations about HB 1175, the bill that allows agencies to charge for filling public record requests

This entry also could be headed, "Your bill that failed 3rd reading may not be dead after all, this year in the House and Senate some of you may try, try again."

On Feb. 26th the ILB posted an entry titled "Geek alert: The third-reading amendment," relating how the House leadership had permitted the use of substantive third-reading amendments in order to get bills passed on the last night for passage of bills out of the House. Niki Kelly reported:

[T]hird-reading amendments require unanimous consent for the body to hear, and usually are only technical in nature.

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

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

Although the House and Senate have rule books to govern their internal procedures, most of the rules, those that aren't based on constitutional requirements, can be suspended by a vote of the members.* But when that happens it is sometimes remarkable, as with the Kelly story related above.

Now it appears that the Senate has devised another way to save a bill which which has has failed third reading for lack of a constitutional majority.

HB 1175 failed passage by the Senate on March 26th by a vote of 23-23.

As I outlined in this March 27th post, there is a specific rule provision that covers this circumstance, Senate Rule 81(b). The bill is to be placed back on the next day's calendar under "the separate heading 'Rule 81(b) Bills and Joint Resolutions' and shall note the days remaining for action." Thereafter "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."

However, it appears that Senate Rule 81(b) (which is located in the Senate Rules dealing with Second and Third Reading of Bills) was not followed. Rather, the failed bill was reassigned to committee where it could be amended, and that there was no objection reported from any of those who opposed the bill.

The Action List for HB 1175 shows the following:

03/25/2013 -- S -- Third reading: failed for lack of constitutional majority; Roll Call 305: yeas 23 and nays 23
03/28/2013 -- S -- Pursuant to Senate Rule 68(b); reassigned to Committee on Tax and Fiscal Policy
What is Senate Rule 68(b)? It is found on p. 45 of the Senate Rules, in the section of the Rules relating to Committee Meetings and Reports:
68. (a) After the assignment of, but prior to the filing of a committee report on, a bill or resolution, a committee which has the bill or resolution under consideration may include in the report a recommendation for reassignment of the bill or resolution to another committee.
(b) A bill or resolution may be reassigned at any time by the President Pro Tempore.
The phrase "at any time" appears to have been stretched here beyond its contextual limits. IMHO.

Yesterday, April 2, the committee, the Senate Tax and Fiscal Policy Committee, amended the bill and passed it out, according to this story today by Ryan Sabalow of the Indianapolis Star.

Reportedly the reason the bill failed the first time was that people were not allowed by the bill to take photos of their records. From the Star story:

The senate Tax and Fiscal Policy Committee voted 9-1 to amend House Bill 1175 with language that allows people to use to cell phones or other hand-held devices to take pictures of their own documents such as property vital records while inside county recorders’ offices.

Last week, the Senate deadlocked on the bill after county recorders raised concerns that they’d lose revenue if people were taking pictures of documents instead of paying a $1-per-page fee, said Steve Key, the executive director of the Hoosier State Press Association.

So what is the takeaway here? Both the House and Senate majorities are finding ways that permit bills that fail 3rd reading the first time to be substantively revised and then put back up for another vote. If at first you don't succeed ...

______
*This is part of the "sausage being made" and is purely internal; a law may not be challenged because of a procedural failure during its passage through the General Assembly.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Law

Ind. Courts - "Legislators messing with St. Joe merit selection"

That is the headline to this editorial in today's South Bend Tribune that makes several good points:

Indiana's General Assembly members occasionally just can't leave a good thing be. St. Joseph County's merit selection process for Superior Court judges is a case in point.

State Rep. Tim Wesco, R-Osceola, on Monday offered a last-minute amendment to Senate Bill 518 that proposed to replace the current merit system with nonpartisan election -- as if that would take the politics out of it. The amendment also would have placed limits on campaign contributions, including a $10,000 cap from all sources -- as if that would have ruled out moneyed influence.

Thankfully, the amendment was defeated in the House on a 64-26 vote, with David Niezgodski, D-South Bend, the only St. Joseph County representative opposing it.

St. Joseph and Lake counties are the only two in the state that practice merit selection for judges. In St. Joseph County, qualified candidates submit their names to a Judicial Nominating Commission, a panel of attorneys and community members who vet them and recommend finalists to the governor. The governor makes the final choices of Superior Court judges who handle most all local criminal cases.

Last month, Gov. Mike Pence finalized two appointments to vacancies in St. Joseph Superior Court: Elizabeth Hurley and Steven L. Hostetler.

