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Friday, May 31, 2013

IInd. Gov't. - More on: An ALJ has reinstated the Indiana Youth Group's (IYG) Specialty License Plate

Updating this ILB entry from earlier this afternoon, the ILB has now obtained a copy of the 9-page, May 28th Recommended Order in the Indiana Youth Group appeal of the BMV's suspension of IYG's participation in the Specialty Group Recognition ("SGR") license plate program. The issue: "Whether BMV properly suspended/terminated IYG's participation in the SGR License Plate Program." The conclusion:

Based upon the foregoing, this ALJ finds that there are no genuine issues of material fact, and that IYO is entitled to judgment as a matter of law. While this ALJ finds that IYO did violate Indiana law and the Contract, BMV did not comply with the Contract's requirements for termination. Therefore, BMV did not properly terminate IYO's participation in the SOR license plate program. This ALl recommends that summary judgment be granted on behalf of IYG, and that BMV reinstate IYG's participation in the SGR license plate program thirty (30) days from the date this recommended order is signed.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Government

Ind. Decisions - More on: "What’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other”

The headline is from a May 10, 2010 ILB post quoting a NYTimes story about Emily Kysel.

Today Jon Murray reports in the Indianapolis Star on Ms. Kysel, via a story headed "Indianapolis pays $85,000 to settle former worker's suit over paprika-sniffing dog." The story begins:

Indianapolis officials have paid $85,000 to settle a former city employee’s claim that her bosses discriminated against her because of her severe food allergy to paprika.

The three-year-old dispute centered on whether Emily S. Kysel, then an analyst at the Department of Code Enforcement, could bring her specially trained service dog Penny to work. Her bosses had allowed her to bring the dog, Kysel has said, but they withdrew permission after another employee who was allergic to the dog suffered a reaction on the first day.

The city admitted no fault in the recent settlement, which The Star obtained today from the city’s legal office. But officials agreed to “undertake training of Department of Code Enforcement employees in accommodating individuals with disabilities,” according to the document.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Courts

Ind. Gov't. - An ALJ has reinstated the Indiana Youth Group's (IYG) Specialty License Plate

Here is the news release posted by the IYG this afternoon:

Indiana Youth Group's Specialty License Plate Reinstated: Indiana Youth Group Allowed to Sell Specialty Plates Again After 14-Month Legal Battle

(Indianapolis, IN) - An Administrative Hearing Judge has ruled in favor of the Indiana Youth Group (IYG) and has ordered the IYG Specialty License Plate be reinstated.

The Administrative Hearing Judge for the BMV found that "IYG's actions did not constitute a sale or auction of low digit SGR (Specialty Group Recognition) license plate. Therefore, IYG's actions did not support the immediate termination of the Contract as provided in this section." The ruling further states "The BMV was required to give IYG thirty (30) days notice and the opportunity to correct or cure its breach prior to terminating the Contract."

"While the politics may not have been on our side through this process, we were always confident that the facts were", said IYG's Executive Director, Mary Byrne. "We just wanted a fair shake from the state and a chance to sell our plates again. We got that chance from this judgment and we are incredibly grateful that our case was reviewed based on the merits and not a political agenda."

The judgment came after Ken Falk, attorney for the ACLU of Indiana, filed a Motion for Summary Judgment in October of 2012. The hearing was continued four times since IYG and the BMV were in negotiations for a settlement that would allow IYG to get the plate back. On April 30, the day after the new specialty license plate law was signed; the BMV rescinded their negotiated offer. Falk then requested the scheduling of the summary judgment hearing that was held on May 10.

"The revenue generated from license plate sales is crucial for continuing the programs and services offered to the youth served by our organization", Byrne said. In the 10 weeks in 2012 that IYG was able to sell their specialty plate over 800 plates were sold. Plate sales generated over $20,000 during the same period.

IYG is the only not-for-profit agency that is solely dedicated to serving lesbian, gay, bisexual, transgender, and questioning youth in Indianapolis and the only agency with a full-time staff in the state. "The youth we serve often have nowhere else to turn and the money we raise goes directly toward supporting disenfranchised youth and toward putting a stop to needless bullying and violence in our schools," Byrne said.

Sales of the Indiana Youth Group license plate were suspended in March of last year after 20 state legislators signed a letter to the BMV on the last day of the legislative session requesting immediate suspension alleging that IYG and two other organizations were selling the low numbered plates. This was the culmination of over six weeks of the state assembly trying to pass legislation to take the plate away from IYG.

IYG was using the low numbered plates as thank-you gifts associated with different levels of giving, much the same as premiums being offered with different levels of membership by public radio or television during their fundraising drives.

ILB: Here is a long list of some of the past ILB entries on speciality license plates.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Government

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

In SAMS HOTEL GROUP, LLC, dba HOMEWOOD SUITES HOTEL v. ENVIRONS, INC. (SD Ind., Pratt), a 14-page opinion, Judge Hamilton writes:

Plaintiff SAMS Hotel Group, LLC appeals the district court’s determination that a limitation of liability clause in its contract with defendant Environs, Inc. for a building design is enforceable against SAMS in this case alleging that Environs breached the contract by providing poor quality services that led to the demolition of the building. Pursuant to that clause, SAMS’s damages were limited to just $70,000 of a claimed loss of $4.2 million after a judgment in its favor on its breach of contract claim. We affirm. * * *

Environs does not contest the district court’s findings of breach, but SAMS appeals the district court’s determination that the limitation of liability provision is enforceable. The interpretation of this written contract is a question of law that we review de novo. See Court would. See Clark v. State Farm Mutual Auto. Ins. Co., 473 F.3d 708, 712 (7th Cir. 2007). Ace American Ins. Co. v. RC2 Corp., 600 F.3d 763, 766 (7th Cir. 2010). Indiana law applies, and our task is to apply Indiana law as we believe the Indiana Supreme Court would. See Clark v. State Farm Mutual Auto. Ins. Co., 473 F.3d 708, 712 (7th Cir. 2007). * * *

We must therefore predict how the Indiana Supreme Court would answer the following question: Is a limitation of liability clause in a professional services contract that generally refers to liability for “negligence” and breach of contract, and that was freely bargained by two sophisticated commercial entities, enforceable in favor of a breaching party even though the clause does not specifically refer to that party’s own negligence? We predict that the Indiana Supreme Court would say yes, so we affirm the district court’s judgment. * * *

“[T]he general rule of freedom of contract includes the freedom to make a bad bargain.” Indiana Bell Tel. Co. v. Mygrant, 471 N.E.2d 660, 664 (Ind. 1984) (internal quotation omitted). Without any indication in the Indiana case law that the Indiana Supreme Court would extend the specificity rule to a limitation of liability clause that was freely and knowingly negotiated by two sophisticated commercial entities in a dispute in which the underlying cause of action is for breach of contract and not negligence, we conclude that the district court properly held SAMS to the terms of its contract. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Court posts 29-page annual list of attorneys who have failed to comply with certain requirements


The Clerk of the Court has notified this Court that certain attorneys have failed either to pay the annual registration fee required for them to be licensed to practice law in Indiana or to file an exemption affidavit as contemplated by Indiana Admission and Discipline Rule 2, andlor have failed to make the IOLTA certification required by Indiana Admission and Discipline Rule 2(f). In addition, the Indiana Commission for Continuing Legal Education has notified the COURT that certain attorneys have failed to comply with the continuing legal education requirements of Admission and Discipline Rule 29, sections 3 or 10.

The Court finds that the attorneys listed on Exhibit A, which is attached to and expressly made a part of this order, have not complied with the Admission and Discipline Rules mentioned above, the basis or bases of their noncompliance being listed to the immediate right of each attorney's bar number. Accordingly, this Court finds that such attorneys should be and therefore ARE SUSPENDED from the practice oflaw in the State of Indiana.

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the COUli directs that the proscription against the actual practice of law will go into effect at 12:01 a.m. Eastern Daylight Savings Time on Thursday, June 27, 2013. The delay fi-om the date of this order to the suspension date is for the sole purpose of allowing time for copies of this order to be sent, received, and acted upon by the suspended attorneys.

As has been its practice over the years, the Court posted this as a scanned document, which means it cannot be searched or pasted from.

And as in the past, the ILB has prepared an OCRed, searchable version of the Order for readers' convenience. (In preparing the conversion, the ILB has already noticed the names of a number of well-recognizable attorneys ...)

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Courts

Ind. Decisions - Supreme Court vacates transfer grant in Billingsley

On May 6th the Supreme Court heard oral argument (in Merrillville) in the case of Billingsley v. State, a case involving an investigatory stop. Here is the ILB "Upcoming Oral Arguments" page, here is the Court's oral argument page. (Unlike the page I lauded earlier this morning, this one does not identify the counsel and does not have the video).

Yesterday the Supreme Court, under Rule 58(B), vacated its grant of transfer via this Order, reinstating the Court of Appeals opinion.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In Linda Huffman, Individually and as Personal Rep. of the Estate of Jerry Huffman, Deceased v. Dexter Axle Company & Evans Equipment Co. , a 19-page opinion, including a separate concurring opinion, Judge Pyle writes:

Linda Huffman, individually and as the Personal Representative of the Estate of Jerry Huffman, appeals the trial court’s grant of summary judgment to Dexter Axle Company on Linda’s claim of negligence. We reverse and remand for further proceedings. * * *

As a matter of law, Dexter owed a duty to Huffman on the day of the accident. Genuine issues of material fact exist as to the remaining elements of Linda’s claim. We reverse and remand this case to the trial court for further proceedings.

ROBB, C.J., Concur.
MAY, J., Concur in result with opinion. [which begins, at p. 18 of 19]: I agree we should reverse summary judgment for Dexter for the reasons the majority states: Dexter owed Huffman, its invitee, a duty and there are fact issues as to breach and proximate cause. However, I believe it is unnecessary, and therefore inappropriate, to address OSHA regulations, DOT regulations, the interpretation and application of those regulations, preemption, and congressional intent in this relatively straightforward premises liability case. * * *

[and concludes]“As with diamonds, the principal difficulty in overly broad holdings is inclusions -- clouding what should be clear statements of the holding with other assertions that should instead have been treated as dicta.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1017 (2005). It is a basic rule of jurisprudence that courts decide only so much as is necessary to resolve the cases before them. Pointon v. State, 267 Ind. 624, 630, 372 N.E.2d 1159, 1162 (1978) (DeBruler, J., concurring). “Too much dicta leads to confusion, and requires too much subsequent explanation.” McArter v. Rhea, 30 S.E. 128, 129 (N.C. 1898). I can accordingly concur only in the result.

In Christie Wilson v. State of Indiana , a 14-page opinion, Judge Brown writes:
Christie Wilson appeals the trial court’s order finding her in contempt. Wilson raises one issue which we revise and restate as whether the trial court abused its discretion when it found her in contempt. On cross-appeal, the State argues that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s order granting her immunity. We affirm. * * *

[Re jurisdiction]
We first address the State’s argument that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s November 8, 2012 Order Granting Use Immunity. * * * While some of Wilson’s arguments may to some extent raise the issue of the validity of the November 8, 2012 order, we cannot say that all of Wilson’s arguments pertain only to the validity of that order. Consequently, we will address the merits of Wilson’s argument to the extent that she contends that the trial court erred in finding that she was in contempt.

[Re Contempt] * * * Three types of immunity may be granted a witness in exchange for her testimony. Caito, 459 N.E.2d at 1182. Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies. Id. at 1182-1183. Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness. Id. at 1183. Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness’s compelled testimony. * * *

Thus, we cannot say that the trial court abused its discretion in finding Wilson in contempt on the basis of the Fifth Amendment. * * *

Based upon Caito, which was decided about twenty years ago, we cannot say that the Indiana Constitution requires transactional immunity or that the trial court’s finding of contempt was an abuse of discretion.

NFP civil opinions today (5):

Gary W. Moody v. Beverly Martin, Director of the Johnson Co. Public Library Dist.; The Board of Trustees of the Johnson Co. Public Library Dist.; Brian J. Deppe, et al. (NFP)

Charles R. Chulchian v. Rivoli Center for the Performing Arts, Inc., and Indianapolis Eastside Revitalization Corp. (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: C.T. & N.T.; and J.T. and B.T. v. The Indiana Dept. of Child Services (NFP)

Penni Williams v. John Mark Williams (NFP)

Thomas M. Slaats v. Sally E. Slaats (NFP)

NFP criminal opinions today (13):

In Alvino Pizano v. Gregory F. Zoeller, et al. (NFP), a 7-page opinion with an appellant pro se, Judge Najam writes:

Alvino Pizano appeals the court’s denial of his petition for post-conviction relief when it granted the State’s motion for summary disposition of his petition for habeas corpus relief. Pizano presents a single issue for review, namely, whether the Indiana Department of Correction (“DOC”) wrongly withheld educational credit time he allegedly earned under Indiana Code Section 35-50-6-3.3. We consider a single dispositive issue sua sponte: whether the post-conviction erred when it denied his petition by summary disposition. We reverse and remand. * * *

We conclude that the post-conviction court erred when it granted the State’s motion for summary disposition of Pizano’s petition for habeas relief. Because there exists a genuine issue of material fact as to whether Pizano has met his burden to show that he had earned a bachelor’s degree during his period of incarceration, he is entitled to a hearing on his petition. As such, we reverse and remand for further proceedings consistent with this decision.

David Mark Frentz v. State of Indiana (NFP)

LaWanda White v. State of Indiana (NFP)

Daniel Rodgers-Conwell, Jr. v. State of Indiana (NFP)

Rhonda Johnson v. State of Indiana (NFP)

Kevin Speer v. State of Indiana

McLynnerd Bond, Jr. v. State of Indiana (NFP)

Jimmy Dale Edwards v. State of Indiana (NFP)

Joshua Shay Morris v. State of Indiana (NFP)

Donte Carter v. State of Indiana (NFP)

Brandon M. Ebeyer v. State of Indiana (NFP)

Dominick Irby v. State of Indiana (NFP)

Jason Davison v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In Brian Scott Hartman v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Dickson writes:

Facing charges of Murder and Assisting Suicide, the defendant filed a motion to suppress incriminating statements he made to a police detective in response to police inquiries, notwith-standing the defendant's prior request for counsel. The trial court denied his motion, and the de-fendant initiated this interlocutory appeal. The Court of Appeals affirmed. Hartman v. State, 962 N.E.2d 1273 (Ind. 2012). We grant transfer and reverse. * * *

The totality of the circumstances involving the content, place, and timing of the commu-nication by the police with the defendant, combined with the detective's immediate follow-up inquiry asking the defendant if he had any questions—all notwithstanding the defendant's prior invocation of his right to counsel—constituted impermissible questioning or its functional equivalent in contravention of the requirements established by Miranda, Edwards, and Innis. The impingement upon the defendant's right to counsel requires suppression of the defendant's resulting statements. We reverse the trial court's denial of the defendant's motion to suppress and remand for further proceedings consistent with this opinion.

ILB: The ILB posted about this case on May 28th. The case had been the first of a series of criminal cases awaiting action where the Court had heard oral argument without first granting transfer.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - When laws collide?

Yesterday I posted two entries, this one about the next Indiana expungement law, headed "'New law could clear thousands of criminal records' but experts are advising applicants to first get legal advice," and this one headed "New law requires national background checks for child care workers."

Soon thereafter, the ILB received this note from a county judge:

"New law requires national background checks for child care workers"

Are the national background checks going to be meaningful if someone has just expunged their entire criminal record under the new law that takes effect July 1st?

Should someone seeking employment as a child care worker be able to expunge their five Operating While Intoxicated convictions? Or Theft convictions? Or Domestic Battery convictions?

If so, why do we even bother to do a national background check? What are we checking for?
ILB: I have no idea of whether these objections have any validity ...

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Law

Environment - IDEM issues water quality certification for Enbridge pipeline in NW Indiana [Updated]

Updating earlier ILB entries about replacement of the Enbridge pipeline in NW Indiana, Elvia Malagon of the NWI Times reported yesterday:

Local environmental groups expressed concern Wednesday about a project to reconstruct a pipeline for Canadian tar sands oil that will span Northwest Indiana.

The Indiana Department of Environmental Management in April approved a Section 401 Water Quality certification to Enbridge Energy. The company already has a 30-inch pipeline that runs across Lake, Porter, LaPorte and St. Joseph counties. The project would expand the pipeline to 36 inches in diameter.

Local groups were concerned because the project affects 145 wetlands, according to documents submitted to IDEM.

The certificate was issued after a public comment period and review of documents, said Amy Hartsock, a spokeswoman for IDEM.

According to a letter from IDEM, the certificate will require monitoring of the construction and mitigation. Evaluations are required at least once per week and after storms.

Nicole Barker, executive director for Save the Dunes, said in a news release the group was happy with some of the steps made to protect nearby areas, such as hiring Independent Environmental Monitors to review environmental concerns about the project.

"The permit includes several significant steps to protect natural resources during and after construction of the pipeline, and we applaud IDEM and Enbridge for including these measures," Baker said in a prepared statement. "However, it is by no means a grand slam."

The Chesterton Tribune has this story yesterday, headed "Save the Dunes and HEC hit IDEM on Enbridge pipeline oversight."

[Updated on 6/2/13] Matt Mikus's report today in the Gary Post Tribune, headed "Enviro groups target good, bad of Enbridge pipeline plan."

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Environment

Ind. Courts - Ind. Courts - "Changes In Store For Marion County Small Claims Courts"?

The ILB had many entries in 2012 on the problems with the Marion County small claims courts and the work of the Marion County Small Claims Taskforce. The most recent entry, from Sept. 5, 2012, was headed "Changes In Store For Marion County Small Claims Courts." A Carrie Ritchie Indy Star story quoted in the Sept. 5th, 2012 post reported:

The [Marion County Small Claims Task Force] suggested that the state legislature consider making the small claims courts part of the Marion Superior Court system, or at least making the judges full-time so they won’t be able to serve as attorneys on the side.

The new rules, which don’t require legislative changes, could alleviate some of the committee’s concerns.

The public can send written feedback to Marion Circuit Judge Louis Rosenberg at 200 E. Washington St., Indianapolis, 46204. Comments can be sent via email to Rosenberg’s clerk, Aida Ramirez, at aida.ramirez@indy.gov.

Here are the proposed new local rules, filed Sept. 4, 2012.

But what has happened since? Have the changes to the local rules been finalized and approved by the Supreme Court? The last approval listed here is from May 15, 2012, re the caseload of the traffic court.

The "Notice of Proposed Rule Amendments by the Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment," for which comments are due April 2013, includes proposed amendments to Small Claims Rule 12, Venue.

Meanwhile, according to stories reported this month by Sandra Chapman, WTHR.com, changes would come none too soon. A long story, with video, last updated May 17, 2013, is headed "Small Claims: Big Injustice." The abuses detailed appear to be the same as were reported last year, before the Task Force.

A second story, from May 30th, is headed "Judge seeks changes to eliminate high small claims fees." It includes quotes from Marion County Circuit Judge Louis Rosenberg, who is charged with overseeing the small claims courts, re plans for improvement.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Courts

Ind. Decisions - "Perkins sentenced to 45 years in child molestation case," Crowd lines courtroom

Some quotes from Mark Wilson's long report late yesterday in the Evansville Courier & Press:

EVANSVILLE — Observers packed a Vanderburgh County circuit courtroom Thursday afternoon for the sentencing of confessed child molester Jack Perkins III after Evansville Police Department Chief Billy Bolin took to Facebook earlier this week seeking a show of support for a harsh sentence for Perkins.

After listening to testimony and arguments from both sides, Circuit Court Magistrate Kelli Fink gave Perkins a 45-year sentence — just five years less than the maximum he could have received.

The standing-room-only crowd was drawn by a pre-sentencing report that suggested Perkins, who confessed to abducting and molesting a 9-year-old child, receive a minimum sentence. * * *

Police Chief Billy Bolin said afterward that he didn’t know if his Facebook plea for public support influenced Fink’s sentencing decision. He defended his actions.

“I just felt it was my responsibility,” he said. “This is ultimately a judge’s decision, but we as citizens have a right to voice our opinions in our society.”

A photo accompanying the story is tagged "A crowd lined a courtroom in the Vanderburgh Circuit Court Thursday afternoon for the sentencing of convicted child molester Jack Perkins III. "

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "High court to revisit feud over fate of Paula’s diner"

Yesterday's Supreme Court oral argument in the case of Wells Fargo Bank, N.A. v. Neal A. Summers, et al. (See ILB "Upcoming Oral Arguments", here) is the subject of a story by Niki Kelly in today's Fort Wayne Journal Gazette that begins:

INDIANAPOLIS – The Indiana Supreme Court is wading into a financial dispute involving a popular Fort Wayne seafood restaurant for the second time.

The five justices heard arguments Thursday after the Indiana Court of Appeals ruled in the case for the third time last year.

The legal drama has been pending since 2001.

“This case is kind of an enigma,” said Jeremy Grogg, an attorney representing local restaurateur Paula Phillips.

Wells Fargo Bank is challenging the latest ruling in her favor.

Watch the oral argument here, at the new improved oral arguments site, that includes, inter alia, the identity of the counsel and a link to the COA opinion.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Courts

Ind. Decisions - "Appeals court rules against Fishers home-school group in discrimination complaint"

Yesterday's 44-page COA opinion in Fishers Adolescent Catholic Enrichment Society, Inc. v. Elizabeth Bridgewater o/b/o Alyssa Bridgewater is the subject of a story today in the Indianapolis Star, reported by Eric Weddle, that begins:

The Indiana Court of Appeals has ruled that a now-defunct Roman Catholic home-schooling group in Fishers did discriminate against a family who was dismissed after filing a complaint with the Indiana Civil Rights Commission.

The ruling upheld most of the commission’s 2012 decision that had ordered the group, known as Fishers Adolescent Catholic Enrichment Society Inc., to pay $2,500 in damages to the family and to not retaliate against members who file complaints.

The group, known by its acronym FACES, had hoped the appeals court would find the Indiana Civil Rights Commission had no jurisdiction over it because of its religious nature. Instead, the court ruled the group “relates to” education as it was a group of 11 home-schooling families that held courses on topics such as computer programming and speech. Group members educated their children separately but gathered for regular activities.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Prosecutor might ask that latest DUI be admitted in David Bisard trial"

Updating this most recent ILB entry from May 9th, John Tuohy's story in this morning's IndyStar story reports:

The Marion County prosecutor was expected to request that details from David Bisard’s ­recent drunken-driving arrest be admitted at his trial in a fatal alcohol-related crash in 2010.

At a hearing in Fort Wayne today, prosecutors will enter several motions, one of which could assert that the circumstances and the behavior of the suspended Indianapolis police officer were similar in both arrests and, therefore, relevant. * * *

At the earlier hearing in Allen County, Bisard’s lawyer, John Kautzman, quizzed a Lawrence detective about seeing signs of drunkenness in Bisard.

The state contends that the new arrest shows Bisard is simply skilled at concealing intoxication.

Evidence from one arrest is seldom admitted in the trial for another. But there are some exceptions, and Surbeck will have the final say.

Indianapolis defense attorney Jack Crawford predicted there was little chance the judge would allow the Lawrence arrest into evidence.

“It is after the fact, and it is what is called bad character evidence that the prosecution would like to have in there as showing a pattern of drinking and driving,” he said. “I seriously doubt this judge or any judge would allow it.”

Crawford said the later arrest could be admitted at trial if Bisard makes his good character an issue. Evidence of past actions are sometimes allowed in domestic violence cases involving the same victims and same offender, Crawford said.

“Otherwise, that information is extremely preju­dicial and is normally not allowed,” he said.

Posted by Marcia Oddi on Friday, May 31, 2013
Posted to Indiana Courts

Thursday, May 30, 2013

Ind. Gov't. - "South Bend settles environmental claims related to former Studebaker, Oliver sites" Settlement is secret

Erin Blasko reports today in the SB Tribune:

The Redevelopment Commission on Thursday approved the final settlement agreement related to the former Studebaker and Oliver Plow Works properties southwest of downtown, capping more than 10 years of work by the city's legal department and its environmental attorneys.

Under the terms of the agreement, Continental Casualty Company and The Continental Insurance Company will pay the Redevelopment Commission an undisclosed amount of money to settle environmental claims related the former Oliver property, now the Oliver Industrial Park.

As with previous settlements, the terms of the agreement, including the dollar amount, are confidential.

That said, the legal department intends to issue a final report on all of the settlements, including the total dollar amount, at the Redevelopment Commission's meeting on July 25.

Asked about that amount Thursday, Senior Redevelopment Specialist Ann Kolata, who along with the city's environmental attorneys, Plews Shadley Racher & Braun, has been working to resolve the numerous environmental claims related to the two properties since 1999, said, “It's several million dollars in total.”

ILB: So is the settlement agreement and amount secret, or secret until July 25? Further in the story:
In total, between seven and nine settlements have been reached with various parties over the years, Kolata said. That includes a settlement with Cooper Industries LLC, the successor to the Studebaker Corp., that was reached in March.
So were these "between seven and nine" settlement agreements secret too?

For background see the following ILB entries:

Does it make a difference that in all the above, the settlement was paid by the governmental entity? See also the last two paragraphs of this Nov. 11, 2005 ILB entry.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Indiana Government

Ind. Law - "New law requires national background checks for child care workers"

Story and video here, via the South Bend Tribune. The story begins:

Some tough new state regulations for child care providers are about to take effect.

They apply to any child care provider that accepts federal child care dollars, whether it's a day care, church, school, or home.

Starting in July, those providers must conduct national background checks on new staff and volunteers.

Providers have another year to conduct checks on existing employees.

The background checks include fingerprinting of employees.

There are also new safety and sanitation standards, like keeping medicine out of kids' reach.

In addition, workers now must be at least 14 years old, supervisors at least 18.

The new regulations are the result of a bill that made it through the Indiana state legislature with a lot of support.

ILB: Are these laws or are they regulations? The story does not say, and does not provide links to either laws or regulations.

HEA 1494, which says nothing about either "regulations" or "rules", takes effect July 1st. According to the most recent digest:

DIGEST OF HB 1494 (Updated April 23, 2013 4:42 pm - DI 84)

National criminal history background checks for child care. Requires: (1) employees and volunteers of certain child care providers; and (2) for applicants applying for a license to operate a child care home, the applicant's spouse and certain household members of the applicant; to undergo national criminal history background checks. Provides that a child care provider that holds a license or registration on July 1, 2013 has until July 1, 2014 to meet the requirements regarding national criminal history background checks. Requires the state police department to release the result of a national criminal history background check to the division of family resources. Amends the list of felony convictions and certain other offenses related to the: (1) application, denial, and revocation of a child care license or registration; and (2) eligibility for child care voucher payments. (The introduced version of this bill was prepared by the committee on child care.)

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Indiana Law

Not law - "Cities seen through the newspaper prism"

This may not endear the ILB to some, but I read a column by Morton Marcus in Howey Politics Indiana the other day and I just went back and located it again. The column was headed "Cities seen through the newspaper prism," and here is the part that I remembered:

What makes the image of a place? It is what residents and visitors alike believe to be of importance to life and culture of a community. For me, and I suspect for members of my fast-shrinking generation, a major part of the image of a place is determined by the local newspaper.

Louisville used to be defined, in my mind, by the Courier-Journal. The paper presented an active, sophisticated city which, upon examination, was somewhat difficult to find. Today, Louisville seems to be of less interest, more like Indianapolis or other cities where Gannett has demeaned the quality of journalism.

Pittsburgh, on the other hand, has the Post-Gazette, a newspaper that attracts readers with a variety of front page stories, most of which have interest or implications beyond the metropolitan boundaries.

I admit my sample is small, but a weekend in Pittsburgh provided more exciting newspaper reading than a month’s worth of the Indianapolis Star. Why? The Star, like so many papers, focuses on human interest stories, featuring the travails for a single household or person with little connectivity to the potential broader implications of the story.

Typical Star story: Gertie Girdleneck bravely struggles with an impairment that is not adequately supported by public or private philanthropy. Nonetheless, Gertie is getting a degree in advanced motorcycle repair and hopes to start her own business with help from her blind 87-year-old grandfather who has memorized an unabridged braille dictionary.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to General Law Related

Ind. Gov't. - "Plan to help retrace state border with Michigan"

Maureen Hayden reports today in the New Albany News & Tribune:

INDIANAPOLIS — Pushed by its neighbor to the north, Indiana has finally agreed to spend money to find out where the Hoosier state officially begins and Michigan ends.

A new law signed by Gov. Mike Pence is expected to set into motion a five-year, $1 million effort to retrace the official state line that was set by a federal surveyor in 1827.

Most of the wooden posts used to mark the border have long since decayed and never were replaced, leaving residents along the boundary in somewhat of a quandary: They don’t exactly know where the official state line is.

“People have gone to court just to figure out what state they’re in,” said Jack Owens, a retired Michigan land surveyor who’s spent a decade pushing for the project.

Four years ago, the Indiana General Assembly passed a bill creating the Indiana Michigan Border Commission, and tasked it with redrawing the boundary. Michigan was ready to pass similar legislation, required for the work to begin, until it found out Indiana hadn’t put up any money for the project.

That was rectified this year, when Indiana lawmakers agreed to spend $500,000 to match what Michigan will spend.

Thanks to decades' worth of historic records, surveyors generally know where the boundary that separates Indiana from Michigan is.

But it’s not precise, which has led to disputes over property lines, and concerns about taxation and law enforcement jurisdiction.

Owens remembers a telephone call he got from an attorney representing the victim of a traffic accident along the state border.

“He asked me what state the accident was in,” Owens said. “I said, ‘I can’t really tell you. We don’t really know where the state line is.’ ”

History, decay and neglect are to blame.

There is much more to this fascinating story, such as:
It took awhile for Indiana to settle on its northern boundary. In 1805, the line that separated the Indiana and Michigan territories was 10 miles south of where it is now. When Indiana petitioned Congress for statehood in 1816, it wanted to move the line north to get access to Lake Michigan for a port.

Congress approved and on paper, the line was moved. “But in typical government fashion, the actual field work didn't happen for another 10 years,” Marbach said.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Indiana Government

Environment - "South Bend leaders consider allowing people to raise bees"

Yes! Urban chickens first, urban bees next!

Kristin Bien reports today in the South Bend Tribune in a story that begins:

People who live in South Bend may soon be able to maintain a honey bee colony in their yard. South Bend leaders will consider a new ordinance within the next month. It is being drafted right now. But some say the the new ordinance is too restrictive.

Vince Barletto's yard is like many in the city of South Bend, not very big. But Barletto believes there is always room for bees.

"Maybe I would put my hives somewhere here," says Barletto as he looks around his backyard for the perfect place to put a honey bee colony.

Barletto is working with South Bend 1st District Common Councilman Tim Scott to draft an ordinance that would allow people to manage honey bee colonies within city limits.

"Any opportunity we have for people to harvest and grow their own food, we want to be able to give that to people. Bees are another natural progression to that," says Scott who lives in the Near Northwest Neighborhood.

The current ordinance puts bees in the same category as goats and bison -- it allows bees as long as a person has a minimum of 5 acres of land, but most homeowners within the city limits don't.

See the long list of ILB urban chicken entries here, and particularly this one from Sept. 15, 2009.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Environment

Environment - Still more on: Delaware County "Opposition to wind farm increases"

Updating this most recent ILB entry from May 22nd, Seth Slabaugh's story for the Muncie Star-Press this afternoon is headed "Wind farm regulations on hold until 2015?" Some quotes:

MUNCIE — The chairman of the Delaware-Muncie Metropolitan Plan Commission has asked the commission to postpone the adoption of wind farm regulations until at least May of 2015.

The reason for the request is to gather more information on the impact that existing Indiana wind farms have had on communities.

“Among the items to be considered is the impact of such developments on property values,” Chairman Tom Green wrote in an email to Marta Moody, director of the commission. “A 2- to 3-year time frame will give us a chance to actually see how property values have been affected in areas around existing installations and watch the values in recently developed and soon-to-be developed areas within Indiana.”

Opponents of a wind farm being proposed for Delaware County claimed during a meeting this week that wind farms decrease residential property values 20 percent to 40 percent, depending on proximity to the wind farm, and that in some cases property values have dropped 80 percent.

“Perceived noise, infra-sound noise, shadow-flicker … the list (of concerns) goes on,” Green wrote. “I think we can all agree that, given the wrong set of guidelines, (wind farms) can cause health issues for some people. I believe that no one in the wind energy business disregards these issues, but I also believe that very few people in the general public truly understand these issues.”

Green also wrote: “I have noted many changes in policies around the country regarding this issue, some of those changes are a complete reversal of existing policy. Let us not make the same mistakes or reactions in providing guidance for our community.”

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Environment

Courts - More on "Supreme Court’s Ruling in Arlington v. FCC Highlights Debate Over the Meaning and Future of Chevron Deference Doctrine in Administrative Law"

Updating this ILB post from yesterday morning, Cass R. Sunstein wrote in Bloomberg last evening, in a story headed "The Biggest Supreme Court Ruling You Haven’t Heard Of," that begins:

The Supreme Court has yet to decide this year’s attention-grabbing cases on same-sex marriage, affirmative action and the Voting Rights Act. But last week, a divided court decided Arlington v. FCC, an important victory for Barack Obama’s administration that will long define the relationship between federal agencies and federal courts.

The underlying question was this: If a law is ambiguous, who gets to interpret it? Federal judges or the agency that carries it out? Who interprets the crucial ambiguities in the Affordable Care Act, the Clean Air Act or the Wall Street Reform and Consumer Protection Act?

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Courts in general

Not law - "Doctor posts prices online, hopes others will follow"

Gitte Laasby, the award-winning environmental reporter for the Gary Post-Tribune who several years ago moved on to the Milwaukee Journal-Sentinel, has an interesting "Public Investigator" column today that begins:

I'd venture a guess that most consumers who have gone to the doctor or the hospital, at some point, have felt the sticker shock when receiving their bill.

A doctor in Maine is putting an end to that for his patients, and he hopes he'll be setting a trend with other doctors: He has decided to stop accepting insurance, lower his prices and post them online.

Dr. Michael Ciampi told the Bangor Daily News that the change frees him up to do practice medicine the way he finds best for patients without insurance companies dictating how much he charges. That way, he can offer discounts to patients struggling with their bills and make house calls.

"I'm freed up to do what I think is right for the patients," Ciampi told the paper. "If I'm providing them a service that they value, they can pay me, and we cut the insurance out as the middleman and cut out a lot of the expense."

Ciampi said he has cut his prices in half because his overhead is much less. For instance, he previously charged $160 for an office visit for a patient with one or more complicated health problems. That cost is now $75. He bills at the end of each visit to avoid the cost of sending out bills.

The ILB tried the link to the site, but it is currently down, probably from the crowd of people trying to access it. The entry page of the practice, however, does appear to be accessible and I could access the prices from there.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to General News

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

In UNITED STATES OF AMERICA v.DANIEL L. DELANEY (SD Ind., Magnus-Stinson), a 14-page opinion, Judge Posner writes:

The defendant, a federal prisoner serving a term for unarmed robbery and confined in a two-person cell in the prison’s segregation unit because of a fight he’d had with another inmate, strangled his cellmate. He was prosecuted, convicted by a jury of first-degree murder, and sentenced to life in prison. The single issue presented by his appeal is whether the jury should have found that he killed in “the heat of passion” and should therefore have convicted him only of voluntary manslaughter. * * *

He is arguing that he should not have been convicted of murder at all but only of voluntary manslaughter, with its 15-year maximum sentence—that no reasonable jury could have failed to find that he acted in the “heat of passion.” * * *

[The opinion concludes] But since the jury had solid grounds for finding murder rather than manslaughter, the judgment is AFFIRMED.

BAUER, Circuit Judge, concurring. I have to admit that this opinion had me in suspense until the last minute. I’m not sure it provides a clear trail for future prosecutions but I sign on because the result is in keeping with the evidence.

ILB: This tickled me.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - Even more on "SCOTUS Takes Case on Prayer at Town Board Meetings"

Updating this ILB entry from May 21st, Marci A. Hamilton, Benjamin N. Cardozo School of Law, writes today in Verdict in a commentary titled "The Supreme Court Takes the Case of Town of Greece v. Galloway, Which Raises the Questions Whether—And If So, How—a Town Board May Open Its Meetings With Prayer." A brief quote:

Under most constitutional metrics, the U.S. Court of Appeals for the Second Circuit was correct in holding that the Town of Greece’s practice was likely unconstitutional. Normally, the Supreme Court does not take cases that pose settled questions of law. Therefore, the question that this certiorari grant raises is why this Court took it.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Courts in general

Ind. Law - "New law could clear thousands of criminal records" but experts are advising applicants to first get legal advice

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Anderson Herald-Bulletin:

INDIANAPOLIS — Indiana court personnel are preparing for what may be an onslaught of requests from people eager to use a new state law to clear their old criminal records that keep them from getting a good job.

The new law, which goes into effect July 1, creates a mechanism for thousands of Hoosiers who’ve been arrested or convicted of mostly nonviolent crimes to wipe clean their criminal history if they meet certain conditions.

The law spells out in detail what crimes are — and aren’t — covered and how to go about getting them expunged.

But it may take awhile for everyone involved in the process — including prosecutors, petitioners, judges, record-keepers and crime victims — to make it all work.

“The law is incredibly broad,” said Republican Rep. Jud McMillin, a former deputy prosecutor from Brookville who authored the bill. “One of the first things I tell people: If you have criminal record at all, you need to ask somebody if you’re eligible.”

That somebody doesn’t need to be an attorney. But since the law is so new and penalties for getting it wrong are so serious, McMillin and other bill supporters are advising would-be users of it to seek legal advice.

“It’s always suspect when a lawyer says to someone, ‘I wouldn’t try this on my own.’ But in this case, you really shouldn’t try this on your own,” said Republican Sen. Brent Steele, a Bedford attorney who carried the bill in the Senate.

More from the story:
The new law, House Enrolled Act 1482, creates the state’s first criminal-records expungement process that covers a wide array of crimes, from drunken driving to drug dealing, that can be erased by the courts. It replaces a current law that gives courts limited authority to shield some low-level crimes from public view.

Some crimes are off-limits: Most violent and sex crimes can’t be expunged, nor can most crimes involving misconduct or fraud by a public official. To be eligible, a person petitioning the court for a record expungement has to show they’ve redeemed themselves by staying out of trouble. * * *

To guard against fraud and abuse of the judicial system, the law carries some penalties for not following the rules.

For example, a person can only file one petition for expungement during their lifetime and that petition has to include every arrest and conviction in their past. The petitions are checked for veracity by comparing them with criminal records kept by the state police and state courts.

Failure to fill out the petition properly can result in getting the petition tossed out of court. Depending on the circumstance, a petitioner may have to wait another three years before they can file again. Someone with multiple charges, who fails to report an arrest or conviction in their petition, can be forever denied an expungement of that crime.

“The law is written to ensure the public will be very honest with the court,” said Andrew Cullen, the legislative liaison for the Indiana Public Defender Council who helped craft the bill’s language.

Like McMillin and Steele, he’s also advising people who want to use the new law to clear their records to get some legal guidance.

“We’re not encouraging anyone to go it alone,” Cullen said.

Cullen, Steele and McMillin all said the cost shouldn’t be prohibitive, suggesting the legal fees may run into several hundred dollars but not several thousand dollars.

Also noteworthy:
The new law can wipe clean the criminal records kept by the courts, law enforcement and state agencies like the Bureau of Motor Vehicles. But it can’t wipe clean records published in other venues, like electronic newspaper archives or on the other Internet sites.

But the law does prohibit employers from discriminating against someone with a criminal record, and also changes how employers are allowed to ask about past criminal history. Under the new law, employees can only be asked: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”

It also protects employers from being sued if they hire someone who’s had their record expunged but subsequently commits another crime.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Indiana Law

Ind. Courts - CJ Dickson makes appointments to the Commission on Improving the Status of Children

Chief Justice Dickson appoints Justice Rush and Susan Lightfoot to the Commission on Improving the Status of Children (IC 2-3-36). Ms. Lightfoot is Chief Probation Officer of Henry County.

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In In the Matter of the Parent-Child Rel. of: B.H. & B.H., and T.H. v. The Indiana Dept. of Child Services, a 20-page opinion, Judge Vaidik writes:

T.H. (“Mother”) appeals the termination of her parental rights to her two young sons. She contends that the trial court erred by qualifying a social worker as an expert witness and allowing that social worker to testify about a parenting assessment called the Child Abuse Potential Inventory (“CAPI”). Although Indiana Code section 25-23.6-4-6 prohibits a licensed clinical social worker from providing expert testimony, Indiana Evidence Rule 702 contains no social-worker exclusion. And because the Indiana Rules of Evidence control when they conflict with a statute, we hold that the social worker in this case was able to testify as an expert witness and was properly qualified as such. We also conclude that CAPI is based upon reliable principles, and therefore the trial court did not err by allowing testimony about Mother’s CAPI results. Any error in the admission of other challenged evidence was harmless, and there is sufficient evidence to support the trial court’s judgment. We affirm.
In Joshua Lindsey v. Adam Neher , an 8-page opinion, Judge Bailey writes:
Joshua Lindsey (“Lindsey”) appeals the denial of his motion to rescind a tax deed issued to Adam Neher (“Neher”) although the redemption notices had recited an incorrect tax sale date. We reverse and remand with instructions.

Lindsey presents three issues for review, which we consolidate and restate as a single issue: whether a failure to substantially comply with statutes governing tax sales and redemption rendered void the tax deed to Neher. * * *

In the trial court, Lindsey argued that he was deprived of his home of forty years without notice of an accurate tax sale date, a date upon which to calculate his redemption period. In essence, Lindsey has alleged that the tax deed is void due to insufficient notice, that is, he was deprived of his constitutional right to due process. We must agree.

The actual and constructive post-sale notices failed to accurately reflect that the tax sale had taken place on April 9, 2012. Both the notices by publication and the notice by certified letter recited a date two days later than the actual sale. Accordingly, Carmack’s heirs were not provided notice with a proper date upon which to calculate the redemption period. Moreover, the notice language strongly suggested, even if it was not definitively stated, that the 120-day redemption period extended to August 11, 2012. This falls far short of adequate notice to reasonably meet “the practicalities and peculiarities of the case.” Mullane, 339 U.S. at 314-15. * * *

The tax deed at issue was invalid and the judgment void as a matter of law. Lindsey is entitled to the equitable relief requested, specifically, that he be allowed to tender his redemption payment. We reverse and remand to the trial court for an order that the Carroll County Auditor accept redemption funds tendered by Lindsey.

In Jeffrey Embrey v. State of Indiana , a 14page opinion, Judge Bradford writes:
Appellant-Defendant Jeffrey Embrey was arrested at a home in Evansville on the afternoon of March 22, 2012, after officers with the U.S. Marshall’s Fugitive Task Force executed a warrant on an individual believed to be residing in the home. During a protective sweep and subsequent search of the home, officers found evidence of methamphetamine manufacture. Officers also found evidence that Embrey and a child resided in the home. Embrey was subsequently charged with and convicted of Class B felony dealing in methamphetamine, Class C felony neglect of a dependent, and Class D felony maintaining a common nuisance.

On appeal, Embrey contends that the trial court abused its discretion in admitting certain evidence under the business records exception to the hearsay rule. Embrey also contends that the evidence is insufficient to sustain his conviction for Class C felony neglect of a dependent. Concluding that the trial court acted within its discretion in admitting the challenged evidence and that the evidence is sufficient to sustain Embrey’s conviction for Class C felony neglect of a dependent, we affirm.

In Dean Eric Blanck v. State of Indiana, a 5-page opinion with a pro se appellant-defendant, Sr. Judge Darden writes:
Dean Blanck appeals the trial court’s denial of his petitions for permission to file a belated notice of appeal and for appointment of appellate counsel. We affirm. * * *

Blanck’s plea agreement, as well as the transcript of the plea hearing, clearly show that Blanck’s three-year sentence did not result from an open plea, but rather from his explicit agreement that for operating a vehicle while intoxicated he would be sentenced to a fixed sentence of three years on electronic monitoring. This plea of guilty with a fixed sentence precludes Blanck from challenging his sentence by direct appeal. Therefore, because Blanck does not have a right to challenge his sentence on direct appeal, he is not “eligible” to seek permission for a belated appeal to challenge his sentence under Post-Conviction Rule 2. Blanck’s available remedy, if any, is through the filing of a petition for post-conviction relief. * * *

Moreover, because Blanck is ineligible to bring a belated appeal, the trial court properly denied Blanck’s petition to appoint appellate counsel for that purpose.

NFP civil opinions today (3):

United Farm Family Mutual Insurance Co. v. Indiana Insurance Co. and Royal Crown Bottling Corp. (NFP)

In Re: The Marriage of Kenneth G. Haynie, Jr. v. Teresa H. Haynie (NFP)

Michael and Brenda Gralia v. Butler Garden Center (NFP)

NFP criminal opinions today (6):

Michael Toney v. State of Indiana (NFP)

Aaron Wiegand v. State of Indiana (NFP)

Kristi Gates v. State of Indiana (NFP)

Brian T. Martin v. State of Indiana (NFP)

James King v. State of Indiana (NFP)

Russell Grady v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 30, 2013
Posted to Ind. App.Ct. Decisions

Wednesday, May 29, 2013

Ind. Gov't. - "Indianapolis towing contract with Calif.-based company could ease hassles, but some question deal"

That is the headline to Jon Murray's just posted story on the IndyStar site. This caught my eye:

Code Enforcement officials declined to release details such as Auto Return’s proposed pricing structure, though department spokesman Adam Baker said the cost to consumers was a factor in the bid evaluation. The company possibly could send all towed vehicles to a single lot, a contractual point Code Enforcement hasn’t confirmed. * * *

For years, the city has awarded separate regular and heavy towing contracts for six zones across the city. Last Chance Wrecker currently has nine of those contracts, plus a contract for towing abandoned vehicles citywide; Hanna’s Wrecker Service has two contracts; and Wheeler’s Towing Services has one contract.

Those deals, which expire June 30, have brought in $1.2 million to $1.4 million a year for the city, Baker said, including a $45 cut for the city from each $90 flat-rate fee paid by owners of vehicles towed from accident scenes. * * *

All that Code Enforcement officials will say about the Auto Return deal is that it guarantees the city at least $1.5 million in revenue each year. The proposed contract wouldn’t affect towing from privately owned parking lots or tows ordered by other police agencies in Marion County.

ILB: And where is all this money coming from? The owners of the towed vehicles.

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to Indiana Government

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

For publication opinions today (3):

In Fishers Adolescent Catholic Enrichment Society, Inc. v. Elizabeth Bridgewater o/b/o Alyssa Bridgewater, a 44-page opinion, including a separate concurring opinion beginning on p. 35), Judge Vaidik writes:

Fishers Adolescent Catholic Enrichment Society, Inc. (“FACES”), is a private, non-profit organization with religious, educational, and social features. FACES was formed in 2006 to provide enrichment opportunities for homeschooled children. Its founders are Catholic parents and the majority, though not all, of the members are Catholic. When this dispute arose, FACES offered a number of educational courses to its high-school-aged members, none of which related to religion. FACES also sponsored social events. In fall 2008, FACES sponsored a dance, and one FACES parent, Elizabeth Bridgewater, requested special dietary accommodations for her child, Alyssa, who planned to attend. Alyssa suffers from a dietary condition that can cause a life-threatening allergic reaction if she eats certain foods. The Bridgewaters were unhappy with FACES’ response to their request and filed an accommodation complaint with the Indiana Civil Rights Commission (“ICRC”). The following month, the family was expelled from FACES. They filed an additional complaint with the ICRC, alleging that FACES had retaliated against them because they filed the accommodation complaint.

FACES moved to dismiss the accommodation and retaliation complaints, arguing that the ICRC did not have jurisdiction over FACES, which it characterized as a religious organization. An administrative law judge (“ALJ”) ultimately ruled that the ICRC had jurisdiction under Indiana’s Civil Rights Law (“the civil rights law”) because FACES “relates to” education. The same ALJ later ruled on the merits of the Bridgewaters’ complaints and concluded that FACES did not commit an unlawful discriminatory practice because it accommodated Alyssa’s dietary needs, but did commit an unlawful discriminatory practice by expelling the Bridgewater family after they filed the accommodation complaint. The ALJ awarded the Bridgwaters $5000 in damages and ordered FACES to: (1) cease and desist from retaliating against persons because they filed a complaint with the ICRC; (2) post a link to the ALJ’s order on all websites on which they communicated information about the case; and (3) offer reinstatement of the Bridgewater family to full membership, including all benefits. Both parties appealed the order to the ICRC. The order was affirmed in all respects, except the amount of damages was decreased.

Both parties now appeal. The main issues raised on appeal relate to the ICRC’s jurisdiction over FACES and the corrective action FACES was ordered to undertake. In addition, the parties challenge the ALJ’s conclusions as to accommodation, retaliation, and damages. We conclude that the nature and features of FACES make the organization sufficiently related to education such that the ICRC’s jurisdiction is proper, and we uphold the ALJ’s conclusions, with one exception. We find the ALJ’s order that FACES post its decision on all websites on which they communicated information regarding the case to be unconstitutional compelled speech, and we reverse this portion of the order. We affirm in part and reverse in part.

In Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock , an 11-page opinion, Judge Mathias writes:
Jill Bastone (f/k/a Jill Finfrock) (“Mother”) requested that the Porter Superior Court issue a Qualified Domestic Relations Order (“QDRO”) ordering that funds in the retirement account of her former husband, Mark Finfrock (“Father”), be applied to satisfy Father’s substantial child support arrearage. After initially granting the request, the trial court rescinded the QDRO and ordered Mother to pay attorney fees to Father. Mother now appeals and argues: (1) that the federal Fair Debt Collection Practices Act is inapplicable to the present case; (2) that the trial court erred in refusing to issue a QDRO; and (3) that the trial court erred by ordering Father’s child support payments to be made to the Indiana State Central Collections Unit (“INSCCU”). We affirm in part, reverse in part, and remand. * * *

The trial court erred in determining that the FDCPA applied to the present case. Therefore, to the extent that the trial court’s award of attorney fees was based on a perceived violation of the FDCPA, this award was improper. The trial court did not abuse its discretion in denying Mother’s request for a QDRO to attach Father’s retirement account. Lastly, the trial court did not actually alter Father’s income withholding order to direct that the payments go to INSCCU, and we need not consider whether the trial court erred in opining that Father’s income withholding order should be altered to comply with new federal rules. We therefore reverse the trial court’s award of attorney fees, affirm its denial of Mother’s request for the entry of a QDRO, and remand for proceedings consistent with this opinion.

In Glenn Patrick Bradford v. State of Indiana , a 25-page opinion, Sr. Judge Shepard writes:
Glenn Patrick Bradford was convicted of murder and arson in connection with the 1992 death of Tammy Lohr. His convictions were affirmed on appeal. Bradford now appeals the denial of his petition for post-conviction relief. We affirm. * * *

We find no clear error in the post-conviction court’s ruling.

NFP civil opinions today (3):

Jesse Brown v. State of Indiana Department of Child Services (NFP)

In the Matter of S.D.; J.B. v. The Indiana Department of Child Services (NFP)

Philip R. Davis v. City of Fort Wayne (NFP)

NFP criminal opinions today (2):

B.B. v. State of Indiana (NFP)

Leonard F. Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Supreme Court’s Ruling in Arlington v. FCC Highlights Debate Over the Meaning and Future of Chevron Deference Doctrine in Administrative Law"

That is the heading to this May 24th article in Verdict by Vikram Amar of the UC Davis Law School.

Here is the SCOTUSblog case page on City of Arlington v. FCC.

Here is an analysis of the opinion on SCOTUSblog by Miriam Seifter, with this intriguing beginning:

Monday’s opinion [5/20/13] in City of Arlington v. FCC is surely destined for administrative law textbooks. One reason is that the Court at last resolved a longstanding dispute in the field: whether agencies are eligible for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. when interpreting the scope of their own so-called “jurisdiction.” The answer is yes; as Justice Scalia’s majority opinion explains, the distinction between jurisdictional questions and non-jurisdictional interpretations is “a mirage.” The decision is also a bonanza for other significant administrative-law debates. It provides another chapter in the disagreement between Justices Scalia and Breyer over the virtues of rules versus standards in determining deference; it includes an interesting sidebar between the majority and the dissent regarding federal agencies’ accumulation of legislative, executive, and judicial power; and it features a vigorous dissent by the Chief Justice regarding “the danger posed by the growing power of the administrative state,” which now entails “hundreds of federal agencies poking into every nook and cranny of daily life.”