Like all merit-selected judges then, Hurley and Hostetler must stand for retention in the next election, and every six years thereafter.

There's an argument to be made that elected judges are more accountable to the people -- they are forced to defend their records against opponents. But that only works if voters have good information about their choices. The performance of judges is difficult for outsiders to evaluate though. In no small part that's because of the reluctance of lawyers and others to criticize these powerful figures. The result is that even elected judges sometimes prove unresponsive, incompetent and overstay their time on the bench.

The good of St. Joseph County's merit selection has outweighed the drawbacks since it was established in 1973. It gives voters a say on the nominating commission's informed decisions. And, voters have more reason to believe the judges are applying the law objectively rather than acting out of their desire for re-election.

The last run that state legislators made at overturning St. Joseph County's merit system was vetoed in 2009 by then-Gov. Mitch Daniels who rightfully concluded that St. Joseph County's model is "one to be emulated, not discarded."

What would make the system even better is greater transparency on the judges' performance.

The St. Joseph County Bar Association's annual judicial survey, which rates the judges in various categories, in recent years has provided a helpful measure of accountability. But more facts -- about caseloads, sentencing patterns and collaboration -- could help voters better exercise their due diligence when a retention question appears on the ballot. That's what the General Assembly ought to focus on. Instead of repealing St. Joseph County's merit selection process, the legislature should improve it.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Courts

Ind. Gov't. - "Licensing bill likely dead" - the "Eraser" bill

Adding to three interesting earlier ILB posts on SB 520, Maureen Hayden and Scott Smith have a long, fascinating story today in the Kokomo Tribune. Some quotes:

Legislation pushed by Gov. Mike Pence to eliminate licensing requirements for more than a dozen occupations is apparently dead, killed by a lack of support from both Republicans and Democrats in the General Assembly.

The legislation, Senate Bill 520, would have automatically “sunsetted” licensing requirements for a range of occupations, from real estate agents to cosmetologists. A watered-down version of Pence’s original proposal passed the Senate in February. But Senate Bill 520 won’t get a hearing in the House, according to both the bill sponsor and the chairman of the committee to which the bill was assigned.

State Sen. Randy Head, a Logansport Republican who was asked by the Pence administration to carry the bill, said legislators wanted to change the language of the bill to give the General Assembly the authority to determine which, if any, occupational licenses would be eliminated.

“The governor’s people disagreed with making that change,” said Head.

Pence’s office released a brief statement saying the legislation isn’t dead. But the bill is stopped in its tracks. The language in Senate Bill 520 would have to be inserted into another bill in the final week of the legislative session, when lawmakers meet in a conference committee to hash out details of final legislation, that would have to be voted on again by both chambers.

It’s unclear if there’s any support for that. Rep. Steve Stemler, a Democrat from Jeffersonville and chairman of the House Select Committee on Government Reduction, said he decided against hearing the bill due to the lack of support from legislators on both sides of the aisle.

Republican state Rep. Mike Karickhoff said the General Assembly rejected similar legislation last year, after people whose occupations would be affected protested against eliminating the licensing requirements.

“There’s been some deregulation take place, but I’d say we’ve hit a plateau because for two years in a row, the Legislature has stalled these efforts,” Karickhoff said.

Pence, who took office in January, put Senate Bill 520 on his legislative priority list this session and campaigned on the idea of eliminating a wide range of occupational licenses, calling them a deterrent to employment.

In his much-touted “Roadmap for Indiana,” Pence called for the creation of a regulatory committee “for the express purpose of reducing the number of occupational licenses.”

Dubbed the ERASER Committee (for “Eliminate, Reduce And Streamline Employee Regulation”), the appointed body was also to be tasked with a “sunrise” review of legislation creating any new occupational licenses. * * *

The bill’s original language, supported by Pence, would have set in motion a process to automatically eliminate licensing requirements for 35 different occupations. The Senate reduced that number to 13.

In the Pence version of the bill, the occupational licensing requirements would have been automatically sunsetted unless the General Assembly passed legislation to keep a specific occupational license in place.

Head said there were legislators in both the Senate and the House who wanted the opposite to happen. They wanted licensing requirements to continue unless the General Assembly voted to end a specific license.

Under Senate Bill 520, the occupations that faced the automatic elimination of licensing requirements included athletic agents, dietitians, professional geologists, home inspectors, interior designers, land surveyors, massage therapists, professional soil scientists, auctioneers, real estate brokers, certified surgical technologists, behavior analysts, cosmetologists, barbers, electrologists, estheticians and manicurists.