The practical effect of Arlington, in contrast, is not clearly so momentous – and not nearly as significant as a decision ruling the opposite way would have been. Making the deference framework unavailable for supposedly jurisdictional questions might well have unraveled Chevron, which has become administrative law bedrock. The Solicitor General expressed this fear at oral argument, telling the Court that to deny deference to “jurisdictional” questions would open a “Pandora’s box,” because jurisdictional questions cannot coherently be distinguished from other interpretive questions. But allowing the Chevron framework to apply to such questions does not portend the same sea-change. Arlington does not eliminate all judicial latitude in resolving the “Step Zero” question – that is, the question whether Chevron applies at all – and it does nothing to diminish the considerable leeway courts have when actually applying Chevron.

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to Courts in general

Law - Confused about 501(c)(3) and 501(c)(4)?

The Congressional Research Service has just issued an 18-page report, titled "501(c)(4)s and Campaign Activity: Analysis Under Tax and Campaign Finance Laws."

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to General Law Related

Courts - The abortion issue returns to the SCOTUS

From the New Yorker "Daily Comment" blog today, a long informative post by Jeffrey Toobin that begins:

As the Supreme Court’s term winds to a close this month, the Justices will be addressing a series of issues that reflect a changing agenda—the country’s and their own. There are two major same-sex-marriage cases, a challenge to the Voting Rights Act based on the changing politics of the South, and even a futuristic dispute about the patenting of human genes. But before too long—indeed, probably next fall—the Court will have to return to one of its most enduring controversies: abortion.
The post continues:
In state after state, ... Tea Party lawmakers passed new restrictions on abortion, and as the restrictions have taken effect challenges to them have started to work their way through the courts.

According to the Guttmacher Institute, nineteen states passed forty-three new restrictions on abortion in 2012—on top of ninety-two restrictions passed in 2011.

The post then discusses the "four general areas " of restrictions. It also links to the Guttmacher report, whose survey goes through 2012 legislative activities, but does not include what has happened so far in 2013. Of course, the 2013 activities will take time to move through the courts.

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to Courts in general

Ind. Decisions - "Planned Parenthood prevails at court: Justices won’t hear state’s bid to defund group over abortion"

Updating yesterday's ILB entry on the SCOTUS denial of cert in Planned Parenthood v. FSSA, here is Niki Kelly's story in the Fort Wayne Journal Gazette, which begins:

INDIANAPOLIS – The U.S. Supreme Court on Tuesday gave Planned Parenthood of Indiana a victory in an ongoing legal battle over an attempt by Indiana legislators to strip millions in funding because the group offers abortions.

The court chose not to review previous rulings against the state law disqualifying abortion providers from receiving Medicaid dollars for other services.

That means Planned Parenthood of Indiana can continue to collect Medicaid funding even as it continues to offer abortion services.

The American Civil Liberties Union, the ACLU of Indiana, Planned Parenthood of Indiana and Planned Parenthood Federation of America initially challenged the law in 2011. The law would have prevented Medicaid patients from obtaining services such as cancer screenings and birth control at Planned Parenthood and other facilities that provide abortion care.

It is already against the law to use federal or state dollars to provide abortions.

In October 2012, a three-judge panel for the U.S. Court of Appeals for the 7th Circuit upheld a lower court injunction blocking the law.

And now the highest court in the land has declined to review the matter further.

Here is an AP story by Charles Wilson that begins:
INDIANAPOLIS (AP) — Indiana will likely stop defending a law that stripped Medicaid funds from Planned Parenthood after the Supreme Court declined to hear the case Tuesday, an attorney who represents the nation's largest abortion provider said.

Indiana is among more than a dozen states that have enacted or considered laws to prevent taxpayers' money from funding organizations that provide abortion. The 7th U.S. Circuit Court of Appeals ruled Oct. 23 that the 2011 law targeting Planned Parenthood went too far because it denied women the right to choose their own medical providers.

"I assume at this point the state will give up in its claim that that portion of the statue is valid under the Social Security Act," said Ken Falk, legal director of the American Civil Liberties Union of Indiana. The case now returns to U.S. District Judge Tanya Walton Pratt, who granted the initial preliminary injunction to temporarily block the law, precipitating the state's appeals.

The Family and Social Services Administration — the agency tasked with enforcing the law — declined comment.

"My office always contended this is ultimately a dispute between the state and federal government, not between a private medical provider and the state," Indiana Attorney General Greg Zoeller said in a statement. Zoeller's office handled the state's appeal.

Gov. Mike Pence, a fierce opponent of Planned Parenthood during his time in Congress, said he will decide what to do after viewing his legal options.

"We're disappointed in the court's decision, we obviously strongly supported the efforts of 2011," Pence said Tuesday. "I continue to believe and feel strongly that taxpayers should not be required to support the largest abortion provider in America."

Jill Disis of the Indianapolis Star reports today in a story that begins:
An order from the U.S. Supreme Court on Tuesday might have finally signaled the end of Indiana’s two-year debate over blocking Planned Parenthood from getting Medicaid funding.

The justices refused to hear a challenge to a lower court ruling striking down a 2011 law that at the time made Indiana the first state in the nation to bar the organization from receiving federal money because it offers abortions. Under the law, Medicaid patients would have been barred from obtaining preventative health care services at Planned Parenthood health centers, and health care providers who perform abortions would have been penalized despite not using federal money for those services.

The law would have also defunded family planning programs throughout the state.

“We are happy that the Supreme Court’s action lets stand the Appeals Court ruling that the state does not have plenary authority to exclude a class of providers for any reason,” said Jane Henegar, Executive Director of the ACLU of Indiana, in a statement issued Tuesday. “Federal law protects the right of Medicaid patients to choose a health care provider free of interference from the state.”

The American Civil Liberties Union, the ACLU of Indiana, Planned Parenthood of Indiana and Planned Parenthood Federation of America initially challenged the law, HEA 1210, in 2011.

A month after then-Gov. Mitch Daniels signed the law, U.S. District Judge Tanya Walton Pratt issued a temporary injunction stopping it from taking effect.

Last October, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld that injunction. The Indiana Attorney General’s office petitioned the Supreme Court in February.

“This is a major victory,” said Ken Falk, legal director of the ACLU of Indiana. “This is something states simply cannot do in the Medicaid program.”

More from the Star story:
The case now heads back to the U.S. District Court that originally granted the preliminary injunction -- where the case likely will play out in Planned Parenthood’s favor, Falk said.

Indiana Attorney General Greg Zoeller, who argued the case of the state’s behalf, said in a statement the state will continue looking at any remaining legal avenues despite the Supreme Court’s refusal to hear their case and the appeals court decision. One outstanding issue, said Zoeller spokesman Bryan Corbin, is a separate administrative appeal of the state’s Medicaid plan.

Last July, the federal Centers for Medicare and Medicaid Services upheld an earlier decision not to approve Indiana’s plan because of changes under the 2011 law. Zoeller’s office appealed that ruling, and they still are waiting for a final decision from the federal agency’s administrator.

Corbin said he did not know when that decision might come.

But David Orentlicher, a professor at Indiana University’s Robert H. McKinney School of Law, said it’s unlikely the state will win that appeal. * * *

Orentlicher also said he expected the U.S. District Court to rule in Planned Parenthood’s favor. If that’s the case, the Attorney General’s office could again challenge the ruling — but Orentlicher said there’s not much reason for doing so.

“You don’t have an injunction” stopping the law from taking effect, Orentlicher said. “The delay doesn’t do anything for the Attorney General to keep dragging it out other than shoring your base.

“I think this sets a pretty strong precedent for the rest of the country.”

Since 2011, Planned Parenthood has won legal battles against defunding its services in five states — Arizona, Indiana, Kansas, North Carolina and Tennessee.

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

Ind. Gov't. - "A tragedy like Tramelle Sturgis' could happen again"

Some quotes from an editorial today in the South Bend Tribune:

Indeed, there is optimism regarding Department of Child Services reforms which passed this spring's Indiana General Assembly.

The disconnect that still exists, however, between DCS and law enforcement leaves too much opportunity for a repeat of what happened to Tramelle.

Since the boy's death, DCS has begun to be more collaborative with law enforcement here and throughout the state.

In St. Joseph County, for example, Prosecutor Michael Dvorak says local DCS case staff have begun to meet daily with the prosecutor's Special Victims Unit to review complaints to the abuse and neglect hot line.

However, a decision on whether to immediately report calls to police still falls to the discretion of regional case managers.

Local law enforcement officials, including ones who investigated Tramelle's death, say details of a hot line call reported to DCS might have caused them to look deeper into what was going on in the Sturgis home.

Posted by Marcia Oddi on Wednesday, May 29, 2013
Posted to Indiana Government

Tuesday, May 28, 2013

Environment - "Walmart Pleads Guilty To Dumping Hazardous Waste, Will Pay $81 Million"

From the Huffington Post:

SAN FRANCISCO -- Wal-Mart Stores Inc. pleaded guilty on Tuesday to charges the company dumped hazardous waste in California.

Wal-Mart entered the plea in federal court in San Francisco to misdemeanor counts of negligently dumping pollutants from Walmart stores into sanitation drains across California, a company spokeswoman said.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Environment

Ind. Courts - "Allen court using QR codes to aid potential jurors"

Rebecca S. Green reports in the Fort Wayne Journal Gazette in story that begins:

FORT WAYNE – Allen Superior Court will soon be testing the use of QR codes that would help potential jurors communicate with the courts.

Quick response codes, or QR codes, are two-dimensional codes, commonly used now in marketing and consumer advertising. Read using apps on smart phones or other computing devices, the codes often take the user to a website, or provide other data such as a coupon.

In June, the county unveiled a postcard juror notification program that provided potential jurors with the address for a website or a telephone number to complete their questionnaires. Six months later, Allen County announced potential jurors could use text messaging to communicate with the court system.

The QR codes would make it even easier, and require nothing more than a free app for a cellphone. Those with smartphones can access the website and questionnaire using the QR codes.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Indiana Courts

Courts - "Is capital punishment uniquely unfair to jurors required to make life/death decision?"

An interesting post from the Sentencing Law Blog.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Courts in general

Environment - "Steel firms in lawsuit over tainted soil: Each says it’s the other one’s job to pay for the cleanup"

From Rebecca S. Green of the Fort Wayne Journal Gazette, this Sunday story - some quotes:

FORT WAYNE – For nearly a century, a steel mill operated on Taylor Street, just southwest of downtown.

And as one would expect after that much heavy industry on a particular piece of land for so long, the property was contaminated with a variety of chlorinated solvents, metals, and other contaminants, according to court documents.

Over the past few years, a lawsuit has been making its way through the U.S. District Court in Fort Wayne which, when settled or decided, will determine who is responsible for paying the costs to clean up the mess.

The property’s current owner, Valbruna Slater Steel Corporation, argues that, while it has been its job to minimize the damage done by the contamination, and to clean it up, the bill belongs to the site’s prior owners, Joslyn Manufacturing Company, which owned it for more than 50 years.

However, the site’s former owners argued that too much time has passed for Valbruna to make any claim for payment for cleanup work done in the past, currently and most definitely in the future.

It will now be up to a federal judge to decide.

The story continues at length with details of the site history and the lawsuit.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Environment

Environment - More on "EPA may add Indianapolis site to Superfund cleanup list"

Updating this ILB entry from May 22nd, where Beck’s Lake (former automotive and hazardous waste dump) in South Bend is one of the locations listed for possible inclusion on the Superfund, Erin Blasko of the South Bend Tribune had a long story this weekend headed "EPA action adds to mystery, concern about pollution of Beck's Lake site." From the story:

"Proposing the Beck's Lake Site to the National Priorities List (NPL) allows EPA to begin further investigations, known as a comprehensive Remedial Investigation (RI) under the federal Superfund law," a statement issued by the agency's Region 5 office in Chicago this past week read.

"Further investigation in and around LaSalle Park is warranted because the levels of arsenic in soil samples exceeded background concentrations. However, arsenic levels, taken from limited soil samples, are below levels that would warrant emergency actions such as restricting access to the park or an immediate short-term cleanup."

The EPA also plans additional sampling at the park, including the play areas, over the summer, according to the statement, "to gather more data and work with health officials to assess whether any other recommendations should be made regarding the use of LaSalle Park."

"The initial testing is separate from any testing that could be performed as part of a comprehensive RI," the statement read. "An RI would evaluate the overall nature and extent of contamination in the soil, surface water and groundwater.

"New data and a human health risk assessment from the completed RI would determine what type of cleanup, if any, is necessary."

Given the seriousness of the matter, the mayor's office has asked the EPA to hold a public meeting here in the near future to "advise citizens of the next steps and address local concerns about any health and safety implications."

The law establishing the federal Superfund program authorizes the EPA to identify the party responsible for contaminating a site and to compel them to clean it up. If a responsible party cannot be found, the agency is authorized to perform the cleanup itself. * * *

The history of the Beck's Lake site is somewhat murky, much like the lake itself after a heavy rain.

What is known is this:

Beginning about 1915, the Bendix Corp. and others began dumping waste at the site, including asbestos, plating wastes, solvents, paint wastes, oils and sludges and foundry sand, which contains arsenic.

Aerial photos taken at the time and in subsequent years clearly show the activity.

The dumping continued for about 40 years, ending in the mid-1950s.

About eight years later, in September 1963, the city, as part of a larger neighborhood renewal project, bought the 32 acres that made up the dump and began to develop it into a park.

Despite that, people continued to treat the park as an open dump.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Environment

Ind. Gov't. - Lobbying state government appears to be quite a lucrative profession

Niki Kelly of the Fort Wayne Journal Gazette writes today in the FWJG blog, "Political Notebook":

About a year after taking the lucrative position, Matt Bell is leaving as president of Ivy Tech Corporate College to become a lobbyist.

The news came Friday via an email from the communications department, which said Bell's last day will be June 30.

"I will be leaving CorporateCollege to begin a business with a long-time colleague at the end of the fiscal year. I am tremendously excited with the opportunity ahead of me, and yet leaving this team and Ivy Tech has been a very difficult decision," Bell said.

He started his position in April 2012 at an annual salary of $250,000.

Bell told Political Notebook that he is finalizing a partnership with a colleague to lobby state government.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Indiana Government

Ind. Decisions - "Murder case remains in legal limbo"

The Supreme Court held oral argument on whether the grant transfer in the case of Brian Hartman v. State on Dec. 7, 2012. As Douglas Walker writes today in the Muncie Star-Press:

WINCHESTER — The trial of a Randolph County man accused of killing his father was rescheduled — again — last week, and is now set to begin on Sept. 6.

That would be only five months short of four years since Brian “Scott” Hartman, now 36, allegedly shot his father, also named Brian Hartman, in the family’s home in the 9700 block of South Randolph County Road 425-W. * * *

Randolph Circuit Court Judge Jay Toney and the Indiana Court of Appeals have ruled that incriminating statements Hartman allegedly made concerning his parents’ deaths can be used as evidence in his trial.

Last December, the Indiana Supreme Court held a hearing on defense attorney Mark Cox’s bid to have the state’s highest court consider his contention that his client’s statements should be ruled inadmissible.

The Supreme Court has the options of accepting transfer of the case, likely leading to further hearings, or declining to intercede, or issuing a ruling based on the testimony at the Dec. 7 hearing.

To this point — 171 days since conducting their hearing — the court’s justices have done nothing, bringing the Hartman case to a legal standstill.

Hartman has spent nearly 1,200 days in the Randolph County jail awaiting resolution of the case.

See also this related May 22nd post from Prof. Joel Schumm, headed "Appellants Have Been Striking Out at Oral Arguments on Whether to Grant Transfer." Hartman is the oldest case on the list of oral arguments awaiting decision on Appellants' petitions to transfer.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Gov't. - More on the upcoming June 12th technical session and the planned attempt to override the veto of HEA 1546

Updating this ILB entry from May 23rd, the ILB asked a very knowledgeable, and longtime, observer of the General Assembly, who I contacted to make sure my memory was correct:

ILB Q: Tell me, is the the first time they have used the technical corrections provision to call themselves into session?

Answer: Yes, they have several times set a date for one but never actually called one. They also intend to do a technical corrections bill that day.

Dan Carden writes today about the vetoed HEA 1546, in a story headed "Pence vetoes show GOP tension on taxes, regulation." Some quotes:
INDIANAPOLIS | The Indiana General Assembly's Republican supermajorities hate taxes and government regulation -- except when they don't -- and in two weeks they'll have to decide whether to re-approve a retroactive tax hike they easily passed the first time around.

Republican Gov. Mike Pence vetoed House Enrolled Act 1546 and called the retroactive approval of a higher income tax rate in Jackson and Pulaski counties improper. Both counties collected revenue at the higher rate to fund jail construction bonds even though authorization to do so had expired.

"If Hoosiers owe taxes, they should pay them. But when Hoosiers pay taxes that are not owed, they deserve relief, and this legislation does not meet that standard," Pence said in his veto message.

House Speaker Brian Bosma, R-Indianapolis, and Senate President David Long, R-Fort Wayne, disagree. They've scheduled a one-day meeting of the Legislature on June 12 to try to override Pence's veto.

"The problems associated with the veto, if it stands, will be immense," Long said.

Long noted it would be almost impossible for the counties to refund the extra income tax collections in any timely way. Long also said the state's bond rating could suffer if the counties default on loan payments.

Approval by a simple majority in both chambers is needed to override the governor's veto and enact the measure into law. The legislation was initially passed 98-0 in the House and 48-1 by the Senate.

ILB: I hadn't really looked at HEA 1546 until Friday, when I heard it mentioned on Indiana Week in Review that the 65-page bill contains much more than the provision affecting Jackson and Pulaski counties. And indeed it does! Here is the final digest:
Tax administration. Makes numerous changes concerning the administration of the state gross retail tax, the adjusted gross income tax, the commercial vehicle excise tax, tax collection, penalties, and the registering and plating of certain commercial vehicles.

Restores provisions repealed in 2012 concerning the deduction and credits provided to retail merchants with respect to prepaid sales taxes on gasoline and special fuel.

Authorizes the disclosure of taxpayer information to a member of the general assembly or an employee of the house of representatives or the senate if the member or employee is acting on behalf of the taxpayer and certain conditions are met.

Repeals obsolete provisions in the commercial vehicle excise tax law.

Provides an alcoholic beverage excise tax credit for liquor or wine excise taxes paid in duplicate as a result of excise taxes being imposed both at the time the taxed goods are received and when the same goods are withdrawn from a storage facility.

Requires the taxpayer to annually use an amount equal to the credit for capital expenditures to expand employment or assist in retaining employment within Indiana.

Requires the department of state revenue to annually verify whether the capital expenditures made by the taxpayer comply with the requirement.

Provides that the office of management and budget may enter into an offset agreement with the Secretary of the Treasury of the United States to participate in a reciprocal Treasury Offset Program under federal law.

Provides certain exemptions for an out-of-state business that performs disaster emergency related work in Indiana.

Specifies that a deceased veteran's surviving spouse is eligible for a veteran's property tax deduction if the deceased veteran satisfied the requirements for the deduction at the time of death and the surviving spouse owns the property at the time the deduction statement is filed.

Specifies that the surviving spouse may provide the documentation necessary to establish that the deceased veteran qualified for the deduction at the time of death.

Provides that the surviving spouse is entitled to the deduction regardless of whether the property for which the deduction is claimed was owned by the deceased veteran or the surviving spouse before the deceased veteran's death.

Provides that a surviving spouse who was denied the deduction for the March 1, 2012, or March 1, 2013, assessment date is entitled to a refund of the property taxes paid with respect to the denied amount if the qualifying surviving spouse files a statement for the deduction before September 1, 2013.

Allows veterans with qualifying disabilities who do not own certain types of taxable property to claim credits against the motor vehicle excise tax.

Allows the surviving spouses of qualified veterans and World War I veterans who do not own those types of taxable property to claim the credits. Specifies that the amount of the credit is the lesser of the claimant's excise tax liability or $70.

Provides that the maximum number of vehicles for which credits may be claimed is two. (Current law allows such veterans to apply any excess property tax deduction amount to the motor vehicle excise tax as a credit, but owning property is a requirement for claiming the property tax deduction and applying its excess to the excise tax.)

Extends the period during which Jackson County may impose an additional 0.1% county adjusted gross income tax (CAGIT) rate to operate and maintain a jail and a juvenile detention center until 2024.

Legalizes and validates taxes collected at the additional rate in Jackson County after June 30, 2011, and before July 1, 2013.

Extends the period during which Pulaski County may impose an additional 0.3% county adjusted gross income tax (CAGIT) rate to operate and maintain a jail and justice center until 2021.

Legalizes and validates taxes collected at the additional rate in Pulaski County after the eight years authorized by statute had elapsed and before July 1, 2013.

Changes the maximum innkeeper's tax rate that may be imposed by the county council of Vigo County from 5% to 8%.

Provides that the Indiana economic development corporation may designate not more than two new certified technology parks during any state fiscal year.

Provides that the designation of a new certified technology park is subject to review by the budget committee and approval of the budget agency.

Provides a procedure for a public utility to obtain a property tax credit for an overassessment of the public utility's distributable property.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

In Re the Matter of L.P., Alleged Child In Need of Services, S.P. and M.H. v. Indiana Department of Child Services and Miami County CASA Program (NFP)

In Re The Matter of: D.H. and D.H., Children in Need of Services; D.H. (Father) v. Marion County Dept. of Child Services, and Child Advocates, Inc. (NFP)

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

Dennis Powell & Barbara Powell v. Porter Hospital, LLC d/b/a Porter Hospital (NFP)

D.P. and G.P. v. J.H. and T.H. (NFP)

NFP criminal opinions today (7):

David Streeter v. State of Indiana (NFP)

Robert L. Murray v. State of Indiana (NFP)

Kevin Williams v. State of Indiana (NFP)

Samuel Bradley v. State of Indiana (NFP)

Angel L. Diaz v. State of Indiana (NFP)

Louis Moreira v. State of Indiana (NFP)

Richard B.E. Spoon v. State of Indiana (NFP)

Jacob Phillips v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 24, 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, May 24, 2013. It is one page (and 10 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Indiana Transfer Lists

Courts - "One Small Win for Raw Milk "

From the WSJ today, a story that I believe is publicly accessible, reported by Kelsey Gee. The story begins:

Raw-milk proponents celebrated a Wisconsin farmer's acquittal on three of four counts related to selling unpasteurized milk and cheese, bolstering their hopes of legalizing the products in America's Dairyland.

Jurors found Vernon Hershberger, a 41-year-old Loganville, Wis., farmer, innocent of producing milk without a license, selling milk and cheese products without a license, and operating a retail establishment without a license. He was found guilty of one count of breaking a holding order issued by the state in June 2010, which barred him from moving any of the food he produced without a license.

The verdict means Mr. Hershberger can continue to sell his farm's products to members of the buying club he started, said one of his attorneys, Elizabeth Rich. He faces as long as a year in jail and $10,000 in fines for the one guilty count; a sentencing date has yet to be announced.

"This is a huge win for food rights," said Liz Reitzig, a founder of Farm Food Freedom Coalition, a group advocating for greater consumer access to natural, unprocessed food. The case "should give small farmers renewed courage to continue to operate within their communities."

Rick Barrett of the Milwaukee Journal Sentinel reported the story May 25th. Some quotes:
Baraboo — Dairy farmer Vernon Hershberger was acquitted on three of four criminal charges early Saturday morning in a trial that drew national attention from supporters of the raw, unpasteurized milk movement.

Jurors in Sauk County Circuit Court deliberated about four hours, until nearly 1 a.m. Saturday, before returning a verdict of guilty on one charge of violating a holding order placed on products on the Hershberger farm following a raid there in the summer of 2010.

The 41-year-old farmer faces up to a year in jail and $10,000 in fines on that conviction. A sentencing date will be announced later, Judge Guy Reynolds said.

Hershberger was found innocent of three charges that included operating an unlicensed retail store that sold raw milk and other products; and operating a dairy farm and dairy processing facility without licenses.

Hershberger's supporters have said he was targeted for prosecution because he sold raw milk directly to consumers through a private buying club with several hundred members.

The trial's outcome will set a precedent, according to the Weston A. Price Foundation, an organization that has advocated for the legalization of raw-milk sales in Wisconsin and other states. "This is a victory for the food rights movement," said one of Hershberger's attorneys, Elizabeth Rich.

With few exceptions, Wisconsin farmers can't sell unpasteurized milk directly to consumers because it may contain pathogens that result in serious illness. * * *

Earlier in the day, the farmer testified that he felt betrayed by state Department of Agriculture, Trade and Consumer Protection officials who raided his farm in June 2010 and intentionally destroyed 2,000 pounds of milk.

He was afraid that DATCP would destroy other food as well. Hershberger said that is why he violated the hold order, taking some food for his family and allowing members of the buying club to remove items for their use.

"I prayed and meditated a lot," he said about the decision, which he described as an act of civil disobedience.

Hershberger said he had wanted to develop a business plan for his farm that would have been acceptable to state officials and maintained the Amish tradition of sharing food with the community.

"I tried to work with people. I would have been happy to sit down with them and come up with a workable solution, and I would still do that," he said while on the witness stand for several hours.

Prosecutors, represented by the state Department of Justice, depicted Hershberger as someone who flouted the law by not getting a $265 retail license — although the inclusion of unpasteurized dairy products in his food store would have made that impossible, according to a state official.

Prosecutors alleged that Hershberger ran an unlicensed retail food business that shipped products out of state and had a product list with many items not from the farm.

In his closing arguments, Department of Justice attorney Eric Defort said the dairy farmer clearly operated a retail store, complete with a product price list, a cash register and a credit-card machine.

"This is a place where you go to purchase things. You saw the products labeled with prices, on shelves, in coolers ...meat, pork, bison, cheese, juices, all kinds of products — all labeled and priced for sale," Defort said to jurors.

Defense attorney Glenn Reynolds described the store as a place where only members of the buying club could get products, and that it was nothing like a Costco, Sam's Club or regular grocery store.

Prices were flexible enough that if members of the club fell on hard times and could not afford to feed their family, they could get fresh, wholesome food for free.

"None of us would go into a Kwik Trip and walk out with a bottle of milk if we couldn't afford it," Reynolds said.

State officials spent three years investigating Hershberger, producing thousands of documents but not once speaking with any of the members of the buying club who wanted to tell their story, according to Reynolds.

"This is one of the most incomprehensible abuses of power I have ever seen," he said, adding that the investigation was biased and mean-spirited.

"It was a pathetic waste of government resources to try and convict a man who had never been in trouble with the law in his entire life and is a hero for coming up with a new way" to connect urban consumers with a family farm, Reynolds said.

The ILB has lost track of the status of the raw milk issue in Indiana. Here are the earlier posts.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Courts in general

Ind. Decisions - "Camp Wildwood Decision: More on: Justices Put Girl Scout Camp Back To Local Control"

Updating this May 16th ILB entry about the Supreme Court's decision in the case of Girl Scouts of Southern Illinois v. Vincennes Indiana Girls, Inc., where the decision ended a long fight between the Vincennes Girl Scouts and the Illinois-based Southern Illinois Girl Scout Council, which was trying to sell the Camp Wildwood, which is located in the City of Vincennes -- Today the Lafayette Journal Courier has a long story by Ryan J. Foley of the Associated Press about a nationwide movement to sell off Girl Scout camps. Some quotes from the start of the story:

IOWA CITY, IOWA — When it came time to draw up a budget, one of Iowa’s regional Girl Scout councils reviewed its programs and made a proposal that would have been unthinkable a generation ago: selling its last four summer camps. * * *

Nationwide, Girl Scout councils are confronting intense opposition as they sell camps that date back to the 1950s and earlier. Leaders say the properties have become a financial drain at a time when girls are less interested in camp. Defenders insist the camping experience shaped who they are and must be preserved for future generations.

“Those camps still belong to us, not just literally as members of the organization, but as people who feel like, ‘That’s part of my home life,’ ” Kinsey said. “When camps get closed, it’s devastating. I mean, heartbreaking. We adults can cry over it and do.”

Pro-camp activists have boycotted cookie drives, held overnight camp-ins outside council offices, filed legal actions and tried to elect sympathetic volunteers to governing boards.

The other side has responded with its own aggressive tactics. At public meetings, some Girl Scout councils have hired facilitators to tightly manage the agenda and security guards to watch over protesters. Others have used parliamentary tactics to call protesters out of order.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Indiana cert petition nominated as "petition of the day" yesterday by SCOTUSblog [Updated]

Updating this ILB entry (which includes links) from May 22nd, the SCOTUS has this morning rejected the State of Indiana's cert petition in Planned Parenthood of Indiana, Inc. v. Secretary of the Indiana Family and Social Services Administration. The AP reports:

The Supreme Court will not disturb a lower court ruling that blocks Indiana's effort to strip Medicaid funds from Planned Parenthood because the organization performs abortions among its medical services. * * *

The 7th U.S. Circuit Court of Appeals said the state law targeting Planned Parenthood went too far. Indiana is among more than a dozen states that have enacted or considered laws to cut off taxpayer money to organizations that provide abortion.

From the ACLU news release:
The American Civil Liberties Union, the ACLU of Indiana, Planned Parenthood of Indiana and Planned Parenthood Federation of America initially challenged the law, HEA 1210, in 2011. The law would have prevented Medicaid patients from obtaining services at Planned Parenthood and other facilities that provide abortion care, and it would have penalized health care providers who perform abortions, even though they do so without using federal dollars. In October 2012, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit upheld the lower court injunction.

"This has been a long fight, but one that has been worthwhile because we've been fighting on behalf of our patients and their access to lifesaving, preventive care such as Pap tests, breast and testicular exams, birth control and STD testing and treatment," said Betty Cockrum, PPIN's president and CEO. "While the State has been trying to score political points and wasting taxpayer dollars, we've been standing up for the Hoosiers who count on us every day. We look forward to the day the preliminary injunction in this case becomes permanent."

"This dangerous law put politics above women's health," said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. "It effectively barred access to vital medical services, the lower court properly held it unconstitutional, and we are not surprised that the Supreme Court let that decision stand."

[Updated at 2:39 PM] Here is Eric Bradner's Evansville C&P coverage of today's action by the SCOTUS. And here is Tim Evans' story in the Indianapolis Star.

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

Environment - "Around the Great Lakes, they're playing to their strength - fresh water"

A long AP story, as published today in the Lafayette Journal Courier. It begins:

MILWAUKEE — The U.S. Great Lakes hold nearly one-fifth of the freshwater on the Earth’s surface. But some of the saddest, most bedraggled urban wastelands sit on the shores of the vast inland seas sometimes called America’s North Coast.

After the collapse of the region’s heavy manufacturing unleashed an exodus of jobs to the sunny southern regions, one proposal after another for revival fell short.

But drought has gripped the southern Sun Belt in recent years, and federal scientists predict a worsening situation there if climate change models prove accurate. Worried southern leaders there are floating increasingly radical proposals, from billion-dollar pipelines traversing hundreds of miles to creating artificial lakes.

As growing water scarcity casts a shadow over the economic boom in warmer states, many in the long-scorned northlands are hoping they can finally make their abundance of freshwater a magnet for businesses and jobs that are now going elsewhere. Some say the idea is a perfect nexus of opportunity and timing, while others deride it as just another longshot attempt by a cold and downtrodden region to reverse history.

It’s all part of a broader effort unfolding across the Great Lakes region to regain lost prosperity by developing a “blue economy” — a network of industries that develop products and services related to water, from pump and valve manufacturers to resorts offering vacations along redeveloped lakeshores.

A sidebar adds:
Great Lakes conference coming soon to Purdue

Hundreds of scientists will come to West Lafayette next week for a conference on the most recent research on the Great Lakes.
More than 600 people are expected to attend the June 2-6 Conference on Great Lakes Research, being held for the first time at Purdue University.
The gathering of scientists, environmentalists, economists and government officials from around the globe will include wide-ranging presentations on the Great Lakes and other large lakes.

The conference will include sessions on the impact of invasive species, such as Asian carp. Researchers will also discuss recent findings on how climate change and contamination are affecting the Great Lakes basin.

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Environment

Ind. Gov't. - "Marion County board set to award $65M in technology contracts to two companies" [Updated at 10:37 AM]

Jon Murray has a long story today in the Indianapolis Star that begins:

The computer technology and support provider for more than 50 Indianapolis and Marion County departments, offices and agencies would change next year under a pair of contracts set for votes today by a county board.

Together, those five-year deals are worth $65 million — among the largest services bid out by city/county government.

In recent weeks, the competition has gotten heated, with one current contractor, Northrop Grumman, protesting publicly and raising conflict-of-interest concerns when it lost out to a new bidder on a nearly $31 million piece of the deal.

Officials say the process was fair, though they declined to discuss specifics until the contracts are finalized.

“We knew there would be vendors that would be disappointed,” Chief Information Officer Kevin Ortell said, given the stakes at play.

[Updated at 10:37 AM] The clerk's office has just issued a news release headed "Marion County Information Technology Board Awards Five-Year Contracts for Enterprise-Wide Infrastructure & Application Services: Atos North America selected for IT infrastructure, DAI will support application services".

Posted by Marcia Oddi on Tuesday, May 28, 2013
Posted to Indiana Government

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

From Monday, May 28, 2013:

From Sunday, May 27, 2013:

From Saturday, May 26, 2013:

From late Friday afternoon, May 25, 2012:

Posted by Marcia Oddi on Tuesday, May 28, 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 (5/27/13):

Thursday, May 30th

Next week's oral arguments before the Supreme Court (week of 6/3/13):

Thursday, June 6th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 5/27/13):

Next week's oral arguments before the Court of Appeals (week of 6/3/13):

Tuesday, June 4thth [Note: moved from Tuesday, May 28th]

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 Tuesday, May 28, 2013
Posted to Upcoming Oral Arguments

Monday, May 27, 2013

Courts - "Justices Agree to Agree, at Least for the Moment"

Some quotes from Adam Liptak's weekly NY Times column, "Sidebar":

For now, consensus reigns. That is partly because some of the recent decisions were decidedly minor. One, concerning a towed car, would not have been out of place in small claims court or before Judge Judy. Another, about the meaning of the word “defalcation” in the Bankruptcy Code, must have made Justice Stephen G. Breyer, its author, wonder what he had done to deserve the assignment.

But the justices were unanimous in significant cases, too. They let Monsanto protect its patented genetically modified soybeans and allowed American companies credits for some taxes paid abroad. Both times, the sums at stake were easily in the hundreds of millions of dollars.

The recent unanimous cases are noteworthy for a second reason: many truly speak with a single voice. The court led by Chief Justice John G. Roberts Jr. has set records for faux unanimity, where the justices agree on the result but barnacle the majority opinion with concurrences expressing caveats, interpretive glosses or wholly different rationales.

The recent unanimous cases are different. In five of the six, there was just one opinion.

Such authentically unanimous decisions are built to last. By contrast, when the justices agree on the result but disagree about the reasons for it, the majority opinion has less force. Pamela C. Corley, a political scientist at Southern Methodist University, wrote a 2010 book on Supreme Court concurrences, of all things, and she found that majority opinions undermined by such concurrences are less likely to be followed in lower-court decisions and in later ones from the Supreme Court.

How do the same justices who issue the bitterly contested decisions in headline-grabbing cases manage to agree so often? A new book with an apt title — “The Puzzle of Unanimity: Consensus on the United States Supreme Court” — surveys the territory and suggests some answers.

Liptak also writes:
The harmony will dissipate in the final weeks of the term, which will probably conclude in late June. It is the divisive and hard-fought decisions that take the longest to produce, as the justices exchange draft opinions and respond to one other in evolving majority opinions, concurrences and dissents.

The marquee decisions of the term — on affirmative action, voting rights and same-sex marriage — will almost certainly be closely divided on the core issues.

Posted by Marcia Oddi on Monday, May 27, 2013
Posted to Courts in general

Ind. Gov't. - Commentary on legislative summer study committees

Updating this ILB entry and this one, both from May 23rd, here are two interesting commentaries.

The first is Lesley Weidenbener's column in the Sunday Louisville Courier Journal, headed "Indiana lawmakers should take summer studies seriously." A few quotes:

Issues often go to study committees because the questions seem too tough to tackle in the deadline-driven atmosphere of a legislative session. Study committee topics are often complicated and controversial.

The goal is — or should be — to conduct a thorough and fair study of an issue so the group can make thoughtful recommendations for lawmakers to consider when they return to the Statehouse for a legislative session.

But sometimes, that’s just not the case. The testimony at study committee meetings is too often just a replay of information that was considered months before during a session. Some groups do little “studying” and, frankly, lawmakers often don’t have the staff to do anything more in depth.

These kinds of cursory glances do little to advance legislative knowledge of issues.

Of course, that’s not always the case. Some committees do exceptional work on difficult issues and make recommendations that improve the legislative process.

The column then discusses two interim committees last summer that were the exception, and then concludes:
It would be great for Hoosiers if all committees took their jobs so seriously –especially this year as lawmakers examine some important issues.

They’re slated to take on problems with ISTEP, the state’s standardized testing program, and consider whether to keep implementing Common Core, a set of curriculum standards meant to unify education across states.

Committees will be considering mass transit for Central Indiana, how to pay for changes to the state’s felony sentencing laws, and whether every school should be required to have a staff person onsite with a gun.

Fortunately, legislative leaders have given study committees freedom this year to meet more often, even though that costs more. It’s a smart move. These issues are too important to short change.

Tom LoBianco of the AP writes today:
The summer after the 2011 session was dominated by highly partisan and divisive hearings on the right-to-work ban on union fees, replete with daylong hearings and hundreds of chanting union protesters. Not surprisingly, the right-to-work battle overshadowed the 2012 session. Last summer was dominated by lengthy, involved and bipartisan efforts to respond to troubles at the Department of Child Services. The resulting answers, including money to hire new caseworkers and changes to the centralized hotline system, were approved this year.

The growing interest in summer study committees, and their potential power, has leaders on the General Assembly's Legislative Council pondering how to balance the many requests against the constraints of lawmakers who meet in Indianapolis a few months out of each year. The council sets the schedule for study committees.

"This year there were more required studies than I can ever remember in my 18 years on legislative council, statutorily-required 'We must study this'" studies, said House Speaker Brian Bosma, R-Indianapolis. The greater number of mandatory hearings could become the subject of new limits in legislation itself next year, Bosma said, noting that he might seek the use of more routine, standing committees each summer instead of establishing a new committee for each issue.

The agenda for this summer was already largely well-known by the end of the 2013 session last month. Tough questions about implementing national Common Core education standards, raising taxes to pay for transit in central Indiana and others were all "sent to study," as they say around the Statehouse, instead of being decided on immediately.

But a few important issues were added to the roster only recently.

The high-profile arrests last week of Indianapolis civic leaders and public officials accused of flipping vacant homes for personal profit through the city's land bank program spurred Bosma and others to request a review of land bank programs statewide. And an investigation by The Indianapolis Star into problems with how casino money was used on economic development projects, including the failed Carbon Motors project in Connersville, will likely be plumbed by the Legislature's tax and fiscal policy study panel, Bosma said.

It's unlikely that any issue will draw quite the amount of protest and rancor that the right-to-work hearings did in 2011. But the inquiry into problems with the online portion of this year's high-stakes ISTEP+ online test is already looking to be the highest-profile review. Testing was disrupted for two days across the state as computer screens froze and students were forced to log in repeatedly. Some districts, including Fort Wayne Community Schools, have said they won't accept the results of the scores, which determine student performance, school rankings and teacher merit pay, without a review by an independent third party.

Posted by Marcia Oddi on Monday, May 27, 2013
Posted to Indiana Government

Law - "A Clash Over Who Is Allowed to Give You a Brighter Smile"

Recall the story by Lesley Weidenbener, quoted in this May 13th post, headed "Pence makes good on promise to oppose new regulations." And the May 9th story by Mary Beth Schneider, headed " "Gov. Mike Pence vetoes professional licensing bills," including:

“Lower taxes and less regulation, including fewer licensing requirements, will mean more jobs for Hoosiers,” Pence said in a statement. “I am vetoing these licensing bills because I believe they create barriers to the marketplace for Hoosiers and restrict competition.” * * *

And he appeared to chide the legislature for not passing one of his agenda items: Senate Bill 520, which would have created the “ERASER Committee” to review occupational licensing and establish a procedure to automatically sunset unnecessary licenses, permits and certifications.

“I will continue to work with members of the General Assembly as we pursue efforts to reduce red tape and reform licensing in Indiana, because less regulation will mean more jobs for Hoosiers,” he said.

This weekend the NY Times had this long story by Campbell Robertson. Some quotes:
GUNTERSVILLE, Ala. — In the middle of the enduring conflict between liberty and public welfare stands Joyce Osborn Wilson and her teeth-whitening business.

After 26 years of running The Hairport, Ms. Wilson, who now lives in this pretty lakeside town in northern Alabama, invented a whitening system called BriteWhite and began selling it to other salons and spas. It was all smiles for a year or so.

Then in 2006, she received a letter from a lawyer representing the state dental board. She was practicing dentistry without a license, the letter read, and must immediately “cease and desist” selling her products in Alabama.

Last month, Ms. Wilson and another owner of a teeth-whitening business sued in state court, arguing that a law declaring teeth whitening the exclusive province of dental professionals is unconstitutional.

Though Ms. Wilson did not know it when her trouble started, this dispute is one of many taking place all over the country between nondentist teeth whiteners and state dental boards. This issue is itself part a much broader debate over the proper limits of occupational licensing and the amount of leeway that professional boards should be given to set up barriers of entry.

From later in the long story:
Teeth whitening began to flourish in the 1990s, with dentists using forms of peroxide to essentially bleach the teeth (as opposed to removing stains, which is part of routine cleaning). The service generally costs around $300 or more, according to court documents; by 2006, a survey by the American Academy of Cosmetic Dentists found that dental practices were making an average of $25,000 a year from teeth whitening.

Later, whitening strips or kits — which often consist of peroxide gel, an application tray and in some cases a little LED light that activates the gel — began appearing online and in pharmacies, where they can be bought over the counter like cosmetics.

Teeth whitening also began to be offered as a service in salons and spas and at mall kiosks. There, employees provide the devices and explain how to use them, but, such business owners emphasize, nobody puts hands or fingers into anyone else’s mouth. The services at salons and kiosks generally cost around $100. Altogether, teeth whitening has become a multibillion-dollar industry.

Starting in 2005, state dental boards began adopting polices and pushing for legislation that would make teeth whitening illegal for anyone to perform but dentists or dental hygienists. According to the Institute for Justice, a law firm that is taking up Ms. Wilson’s suit, at least 14 states have, by policy or statute, defined teeth-whitening services as the practice of dentistry.

The Institute for Justice has long been involved in campaigns against what it regards as overzealous licensing requirements, arguing that in areas like interior design or hair braiding, they are simply anticompetition measures. What sets the teeth-whitening debate apart, said Paul M. Sherman, an attorney at the institute, is that the same products prohibited for use in salons in Alabama and several other states can be bought over the counter in those states with no trouble at all.

“The equal protection argument is particularly compelling because these are the same products that people buy and use at home every day,” he said.

The NYT includes a link to the worth-reading Alabama lawsuit (Alabama, BTW, has electronic filing).

The Institute for Justice has a 34-page white paper titled "White Out: How Dental Industry Insiders Thwart Competition from Teeth-Whitening Entrepreneurs." According to a Table on p. 7 of the document [p. 9 of the PDF], Indiana does not yet have a law or policy regarding to teeth whitening.

But is one in the works? Take a look at HEA 590, about "dental matters." It ends with this provision:

SECTION 17. [EFFECTIVE JULY 1, 2013] (a) During the 2013 legislative interim, the health finance commission established by IC 2-5-23-3 shall study issues concerning the delivery of dental practices by a person other than an individual licensed under IC 25-14 and current options and procedures in Indiana and other states concerning consumer protections for dental care services.

Posted by Marcia Oddi on Monday, May 27, 2013
Posted to General Law Related

Ind. Decisions - Tax Court issued one opinion on Friday, May 24

In Dora Brown, Ben Kindle, and Sonjia Graf v. Department of Local Government Finance, a 9-page opinion, Judge Wentworth writes:

Dora Brown, Ben Kindle, and Sonjia Graf appeal the final determination of the Department of Local Government Finance (DLGF) approving the Gregg Township Board’s loan resolution for the 2010 tax year. The Petitioners allege that the DLGF’s final determination must be reversed because it is contrary to law, not supported by substantial evidence, and in violation of their constitutional rights. The Court affirms the DLGF’s final determination in part and remands it in part. * * *

On appeal, the Petitioners argue that the DLGF’s final determination must be reversed for three reasons. First, they argue that the final determination is contrary to law. Second, they argue that the DLGF’s final determination is not supported by substantial evidence. Finally, the Petitioners argue that the DLGF’s final determination violates certain rights guaranteed to them under Indiana’s Constitution. * * *

[T]he DLGF was not required to perform the “needs analysis” set forth in Indiana Code § 36-6-6-14(d) before it approved the Gregg Township Board’s loan resolution under Indiana Code § 36-8-13. Therefore, the Court is not persuaded by the Petitioners’ first claim that the DLGF’s final determination is contrary to law. * * *

[T]he Court is not persuaded that the DLGF’s final determination is not supported by the evidence. See Clark-Pleasant Cmty. Sch. Corp., 899 N.E.2d at 765 (citations omitted) (explaining that the Court will give deference to any reason the DLGF bases its final determination on as long as that reason is supported by substantial evidence). * * *

Finally, the Petitioners claim that the DLGF’s final determination wrongly requires the taxpayers of Gregg Township to bear the entire cost of the loan even though the fire department will use the new vehicle to respond to calls outside Gregg Township. Thus, allege the Petitioners, the DLGF’s final determination violates both Article 1, Section 23 and Article 10, Section 1 of the Indiana Constitution.

While the Petitioners raised this argument at the administrative hearing, the DLGF failed to address it in its final determination. In reviewing the administrative record, the Court notes that the parties presented competing evidence with respect to this issue. Accordingly, the Court remands this issue to the DLGF so that it may fulfill its duty to review the evidence, weigh it, and make a determination thereon. [4]
[4] The Court reviewed an almost identical issue involving the same parties in a 2010 not-for-publication opinion. See In re: Emergency Fire Loan for Gregg Twp., Cause No.49T10-0909-TA-52, slip op. at 12-15 (Ind. Tax Ct. Aug. 31, 2010). The Court is confident that that opinion will assist the DLGF in reviewing the evidence on remand. [ILB: emphasis added]

Posted by Marcia Oddi on Monday, May 27, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Frequent filer in Indianapolis court system represents himself: This outspoken Russian emigré is notorious among local judges"

Tim Evans' lengthy story appears on the front-page of today's Indianapolis Star. Some quotes:

[Gersh Zavodnik] has filed more than 100 lawsuits in Marion County courts since 2008 and says he has as many as 100 more in the works. Most involve Internet sales and purchases gone bad. * * *

In a Court of Appeals ruling, Zavodnik is described as someone who “attempts to make his living by filing lawsuits.” * * *

Of all the lawsuits he has filed, Zavodnik says, he has collected on just two. The payday: about $2,500. He says he has won a handful of other judgments, totaling more than $100,000, but has not yet collected on them. * * *

That doesn’t keep him from filing more, often asking for astronomical damages. In a case in which a woman reneged on an agreement to buy digital camera equipment, he is now seeking $1.2 million in damages. Sometimes he even asks for attorney fees.

But few of Zavodnik’s lawsuits survive to the point of being judged on their merits. Many have been thrown out over questions about whether parties outside the U.S. received adequate legal notice they were being sued. Others were dismissed for technical or procedural failings.

Zavodnik takes every setback and loss personally. When a case is dismissed, he suspects a conspiracy among judges and defense attorneys. And he recently has turned his attacks up a notch.

Zavodnik and another disgruntled pro se litigator, Jesse Clements, have teamed to file lawsuits against several Marion County judges. They contend there is a “legal mafia,” consisting of judges and attorneys conspiring against them and other pro se litigants by issuing rulings contrary to law and procedure, tampering with court records and evidence, and treating them differently than attorneys.

They also have taken aim at the Indiana Supreme Court and Chief Justice Brent Dickson.

“The subject judges,” the pair wrote in a January letter to Dickson, “could not have evolved into monsters if their overseers (YOU) did their (YOUR) jobs.” * * *

In a decision issued last year, the Court of Appeals found the local court “abused its discretion in ordering the dismissal” of three of Zavodnik’s cases. That ruling came after he appealed a judge’s dismissal of the 27 lawsuits in one fell swoop. * * *

The appellate panel found the judge dismissed the three cases without conducting a required hearing. Another Court of Appeals ruling in March revealed a different judge dismissed two lawsuits without a request from the people Zavodnik was suing.

“Ordinarily, ‘a trial court may not sua sponte (without a request by any party to the case) dismiss an action unless the court lacks jurisdiction or is otherwise authorized by statute or the rules of procedure,’ ” the court of appeals ruling said.

And earlier this month, Marion Superior Court Judge Thomas Carroll spanked Zavodnik and Clements in an order dismissing their lawsuit against fellow Superior Court Judge John Hanley. It revealed the growing frustration among judges with Zavodnik’s cases and courtroom antics.

“The plaintiffs, both well known to the Marion County judiciary as serial pro se filers, for years have unnecessarily clogged our court system with voluminous filings and motions in numerous cases, none of which has shown to have had any merit,” Carroll wrote in the May 17 ruling.

“This case is merely a continuance of the same abusive, outrageous, impertinent, immaterial, slanderous filings ... they have visited upon the court system of Marion County. ... The court will not allow itself to be used as a forum for these pro se serial filers to conduct their babble and scandalous attacks on members of this judiciary.” * * *

At some point, Dreyer said, there may be no judges left in Marion County willing or able to hear Zavodnik’s cases.

“Eventually, if he continues like he is,” the judge said, “it will be something the Supreme Court will have to address.”

A spokeswoman for the Supreme Court declined to comment on Zavodnik.

“I’ve told Gersh a million times,” [Mark O’Hara, a Brownsburg attorney who has represented Zavodnik in cases before the Court of Appeals] said, “that he can be his own worst enemy.”

In addition to his outspoken personality, O’Hara acknowledges, Zavodnik’s “pleadings can be long and rambling at times.” It is an observation echoed in local and appellate rulings.

“Mr. Zavodnik submits literally boxes of documents that are nothing more than pages pulled from the Internet with notes on Post-Its. ... They often lack coherence, much less conciseness,” Marion Superior Court Judge Timothy Oakes wrote in the order stomping out 27 cases on the same day.

ILB: Here is the most recent COA opinion involving Mr. Zavodnik, Gersh Zavodnik v. Brian Richards, et al., filed May 22, 2013. This involved a motion for rehearing of the earlier March 14, 2013 opinion.

Here is a 24-page, March 1, 2012 NFP opinion involving 27 defendants, where the COA rules:

In this consolidated appeal, Gersh Zavodnik appeals the trial court's Trial Rule 41(E) dismissal of his complaints in twenty-seven cases. Zavodnik raises two issues for our review, which we consolidate and restate as whether the trial court erred in dismissing the complaints. Concluding the trial court abused its discretion in dismissing three of the cases, but did not abuse its discretion with respect to the remainder, we affirm in part and reverse in part. * * *

The trial court abused its discretion in ordering the dismissal with prejudice of Zavodnik's cases against Margulyan, Rinaldi, and Costello because no Trial Rule 41(E) hearing was ordered in those cases. We therefore reverse the trial court's orders dismissing those cases and remand for further proceedings. The trial court did not abuse its discretion with respect to the remainder of the cases, and the trial court‟s orders in those cases are affirmed.

Posted by Marcia Oddi on Monday, May 27, 2013
Posted to Indiana Courts

Sunday, May 26, 2013

Law - " President’s Lawyer Finds Herself Center Stage for Once"

Jackie Calmes' story in Monday's NYTimes features the up-to-now little known White House counsel, Kathryn Ruemmler. A sample from the long story:

In an administration often criticized as insular, Ms. Ruemmler by all accounts has forged a rapport with her client even though she did not know him before she arrived as deputy counsel in early 2010. Their current relationship, aides say, is reflected in a photo from last June of Mr. Obama enveloping Ms. Ruemmler in a bear hug after she told him that the Supreme Court had upheld the bulk of his health care law. The court did so based on legal arguments she helped write, over some political aides’ objections. She and the president were among the few at the White House who were consistently confident of the outcome, others say.

“In meetings, she is very clear on what the law is and what it isn’t, and she is very disciplined about focusing on that,” said Nancy-Ann DeParle, a former deputy White House chief of staff. “She is there to be the president’s lawyer and protect his interests, period.”

She added, “I don’t know her politics — in two years of working with her closely, I don’t think we ever had a political discussion.”