Republican state Rep. Ed Clere of New Albany is one of the legislators who expressed concern about the bill’s potential negative impact.

“At a time when we’re trying to find ways to help stabilize employment and promote job creation, we shouldn’t be doing anything that could cause additional uncertainty or disruption in any business.”

As the ILB noted in this Jan. 28th post, SB 520, if passed, would repeal IC 25-1-16, the current "Regulated Occupations Evaluation Committee" (ROEC), and replace it with the "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER). The permanent ROEC is the group that earlier recommended elimination of hairdresser and cosmetologist licensing, and it remains in operation.

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Government

Ind. Courts - "Magistrate named for vacancy at Allen court"

Recall this ILB post from Feb. 28th, headed "Longtime Allen Superior Court Magistrate Marcia L. Linsky resigned Tuesday." The post quoted reports, such as this one from the FW News-Sentinel, that "Linsky would often spend court time berating attorneys – a practice the attorney said shocked and puzzled relatives from another country who were visiting her courtroom."

Today Rebecca S. Green reports in the Fort Wayne Journal Gazette that:

The Allen County Superior Court criminal division has named an Allen County deputy prosecutor as the new magistrate for the court’s misdemeanor and traffic division.

In February, longtime Magistrate Marcia L. Linsky resigned. On Tuesday, Allen Superior Court Judge Fran Gull said the division hired Richard Karcher to fill Linsky’s seat on the bench. * * *

Karcher was the deputy prosecutor in Allen Superior Court’s Drug Court program since June 2011, when he replaced now-Allen Superior Court Magistrate Samuel Keirns.

“I think he’ll be a very good addition to the division,” Gull said of Karcher. “He has a good temperament for it.” * * *

Allen County Prosecutor Karen Richards was excited for Karcher. “He understands the way the court works,” Richards said. “He will be fair and have an even temperament and will do an excellent job on the bench.”

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Courts

Ind. Law - "Legislature set to invite gun makers to move to Indiana"

Dan Carden's story in the NWI Times reports on Senate Resolution 61, which passed out of the Senate Rules Committee 11-0 yesterday. The pull-quote:

"I want to see Indiana become the Silicon Valley of the firearms industry." State Sen. Jim Tomes, R-Wadesville, sponsor of the resolution

Posted by Marcia Oddi on Wednesday, April 03, 2013
Posted to Indiana Law

Tuesday, April 02, 2013

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

In KORANSKY, BOUWER & PORACKY, P.C. v. THE BAR PLAN MUTUAL INSURANCE CO. (ND Ind., Lee), a 25-page opinion, Judge Manion writes:

The law firm of Koransky, Bouwer & Poracky, P.C. represented a potential buyer in the purchase of a Rite Aid drugstore located in Lima, Ohio. Buyer and Seller executed the sales contract separately. Koransky & Bouwer misfiled the contract executed by Buyer, however, and Seller subsequently attempted to rescind the contract—which it characterized as an offer—because it had not timely received a copy of the contract executed by Buyer. When Seller’s efforts to avoid the purported contract ultimately proved successful, Buyer sent a “formal notice of claim” to Koransky & Bouwer. The law firm, in turn, sought coverage from its professional liability insurer, but that insurer concluded that Koransky & Bouwer was not entitled to coverage because it failed to properly notify the insurer of the mistake that ultimately led to the malpractice claim. Koransky & Bouwer filed suit in federal court for a declaratory judgment that the law firm was entitled to coverage, and both the insurer and the law firm moved for summary judgment. The district court granted the insurer’s motion and denied the law firm’s motion. Koransky & Bouwer appeals. We affirm.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Former Lake clerk about to lose law license"

Bill Dolan's report today in the NWI Times begins:

State officials have begun the process of suspending the law license of former Lake County clerk Thomas R. Philpot in the wake of his conviction for public corruption.

The Indiana Disciplinary Commission, an agency of the Indiana Supreme Court, will seek suspension of Philpot's future ability to practice law in the state. The request comes seven months after a federal jury found him guilty of felony theft and mail fraud.

For background start with this March 27th ILB entry headed "Ind. Decisions - More on: "Former Lake County Coroner and Clerk Thomas Philpot sentenced to 18 months for public corruption"."