Before joining the administration, Ms. Ruemmler was best known for having been a lead prosecutor on the government team that in 2006 won convictions of the executives Kenneth L. Lay and Jeffrey K. Skilling in the Enron scandal; she worked with her friend Lisa Monaco, now Mr. Obama’s chief counterterrorism adviser, on a related Enron case. Near the desk in Ms. Ruemmler’s dark-paneled office is a plaque of a Houston Chronicle front page with the headline “Guilty! Guilty!” above the men’s photos — a gift from an F.B.I. agent on the case.

After that, Ms. Ruemmler returned to private practice in Washington, but in 2009 she took one of the most powerful jobs at the Justice Department — the “Padag,” for principal associate deputy attorney general, who essentially runs the place. She impressed the White House counsel, Robert F. Bauer. In 2010 he made her his deputy, and the next year, seeking to leave over Mr. Obama’s objections, Mr. Bauer pressed for Ms. Ruemmler to get the job.

The president did not know her well and, associates say, Ms. Ruemmler had strained relations with two Obama confidants — the attorney general, Eric H. Holder Jr., and the president’s senior adviser, Valerie Jarrett. Even so, Alyssa Mastromonaco, a deputy chief of staff, said Mr. Obama considered “only Kathy.” He promoted her in June 2011, saying, “Kathy is an outstanding lawyer with impeccable judgment.”

Posted by Marcia Oddi on Sunday, May 26, 2013
Posted to General Law Related

Courts - C-Span's Q&A tonight features Tom Goldstein, Co-founder and Publisher of SCOTUSblog.com [Updated]

C-SPAN's Q&A tonight features Tom Goldstein, Co-founder and Publisher of SCOTUSblog.com. Watch at 8 and 11 PM, more info here. And it is a twofer, Goldstein is interviewed by C-SPAN's founder, Brian Lamb.

[Updated at 9:08 PM] Just watched the 8 PM showing; it was excellent. And watching it, I thought, here are two people who have really made a difference in our ability to understand our government: Brian Lamb with Congress, and Tom Goldstein with the Supreme Court.

Posted by Marcia Oddi on Sunday, May 26, 2013
Posted to Courts in general

Law - "Big Law Whipped for Poor Tech Training "

Monica Bay has this story in Law Technology News. Some quotes:

D. Casey Flaherty, corporate counsel at Kia Motors America, really does have good intentions as he humiliates Big Law firms about their dismal technology skills — and he is careful never to embarrass a partner.

Flaherty mesmerized a standing-room-only crowd on the opening day of LegalTech West Coast at the Westin Bonaventure in Los Angeles with his electric keynote, "Raising the Bar on Technological Competence — the Outside Counsel Tech Audit."

Frustrated by ridiculous bills for routine "commodity" matters, Flaherty decided to strike back, and recently launched his technology audit program, where firms bidding for Kia's business must bring a top associate for a live test of their skills using basic, generic business tech tools such as Microsoft Word and Excel, for simple, rudimentary tasks. * * *

As a dramatic example of his point about how little we all know about basic tech, Flaherty polled the audience to find out how many of us knew that you can "print to PDF" in one click. Less than 30 percent of attendees raised their hand — the same percentage, said Flaherty, of associates who do not know how to print to PDF during his audits.

"Basic PDFs are required by courts," he explained, and it's a one-click process. But there's a but — you can't have live links on PDFs that go to the court, and the document must be properly formatted — tasks many lawyers simply do not know how to execute, said Flaherty, who is based in Los Angeles.

If instead of printing to PDF, if you go to a scanner, that takes four minutes, average. But those four minutes add up. "Four minutes at $200/hour is $20. It's cumulative, it scales," instructed Flaherty.

Some firms, he said, enter Bates numbers by hand or hire vendors, even though their secretaries and others have software that can handle that task with one push of a button.

"It's not incompetence, it's lack of training," said Flaherty. "And there is a rule for this — new American Bar Association rules," referring to August amendments to the ABA's rules that govern professional competence, and now expressly state a duty to be aware of and use technology.

ILB: This may explain something that has puzzled the ILB, why so many court orders are posted online as scanned PDFs, which cannot be cut and pasted, when clearly they were initially created with a word-processing program and could easily have been converted to machine-readable and searchable PDFs.

Posted by Marcia Oddi on Sunday, May 26, 2013
Posted to General Law Related

Friday, May 24, 2013

Courts - "Ban on Note-Taking by Spectators in Court"

Eugene Volokh has the story here, referencing an Iowa district court judge's ban imposed on a reporter.

Posted by Marcia Oddi on Friday, May 24, 2013
Posted to Courts in general

Courts - SCOTUS Chief Justice Roberts gives the commencement address tonight at LaLumiere School in LaPorte [Updated]

The South Bend Tribune has a photo here and a brief AP story here. Some quotes:

LAPORTE, Ind. (AP) — U.S. Supreme Court Chief Justice John Roberts is returning to the Roman Catholic boarding school in LaPorte he graduated from 40 years ago to give the commencement speech.

Roberts is scheduled to speak Friday at La Lumiere School.

Roberts graduated at the top of his class in 1973. * * *

Roberts moved to Long Beach, Ind., from Buffalo, N.Y., in the 1960s, when his father became manager at the Burns Harbor Bethlehem Steel plant.

[Updated at 3:09 PM] The address is apparently already over, both the NWI Times and the Gary Post-Tribune have posted a brief AP story by Tim Coyne that concludes:
Roberts told the school’s 62 graduates that how they respond to life’s challenges will determine what kind of life they’ll lead.

Posted by Marcia Oddi on Friday, May 24, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 13 NFP)

For publication opinions today (5):

In Angela Duckworth v. Christopher R. Duckworth, a 5-page opinion, Judge May writes:

Angela Duckworth (Mother) appeals the order modifying custody and child support in favor of Christopher Duckworth (Father). Mother argues the trial court abused its discretion when it determined her child support obligation based on the income Father assigned to her on his child support worksheet. As Mother did not submit a child support worksheet or other evidence of her income, we affirm. * * *

Mother and Father were divorced in July 2010, and shared custody of their children, C.D. and I.D. On February 6, 2012, Father filed a Verified Petition for Modification of Decree asking the trial court to grant him sole custody of the children and require Mother to pay child support. After hearing evidence, the trial court granted Father sole custody of Children, subject to Mother’s supervised parenting time, and ordered Mother to pay Father $231.00 per week in child support. * * *

The trial court assigned an income level to Mother that was supported by the only evidence in the record of Mother’s income -- the figure assigned by Father on his worksheet. If Mother disagreed with that amount, the time to challenge its accuracy was at trial, not on appeal. We decline to reverse because of an alleged error in the income figure the trial court used to determine her child support obligation. See Dye v. Young, 655 N.E.2d 549, 550 (Ind. Ct. App. 1995) (trial court follows Indiana Child Support Guidelines when it orders child support based on income figure listed on Child Support Worksheet). Accordingly, we affirm.

Rebirth Christian Academy Daycare, Inc. v. Indiana Family & Social Services Administration

In In the Matter of the Term. of the Parent-Child Rel. of J.C., Et.C. & El.C.; S.C. v. Indiana Department of Child Services , a 17-page opinion, Judge May writes:

S.C. (Mother) appeals the involuntary termination of her parental rights to J.C., Et.C., and El.C., and presents three issues: (1) Whether the Department of Child Services (DCS) presented sufficient evidence there was a reasonable probability that the conditions that resulted in the children’s removal would not be remedied; (2) Whether DCS presented sufficient evidence involuntary termination of Mother’s parental rights was in the children’s best interests; and (3) Whether DCS presented sufficient evidence there existed a satisfactory plan for the care and treatment of the children. We affirm. * * *

DCS presented sufficient evidence the conditions that resulted in the children’s removal were not likely to be remedied, and the findings support the court’s conclusion termination was in the best interests of the children. There was a suitable plan in place for the care and treatment of the children. Accordingly, we affirm the termination of Mother’s parental rights.

In In Re The Paternity of J.T. and I.T., Minor Children; and In Re The Support of C.R.T., Minor Child; R.A.P., Mother v. C.D.T., Father, a 5-page opinion, Judge May writes:
R.P. (Mother) appeals the order granting sole legal and physical custody of J.T., I.T., and Co.T. to C.T. (Father). Finding no error, we affirm. * * *

Father presented evidence Mother routinely denied him the parenting time to which he was entitled. This establishes a substantial change in the interrelationship of the parties, which permits a modification in custody. See In re Marriage of Cain, 540 N.E.2d 77 (Ind. Ct. App. 1989) (modification of custody affirmed based on breakdown of communication and cooperation between the parties regarding parenting time). Accordingly, we affirm the juvenile court’s decision to place the children with Father.

In Paul Hassfurther v. State of Indiana, an 11-page opinion, Judge Baker writes:
In this case, the appellant-defendant Paul Hassfurther appeals the trial court’s denial of his petition for judicial review that involved his refusal to take a chemical test for intoxication. Hassfurther argues that the arresting officer lacked probable cause to believe that he was operating a vehicle while intoxicated. Hassfurther further maintains that the evidence was insufficient to support the trial court’s determination that he knowingly refused to take the chemical test because he was not properly advised of the consequences of his refusal to take such a test.

The evidence established that a citizen informant called 911, identified herself, and reported that she had followed a suspected drunk driver, who was later identified as Hassfurther, operating a Toyota truck with the logo of a fox on the back of it, to a local gas station. A police officer approached Hassfurther in the store and saw him leaning on the counter. Hassfurther smelled strongly of alcohol, his speech was slurred, and his eyes were red. This evidence, coupled with Hassfurther’s admission to the police officer that he had been drinking and was the driver of the Toyota, established probable cause that Hassfurther had been operating the vehicle while intoxicated.

The evidence was also sufficient to establish that Hassfurther knowingly refused to take a chemical test for intoxication when the police officer testified that he advised Hassfurther under the implied consent law that a two-year driver’s license suspension would result in light of a prior conviction for driving while intoxicated if he refused to take a chemical test for intoxication. Thus, we conclude that the trial court properly denied Hassfurther’s petition for judicial review. * * *

In this case, because Hassfurther has a prior conviction for operating a vehicle while intoxicated, IC 9-30-6-9(b) makes it clear that Hassfurther’s license would be suspended for two years rather than one. That said, while Hassfurther maintains that his refusal to take the breath test was not knowing because the advisements on the implied consent card contained no information about a two-year suspension in light of a prior conviction, Lieutenant Gaines testified at the hearing that he did, in fact, advise Hassfurther of that consequence. Thus, the evidence when viewed in a light most favorable to the judgment, demonstrates that Hassfurther has failed to show that he was not adequately informed about the license suspension if he refused a chemical test. As a result, the trial court properly denied Hassfurther’s petition for judicial review.
[3] As an aside, we note that because the evidence established that Lieutenant Gaines advised Hassfurther of a two-year suspension if he refused to take the chemical test, we need not address Hassfurther’s contention that he was misled or misinformed about the length of his suspension even though the two-year provision was not set forth on the implied consent card. Moreover, the rule in Huber suggests only that a defendant must be informed of the consequence that a refusal will result in a suspension. 540 N.E.2d at 142. And there is no express statutory requirement that law enforcement officials must inform a defendant that a refusal will result in a two-year suspension if he or she has a prior conviction for operating a vehicle while intoxicated. I.C. § 9-30-6-9. Nonetheless, these circumstances suggest that it may well be the better practice for police departments to include the two-year suspension provision on the implied consent card.

NFP civil opinions today (4):

Brant Construction, LLC; and Dune Harbor, LLC v. Circle Electric, Inc.; DeBoer Egolf Corp.; Auditor, Porter County, Indiana; First National Bank of Illinois; and Wachovia Financial Srvcs., Inc. (NFP)

Henry (Hank) Eilts, Hank's Construction, and The G. Jackie Eilts Credit Shelter Trust v. Jeremy Wayman (NFP)

In Re: The Petition for the Adoption of: R.J. and S.J. (Minor Children), R.J. and L.L. v. A.G. and B.G. (NFP)

Term. of the Parent-Child Rel. of: J.N. (Minor Child), and JE.N. (Father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Leo Dent, Jr. v. State of Indiana (NFP)

Dennis Meyer v. State of Indiana (NFP)

K.L.W. v. State of Indiana (NFP)

Leona Peavler v. State of Indiana (NFP)

Jeremy Roberts v. State of Indiana (NFP)

Randall Dorsett v. State of Indiana (NFP)

James M. Durkin, Sr. v. State of Indiana (NFP)

Tony Monks v. State of Indiana (NFP)

A.R. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 24, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Supreme Court suspends attorney for 3 years, without automatic reinstatement

Updating this ILB entry from May 20th, Tim Evans of the Indianapolis Star has a long story today headed "Indiana Supreme Court suspends attorney's law license for 3 years in harassment case."

Kudos to reporter Evans for a story that details just how damaging this harrassment was to the career of the young attorney who was the victim:

The bogus email was, in fact, the latest in an increasingly nasty string of letters, Internet postings and emails unleashed by former Bose partner Arthur “A.J.” Usher IV after the woman rebuffed his romantic advances.

Usher’s harassment and attempts to discredit the young attorney — The Indianapolis Star has chosen not to use her name — prompted the Indiana Supreme Court last week to suspend his law license for at least three years. Justice Steven David called for disbarment. * * *

Bose spokesman Roger Harvey said the law firm is committed to providing a safe workplace for employees.

“Our firm had complete confidence that the Indiana Supreme Court would resolve this matter appropriately,” he said, “and we are pleased the issue has concluded.”

After detailing the barrage of harassing actions unleashed by Usher against the young attorney, including:
Although Usher’s attempts to woo the young attorney had failed, his new efforts to harass and discredit her were more successful.

Those actions culminated on Nov. 28, 2008
. That’s when the “Bose knows ...” email containing the topless movie clip landed in the inboxes of about 50 attorneys at Bose and at least six other Indianapolis-area law firms.
the Star story concludes:
The email prompted the woman to file a police report. She also bought a gun and obtained a protective order against Usher. The damage, however, had been done.

The woman’s lawsuit claims at least one attorney at Bose believed she should be fired based on the content of the bogus email. Other attorneys who received the email, the lawsuit says, still believe she appeared topless in the video clip and acted in pornographic movies.

Usher had been on vacation when the email was sent. But when he returned, he was confronted with the woman’s protective order, the disciplinary records say. Krieg DeVault demanded Usher’s resignation. Since then, according to Usher’s LinkedIn profile, he has worked on his own. * * *

Usher had his law license suspended for violating rules of professional conduct, including being uncooperative and deceptive in his dealings with the commission and in the woman’s civil suit.

The young attorney told The Star she wants to move on with her life. She has put her acting career on hold and left Bose, saying the situation with Usher was “a big factor” in her departure.

“I’m just glad,” she said, “that the interest of justice was served.”

ILB: This is a very sad case as far as the young woman, who I am told is very bright and shows much promise, is concerned. And, as a reader writes:
I'm all about the presumption of innocence, but should lawyers be able to continue practicing [here for several years] when very serious allegations like these are pending (and presumably supported by a lot of evidence)? We put people in jail based on probable cause they have committed a crime. They lose their liberty. But we seem to give more process and rights to someone who has the privilege of a law license?

Posted by Marcia Oddi on Friday, May 24, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 7-day John Myers PCR hearing concluded Thursday

Updating this most recent ILB entry from May 22nd, Laura Lane of the Bloomington Herald-Times reports today in a story ($$$) that begins:

MARTINSVILLE — They sat on opposite sides of the courtroom this week, Jodie Myers behind her shackled son and Marilyn Behrman behind the two men who prosecuted Myers’ son for killing her daughter 13 years ago.

John R. Myers II is serving a 65-year prison sentence for a murder conviction. Jill Behrman disappeared on a bike ride in 2000, and her remains were found three years later in Morgan County. The 19-year-old had been shot.

A seven-day hearing that concluded Thursday brought both families back to Morgan Superior Court. Judge G. Thomas Gray will review thousands of pages of police reports and dozens of taped interviews and witness depositions to determine if Myers’ lawyer so badly represented him that he should get a new trial.

Marilyn Behrman said it was important for her to be in court to hear the testimony, some of it graphic and disturbing. She said being in such close proximity to the man convicted of shooting her daughter in the head with a shotgun is something she accepts as reality.

“Jill deserves to be represented,” she said. “I deal with the whole situation day in and day out. It’s part of my life. Having him around, it’s not a problem.”

Today's H-T story includes a link to earlier stories.

Posted by Marcia Oddi on Friday, May 24, 2013
Posted to Indiana Courts

Thursday, May 23, 2013

Courts - Srinivasan's Confirmation First For D.C. Circuit In 7 Years"

He will fill the vacancy left by now-Chief Justice Roberts. So reports NPR's Nini Totenberg this evening in a story that begins:

For the first time in seven years, the U.S. Senate has confirmed a judge to sit on the important federal appeals court for the District of Columbia. The Senate unanimously confirmed Deputy Solicitor General Sri Srinivasan on Thursday for the seat previously held by Supreme Court Chief Justice John Roberts.

Srinivasan was confirmed because he had huge bipartisan support in the legal community and because he served in both the Bush and Obama administrations, while having no record in partisan politics. But the federal appeals court for the District of Columbia still has three vacancies.

Two previous Obama appointees, Goodwin Liu and Caitlin Halligan, also had stellar legal credentials but were filibustered by Republicans who portrayed them as judicial activists. Halligan was opposed primarily because as New York solicitor general, she represented the state's pro-gun control positions in court. After Liu's nomination was blocked, California Gov. Jerry Brown quickly nominated him to the California Supreme Court, where he now serves.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Courts in general

Ind. Law - More on: Legislative Council meeting today to set interim study committees

Updating this ILB entry from earlier today, here is Legislative Council Resolution 13-01, a 10-page document identifying the study committees for the 2013 interim and the topics assigned to them.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Indiana Law

Ind. Gov't. - More on "Monroe County departments tracking down old records, scanning them into digital form"

Supplementing this ILB entry from Sunday, the Shelbyville News has a story today by C.M. Schmidlkofer headed "County grant will help pay for record saving: Judge, auditor working to digitize more papers." Some quotes:

The Shelby County Council approved a request from Superior Court II Judge David Riggins on Tuesday to apply for a $5,000 matching grant from the Indiana State Historic Reference Advisory Board.

The funds will be used to prepare historical court and other county documents for digitization by the State of Indiana's archives division.

"The reason we need additional money is that we have to get those records ready to scan," Riggins said.

He plans to hire two people to process the documents -- removing staples and duplicate copies and organizing them in chronological order.

"The state will do it," Riggins said. "But it's $20 an hour. I figured we could hire people for $12 an hour and get twice the amount of work out doing it ourselves."

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Indiana Government

Ind. Gov't. - A look at the new school formula, in the budget bill

Maureen Hayden, CNHI, take on the operation of the new school formula in this story today in the Kokomo Tribune, headed "School dollars unevenly allotted: Boost in education funding won’t benefit all schools."

The school formula is part of the 305-page budget bill, HEA 1001. The school finance provisions begin with SECTION 220, on page 238.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Indiana Government

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

In TOMMY L. MORRIS v. SALVATORE NUZZO (SD Ind., Barker), a 29-page opinion, Judge Zagel (Northern District of Illinois, Eastern Division, sitting by designation) writes:

The United States District Court for the Southern District of Indiana (the “district court”) dismissed the claims of Tommy L. Morris, personal representative of the Estate of Thomas Lynn Morris (the “Estate”) against Salvatore Nuzzo (“Nuzzo”). The lawsuit, originally filed in the Trumbull County Common Pleas Court of the State of Ohio, was removed to the United States District Court for the Northern District of Ohio, and finally was transferred to the district court in Indianapolis. Because we find that that the district court erred in its determination that Nuzzo was fraudulently joined, we will vacate the judgment of dismissal and remand to the district court with instructions that the case be further remanded to the Trumbull County Common Pleas Court of Ohio.

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

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

United States Fidelity and Guaranty Company v. Warsaw Chemical Company, Inc., a 12-page opinion, Judge Bradford writes:

Over the course of several decades, Appellee/Cross-Appellant/Plaintiff Warsaw Chemical Company (“Warsaw”) released pollutants into the soil and groundwater at its Warsaw, Indiana facility. This contamination was discovered in the late 1980s, and Warsaw agreed to remediate in August of 1989. In 1990, Warsaw notified its general liability insurer, Appellant/Cross-Appellee/Defendant United States Fidelity and Guaranty Company (“USF&G”), of the contamination and that Warsaw was seeking reimbursement for the remediation pursuant to its primary and excess policies. USF&G notified Warsaw that it believed that coverage did not exist for a number of reasons and denied coverage pursuant to both primary and excess liability policies. In 1992, in exchange for $25,000, Warsaw released USF&G from claims or demands related to the remediation.

In 2007, Warsaw filed suit against USF&G, contending, inter alia, that the 1992 release only concerned primary liability policies. Over the course of the next few years, the trial court ruled that (1) the 1992 release did not bar coverage under the excess policies, (2) Warsaw’s claim was not time-barred, and (3) coverage existed under the personal injury coverage of the excess policies. The trial court ultimately entered judgment in favor of Warsaw for $417,953.

USF&G contends that the trial court erred in ruling in Warsaw’s favor because (1) the 1992 release executed by Warsaw covered the excess policies, (2) Warsaw’s claim is time-barred, (3) coverage does not exist under the personal injury provisions of its policies with Warsaw, and (4) not all of Warsaw’s costs were covered even if coverage did exist. Warsaw responds to all of these arguments and additionally claims that (1) the Court of Appeals should affirm for the alternate reason that coverage exists under the property damage provisions of the relevant policies and (2) Warsaw is entitled to prejudgment interest. Because we conclude that the 1992 release covered the excess policies, we reverse the judgment of the trial court and remand with instructions. * * *

The unambiguous operative language of the Release provided that Warsaw was releasing USF&G

from any further claims, demands, causes of action, damages, clean-up costs, expert fees, consulting fees, attorneys fees, costs or losses of any kind and nature whether known or unknown, foreseen or unforeseen, anticipated or unanticipated arising from, or in any way related to, the pollution and contamination of the soil and groundwater in, upon or adjacent to the Warsaw facility in Warsaw, Indiana.
Appellant’s App. p. 289. Recital language that arguably suggests that the release applied to only some of the insurance policies Warsaw had with USF&G does not trump this clear language. Because the Release covered the excess policies, the trial court erred in denying USF&G’s summary judgment motion on this point. We therefore reverse the judgment of the trial court and remand for entry of summary judgment in favor of USF&G.
In City of Carmel, through its Redevelopment Commission v. Crider & Crider, Inc., Hagerman Construction Corporation, a 6-page opinion, Chief Judge Robb writes:
City of Carmel, through its Redevelopment Commission, (“CRC”) brings this appeal from the trial court’s denial of its motion to transfer venue in the lawsuit filed by Crider & Crider, Inc., (“Crider”) against it and Hagerman Construction Corporation (“Hagerman”) in Allen County. The sole issue for our review is: whether the trial court abused its discretion by denying CRC’s motion to transfer venue from Allen County to Hamilton County. Concluding that Hamilton County is the appropriate venue, we reverse. * * *

All of the parties here agree that the original complaint and the cross-claim are “inextricably intertwined” and should be decided together. Brief of Appellees at 16. Thus, Hamilton County is the appropriate venue for the entire matter. See Linky, 799 N.E.2d at 57-58 (holding that venue in Marion County was proper as to the defendant due to a venue selection clause in an agreement between the plaintiff and another defendant because of the overriding policy of conserving judicial resources and because all of the parties would be subject to joinder under Trial Rule 21(B) and “[t]he sequence of the inclusion of the defendants in this action does not change the result”). The trial court abused its discretion by denying CRC’s motion to transfer venue.

NFP civil opinions today (3):

Joseph D. Hardiman and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased v. Jason R. Cozmanoff (NFP)

Norman A. Ellis, Sr. v. Sikanyiso Ellis (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of P.M., A.T. & A.P., Minor Children, and their Mother, S.T,; S.T. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

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

Roy Austin Smith v. State of Indiana (NFP)

Ernest P. Glass v. State of Indiana (NFP)

Kristol Toms v. State of Indiana (NFP)

George A. Reese, Jr. v. State of Indiana (NFP)

Samuel Fancher v. State of Indiana (NFP)

Charles Kootz v. State of Indiana (NFP)

Jose Perez v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - There’s Nothing Sinister About Home Security Cameras

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The Court of Appeals heard oral argument yesterday in Weddle v. State, which presents a challenge to police officers’ “protective sweep” of a house after entering and serving an arrest warrant on the homeowner. Part of the justification for the protective sweep of several rooms of the home was information that Weddle was manufacturing methamphetamine and the officers’ observation of a security camera outside the house.

The State’s emphasis on the security (or, “surveillance,” in the State’s parlance) cameras was not well-received by Judge Baker and Judge May—both of whom made clear they have security cameras.

First, a bit of foreshadowing from the Appellant’s argument:

Judge Bradford: Cameras tell you we want to know if someone’s coming . . . .

Appellant’s Counsel: There are other, logical reasons for a camera.

Judge Baker: I actually have one at my house. Because if the bad guys come, I can know they’re the bad guys and not my friends. If Judge Bradford comes by to have an adult beverage, right?


Within a few seconds of beginning his argument, the Deputy Attorney General steps right in it — and doesn’t take the cue to jump out quickly.

The State: . . . As they approached the front door, they see surveillance cameras which the police officer testified heightened the danger because people inside could know who they were and where they were at, and how many of them. They knocked on the front door--

Judge Baker: One of the things we have to come with grips with America today, unfortunately, this is not Ozzie and Harriet anymore. . . . It’s almost unreasonable not to have a security system in your house today, isn’t it?
The State: Certainly, your honor. The State is not claiming—

Judge Baker: . . . I had lunch with one of my friends who is very well known in the judicial field and unfortunately there’s been a lot of burglaries in his neighborhood. So he’s gotten beefed-up security and all these other things. He may well have to get cameras.

The State: Absolutely, your honor.

Judge Baker: So cameras cannot be a cause for cops to say I’m going to kick the door in.

The State: The State agrees they cannot be the only factor, but that does not mean they are not a factor.

Judge May: Ok, at what point does it become a factor? Ok, you’re saying they saw the surveillance cameras, they thought they were possibly being watched. Does that in and of itself give them the right to do a protective sweep of the house?

The State: No, your honor.

Judge May: Because if there is, I’ve got a camera on my house.

The State: No, the State is not making that claim. The State is just giving you the overall totality of the circumstances. The officers then knock on the door, loudly and several times. No one answers.

Judge Baker: Give up the cameras. Just give it up.

The State: The camera is not the main factor.

Judge Baker: Good.

The State: The main factor is the movement and the answer. I’m just setting the stage.


Finally, after the argument briefly turns to another topic, Judge Baker later adds, “It’s not against the law, in fact it is probably advisable to have cameras. You’re going to concede that whether you want to or not.” Counsel responds, “Absolutely.” (22:46-22:56)

I was particularly surprised by the following sentence from the State’s brief:

The officers had information that Weddle and/or Hall were involved in the manufacturing and dealing of methamphetamine, which explained the surveillance cameras (Tr. 53, 97, 110, 557). See U.S. v. Buchanan, 910 F.2d 1571 (7th Cir. 1990) (“guns are tools of the drug-dealing trade”) (citing United States v. Alvarez, 860 F.2d 801, 829, 830 (7th Cir. 1988).
As the owner of home security cameras, I share the concerns of Judge Baker and Judge May about drawing inferences of criminal activity inside a house from the presence of security cameras outside the house. The vast majority of those of us with home security cameras don’t have a meth lab or other criminal enterprise in our homes.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind. Law - Legislative Council meeting today to set interim study committees [Updated]

The Legislative Council is meeting this morning. Here is its agenda.

Jim Shella of Ch. 8 is reporting: "Legislature will meet on June 12th to consider veto overrides." My question: "Is this is a first under the statute that allows GA to meet post-session without Gov calling a special session?"

The handouts for the Legislative Council meeting are not yet available.

[More] Here is House Concurrent Resolution 53 fixing the date for the first regular technical session of the One Hundred Eighteenth General Assembly. Some quotes:

Whereas, IC 2-2.1-1-2.5 authorizes the General Assembly to fix a date for the first regular technical session of the General Assembly;

Whereas, the General Assembly finds that it is in the best interest of the State of Indiana to fix a date for the Technical Session;

Whereas, it is prudent to allow the Speaker of the House of Representatives and the President Pro Tempore of the Senate to jointly order that the Technical Session not convene if they determined the cost and inconvenience do not justify meeting in Technical Session: Now, therefore * * *

SECTION 1. The date for the Technical Session of the One Hundred Eighteenth General Assembly is hereby fixed for Thursday, May 23, 2013 at 1:30 p.m.

SECTION 2. The Speaker of the House of Representatives and the President Pro Tempore of the Senate may issue a joint order that the General Assembly not convene in Technical Session if they determined the cost and inconvenience of meeting in Technical Session are not justified.

[Updated at 9:00 PM: A second HCR, HCR 60, was also passed. It set the date for June 12th, 2013 and that is the one they are going with.]

Here is IC 2-2.1-1-2.5:

IC 2-2.1-1-2.5. First regular technical session

Sec. 2.5. (a) Before the first regular session adjourns sine die, the general assembly may adopt a concurrent resolution to fix a day to convene the first regular technical session of the general assembly. The day fixed under this subsection may not be earlier than thirty (30) days after the first regular session adjourns sine die.
(b) Only the following may be considered and acted upon during a first regular technical session:
(1) Bills enacted during the first regular session vetoed by the governor.
(2) Bills to correct conflicts among bills enacted during the first regular session.
(3) Bills to correct technical errors in bills enacted during the first regular session.
(c) The first regular technical session must adjourn sine die before midnight after it convenes.
(d) The concurrent resolution adopted under subsection (a) may provide that the first regular technical session is not required to convene if the speaker of the house of representatives and the president pro tempore of the senate jointly issue an order finding that the purposes for which a regular technical session may meet under subsection (b) do not justify the cost and inconvenience of meeting in a regular technical session.
(e) If the general assembly does not meet in a regular technical session under this section, the general assembly shall consider and act upon vetoes of bills enacted during the first regular session at the next second regular session.
(f) For purposes of Article 5, Section 14 of the Constitution of the State of Indiana, the first regular technical session is not considered a regular session if the general assembly does not consider or act upon vetoes of bills enacted during the first regular session under this section.
As added by P.L.4-1995, SEC.5.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Indiana Law

About this Blog - More on: "Interrogatories: Candid Q&A with Marcia Oddi"

My long-time hero Howard Bashman (along with Brian Lamb and Tom Goldstein) has just posted:

"Interrogatories: Candid Q&A with Marcia Oddi." Thanks to Marcia Oddi, author of "The Indiana Law Blog," for mentioning "How Appealing" in an interview about her excellent blog posted online today at the blog of the Indianapolis Bar Association.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to About the Indiana Law Blog

About this Blog - "Interrogatories: Candid Q&A with Marcia Oddi"

The Indianapolis Bar Association has now posted on its site a nicely formatted version of the Tyler Helmond Q&A with the Indiana Law Blog. Here is a sample:

Q: Do you have any goals left for ILB? Where do you see it going?

A: I’d like to see more transparency in the judiciary. We are getting there. When the ILB started 10 years ago, transfer lists were not online and neither were Not for Publication decisions of the Court of Appeals. There was little information available for voters when judges and justices went up for retention. The selection process for appellate judges and justices received minimal coverage. All that has improved. And of course the appellate courts videocast and archive most of their opinions; that is awesome.

As for goals which would allow the ILB to provide enhanced coverage:

I’d like the Supreme Court briefs to be posted online as they are filed. Generally these consist of transfer petitions and responses, sometimes amicus briefs, and in rare cases (Malenchik and Quanardel Wells come to mind) the Supreme Court will ask for more briefing.

I’d like the Court to announce what petitions it will consider in its upcoming weekly or more frequent conference (as does the Supreme Court of the United States), and then promptly post the resultant transfer list that afternoon or the following morning.

Finally, an essential and pressing goal for the ILB is finding more major financial supporters.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to About the Indiana Law Blog

Ind. Courts. - "Ball State defends sex-discrimination lawsuit"

Seth Slabaugh reports today in the Muncie Star Press in a story that begins:

MUNCIE — While Ball State University awaits a ruling from the Supreme Court of the United States on alleged racial harassment in the workplace, it is busy at the trial court level defending an unrelated complaint of gender discrimination in the workplace. [ILB: See below re the former]

Kristin Williams, a former BSU criminal justice instructor, claims in a lawsuit brought in U.S. District Court in Indianapolis that she was terminated on the basis of gender and not permitted to apply for other positions because of her gender.

Magistrate Judge Tim Baker is weighing Ball State’s motion to dismiss the case.

Williams, who earned bachelor’s and master’s degrees from Ball State, taught criminal justice from 2008 until 2011, when she was let go after funding for an immersive learning project ran out.

The lawsuit claims James E. Hendricks, chairman of the department of criminal justice, “has a history of hiring female faculty and forcing them out once they question him on any level,” and that Hendricks “engaged in a pattern wherein he would paper the file of any female faculty member who questioned him.” * * *

Williams says that when she was hired, she was told the position could max out after five years (her position was funded by a five-year grant), but that there would be similar opportunities for continued employment after that.

Hendricks and professor Mike Brown assured Williams that she would have continuing employment at BSU while suggesting that she purchase Brown’s house, the lawsuit filed by Greenwood attorney Paul Cummings contends.

But oral promises of future employment, even if true, are not enforceable as a matter of law in Indiana, Shockley said.

ILB: The case before the SCOTUS this term is Vance v. Ball State University. For background, start with this Nov. 27, 2012 post.

[More] Magistrate Judge Tim Baker issued this 12-page order yesterday, May 22, that concludes:

Defendant’s motion for summary judgment [Docket No. 23] is granted in part and denied in part. Defendant’s motion for summary judgment is granted as to Plaintiff’s discriminatory discharge claim, and Count 1 is dismissed with prejudice. However, Defendant’s summary judgment motion is denied as to Plaintiff’s failure-to-hire claim for the ODE position filled by Joshua Ross, and this claim shall proceed to trial.

Posted by Marcia Oddi on Thursday, May 23, 2013
Posted to Courts in general

Ind. Decisions - 7th Circuit hears oral argument in Ind company challenge to requirement to include birth control in their employee benefits

The cases of Korte v. Sebelius, 12-3841 and Grote v. Sebelius, 13-1077, were argued before the 7th Circuit yesterday. Per this ILB entry from Jan. 30, 2013, on that date the 7th Circuit 2-1 panel reversed Judge Barker in Grote and consolidated Grote with Korte. From the ruling:

IT IS ORDERED that the motion for an injunction pending appeal is GRANTED. The defendants are enjoined pending resolution of this appeal from enforcing the contraception mandate against the Grote Family and Grote Industries.

IT IS FURTHER ORDERED that this case is consolidated with Korte. Oral argument will be scheduled by separate order when briefing has been completed.

In this long May 22nd argument preview, Andrew Harris of Employee Benefit News writes:
(Bloomberg) - The U.S. law requiring employers to provide health insurance coverage for birth control is set to come before an appeals court in cases brought by two businesses whose owners say they operate according to Catholic doctrine.

The businesses, a construction firm from southwestern Illinois and an auto-parts maker in southeastern Indiana, are scheduled today to ask the U.S. Court of Appeals in Chicago for an order barring enforcement of the measure while they challenge its constitutionality in lawsuits. * * *

The contraception requirement violates the U.S. Constitution's guarantee of freedom of religion and the federal Religious Freedom Restoration Act of 1993, according to Korte & Luitjohan Contractors Inc., based in Highland, Ill., and its controlling owners, Cyril and Jane Korte, and Madison, Ind.- based Grote Industries Inc. and its family owners.

Lower-court judges in each case rejected the businesses' requests for preliminary court orders exempting them from compliance with the law, ruling they weren't likely to prevail on the merits of their claims. The appeals court then ruled that the two businesses will remain exempt from the law until it renders a decision on their request for an injunction.

Congress "has long distinguished between religious organizations and for-profit secular corporations," the U.S. Justice Department said in a March 1 filing opposing the Kortes' request. "No court has ever found a for-profit company to be a religious organization for the purposes of federal law."

The Kortes told the lower court their company would face "ruinous" penalties of about $730,000 a year for failure to obey the mandate. The Grotes, too, said they faced irreparable harm in the form of fines and penalties for abiding their religious beliefs and defying the law.

Neither the Kortes nor the Grotes hire their workers based on their religions, and those employees aren't required to share their beliefs, the government says in its filings.

Federal law bars companies from using religion as a basis for discriminating in the terms or conditions of employment unless they otherwise qualify for a religious exemption from the federal Civil Rights Act of 1964, the U.S. says.

"Plaintiffs cannot circumvent this distinction by asserting that the contraceptive-coverage requirement is a substantial burden," the U.S. says.

The mandate doesn't compel either family, as individuals, to do anything, only their legally separate businesses, according to the U.S.

Here is a report by Manya A. Brachear that appeared late last evening at the Chicago Tribune website. Some quotes:
Lawyers for two Roman Catholic-owned companies in Illinois and Indiana argued before the Seventh Circuit Court of Appeals Wednesday that a law forcing them to include birth control in their employees' benefits would violate their First Amendment rights.

But in an unexpected twist during a hearing on the merits of a preliminary injunction, the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.

Edward L. White III, a lawyer representing Korte & Luitjohan Contractors in the Downstate city of Highland, said the fines imposed for ignoring the contraception mandate would impose a substantial burden on the southern Illinois construction company and therefore violate the U.S. constitution.

“The mandate is depriving my clients of the free exercise of their Catholic faith,” said White, a lawyer for the American Center for Law & Justice based in Ann Arbor, Mich.

“The company is an extension of their beliefs as the two people who control the company,” he told the court.

But Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

“At bottom, the concern is about establishing religion,” Klein said.

Judge Diane Sykes said the question before the court is not whether the mandate violates religious beliefs, but whether acting on those beliefs imposes a significant burden on a business owner.

“We are not competent to answer religious questions,” she said. * * *

Lawyers for the business owners have relied heavily on the 1993 Religious Freedom Restoration Act, a law that allowed exemptions from certain rules, as long as those exceptions don't harm the welfare of society.

Klein argued that the scope of that act doesn’t apply in this case.

Sykes frequently interrupted Klein’s arguments, leading spectators in the packed courtroom to conclude at least one judge had already made up her mind.

“Corporations have been held to be rights-bearing persons for purposes of all kinds of constitutional rights,” she told Klein. “What’s different about this?”

Lorie Chaiten, director of the Reproductive Rights Project for the American Civil Liberties Union of Illinois, which filed an amicus brief in the case, said that because the same three judges granted the preliminary injunction preventing the government from fining companies that don’t comply with the mandate, their line of questioning came as no surprise.

She agreed with the government’s caution regarding fostering or enabling religious practice.

“Government tries to achieve the appropriate balance of accommodating religion where it’s appropriate,” she said, “where the Supreme Court has said they can go vs. going so far that they’re in fact fostering, advancing and doing things that would run afoul of the establishment clause.”

Grote Industries, a Catholic-owned manufacturer of vehicle safety and lighting systems in Madison, Ind., made similar arguments before the Seventh Circuit on Wednesday, adding that the distinction between a company and its owner or controlling shareholders exists for “some purposes, but not moral purposes.”

“No doubt here the Grote family is being forced to choose,” lawyer Matthew Bowman argued. If they choose to disobey the mandate, they “forfeit the benefits of doing business at all according to their morality.”

Listen to the oral argument in William Grote, III v. Kathleen Sebelius.

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

Wednesday, May 22, 2013

Ind. Gov't. - Interesting contrast between two auto company stories [Updated]

A press release today from Tesla Motors announces:

PALO ALTO, Calif.-- Tesla Motors announced that it has paid off the entire loan awarded to the company by the Department of Energy in 2010. In addition to payments made in 2012 and Q1 2013, today’s wire of almost half a billion dollars ($451.8M) repays the full loan facility with interest. Following this payment, Tesla will be the only American car company to have fully repaid the government.

For the first seven years since its founding in 2003, Tesla was funded entirely with private funds, led by Elon Musk. Tesla brought its Roadster sports car to market with a 30% gross margin, designed electric powertrains for Daimler (Mercedes) and had done preliminary design of the Model S all before receiving a government loan.

In 2010, Tesla was awarded a milestone-based loan, requiring matching private capital obtained via public offering, by the DOE as part of the Advanced Technology Vehicle Manufacturing program. This program was signed into law by President Bush in 2008 and then awarded under the Obama administration in the years that followed. This program is often confused with the financial bailouts provided to the then bankrupt GM and Chrysler, who were ineligible for the ATVM program, because a requirement of that program was good financial health.

Also today an AP story reports:
Three former executive vice presidents of a company that planned to build high-tech police cars at an eastern Indiana factory are suing it for more than $600,000 in deferred wages. * * *

[Carbon Motors Corp.] fell apart after the U.S. Department of Energy rejected the company's request for a $310 million loan last year [2012].

This March 7, 2012 IBJ/AP story reported:
Carbon Motors Corp., which hoped to create hundreds of jobs and thousands of high-tech, fuel-efficient police cars in Indiana, announced a major setback Wednesday.

The Connersville-based company said the U.S. Department of Energy has “indicated that it will not proceed with Carbon's $310 million application for a direct loan under the Advanced Technology Vehicle Manufacturing, or ATVM, program. * * *

“We are outraged by the actions of the DOE and it is clear that this was a political decision in a highly-charged, election year environment,” CEO William Santana Li said in a prepared statement. “Since Solyndra became politicized last fall, the DOE has failed to make any other loans under the ATVM program …"

Li said Anderson-based Bright Automotive, General Motors, Chrysler, Next Auto, Aptera all have been hurt by the DOE’s loan process. Bright called it quits late last month after it gave up on receiving a $450 million DOE loan.

"Each of these applicants has been caught for several years in a costly and extensive DOE due-diligence process,” Li said. “Carbon Motors simply appears to be the last victim of this political gamesmanship.”

The company said it had lined up an additional $200 million in loans based on the DOE loan receiving approval.

[Updated at 9:04 PM] And here is a third story, just posted by Politico, reported by Darius Dixon, that begins:
Electric car maker Tesla Motors showed on Wednesday it was no Solyndra, announcing it had paid off the balance of a $465 million government loan — nine years early.

The payment means the company founded by billionaire Elon Musk won’t join Solyndra or Abound Solar on the list of green energy start-ups that collapsed after winning millions from a DOE loan guarantee program. Those loans have been a key target for Republicans, who used them to criticize President Barack Obama’s support for renewable energy companies.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Government

Law - More on: "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online"

Remember the ILB entries about state rules incorporating things like the building code by reference, such as this one from Aug. 7, 2008, headed "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online"?

Today the Law Librarian Blog in an entry headed "Incorporation by Reference: Private Control Over Access to Public Law," has highlighted a forthcoming article in the Michigan Law Review, by Michigan Law prof Nina A. Mendelson, titled "Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards". The article abstract begins:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to General Law Related

Courts - Did Monsanto win the battle but lose the war?

Earlier this month Monsanto won its battle against an Indiana farmer when the SCOTUS ruled that the farmer was not permitted to reproduce patented seeds through planting and harvesting without the patent holder's permission.

Today the Wall Street Journal has a story ($$$) headed "Pesticides Make a Comeback: Many Corn Farmers Go Back to Using Chemicals as Mother Nature Outwits Genetically Modified Seeds." The story begins:

Insecticide sales are surging after years of decline, as American farmers plant more corn and a genetic modification designed to protect the crop from pests has started to lose its effectiveness.

The sales are a boon for big pesticide makers, such as American Vanguard Corp. and Syngenta. But it has sparked fresh concerns among environmental groups and some scientists that one of the most widely touted benefits of genetically modified crops—that they reduce the need for chemical pest control—is unraveling. At the same time, the resurgence of insecticides could expose both farmers and beneficial insects to potential harm.

Until recently, corn farmers in the U.S. had largely abandoned soil insecticides, thanks mostly to a widely adopted genetic trait developed by Monsanto Co. that causes corn seeds to generate their own pest-killing toxins, but which the Environmental Protection Agency says doesn't hurt humans.

The modified seeds, first introduced in 2003, proved to be largely effective against the corn rootworm, a voracious bug that is the main scourge of the nation's largest crop. Today, according to the U.S. Department of Agriculture, two-thirds of all corn grown in the U.S. includes a rootworm-targeting gene known as Bt.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Courts in general | Environment

Ind. Courts - "Appellants Have Been Striking Out at Oral Arguments on Whether to Grant Transfer"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

This January 28, 2013 post noted a spike in oral arguments in criminal cases in which the Indiana Supreme Court was considering whether to grant transfer. In the six month period between December of 2012 and May of this year, the Court has heard oral argument in eight criminal cases in which a petition to transfer was pending. Monday’s transfer list shows the denial of the Appellant’s petition in Gulzar by a 3-2 vote—a growing trend.

Although transfer was granted in both of the petitions filed by the State, Appellant’s have struck out in the last five argued cases; a case argued in December remains pending:

Justice Rush voted to grant transfer in all four cases denied by a 3-2 vote; she was joined by Justice Rucker in two cases, Justice David in one case, and Chief Justice Dickson in another case.

The next opportunity for an Appellant to break the streak is June 20 when the Court hears argument in Gunn v. State, a case involving the trial court’s “correction” of a verdict form returned by jurors.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Courts

Environment - "EPA may add Indianapolis site to Superfund cleanup list"

That is the headline to this story by Maureen Groppe of the Gannett Washington Bureau.

Here is the detailed US EPA news release. Here are the relevant quotes:

The following nine sites have been added to the NPL: * * *

• Pike and Mulberry Streets PCE Plume (former dry cleaner) in Martinsville, Ind. * * *

The following nine sites have been proposed for addition to the NPL:

• Beck’s Lake (former automotive and hazardous waste dump) in South Bend, Ind.;
• Garden City Ground Water Plume (ground water plume) in Garden City, Ind.;
• Keystone Corridor Ground Water Contamination (ground water plume) in Indianapolis, Ind

Also from the US EPA news release:
By eliminating or reducing real and perceived health risks and environmental contamination associated with hazardous waste sites, Superfund actions frequently convert contaminated land into productive local resources and increase local property values. A recent study conducted by researchers at Duke and Pittsburgh Universities concluded that, while a site’s proposal to the NPL reduces property values slightly, making a site final on the NPL begins to increase property values surrounding Superfund sites. Furthermore, the study found that, once a site has all cleanup remedies in place, surrounding properties have a significant increase in property values as compared to pre-NPL proposal values.
Here is a US EPA link to the "unofficial pre-publication" copies of the proposed Federal Register notices. When they are published, there will be a public comment period.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Environment

Ind. Gov't. - " West Lafayette officials say the banana constitutes a sign"

You have to see the photo in this Lafayette Journal Courier story by Justin L. Mack in order to understand the issue. The story begins:

Granite Management’s plans to bring a banana-themed mural to Chauncey Hill may have a few brown spots.

Word of the giant banana being painted on the side of the Granite rental property at 138 S. Chauncey Ave. quickly became a hot topic among residents when work began on the project last week.

But West Lafayette officials say the image, which is used as a logo in the company’s promotional materials, falls under the category of a sign in the Tippecanoe County Unified Zoning Ordinance. That means hours of work already put into the project may be for naught if requirements to allow the banana to stay put cannot be met.

“There has been a lot of debate going on. … Our read on it is that it does meet the definition of a sign, so it is going to have to meet the requirements for signage,” City Engineer Dave Buck said. “It does have a commercial message. Is it art? That’s not a question we’re going to try to answer. One person’s art is another person’s sign.”

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Government

Ind. Gov't. - "Overregulation a common concern in Indiana, says Lt. Gov. Ellspermann"

From the Elkhart Truth, this story by Tim Vandenack that begins:

Indiana Lt. Gov. Sue Ellspermann is four weeks into her planned seven-month tour of Indiana’s 92 counties and already at least one theme has emerged — Hoosiers don’t like government breathing down their necks.

“I’d say overregulation is one overriding theme that comes across,” she said Tuesday, May 21, during a stop at a farm southeast of Elkhart.

The leery attitude extends to federal and state overreach, Ellspermann said, and participants in the meeting, including Dwight Moudy, echoed her analysis. “It’s just crazy the way they want to regulate every part of our lives,” said Moudy, a member of the board of the Elkhart County Farm Bureau.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Government

Ind. Decisions - Supreme Court order terminates respondent's suspension "in this case only"

In In re Octavia F. Snulligan, the Supreme Court issues a "PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION IN THIS CASE ONLY", filed May 21, 2013. This case is 49S00-1301-DI-55. The Order provides in part [emphasis in the original]:

The Court therefore ORDERS that Respondent's suspension from the practice of law in this case only be shown as terminated as of May 17, 2013. Respondent's suspension ordered in one or more other cases remains in effect, and Respondent shall not be shown as reinstated to the practice of law in this state until all causes for suspension are cured.
In a May 16th post, headed "Supreme Court suspends attorney in billing dispute", the ILB reported on a different disciplinary matter, 49S00-1107-DI-462. (The ILB has learned that Ms. Snulligan was, until recently, a member of the Indiana Parole Board.)

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court reverses grant of transfer in Simon case, reinstates COA opinion

The Supreme Court heard oral argument on Oct. 24, 2012 in the case of Joseph A. Davis v. Herbert Simon and Bui Simon (49S04-1208-CT-498). Here is the Upcoming Oral Arguments post of the case:

When Simon and his wife sued Davis, a California attorney, for defamation and false light publicity based on a statement Davis made during a phone call with an Indianapolis-based news organization, Davis moved to dismiss, and the Marion Superior Court denied the motion to dismiss. The Court of Appeals reversed, concluding that the trial court lacks personal jurisdiction over Davis because he did not expressly aim his conduct at Indiana. Davis v. Simon, 963 N.E.2d 46 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This is a 26-page, Feb. 29, 2012 COA opinion, where the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1.

In a 4-0 Order filed May 21, 2013, Chief Justice Dickson writes:
On August 30, 2012, the Court granted a petition seeking transfer of jurisdiction over this appeal after an opinion by the Court of Appeals.

After further review of this case, including oral argument, the participating Justices are split 2-2 in their analysis whether the trial court should have denied the motion to dismiss.

When this Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated. Ind. Appellate Rule 58(C). Accordingly, the Court of Appeals’ opinion reported as Davis v. Simon, 963 N.E.2d 46 (Ind. Ct. App. 2012), is reinstated as Court of Appeals precedent. * * *

All Justices concur in this order, except Massa, J., who is not participating.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

For publication opinions today (4):

In Lydia Lanni v. National Collegiate Athletic Association, et al. , a 15-page opinion, Judge Riley writes:

This cause comes before us as a result of a civil tort action filed by Lanni against the NCAA, the University of Notre Dame Du Lac (Notre Dame), and the United States Fencing Association (USFA). Lanni, a spectator, was struck in the left eye by a fencing sabre causing a severe injury while at an allegedly NCAA sanctioned fencing match at Notre Dame. On February 8, 2012, Lanni filed her Complaint, alleging that the NCAA was negligent by (1) failing to undertake a hazard and risk analysis prior to commencing the fencing match, (2) failing to select and/or supervise qualified officials, and (3) failing to supervise the competition to insure hazards and risks were consistently monitored to prevent injuries. * * *

Lanni’s main argument focuses on the trial court’s treatment of the NCAA’s Motion which combined a motion based on T.R. 12(B)(6) with a motion based on T.R.56. Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court was required to notify her prior to considering the NCAA’s Motion as a motion for summary judgment and the trial court was mandated to award her a reasonable time to conduct discovery. * * *

Based on the foregoing, we conclude that the trial court erred when it converted the NCAA’s Motion into a motion for summary judgment without awarding Lanni a reasonable opportunity to present relevant materials in opposition to the motion for summary judgment; and the trial court did not abuse its discretion by denying Lanni’s motion to strike Shaul’s affidavit, designated by the NCAA. Reversed in part, affirmed in part, and remanded for further proceedings.

In Gersh Zavodnik v. Brian Richards and NJGOLFMAN.COM a/k/a Savva's Golf Enterprises a/k/a PROGOLFJERSEYCITY@YAHOO.COM and Steve Panayiotov, et al., a 4-page opinion on rehearing, Judge Barnes writes:
Gersh Zavodnik petitions for rehearing following our decision in Zavodnik v. Richards, 984 N.E.2d 699 (Ind. Ct. App. 2013). With the following clarifications, we reaffirm our decision in all respects. * * *

We, therefore, clarify that although Zavodnik must obtain reinstatement of his original complaints under their original cause numbers, such reinstatement could be ordered by a judge other than Judge Oakes, if Judge Oakes indeed were to recuse himself from any future attempts at reinstatement. In all other respects, we reaffirm our original decision.