BTW, the headline "Former Lake clerk about to lose law license" may be misleading, it generally takes some time for disciplinary matters to proceed.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Indiana Courts

Ind. Gov't. - "Panel votes to require armed protection at every Indiana public school"

Niki Kelly of the Fort Wayne Journal Gazette's story posted late this morning begins:

The House Education Committee voted 9-3 Tuesday to require an armed school protection officer in every Indiana public school.

An amendment containing the language was added to Senate Bill 1, which address voluntary school resource officers.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: S.B. (Minor Child) and W.G. (Father) v. The Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - A Review of the First Quarter of 2013 at the Indiana Supreme Court

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

During the first three months of the year, the Indiana Supreme Court granted transfer more liberally than it had last year and continued the trend of issuing a remarkably high percentage of unanimous opinions.

Indiana Supreme Court Transfer Dispositions: January 1, 2013-March 31, 2013
  FP cases NFP cases FP & NFP
CIVIL 10/38 (26.3%) 2/35 (5.7%) 12/73 (16.4%)
CRIMINAL 9/41 (22%) 4/97 (4.1%) 13/138 (9.4%)
ALL CASES 19/79 (24%) 6/132 (4.5%) 25/211 (11.8%)

The justices have been more liberal in granting transfer than they were last year, when transfer was granted in only 12.3% of civil cases and 6.1% of criminal cases during the April-December period. The grant rate increased in all categories but was especially notable in FP cases, which is nearly 50% higher than the 16.7% rate in 2012.

Although a grant of transfer remains more than five times more likely in a published opinion, transfer was granted in two NFP civil and four NFP criminal cases involving a variety of different issues.

The NFP civil cases involved child support and parenting time (Johnson) and whether a notice to appeal the denial of a motion to correct error was timely (Wells Fargo).

Three of the NFP criminal cases were on petitions from the defendant: (1) an interlocutory appeal challenging a vehicle stop (Kelly), (2) a juvenile’s challenge to a probation condition that he register as a sex offender (N.L.), and (3) a defendant’s duty to register as a sexually violent predator (Becker). The fourth case involves the State’s challenge to a sentence reduced by the Court of Appeals (Lynch).

Remarkable Unanimity in Opinions Continues

This January 29 post noted the remarkable unanimity (5-0 decisions) of Indiana Supreme Court opinions in the period since Justice Sullivan’s retirement. Nearly 95% (18/19) of opinions issued during the last five months of 2012 were unanimous. That trend has continued during the first three months of this year when 89% (16/18) of opinions were unanimous.*

The two non-unanimous opinions were:

Holiday Hospitality, a civil case involving the meaning of a contract term in which Chief Justice Dickson wrote a separate concurring opinion and Justice Rucker wrote a dissenting opinion; and Iltzsch, a criminal case in which the Chief Justice dissented on the basis that the State should not be allowed a second opportunity to prove restitution if an order is reversed on appeal for insufficient evidence.
_________________
*I have excluded from this analysis Dye, the Court’s only opinion on rehearing.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind Courts - Court’s Interest in Child Cases Not Always Matched By Speed in Their Resolution

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Appellate Rule 21(A) requires expedited consideration of appeals involving “issues of child custody, support, visitation, adoption, paternity, determination that a child is in need of services, termination of parental rights . . . .”

The delay between a trial court’s judgment in cases involving children and a resolution on appeal can be considerable. Some of the delay is attributable to the ninety days given to court reporters to prepare a transcript, a lengthy period for which alternatives are currently be explored in three separate pilot projects.

The Supreme Court’s March 7th M.L.B. opinion involving grandparent visitation came nearly two years after the trial court’s ruling in June of 2011. According to the online docket, a notice of appeal was filed July 6, 2011; the transcript was completed on October 6, 2011; briefing was completed on December 21, 2011; and the court of appeals did not issue its opinion until June 14, 2012. Transfer was granted on September 27, 2012, oral argument was held on December 7, 2012, and an opinion was issued three months later.

Perkison v. Perkison, an NFP Court of Appeals opinion involving parenting time, was decided January 25, 2012. The Indiana Supreme Court granted transfer on June 29, 2012, but did not hold oral argument until December 13, 2012. No decision has been issued nearly two years after the trial court’s June 16, 2011 ruling. Although “expedited” is a relative term, two years seems a long wait for an appellate resolution of a case involving children.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind. Law - More on: Canned hunting amendment passes in House committee today

Updating yesterday's ILB entry, here is a report in the LCJ from Tom Davies of the AP - it begins:

INDIANAPOLIS — Five game preserves around Indiana where hunters pay for a chance to shoot deer confined inside high fences would be allowed to stay open under a bill endorsed Monday by a House committee.

The measure, approved 6-2 by the House Natural Resources Committee, is the latest move in an 8-year-old court and legislative fight. The Indiana Department of Natural Resources ruled in 2005 that fenced hunting was illegal, but the existing preserves — including one in Harrison County — have remained open under a court injunction.

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to Indiana Law

Law - "Law school graduates aren't finding much on the employment docket"

This long story today by Maura Dolan in the Los Angeles Times is subheaded "The Internet and other technologies have reduced job openings for lawyers. Some graduates have joined in class-action lawsuits, alleging that schools lured them in with misleading reports of success." A quote:

Nearly 20 lawsuits — five of them against California schools — are being litigated at a time of dim employment prospects for lawyers. Much of the work once done by lawyers can now be done more quickly by computers.

Online services have made law libraries largely unnecessary, allowing corporations to do more work in-house. Software has sped the hunt for information needed in discovery and other legal tasks, and Web-based companies offer litigants legal documents and help in filling them out. Even after the economy improves, some experts believe the supply of lawyers will outstrip jobs for years to come.

From later in the story:
A total of 18 law schools around the country have been sued, and courts in other states have dismissed at least five of the suits, according to [Michael C. Sullivan, a lawyer representing the schools]. In California, which has strong consumer laws, courts have been more receptive. California judges have permitted three of the suits to proceed; two have not yet been heard.

The suits' success may depend on whether courts decide they should proceed as class actions on behalf of all graduates, rather than the named plaintiffs. They are modeled loosely after a wave of suits against trade and technical schools for allegedly misleading students about the value of their degrees. * * *

Already, the scarcity of legal jobs has caused law school applications to plunge. A national study of 2011 law graduates found that only 55% of them had law-related jobs nine months after graduation. Some experts believe bottom-tier law schools will be forced out of business and that even the prestigious schools will begin to limit the sizes of their incoming classes.

Indiana University law professor William D. Henderson
, citing census data, said law office jobs peaked in 2004. There were 50,000 more jobs that year than in 2010, he said.

At the same time, some legal services are being outsourced to such places as India, and Internet-based companies are offering consumers relatively inexpensive help navigating litigation.

Meanwhile, SBM Blog reports today that: "The first of fifteen lawsuits alleging fraudulent enticement filed against law schools across the country, including Michigan's Cooley Law School, has been dismissed by New York's highest court without comment."

Posted by Marcia Oddi on Tuesday, April 02, 2013
Posted to General Law Related

Monday, April 01, 2013

Ind. Courts - "New judge to hear retrial of boy, now 15, sentenced to prison as adult for murder"

Updating a long list of earlier ILB entries on the Paul Henry Gingerich case, Robert King reports this evening at IndyStar.com in a story that begins:

The judge who ruled that a 12-year-old boy should be tried for murder as an adult will not preside over a retrial of the case later this spring.

Judge Duane Huffer, a juvenile court judge in Kosciusko County, ruled in 2010 that the case of Paul Henry Gingerich should move to circuit court and the boy tried as an adult. It eventually led to Gingerich pleading guilty to a conspiracy to commit murder charge and him receiving a 25-year sentence, making him what is believed to be the youngest Hoosier ever sentenced to prison as an adult.

Whitley County Circuit Judge James Heuer, who handles juvenile and adult cases, will take over the case, which begins with the waiver hearing.

In December, the Indiana Court of Appeals ruled unanimously that Huffer erred by not giving Gingerich’s attorneys more time to prepare arguments that the case should stay in the juvenile system. That ruling was affirmed in March by the Indiana Supreme Court, again unanimously.

Indianapolis attorney Monica Foster, who successfully argued Gingerich’s appeals, requested a new judge.

“I just think that any time you’ve got a judge that’s been reversed it’s always good to start with fresh faces,” she said.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Indiana Courts

Ind. Decisions - "Appeals court affirms ruling against Clark County"

This AP story today in the Louisville Courier Journal reports on the COA opinion March 21st in Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer. From the story:

The Indiana Court of Appeals has upheld a ruling against Clark County, which was ordered to pay $865,000 for property taken by eminent domain for an airport expansion project.