In Charles A. Walker v. State of Indiana , a 16-page opinion, Judge Crone writes:
Charles Walker appeals the denial of his petition for post-conviction relief. He claims that his trial and appellate counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support a habitual offender finding against him and in failing to challenge the habitual offender jury instructions and verdict form. Finding no clear error in the post-conviction court’s judgment, we affirm.
In Mark L. Jordan v. State of Indiana , an 8-page opinion, Judge Baker writes:
In this case, before a criminal defense attorney could file a notice of appeal on behalf of his client, he was fighting for his life against a recurrence of cancer to which he succumbed only a few months later. His client, appellant-petitioner Mark Jordan, who had been ill-informed and apparently mistaken regarding the details and status of his appeal, filed a petition for relief under Indiana Post-Conviction Rule 2, seeking to file a belated appeal. The trial court denied this petition without a hearing or specific findings.

We conclude that this was error, inasmuch as Jordan was without fault in failing to file a timely notice of appeal in light of his attorney’s terminal illness. Accordingly, we reverse and remand for further proceedings consistent with this appeal. * * *

Although a rigid application of those factors to the facts of this case may lead to the result reached by the trial court, as stated above, each case must be decided on its own facts. To be sure, those factors certainly excluded the indispensable fact that Jordan’s attorney became terminally ill almost immediately following Jordan’s sentencing hearing. In short, we decline to say that a post-conviction petitioner is at fault for failing to file a timely notice of appeal when his attorney becomes terminally ill shortly after the sentencing hearing, and the petitioner is incarcerated.

NFP civil opinions today (7):

Mary K. Wallskog v. ACS (Affiliated Computer Services), et al. (NFP)

S.R. v. R.S.Y. and T.L.Y. (NFP)

Heather Hill v. Daryl Hill (NFP)

In Re: The Paternity of K.S.: M.M. (Mother) v. J.S. (Father) (NFP)

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

Charles E. Justise, Sr. v. Marion County Jail, Indiana Dept. of Correction, Jerry Huston, Karen Richards, and Stephen Hall (NFP)

Term. of the Parent-Child Rel. of: D.F. & H.D. (Minor Children), and J.D. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (12):

In Re the Matter of: D.L. v. State of Indiana (NFP)

Paul Reese v. State of Indiana (NFP)

Freddie L. McKnight, III v. State of Indiana (NFP)

Tyler E. Burton v. State of Indiana (NFP)

Shawn Tyler Miller v. State of Indiana (NFP)

Xxavier Jones v. State of Indiana (NFP)

Fiona C. Lee v. State of Indiana (NFP)

Candace Hernton v. State of Indiana (NFP)

Jerry Lee Slisz v. State of Indiana (NFP)

Zebulan Hildebrand v. State of Indiana (NFP)

Thomas Dunigan v. State of Indiana (NFP)

Coriyahvon Lamont Outlaw v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Ind. App.Ct. Decisions

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

This April 26, 2013 ILB entry is the last in the "comprehensive coverage of the John Myers PCR hearing, reported by Laura Lane of the Bloomington Herald-Times." After that, coverage abruptly ended.

The explanation: apparently the hearing recessed until this week. Today WBIW has a long story headed "Attorney Apologizes To Behrman Family" that begins:

(MARTINSVILLE) - The second week of court hearings began Tuesday to determine if John Myers had ineffective legal counsel during his trial.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Courts

Ind. Gov't. - What is it like to implement a state health exchange under the federal Affordable Care Act?

Governing has been running a series focusing on Rhode Island's implementation of a state heath exchange. Today's article, by Dylan Scott, is headed "36 Hours Behind Rhode Island's Health Exchange." A box on the page provides links to related articles, including this one from March 21st, headed "Rhode Island's Health Insurance Exchange Implementation: A Case Study."

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Government

Environment - More on: Delaware County "Opposition to wind farm increases"

Updating this ILB entry from May 13th, the Muncie Star-Press has an editorial today headed "All sides must be heard in wind farm debate." Some quotes:

Call it, if you will, a tale of two counties — one that embraces wind farms and one that so far has not.

In Randolph County, plans have been in the works for the past couple of years to develop wind farms in much of the county. So far, none have been built, but zoning regulations are largely in place, and many landowners hope to cash in on the projects once wind turbine construction begins. Plans call for a wind farm in the northeastern and northwestern part of the county, mainly north of Ind. 32.

There has been little if any opposition to the giant turbines in Randolph County, where they are viewed by many as an economic benefit.

That’s not the case in Delaware County, where some landowners in the eastern part of the county have allegedly signed leases with wind farm developer E. ON Climate and Renewables. But as word leaked out about the planned wind farm, opposition has organized, packing a recent city-county plan commission meeting.

The slow movement of government guarantees a wind farm in Delaware County won’t be built in the near future, but the question boils down to this: Should a wind farm be located here, and if so, where?

That’s where zoning ordinances can bring order to chaos. Zoning ordinances separate land uses, and by design are made to infringe on other uses. Zoning keeps a heavy industrial plant out of a neighborhood, for example. A wind farm can be described as low-level industrialization of land, usually agricultural, and that’s what creates opposition.

In order to minimize noise, light shadows and visual clutter, rules must be written to govern where and how turbines are to be placed. So far, there is no agreement on the rules. Setback requirement proposals have ranged from 1,320 feet to nearly two miles. The latter would effectively outlaw wind turbines because of the population density of Delaware County.

But the editorial concludes:
But here’s one thing to ponder: The lease payments paid by a wind farm developer might largely preserve a rural way of life by limiting future development, and providing a revenue stream to benefit and maintain agriculture operations.

We hope that consideration doesn’t get lost in the stiff breeze of debate this issue is sure to generate.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Environment

Ind. Gov't. - "Indianapolis official Reggie Walton, 4 others named in Land Bank indictment involving alleged kickbacks, bribery"

Jon Murray and John Tuohy report on yesterday's big story this morning in the Indianapolis Star. The story includes a link to the 12-page federal indictment.

Here is Matthew Tully's column today.

Here is Dan Carpenter's column today.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to Indiana Government

About this Blog - Indiana Law Blog featured in "IBA: Interrogatories" column this month

Everything you've always wanted to know! The Indiana Law Blog is featured this month in Tyler Helmond's (of Voyles Zahn & Paul) May 22nd Indianapolis Bar Association Interrogatories column in the IBA section of The Indiana Lawyer.

Access it here. For an easier-to-read formatted version, but without the intro, here is the original.

Posted by Marcia Oddi on Wednesday, May 22, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - Indiana cert petition nominated as "petition of the day" yesterday by SCOTUSblog

Here, from the SCOTUSblog post:

The petition of the day is:

Planned Parenthood of Indiana, Inc. v. Secretary of the Indiana Family and Social Services Administration 12-1159

Issue: Whether the Indiana statute that disqualifies a health care provider from participating in a government program because, outside that program and with wholly private funds, it provides abortion care imposes an unconstitutional condition in violation of the Fourteenth Amendment to the United States Constitution.

Here is the SCOTUSblog case page for Planned Parenthood v. Indiana FSSA, including links to the 7th Circuit opinion, the cert petition and response.

Here is the most recent ILB entry, from October 24, 2012, with links to earlier coverage.

The petition is scheduled to be heard by the SCOTUS in conference tomorrow, May 23rd.

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

Tuesday, May 21, 2013

Ind. Courts - More on: Suit claims "BMV Indiana overcharged millions of Hoosiers for driver's licenses" [Updated]

Updating this ILB entry from March 7th, Rafael Sanchez of WRTV 6 reports:

INDIANAPOLIS - In response to a class-action lawsuit that alleged the Indiana Bureau of Motor Vehicles overcharged as many as 4 million Hoosiers since 2007, the BMV admitted in a May 15 filing "it may have inadvertently overcharged" drivers.
The story does not include a copy of the filing.

[Updated at 3:43 PM] Tim Evans has just posted a story to IndyStar.com. Some quotes:

The Indiana Bureau of Motor Vehicles admits it “may have inadvertently overcharged a number of Indiana citizens” for drivers’ licenses, according to a reply in a class action lawsuit pending in Marion Superior Court.

In an answer to the class-action complaint filed by Irwin Levin of the Indianapolis law firm Cohen & Malad, the BMV also “admits that overcharges may have affected a significant number of drivers.”

The response filed May 15 by the Indiana Attorney General said the “BMV is without sufficient information at this time to admit or deny the allegations regarding a systematic overcharge of Indiana drivers… .” * * *

"There is specific authority for how much they can charge and what they did instead was, apparently, just made up a number," Levin said in March. "They just disregarded it."

Drivers 75 and older obtain a different type of license, Levin said, and the suit does not challenge charges for those licenses.

Levin said he did not know how much Hoosiers were overcharged.

"The state is going to have to give us that," he said when filing the lawsuit. "But based on our calculations, the number could be as high as $30 or $40 million."

Drivers are charged $21 for a six-year license, $19.50 for a five-year license and $18 for a four-year license. The suit says the maximum the BMV is allowed to charge under Indiana law, however, is $15 for a six-year license, $13.50 for a five-year license and $14 for a four-year license.

[Updated at 4:05 PM] Here now is the State's answer to plaintiff's class action complaint (h/t ch. 13).

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Indiana Courts

Ind. Courts - Marion County civil courts' current cases are now available [Updated]

Marion County civil courts' current cases are now available for public access via the Odyssey Case Management System for Indiana Courts and Clerks.

The ILB sent a few questions to Angie Nussmeyer, Communications Director for Marion County Clerk Beth White:

ILB Q: Your website says "All new and active civil cases can be viewed through the state's website - mycase.in.gov. Closed civil cases will continue to be available through indygov.biz for a nominal fee."

"New" I understand. "Active" means it has a history before the changeover. So if I look at one of those will I see the complete info from the beginning, just as I will be able to do now with newly filed cases?

MCC A: Yes. During the data conversion, the entire case history of active civil cases in JUSTIS was pulled into Odyssey. As of May 4, mycase.in.gov reflects the full case history of all new civil cases and pre-Odyssey active civil cases (all activity from JUSTIS plus new Odyssey entries).

Q: Is there any plan to fill in the history, going back like 5 years?

A: Our office isn’t aware of any plans to pull closed civil cases into Odyssey. Court and clerk’s office staff will have access to the information through a ‘data warehouse’ in the event the closed cases are re-opened and need to be added into Odyssey. While there is a fee to query most old case information on indygov.biz at your home or office, it can also be viewed at public terminals in the Clerk’s Office at no cost to the user.

Q: In other counties I believe the old records were converted to Odyssey. Who paid/pays for that? Who made the decision not to do it in Marion County?

A: As we understand, the courts and JTAC decided against moving old records into Odyssey because of the capacity required to store [SIC, she may mean "cost to convert"] 1.8 million civil case records. You might follow-up with court administration to get their perspective, however.

Q: All the above questions have to do with the civil cases. What is the plan for the criminal cases?

A: The executive committee and court administration have not finalized the timeline for criminal case conversion and the courts will be driving this process. For some perspective, the civil case transition took about 18 months of planning in order to execute. In addition to the civil case conversion, Marion County worked with JTAC to develop a financial component as JUSTIS had a robust accounting functionality. Odyssey did not have a module that fit our needs, which took additional time to develop.

The ILB has also sent some questions to Marion County court administration so there may be additional posts on this topic.

Several other questions that have occurred to me:

[Update at 3:25] A reader, Nick Fankhauser of Doxpop, writes to correct the above question re HEA 1393:
Although the ARK fee was in fact increased by 40% this year, only half of the increase is retained by counties that don't use the Odyssey system.

So in a county using another case tracking system, they get to keep $2 to defray the cost of running their own system, and send $5 to JTAC to defray the cost of running Odyssey in other counties.

ILB: Good info, but we still don't know how fees are to be handled in a county with Odyssey plus their own CSS. Prorated, I'd guess, although the law doesn't mention this. Marion County has already had its small claims courts on Odyssey for some time.

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Indiana Courts

Ind. Law - General Assembly's 2013 "Table of Citations Affected" just released

Just released this afternoon, the General Assembly's invaluable "Table of Citations Affected" for the 2013 session. Use it to check on whether a statute you are relying on has been affected by a 2013 action. Scan it to quickly find all the changes made to a particular area of the Indiana Code, such as Title 11, Corrections or IC 4-21.5, Administrative Orders and Procedures (AOPA).

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Charles Pickering v. Caesars Riverboat Casino, LLC d/b/a Horseshoe Southern Indiana , a 16-page opinion, Judge Brown writes:

Charles Pickering appeals the trial court’s order granting summary judgment in favor of Caesars Riverboat Casino, LLC, d/b/a Horseshoe Southern Indiana (“Caesars”). Pickering raises one issue which we revise and restate as whether the court erred in granting Caesars’ motion for summary judgment. We affirm. * * *

Pickering’s negligence claim is based on premises liability. The law is well established that a person entering upon the land of another comes upon the land as an invitee, a licensee, or a trespasser. Christmas v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011). Thus, the first step in resolving a premises liability case is to determine the plaintiff’s status. * * *

When Pickering ducked underneath the caution tape and proceeded up the ramp, he lost his status as an invitee and was a mere licensee. Being a licensee, Caesars owed Pickering a “duty to refrain from willfully or wantonly injuring him or acting in a manner to increase his peril.” Id. at 612. Pickering has not designated any evidence to demonstrate that Caesars either willfully or wantonly injured him, or that it did anything to increase his peril. Indeed, if the peril in this case is the presence of snow and ice on the ramp and rooftop level, then Caesars’ actions decreased Pickering’s level of peril by posting a barricade which should have alerted him to the presence of the snow and ice. Thus, we conclude that the trial court did not err when it granted Caesars’ motion for summary judgment.

In C.B. v. State of Indiana , a 12-page opinion with a separate concurring opinion, Judge Baker writes:
In this case, a juvenile entered into a conditional admission agreement pursuant to which she admitted to committing what would have been class A misdemeanor Battery1 if committed by an adult. In exchange, the State agreed to dismiss a separate delinquency petition. Additionally, if the juvenile did not violate the agreement for ninety days, the remaining delinquency petition would also be dismissed. However, if the juvenile violated the agreement, the juvenile court would determine that the agreement had failed, and her case would proceed immediately to disposition.

Before the ninety days had expired, the juvenile was arrested for what would have been class A misdemeanor battery if committed by an adult. The juvenile court noted that probable cause had been found for the new offense and set the matter for a disposition hearing. Immediately before proceeding to disposition, however, the new delinquency petition was dismissed. Nevertheless, the juvenile court determined that the conditional admission agreement had failed and sentenced the juvenile to formal probation.

On appeal, the juvenile argues that she was denied due process when the juvenile court would not permit her to present evidence regarding probable cause after the new delinquency petition was dismissed. We conclude that before a juvenile court can determine that a conditional admission agreement has failed based upon probable cause that a new offense has been committed, the juvenile court must independently find probable cause instead of merely relying on the probable cause finding that authorized the filing of the delinquency petition. Additionally, a juvenile must be given a meaningful opportunity to challenge the existence of probable cause. Here, because the juvenile court relied solely on the finding of the probable cause that supported the filing of the new delinquency petition, and C.B. was not given a meaningful opportunity to challenge probable cause, we reverse. * * *

RILEY, J., concurs.
BARNES, J., concurs with separate opinion. {that concludes] I think the language used by the majority could be construed too broadly. I respectfully believe we must be careful not to overreach and that we should limit our holding to the particular facts of this case.

NFP civil opinions today (3):

Dorita P. Lee and Brealon Miller v. Elizabeth Hamilton (NFP)

Christine and George Evan v. Trustgard Insurance Company, d/b/a Grange Insurance (NFP)

In the Guardianship of D.M.: W.G. v. B.P. (NFP)

NFP criminal opinions today (3):

Francis Napier v. State of Indiana (NFP)

Dionne Stewart v. State of Indiana (NFP)

Kevin T. Price v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "The Indiana Supreme Court ruled Friday, as it should have, that state law trumps the Lake County judges' transfer rule"

That is the beginning of an editorial today in the NWI Times. The editorial continues:

Indiana law requires the merit selection process be followed to fill a seat on the Lake Juvenile Court bench, which is why Lake Superior Court Judge Nicholas Schiralli couldn't transfer to that position. He hasn't gone through the merit selection process yet. Schiralli was elected, following the law in place at that time, rather than going through the merit selection process.

Schiralli wanted to follow a rule established by Lake County judges that would let him transfer automatically, but magistrates handling Juvenile Court cases filed suit to stop that move.

Now that the Supreme Court has weighed in, the merit selection process should begin. The merit commission should invite applicants to apply for the job, then go through a screening process similar to the one used to fill vacancies on the Supreme Court and Court of Appeals.

See the May 17th Supreme Court decision here.

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "METH: Cleaning the site of a former meth lab can be costly"

The Muncie Star-Press has a long story today by Ben Breiner that begins:

MUNCIE — After the arrests have been made, the police have gone and condemned signs adorn the outside of a former meth lab, the structure stands empty, uninhabitable and in a real sense, damaged by the processes that took place within.

Repairing that damage, and making the building anything other than an empty husk not fit for habitation, carries a hefty cost. A cost that falls not on the state or the meth “cook,” but most often on the property owner, regardless of whether the owner was the one making the methamphetamine.

According to some of the companies licensed to clean up meth labs, those costs can start with an inspection around $1,500, and can reach well into tens of thousands of dollars. Representatives from five companies that serve Delaware County said the cost ultimately depends on the size of the job.

“We’ve probably got 10 jobs in Delaware County and the prices range anywhere from $1,500 anywhere to $12,000 to $14,000,” said Matt Duncan, owner of Bio-Meth Management in Fort Wayne. “There’s just a lot of variables that go into the cleanup.”

More from the story:
“It is prohibitive for a lot of people,” said Phil Ball, senior project manager at Aegis Environmental. “Especially these landlords that have one or two investment properties, this is their nest egg. They don’t have a lot of times $15,000-$20,000 to throw at these.”

Representatives from three companies and Christiana Mann, a former Environmental Health Specialist at Delaware County Health Department, said in many cases insurance covers many of the remediation costs. Duncan added most cleanups are initiated by either landlords or banks after a foreclosure. Property owners can go after the tenants in hopes of recovering some funds, but few are in position to cover much of the cost.

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Indiana Law

Ind. Courts - "Porter County Veterans Treatment Court lauded for successes"

See the story here in the NWI Times, reported by Joyce Russell. Some quotes:

The two-year-old program, run by Porter Superior Court Judge Julia Jent, was lauded Monday during a stop by the All Rise America! On the Road for Recovery. Six additional veterans were also recognized for completing the program.

The veterans treatment court, Jent said, is a program that addresses the underlying causes and underlying issues when veterans are arrested. It finds alternatives to incarceration while holding them responsible for their actions and keeping the community safe. * * *

Speakers also included Indiana Attorney General Greg Zoeller, Indiana Appeals Court Chief Justice Margret Robb, Indiana State Sen. Karen Tallian, Porter Circuit Court Judge Mary Harper, Portage Police Chief Troy Williams, Porter County Sheriff David Lain and others.

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Indiana Courts

Courts - Still more on "SCOTUS Takes Case on Prayer at Town Board Meetings"

Updating yesterday's ILB entry, that includes links to prior coverage of the Indiana legislative prayer case, Dan Carden reports today in the NWI Times, in a story headed "Prayer case set for U.S. Supreme Court similar to Ind. House dispute."

Carden reports that Attorney General Zoeller, on behalf of the State of Indiana, filed an amicus brief with the SCOTUS, signed by a number of other states, urging
the Court to hear the appeal of the Town of Greece, New York:

... to review a federal appellate court decision prohibiting the town of Greece, N.Y., from beginning its Town Board meetings with a prayer led by a consistently Christian "chaplain of the month."

The 2nd U.S. Circuit Court of Appeals ruled in May 2012 the practice suggests an "official affiliation with a particular religion," in violation of the U.S. Constitution's ban on the establishment of a state religion. * * *

"We're fearing a federal government, or a state government, establishing a specific religion and it hasn't happened over all the history and tradition and it's unlikely to in the future," Zoeller said. "So should we really be so technically oriented?"

Zoeller said other states look to Indiana to lead on this question based on its experiences in court battles that ultimately preserved prayer prior to sessions of the Indiana House.

In 2005, a federal judge in Indianapolis decreed the House's almost entirely Christian, and sometimes proselytizing, prayers were an unconstitutional endorsement of a particular religion, notwithstanding a 1983 U.S. Supreme Court ruling granting special status to legislative prayer.

The decision was condemned by House Speaker Brian Bosma, R-Indianapolis, Republican Gov. Mitch Daniels and Indiana's Republican members of Congress, including current Gov. Mike Pence, who responded by trying to deny federal courts the authority to rule in any future case involving legislative prayer.

The 7th U.S. Circuit Court of Appeals struck down the no-prayer decision in 2007 by finding the four plaintiffs, who sued over the cost of legislative time used by state-sanctioned prayer, were not sufficiently harmed to bring the lawsuit.

The appeals court never ruled on whether legislative prayer constitutes unconstitutional government endorsement of a particular religion.

Seeking to avoid future lawsuits, the House rearranged its schedule and the prayer is currently conducted prior to the chamber's officially being called to order each afternoon.

Lawmakers who believe the daily session shouldn't begin with a prayer typically refrain from entering the House until the prayer is completed.

Across the rotunda, the Indiana Senate still comes to order and is then led in prayer, usually by a Christian visiting minister. Senate prayers during the 2013 session lasted up to 10 minutes and personal requests to Jesus were common.

State Sen. Karen Tallian, D-Ogden Dunes, said she and several other senators keep track of the overtly Christian nature of the Senate prayers, which she contends are unconstitutional.

"I believe that Thomas Jefferson meant it when he said we should have separation of church and state, and that is a more long-lasting tradition than any other tradition in this country," Tallian said.

She also questions why Zoeller is using state resources to advocate positions in federal courts the legislature hasn't instructed him to take.

"That seems a little over-the-top to me. I don't think he has any business doing that," Tallian said. "It shouldn't be his bailiwick to defend cases from other states. He certainly has enough things going on in the state of Indiana."

Here is the SCOTUSblog case page on Town of Greece v. Galloway. Among the amicus curiae briefs listed, here is that of the State of Indiana. Indiana is joined on the brief by the states of Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, South Carolina, Texas, Utah, and Virginia.

Lyle Denniston of SCOTUSblog has this report on the grant. Some quotes:

The Supreme Court’s agreement to review the decision might be interpreted as an indication that the Justices could be preparing to make a major pronouncement on religion in the public sphere, but it also might be understood as an intent to focus solely on the specific facts of the practice as it unfolded in this one community.

As the case develops, though, it almost certainly will draw wide interest from advocacy organizations and religious entities, if for no other reason than the Court has not examined the specific question in some thirty years. Eighteen states had joined in urging the Court to grant review of the new case.

In the 1983 decision in Marsh v. Chambers, the Supreme Court upheld an opening prayer tradition at the Nebraska state legislature. It did so, however, by relying solely upon the tradition of legislative opening prayers that Congress had followed since the Founding era. In asking the Supreme Court to return to the issue, the town of Greece argued that the lower courts have divided deeply over the constitutional standards to be applied to judge such prayer exercises.

Since 1983, the Court has decided only two cases involving prayer as an issue in church-state relations, and both of those cases found invalid prayers that appeared to be sponsored by public school officials — at graduation ceremonies in a 1992 decision, and at a school football game in 2000.

While the Court granted the new case from the town of Greece after its first examination of the town’s petition, the Court took no action once again — after considering it a seventh time — on another case involving religion in the public sphere. At issue in the case of Elmbrook School District v. Doe (12-755) is the constitutionality of holding a high school graduation ceremony in a church. There has been no explanation of what the Court is doing with that case.

ILB: Elmbrook is a 7th Circuit decision; see earlier ILB posts.

Denniston has a second article on Town of Greece today, on Constitution Daily.

Posted by Marcia Oddi on Tuesday, May 21, 2013
Posted to Courts in general

Monday, May 20, 2013

Ind. Decisions - More on: Supreme Court suspends attorney for 3 years, without automatic reinstatement

Updating this ILB entry from Friday re the Supreme Court's disciplinary opinion in In re Arthur J. Usher, IV, today several national publications have reported on the suspension, going into much detail.

From The National Law Journal, a story by Karen Sloan, headlined "Suspension for Spurned Attorney Who Waged Vendetta."

From the WSJ Law Blog, a story($$$) by Jacob Gershman, which begins:

In 2008, dozens of Indiana lawyers got an email with a strange subject line: “Bose means Snuff Porn Film Business.”

Pasted in the message was a thread of emails among lawyers ridiculing Bose McKinney & Evans LLP, a prominent Indianapolis firm, for hiring a female attorney who purportedly appeared topless in a low-budget horror flick.

It turned out that the email chain was fabricated by a former Bose partner, Arthur J. Usher, IV, who claimed it was a lighthearted and First Amendment-protected prank on a former female colleague who had a side career as an actress.

The Indiana Supreme Court disagreed, suspending Mr. Usher from practicing law in Indiana for three years on Friday for what justices described was a “mean-spirited and vindictive attempt to embarrass and harm” an attorney who had spurned his advances.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Two Minute Rebuttal at the Court of Appeals

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Last month, as I’ve done several times in the past, I began an argument at the Indiana Court of Appeals by reserving five minutes for rebuttal. Why five minutes? That seems to allow enough time to respond to everything opposing counsel may argue; most of those earlier arguments have ended well for my clients; and five minutes is what everyone else seems to request. As the following table of recent arguments shows, most Appellants request five minutes and use all that time (and, in many cases, even more).

Webcast Indiana Court of Appeals Oral Arguments: January-April 2013*
Date Case Name Rebuttal Reserved Rebuttal Used Time Remaining
1/9 Alldredge 5 minutes 5:43 -0:43
1/30 State v. I.T. 10 minutes 9:50 0:10
2/7 Kleber 5 minutes all time used in initial argument; none left
2/13 Meriwether 5 minutes 3:40 1:20
2/18 Helms 4 minutes 3:55 0:05
2/20 Gresser 5 minutes 5:23 -0.23
2/26 Radcliff 6 minutes 6:25 -0:25
3/6 Fischer 5 minutes 5:05 -0:05
3/26 Bradford 5 minutes 7:10 -2:10
4/8 C.B. 5 minutes 1:15 3:45
4/18 Hassfurther 5 minutes 5:30 -0:30
4/30 USF&G 5 minutes 5:40 -0:40

Nine out of twelve (75%) of Appellants requested five minutes; and two of the remaining three requested four or six minutes. The sole outlier was a Deputy Attorney General in State v. I.T. —an usual argument in which the State, which is almost always defending the trial court’s judgment, was instead the Appellant. Well over half of the Appellants went over the time limit, complete with a visible red light and, in at least a couple of cases, a polite or more direct (“time’s up”) advisement from the presiding judge.