The Clark County Board of Aviation Commissioners used eminent domain in 2009 to acquire property owned by Margaret Dreyer for an expansion project at the Clark County Regional Airport. Dreyer later sued the board, saying the appraisals used to determine the property value were wrong. She won that case and was awarded a judgment of $865,000.

Clark County appealed, arguing that the trial court did not have jurisdiction because the appraisals Dreyer used to make her case were not filed in a timely fashion.

On March 21, the appeals court rejected that argument and affirmed the lower court’s decision. The ruling said that an Indiana Supreme Court case that former county attorney Greg Fifer used to make his argument was “misleading.”

Fifer said he found that surprising.

“I don’t think the court of appeals can decide that a supreme court case that is supposed to be binding on the court of appeals is misleading, because I don’t think it is,” he said.

The ILB had a number of posts in 2012 under the heading "Clark airport loses eminent domain lawsuit, owes $600,000."

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions -Supreme Court issues Order for Mediation in Lake County Superior Court dispute [Updated]

In the dispute regarding the filling of the Lake County Juvenile Court seat vacated by Judge Bonaventura, State ex rel. Commons, et al. v. Pera, the Supreme Court has today issued an Order for Mediation. Some quotes:

This Court concludes that it is in the best interests of the parties to earnestly engage in mediation to seek a mutually agreeable resolution of their dispute, while this original action is pending. Accordingly, the Court DIRECTS as follows:

1. On its own motion pursuant to Indiana Appellate Rule 20, and as part of its inherent authority to manage the proceedings before it, this Court refers this action to mediation.

2. This Court hereby appoints the Hon. Frank Sullivan, Ir. (Ret.), to serve as mediator.

3. The mediator may invite the Indiana Attorney General or his designee to be present at mediation, pursuant to Indiana Alternative Dispute Resolution Rule 2.7(A)(1).

4. This Court expects the mediation process to begin promptly and to proceed with all due deliberate focus. To this end, the parties are afforded until May 13, 2013, within which to seek a mediated resolution of this dispute. The mediator is requested to submit a mediation report, in the form set out in A.D.R. Rule 2.7(E)(l), within ten (10) days after completion of the mediation process, but no later than May 23, 2013. If an agreement is reached, the parties shall file the agreement in the manner set out in A.D.R. 2.7(E)(2) with this Court within ten (10) days after completion of the mediation process, but no later than May 23,2013. This Court will then take the matter under advisement and issue any further order(s) as appropriate.

5. This Court retains jurisdiction over this original action during mediation but holds in abeyance its consideration of this original action, pending completion of mediation. However, the deadline for filing a brief opposing the writ, on or before noon, Indianapolis time, on Monday, April 8, 2013, remains in effect.

For background, see the March 21st ILB post headed "Supreme Court acts quickly in Lake County juvenile court dispute."

[Updated at 3:45 PM] Here is Marisa Kwiatkowski's new story about the mediation order in the NWI Times.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 28, 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 28, 2013. It is two pages (and 24 cases) long.

Three transfers were granted last week (also note that the votes on cases denied transfer is becoming more interesting with the new court makeup):

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Indiana Transfer Lists

Ind. Law - Canned hunting amendment passes in House committee today

Ryan Sabalow of the Indianapolis Star has the story here. It begins:

An Indiana House committee passed a legislative proposal today that could pave the way for the state’s five high-fence shooting preserves to stay open.

The House committee on natural resources voted 6-2 to amend Senate Bill 487 with language that grandfathers in shooting preserves that have operated since 2005. The facilities are condemned by critics as unsporting “canned hunts” since hunters pay thousands of dollars to shoot farm-raised deer inside a fenced enclosure. The committee’s members said they supported the measure because the preserves provide an economic boost to the state’s rural economy.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

Roche Diagnostics Operations, Inc. v. Marsh Supermarkets, LLC, is a 39-page, 2-1 opinion by Judge Riley in a dispute involving an 18-year sublease between Marsh and Roche and Roche's termination thereof. The opinion concludes:

Based on the foregoing, we conclude that (1) the trial court properly denied Roche’s cross-motion for summary judgment; (2) that the trial court properly granted Judgment in favor of Marsh; and (3) that the trial court did not abuse its discretion in awarding Marsh damages. Affirmed.

BAILEY, J. concurs
CRONE, J. dissents with separate [1-page] opinion [that begins]: I respectfully dissent. I believe that the trial court should have granted Roche’s summary judgment motion because the Sublease and Extension Letters are unambiguous and authorize Roche to terminate the Sublease at the time and in the manner that it did.

In Michael L. Curtis v. State of Indiana , a 5-page opinion, Judge Sharpnack writes:
Following our opinion in Curtis v. State, 981 N.E.2d 625 (Ind. Ct. App. 2013), which reversed the trial court’s denial of Michael Curtis’s motion for relief from judgment and remanded with instructions to vacate the order authorizing forfeiture of his truck, the State petitions for rehearing. We grant rehearing to address the State’s argument but still conclude that the trial court abused its discretion by denying Curtis’s motion. * * *

We acknowledge the Indiana Supreme Court’s statements that the owner of a vehicle need not be charged or convicted on the underlying offense for forfeiture to occur. See Serrano v. State, 946 N.E.2d 1139, 1140 (Ind. 2011); Katner, 655 N.E.2d at 348. Indeed, a person’s vehicle may be forfeited even if it was another person who used the vehicle to transport stolen property, so long as the owner of the vehicle knew or had reason to know that the vehicle was being used in that illicit manner. Nevertheless, we find that where the underlying offense actually charged is, as here, fraud (knowingly or intentionally selling a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording) and not theft (knowingly or intentionally exerting unauthorized control over another person’s property with intent to deprive that person of any part of its value or use) or conversion (knowingly or intentionally exerting unauthorized control over another person’s property), there is no predicate for forfeiture. We therefore affirm our original disposition.

NFP civil opinions today (5):

Daniel G. Suber & Associates v. Edward Smith (NFP)

Edward E. Wroblewski v. Linda M. (Wroblewski) Cain (NFP)

Trivest Partnership, L.P. v. James Gagan, Fred Wittlinger, Jack Allen and Eugene Deutsch (NFP)

Fayette County Board of Commissioners v. Howard Price (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: W.S.; B.B. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Aaron Ingle v. State of Indiana (NFP)

Rickie B. Gilliam v. State of Indiana (NFP)

Charles Dunmore v. State of Indiana (NFP)

Baldemar Lopez Saldana v. State of Indiana (NFP)

Andrew Ray Golden v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS addresses the symptom, rather than the real problem

Long lines formed to watch the marriage equality arguments before the SCOTUS last week. There was much interest in the event, and seating of course is limited. The Court does not permit video coverage of its arguments so being there in person is the only way to view the arguments.

Rather than moving toward allowing video coverage of its oral arguments, the SCOTUS has elected to announce new policies covering those wishing to view the events. The Election Law Blog has coverage headed "Supreme Court Announces 'No Cuts' Policy, Wristband Policy Modeled after Springsteen Concerts."

Of course, one should look at the date on the Election Law Blog post.

But more seriously, Tony Mauro has a long National Law Journal article today with this compelling headline: "The compelling case for cameras: The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the high court's refusal to allow its proceedings to be broadcast." One quote:

Outside the court, however, the scene was less noble. People seeking seats for the oral arguments were forced to wait in line, with some arriving five days earlier. Tents were pitched, and money changed hands, with some paying as much as $6,000 to a line-waiting service for the chance of securing a seat inside. Inevitably things got messy, and the line seemed more befitting of a music hall or an Apple store on the eve of the release of a new iPhone.

In one sense, the avid interest of those in line was a healthy sign that people really care about the issue and about how the Supreme Court — their Supreme Court — would handle it.

In another sense, it was a disgrace. The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the court's arrogant and stubborn refusal to allow cameras to record and broadcast its proceedings. Some of those waiting for days for seats might still do so if cameras were allowed, but it is a safe bet that most would have preferred to watch the oral arguments in the comfort of home on C-SPAN rather than wait in line over several cold and snowy days in March.

Later in the article:
Last week, we got a taste of how useful and informative camera access would have been. The court released the audio of the arguments on a same-day basis, in time for broadcast journalists to incorporate the sounds from inside the court into their spot reports. Clips of substantive as well as funny exchanges were used, but both types helped make the issues understandable and vivid. They would have been much more so if video were added to the audio.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Courts in general

Ind. Law - "Argument over state’s role in immigration enforcement not over" [Updated]

The is the heading to this Sunday column in the Anderson Herald Bulletin by Maureen Hayden of the CNHI Statehouse Bureau. It begins:

INDIANAPOLIS — When a federal judge struck down key provisions of the state’s immigration law last week, it seemed anticlimactic.

In June 2011, U.S. District Judge Sarah Evans Barker had granted a temporary injunction that barred the law from taking effect that July while she weighed its constitutionality.

So it wasn’t much of a surprise when she issued her ruling that said portions of the law, including the provision that permitted warrantless arrests of non-citizens, were unconstitutional.

With Indiana Attorney General Greg Zoeller’s decision not to appeal the ruling, the court case is over. But the argument over the state’s role in immigration enforcement is not.

Republican state Sen. Mike Delph made that clear to me last week, before Barker’s ruling on legislation that he helped write.

[Updated] the Fort Wayne Journal Gazette had a long editorial by Tracy Warner Sunday on immigration, headed "Shifting winds, change of heart," describing how "Rep. Rebecca Kubacki has re-evaluated her position on a 2011 law regarding college tuition for the children of undocumented immigrants." Some quotes:
In Indiana, the General Assembly two years ago was caught up in an anti-immigrant fever and decided to charge out-of-state tuition rates to the children of undocumented immigrants – even those who have lived in Indiana for years.

The bill was pushed by Republican State Sen. Mike Delph, also the legislature’s loudest voice in calling for Indiana to bypass the federal government and enforce immigration law on its own, making life as difficult as possible for illegal immigrants.

Now, some legislators are changing their mind about the wisdom of such a move – particularly when the state is making aggressive efforts to increase college graduation rates. The difference in tuition rates – at Indiana University, it’s $10,000 for in-state and $31,000 for out-of-state students – can easily make the difference between attending college and looking for a career without a college education.

Last month, the Indiana Senate voted 35-15 in favor of Senate Bill 207, which restores in-state tuition rates for Hoosiers whose parents are undocumented immigrants. The House sponsor is Rebecca Kubacki of Syracuse, widely believed to be the first female Hispanic Republican elected to the General Assembly. She was a supporter of the 2011 bill as a legislative freshman and now wants to undo it.

“My parents were (the) first generation” to live in America, she said. “We grew up in a household where we were proud to be Americans, and we live by the law and the rules.

“When you look at a law, you think it is black and white,” she said last week in a telephone interview. But “I am a realist. I look at things as they are. We have to make the best of the situation. …

“These kids didn’t break the law. They are innocent victims.”

Right now, SB 207 is still in the House Education Committee.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Indiana Law

Courts - "Regulating Demeanor Of Judge A 'Difficult Task' -- But Video Helps"

Updating this March 18th ILB post from McKinney School of Law Professor Joel Schumm, headed "Are Indiana Judges Required to be Nice to Lawyers and Litigants?" the State Bar of Michigan Blog had a post last evening linking to the opinion of the West Virginia Supreme Court in the case of "a family court judge whose courtroom rant has been viewed almost a quarter of a million times on YouTube." The rant itself was reported on by the ILB here on July 6, 2012.

From p. 25 the 30-page disciplinary opinion of the W.Va. Supreme Court [citations omitted]:

When a judge insults, ridicules, or disparages counsel, the parties, jurors, or witnesses, it is clearly misconduct. Judges may be “appropriately disciplined for using abusive, insulting, intemperate, obscene, profane, threatening, vulgar, or other offensive language.” The excuse by Judge Watkins that he likes to “use earthy language at times to make a point” with certain litigants does not excuse his use of profanity and threats, but rather demonstrates his lack of impartiality. As one court said, “We reject as unacceptable the suggestion that an individual’s lack of education authorizes a court to deal with him differently. All persons are equal before the law. The poor and uneducated are entitled to the same treatment as the rich and learned.” Furthermore, “judicial intemperance invariably conveys the message of a closed mind. It is never appropriate for a judge to become a ‘combatant with a party.’ Participants will never accept that a decision rendered by a combatant is fair.” A pattern of judicial discourtesy like that exhibited by Judge Watkins represents a profound threat to the integrity of the judiciary, and consequently demands a strong response.

Posted by Marcia Oddi on Monday, April 01, 2013
Posted to Courts in general

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

From Sunday, March 31, 2013:

From Saturday, March 30, 2013:

Posted by Marcia Oddi on Monday, April 01, 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 (4/1/13):

Next week's oral arguments before the Supreme Court (week of 4/8/13):

Thursday, April 11th

Webcasts of Supreme Court oral arguments are available here.


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

Monday, April 1st

Friday, April 5th

Next week's oral arguments before the Court of Appeals (week of 4/8/13):

Monday, April 8th

Friday, April 12th

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, April 01, 2013
Posted to Upcoming Oral Arguments