I’m turning over a new leaf and will now be requesting two minutes. At a recent, excellent CLE presentation about oral argument, Judge Vaidik mentioned that Court of Appeals’ judges are not fond of rebuttal, especially those with long laundry lists of points. A lawyer’s purpose at oral argument should be to persuade the three judges — not to listen to ourselves have not just the last word but the last 600 or more words. A short rebuttal that focuses on a couple of key points and returns to the theme of the case will nearly always be more memorable than a list of eight or ten points of disagreement, some surely immaterial, from the Appellee’s argument. Victoria Bailey’s one minute and fifteen second rebuttal in C.B. is an excellent example of a short, effective rebuttal.

Of course lawyers can reserve five minutes and use less time, but the chart above suggests stopping early is seldom done, which is somewhat understandable. By our very nature, most lawyers try to do everything within reason they can to win their case, which many think means a long rebuttal. Moreover, many Court of Appeals’ judges routinely conclude oral arguments by reminding the audience to take nothing from their questions, which are designed to “stimulate thinking” or so on.

Sometimes judges may give us clues to keep it short. At a 2011 argument done primarily by a law student with five minutes of rebuttal reserved for me, all three judges seemed to lean back in their chairs and away from the microphones when I approached the podium. I thought the argument was going very well for us, and I took the cue to keep the rebuttal short--and sat down in a little more than a minute without a single question. The court did indeed reverse. More recently, at the roadshow argument in this case decided today, which also seemed to be going well, about a minute into a rebuttal that would likely have become rambling, the presiding judge motioned with the sage advice, “just sit down.”

We should do our cases a favor and always deliver a short, focused, and memorable rebuttal. Reserving two minutes forces lawyers to focus on the most important parts of their case and allows them to abandon any worry that they should be making more points or droning on for minutes longer than the judges likely care or need to hear.

As a final point, I am not yet ready to extend the two-minute advice to Indiana Supreme Court arguments, which usually involve five active questioners seeking to resolve broad issues of statewide importance that often require more than two minutes of rebuttal time to address adequately.
*I've excluded the March 19 argument in Bridgewater, which was set for 30 minutes each side (instead of the customary 20 per side) and in which audio was inaudible at the beginning. Moreover, the amount of rebuttal time, which is always written on a piece of paper, was not mentioned orally at the April 25 argument in Komyatti, which is also excluded from the table.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Schumm - Commentary

Courts - More on "SCOTUS Takes Case on Prayer at Town Board Meetings"

Updating this post from earlier today, see also this NE Indiana Public Radio story by Mark Memmott, headed "Supreme Court Takes Case On Prayer At Government Meetings."

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Courts in general

Ind. Decisions - More on Cline, a sex offender registry case that was scheduled for oral argument this week

Earlier today the "Upcoming Oral Arguments" post included:

[CANCELLED] 9:00 AM - Jeremiah Cline v. State of Indiana (06S05-1302-MI-92) - When Cline petitioned for removal of his name and information from the Indiana Sex Offender Registry, the Boone Circuit Court ruled that although Cline is not required to register, the court is without statutory authority to order removal of his existing information from the registry. The Court of Appeals affirmed. Cline v. State, 971 N.E.2d 1240 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. [From Docket: JOINT NOTICE OF MOOTNESS AND VERIFIED JOINT MOTION TO REMAND ENTERED ON 05/15/13]
The ILB has now obtained a copy of the Joint Motion, access it here. In pertinent part it reads:
5. On May 9, 2013, the Governor signed HEA 1053, thus enacting amendments to Ind. Code § 11-8-8-22. The statute now relevantly states that a person may petition a court to "(1) remove the person's designation as an offender and order the department to remove all information regarding the person from the public portal of the sex and violent offender registry Internet web site established under IC 36-2-13-5.5; or (2) require the person to register under less restrictive conditions." Ind. Code § 11-8-8-22(c)(l) aud (2) (emphasis in original).

6. Under the recent amendment, Cline may now receive the relief for which he petitioned. The statutory amendment ensures that trial comts have authority to order the removal of infonnation from the sex offender registry for petitioners such as Cline who successfully obtain relief from their duty to register under Ind. Code § 11-8-8-22. The State will not oppose the removal of Cline's information from the sex offenderregistry. Therefore, this case is moot.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Upcoming Oral Arguments

Ind. Decisions - Transfer list for week ending May 17, 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, May 17, 2013. It is two pages (and 22 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Indiana Transfer Lists

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

In UNITED STATES OF AMERICA v. JOHN W. BLOCH, III (ND Ind., Miller), an 11-page opinion, Judge Sykes writes:

Police officers in Elkhart, Indiana, responded to a report of gunfire at an apartment on Delaware Street and were greeted at the door by an obviously intoxicated John Bloch. Given the exigent nature of the call, the officers told Bloch to step outside while they checked to see if anyone was injured. The apartment belonged to Bloch’s girlfriend, who was inside; the officers told her to wait outside as well. As it turned out, there were no gunshot victims in the apartment, but the officers located a loaded Glock handgun and an SKS assault rifle in plain view.

As the officers removed the firearms from the apartment, Bloch protested that the guns were his and demanded their return. This was a bold statement under the circumstances; Bloch is a felon and also has a conviction for a domestic-violence misdemeanor, making his firearm possession a federal crime. See 18 U.S.C. § 922(g)(1), (g)(9). He was arrested and indicted for unlawfully possessing a firearm as a felon and as a domestic-violence misdemeanant. While in jail awaiting trial, he made another series of remarks he would later come to regret. He told a fellow inmate that the police found his Glock and SKS rifle at his girlfriend’s apartment and that he should have hidden them better. A jury found Bloch guilty as charged, and the district court imposed consecutive sentences of 120 months and 18 months on the two counts, for a total sentence of 138 months.

The main issue on appeal is whether the evidence was sufficient to prove that Bloch possessed the firearms. Bloch makes the remarkable claim that his spontaneous demand for return of the guns was categorically unreliable as evidence of possession because he was drunk when he said it. To the contrary, the jurors were entitled to credit this evidence if they found it persuasive; and they obviously did. Maybe they relied on the common wisdom found in the proverb in vino veritas (“wine speaks the truth”). See WILLIAM BARKER, THE ADAGES OF ERASMUS 100 (2001). Besides, while sober, Bloch confided to another jail inmate that he kept his Glock and his SKS rifle at his girlfriend’s apartment and regretted that he had not hidden them well enough. The evidence was sufficient to prove possession.

Bloch also challenges his consecutive sentences on the two convictions, but the government raises a more fundamental error that requires correction and resentencing. A single incident of firearm possession can yield only one conviction under § 922(g), no matter how many disqualified classes the defendant belongs to or how many firearms he possessed. Because Bloch’s convictions for violating § 922(g)(1) and § 922(g)(9) arise out of the same incident of firearm possession, they must be merged into a single count of conviction and Bloch must be resentenced.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - More on "On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences"

Updating Saturday's ILB entry, Orin Kerr's post today in The Volokh Conspirary is headed "The Sixth Circuit Really Blewett." Some quotes:

On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Courts in general

Courts - "SCOTUS Takes Case on Prayer at Town Board Meetings" [Updated]

Adam Liptak of the NY Times has a brief story here on the Court's decision this morning to hear the case. The case is Town of Greece v. Galloway.

[Updated at 12:14 PM] The most recent ILB entry on the Indiana's challenge to legislative prayer from Jan. 16, 2008, headed "Ind. Decisions - More on: 7th Circuit denies rehearing in legislative prayer case." See particularly this post from October 30, 2007, headed "7th Circuit decides legislative prayer case, dismissing for lack of standing."

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Courts in general

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

For publication opinions today (2):

In Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale, a 17-page opinion, Judge May writes:

Roger Jay Piatek, M.D., and the Piatek Institute (collectively “Piatek”) appeal a jury verdict in favor of Shairon Beale (“Beale”). They raise three issues, which we consolidate and restate as:
(1.) Whether the trial court should have granted Piatek’s motion for a mistrial; and (2.) Whether the trial court should have instructed the jury on contributory negligence and incurred risk. We affirm. * * *

The trial court’s admonition was sufficient to cure any prejudice from Beale’s reference to Dr. Piatek pleading the Fifth Amendment, and the trial court did not err in denying his Motion for Mistrial. The evidence presented at trial did not support instructions on Beale’s contributory negligence or incurred risk. We accordingly affirm.

In David F. Wood v. State of Indiana , an 8-page opinion, Judge May writes:
David F. Wood appeals his conviction of Class B felony unlawful possession of a firearm by a serious violent felon (SVF) and the sentence he received for five convictions of Class D felony possession of child pornography. Wood claims his firearm conviction violated his right to be free from double jeopardy and was barred by collateral estoppel. In addition, Wood asserts the five-year cumulative sentence he received for five counts of Class D felony possession of child pornography exceeded the cap provided by Ind. Code § 35-50-1-2 for consecutive sentences from a single episode of criminal conduct. * * *

We reverse Wood’s conviction of Class B felony possession of a firearm by a SVF as that conviction was entered after a jury had already acquitted Wood of possessing those same firearms. We also reverse Wood’s five-year cumulative sentence for the five counts of Class D felony possession of child pornography, because that sentence violates the cap imposed by Ind. Code § 35-50-1-2, and we remand for the trial court to enter a new sentence that does not exceed four years.

NFP civil opinions today (3):

Gina West v. Midland Credit Management, Inc. (NFP)

Kevin E. Scheumann and Tina Reynolds v. Danny Clark, Jason L. Little, Recovery One LLC, Renovo Services LLC, Renaissance Recovery Solutions LLC, Citifinancial Auto Credit Inc., et al. (NFP)

Creditmax, Inc. v. Steve D. Jones (NFP)

NFP criminal opinions today (2):

Jeffrey S. Williams v. State of Indiana (NFP)

George Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Ind. App.Ct. Decisions

Law - "As of May 10, applications to law schools were at their lowest level, year-to-date, since 2001"

That is a quote from this $$$ WSJ story by Jennifer Smith and Ashby Jones, headed "More Often, Nonlawyers Try Taste of Law School." It begins:

Law schools hunting for students as their enrollment numbers drop are increasingly trying to attract an unexpected group: people who have no intention of practicing law.

Doctors, environmental consultants and even an urban planner have signed up for the programs, which offer master's degrees in law and typically cost about the same as one year of law school.

Pitched at midcareer professionals, the programs tend to draw people who work in heavily regulated fields where compliance with a growing body of rules requires an increasingly sophisticated understanding of the law. Some students also hope to gain a competitive edge.

Later in the story:
Students have submitted 372,225 applications for the fall 2013 semester so far this year, a 19% drop compared with the same time in 2012 and a 37% decline from that in 2010, during the recession, when students flocked to law schools.

"Adding new degree programs is like a company diversifying its product lines. If demand for one sags, you've still got alternative sources of revenue coming in," said Paul McGreal, dean of the University of Dayton School of Law, which now offers master's degrees for nonlawyers and practicing attorneys alike.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to General Law Related

Environment - More on "Opponents of fertilizer plant proposed for Rockport, Ind., cite Texas explosion"

Updating this ILB entry from May 15th:

First, this is not the Posey County project from which Gov. Pence withdrew state incentives.

Second, this AP story from May 15th presents a different view of the hearing than did the Evansville C&P story linked at the beginning of this post. It begins:

ROCKPORT, Indiana — The developer of a proposed southern Indiana fertilizer plant said Wednesday the project will be safe and not handle explosive materials like a Texas plant where a deadly explosion occurred last month.

All of the products made at the Ohio Valley Resources LLC proposed for the Ohio River city of Rockport will be liquid, non-flammable and non-explosive, Fairfield, Illinois-based developer Doug Wilson said.

"Ohio Valley Resources LLC is not manufacturing dry fertilizer product" like that at the Texas plant, Wilson said in email to The Associated Press.

John Blair, leader of the Evansville-based environmental group Valley Watch, said the proposed Rockport plant would manufacture 3,600 tons per day of ammonium nitrate, while the Texas plant produced about 4,800 tons a year.

"By scale alone, the proposals for southwest Indiana are giant compared to the plant that blew up in Texas," Blair told the Evansville Courier & Press for a story Wednesday.

Wilson said Blair was mistaken.

"Unlike the products apparently stored at the agricultural retail facility in Texas, everything made at OVR's new plant in Spencer County will be in liquid form. ... None of these products are highly flammable or explosive," Wilson said in an April 19 news release that was reissued Wednesday.

Posted by Marcia Oddi on Monday, May 20, 2013
Posted to Environment

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

From Sunday, May 19, 2013:

From Saturday, May 18, 2013:

From late Friday afternoon, May 17, 2012:

Posted by Marcia Oddi on Monday, May 20, 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 5/20/13):

Thursday, May 23rd

Next week's oral arguments before the Supreme Court (week of (5/20/13):

Thursday, May 30th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 5/20/13):

Wednesday, May 22nd

Friday, May 24th

Next week's oral arguments before the Court of Appeals (week of 5/27/13):

Tuesday, May 28th

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, May 20, 2013
Posted to Upcoming Oral Arguments

Sunday, May 19, 2013

Ind. Courts - More on "Indiana court rulings make it harder to prosecute child abusers, advocates say"

Updating this post from Friday -- although Matt Tully's column was available online Friday, it did not appear in the Indianapolis Star newspaper until this morning.

The long story included this quote from Prof. Joel Schumm (a valued contributor to the ILB):

Some are defending the court’s rulings. Joel Schumm, a respected professor at the Indiana University Robert H. McKinney School of Law, said the rulings could make prosecutions more difficult, but he believes they have brought into better balance the scales of justice.
When I checked the online comments to Tully's story this morning, I was very surprised to read this comment from the subject of Tully's column:
Laurie Gray · Founder & Principal at Socratic Parenting LLC

Thank you, Matt, for sharing this important news with your readers. As I read the first two comments, I realize that everyone wants to be tough on convicted sex offenders—enforcing harsher punishments and requiring more stringent sex offender registration.

It’s this type of vengeance that weighs most heavily against defendants and raises concern for those like Professor Schumm, who want to “balance the scales.” But two wrongs don’t make a right.

Professor Schumm’s opinions are academic and his experience is on paper rather than with people. He graduated from law school in 1998, served as a judicial clerk in the Indiana Appellate and Supreme Courts for three years and then became a law professor. Those who have never tried a child molesting case for either the State or the defense, have no experience is working with children, and perhaps never even observed a child on the stand at trial are making blanket decisions that children do not tell the truth and should not be believed. Silencing children does not bring us closer to the truth.

Really! The ILB could not let this pass. Joel Schumm is the last person I would pidgeon-hole as an Ivy Tower professor. Consider a few quotes I have taken directly from a public document, his application last summer to fill an upcoming Court of Appeals vacancy:The ILB has also received this note from an Indiana judge:
I regularly tell my students at SPEA that I have often thought that the only thing near as bad as a child molester is someone who falsely accused someone of being a child molester. Equal with our obligation to protect our children is the obligation that the innocent are never falsely convicted. The accusation alone carries with it a lifetime of suspicion regardless the evidence. We have made great strides in this area of the law on both sides in the past 50 years. Flippant comments like hers only retard that growth on BOTH sides. Failure to see that merely demonstrates we still have far to go.

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Illinois on verge of becoming second biggest state to legalize medical marijuana"

See the post here from Sentencing Law Blog.

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to General Law Related

Ind. Gov't. - "Monroe County departments tracking down old records, scanning them into digital form"

The Bloomington Herald-Times ($$$) has a very long story this morning by Rachel Bunn that begins:

Records for an old Monroe County court case may be in any one of five buildings somewhere in the county right now. Some are in the Charlotte T. Zietlow Justice Center, where the Monroe County Clerk’s Office, home to court records, is located. Most of the oldest records are stored in the Cantol Wax building at 211 N. Walnut St., alongside other county departments’ older records.

The files are on paper and microfilm, and deterioration has begun in some cases. Dust mites are in the files in the justice building, said Linda Robbins, Monroe County clerk of the circuit courts. Silverfish, whose diet includes paper, have been found in other files. An audit of the microfilm by the clerk’s staff found some of the microfilm smelled like vinegar, a sign of deterioration. In the Cantol Wax building, mold is an issue.

After nearly two years of planning, the clerk’s office this month began scanning the old case files, some of which date back 40 years.

“It helps storage, because we’re overrun with paper,” Robbins said.

Some Monroe County departments have been digitizing documents for years, becoming nearly paperless. As other departments work to catch up, the county is looking for options to preserve its records — some of which date back to the 1800s — before they deteriorate or storage space runs out.

The clerk’s office purchased two scanners, and three people in the office are working on the project, which involves not only scanning the files, but also identifying which files are scannable, and weeding out duplicate items.

“At this pace, and we have so many, it’s going to take five years,” Robbins said.

The process in the clerk’s office is one part of a wider-reaching county project on records that is intended to both ease the storage burden the county faces and maintain the county records for archival purposes.

Monroe County grants administrator Ashley Cranor spoke with Jim Canary, head of conservation at Indiana University’s Lilly Library, and Philip Bantin, director of the office of university archives and records management at IU, and hopes to create a long-term plan for the county’s records.

“I’ve been driving elected officials and department heads crazy for the past two years trying to collect the information for this,” Cranor said.

In addition to files kept in individual county offices, records are scattered throughout county buildings — the Monroe County Courthouse basement, the attic of the Monroe County Health Building, the Cantol Wax building, North Showers County Government Center, the justice building and even the Highway Garage.

Later in the story:
For the auditor’s office, a consolidation of records and a move toward paperless record keeping is in its early stages. The office plans to partner with a service that will digitize most of the records, clearing up space.

“It sets you up to start the beginning to go as paperless as you can,” Saulter said.

The office will digitize nearly every file in its possession, a process that could take up to six months to complete, and continue digitizing records yearly.

But according to Indiana Code, permanent records — including meeting minutes, payroll records and ordinances — must be kept forever, and can be stored in their original state or on microfilm.

For other nonpermanent records — including legal files, time cards and personnel files — Indiana Code lays out some guidelines for how long the records must be kept, but for others the guidelines have been created from discussions with county officials and the Indiana Commission on Public Records. Records must be kept anywhere from 30 days to 75 years, or in cases of things like critical infrastructure information, whenever they become outdated. * * *

The process started when the assessor’s office ran into the same problem the auditor faces now — a lack of storage space.

Starting with the property record cards, which contain the assessed value of the property, paper records in the assessor’s office began to disappear. What once were multiple boxes have become a single disk.

“We can keep those forever,” Sharp said. “We’ve got a record on a disk, and those will last longer than I’ll be around.”

State regulations

The Indiana Commission on Public Records does not necessarily agree that disk storage is permanent.

In the commission’s view, there are two permanent formats: the original (usually paper) form and microfilm.

Technology tends to move quickly, making many forms of electronic storage unusable when computers or other devices are no longer able to open files. But microfilm has a shelf life of 500 years, according to Ted Cotterill, deputy director of the ICPR.

“At a certain point, it’s very easy for them to become not accessible,” he said of the use of disks for permanent record storage. “Microfilm exists for a reason.”

Jim Fielder, Monroe County recorder, agrees that keeping a hard copy of documents can be beneficial for county departments.

“I feel in most offices, it’s a very good thing to keep a hard copy,” he said. “When the public comes in asking, you better be able to put your hands on those documents.”

But that doesn’t mean there isn’t a place for digitizing records in addition to keeping them in a permanent format.

“I don’t think here in the recorder’s office it would be wise to have one paper copy,” Fielder said. “The last thing you want is to lose that one piece of paper that the taxpayer wants to look at.”

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to Indiana Government

Ind. Law - Editorials today on Indiana's liquor laws

From the Indianapolis Star editorial:

So a motorist in Indiana can pull up outside a package liquor store, plunk down a few bucks for a six-pack of cold beer, hop back into the car and speed off for home — or farther down the highway.

But that same motorist isn’t permitted under Indiana law to walk into the grocery store next door or a convenience store across the street to purchase cold beer.


Offically, it’s supposed to be about deterring potential drunk drivers and attempting to ensure that minors can’t obtain alcohol illegally.

In reality, it’s all about protecting a well-connected special interest — the package liquor store lobby, which has built strong financial and personal ties with key members of the Indiana General Assembly.

It’s the same reason you can’t buy beer (cold or otherwise), liquor or even cooking wine at a retail outlet today, or any other Sunday.

You can’t because package liquor store owners fear the competition, and they have the attention (and the campaign finance account numbers) of your elected representatives in state government. * * *

Should state law be written to protect one set of businesses over the ability of others to meet consumers’ demands?

Of course not.

Our laws not only need to be evenhanded but they also need to give business owners and managers enough flexibility to adapt to changing markets. In 2013, many people buy groceries on Sundays. They also often have cookouts and other gatherings (Super Bowl party, anyone?) in which they want to serve cold beer or a bottle of wine purchased at the last minute. Businesses ought be able to meet those legitimate demands without unnecessary interference by state government.

Lawmakers need to get out of the business of playing one segment of the alcohol industry against another. The ban on Sunday retail sales is long outdated. And the prohibition on cold beer sales finally should be put on ice.

From the Fort Wayne Journal Gazette editorial:
Laws governing the sale of alcohol that lawmakers have cobbled together over the years have created an uneven field of competition. The debate is a never-ending issue at the Statehouse, consuming an absurd amount of legislators’ time and attention and fueled by about $1 million a year in lobbying dollars.

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to Indiana Law

Ind. Gov't. - "Bloomington city services attract paroled sex offenders"

This is an important story on many levels, from today's subscription-only Bloomington Herald-Times. Here are some quotes from Jon Blau's lengthy story:

When Perry Township Trustee Dan Combs took a recent call from an agent at the Bloomington parole district, he was faced with what he interpreted as an ultimatum.

The agent had three sex offenders he was hoping to place in the city after their release from prison — one from Monroe County, one from Daviess County and another from Jackson County.

“Well, here it is, I got this one from Monroe County, and I got these two,” Combs said, quoting a conversation with a Bloomington Parole District 5 agent, “and if I can’t place the one from Monroe County, I’m sending the other two up there to be homeless in Monroe County.”

The Indiana Department of Correction has had to bring parolees who committed crimes in other counties to be homeless in the Bloomington Parole District because of a lack of resources in their counties of origin. But when it comes to placing sex offenders — a group that has strict rules imposed on where they can live and how often they report their location — placement can be of additional concern to potential neighbors.

A parole agent has to be resourceful in placing the offender, in general, because there are few housing options that exist far enough away from restricted areas, such as schools or public parks.

That squeeze can cause parole agents to be extremely “aggressive” or “proactive” in searching for housing options for these convicts, according to IDOC spokesman Doug Garrison. That’s how Garrison explains what turned into a contentious exchange between Combs and the agent concerning the potential arrival of three sex offenders in the township.

Garrison disputes Combs’ account of the agent’s words — in fact, he said the agent “did not say anything like that” — but if such a proposition were raised, Garrison said, it wouldn’t be entirely inaccurate. If the IDOC doesn’t pursue every angle to shelter hard-to-house sex offenders, he said, that can lead to such ex-convicts becoming homeless on the street in Bloomington.

“If they can’t find housing for someone, they end up homeless,” Garrison said. “It’s not threatening anyone by saying that.”

Combs’ office received the call May 6 about placing the sex offenders. When pressed for a place to house these offenders, Combs said he explained that Perry Township can only offer vouchers for housing — not actual apartments — and that those resources are available only to residents of Perry Township. Martha’s House, a shelter supported by the township, doesn’t take sex offenders, either.

This instance underscores the difficulty the IDOC has in placing certain offenders. They often end up in Bloomington, like many parolees, because of services in the city and easier transportation to the district’s parole office. Homeless sex offenders have to show up for weekly appointments with the sheriff’s office, too, so that their profiles on the state’s sex and violent offender registry website can be updated. * * *

But keeping tabs on homeless offenders in particular is complicated because area homeless shelters will not house them. Bob Miller, head of the board at Martha’s House and Monroe County’s chief deputy prosecutor, said his shelter will not accept a person if they are aware they are a convicted sex offender because of potential dangers to the rest of the shelter population. In the case of Backstreet Missions, murderer Robert E. Lee was not welcome because of a previous conviction for attempted rape; he ended up back in prison for violating his parole in January.

Residency issues

Townships such as Perry, however, can offer a sex offender assistance, Combs said, but they have to wait in line like every other applicant. They also have to be a resident of the township.

But residency is another complicated issue. When Combs received his most recent call concerning the three sex offenders, he consulted township lawyer Guy Loftman for an opinion on what services the township would be obligated to supply. In a memo drafted May 7, Loftman wrote that when a person from another township or county presents themselves at the Perry Township office, Combs and his staff would be required only to provide them transportation back to their area of origin. * * *

A sex offender would have to prove he had established residency in Perry Township if he were to apply for assistance on first-month’s rent — but being a former inmate at the Monroe County Jail does not count toward reaching that standard.

“It’s a very complicated issue that’s been the subject of a vast amount of litigation,” Loftman said. “The bottom line is, you have to prove that you are a resident and aren’t just a transient.”

Loftman advised Combs that sex offenders are no different from any other applicant for assistance, “They get no extra benefits. They get no extra burdens,” he said.

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to Indiana Government

Ind. Law - "Will laws help children? Legislation focused on DCS oversight."

Amanda Gray of the South Bend Tribune has this long story in today's Sunday South Bend Tribune. Some quotes:

The dust has settled from the 2013 Indiana General Assembly, but questions remain about whether the session will make a difference in the lives of Hoosier children.

Uncertainty centers around how legislation involving the Indiana Department of Child Services will be implemented, but state Sen. John Broden, D-South Bend, says the driving force behind the legislation is clear: to improve services for Hoosier children.

A number of high-profile child abuse cases around the state, including the beating death in South Bend of 10-year-old Tramelle Sturgis, led to the legislation, Broden said last week. "It put a spotlight on DCS," he said.

At the same time, a rumble of discontent was growing over the centralized call center in Indianapolis for reporting abuse and neglect, Broden said. Most of this concern came from professionals, such as school employees, nurses, law enforcement and judiciary officials, who were being placed on hold for long periods of time or not having their calls followed up on.

After the call center was centralized, "we had immediate complaints from sheriffs, judges, teachers," explained Broden, who was appointed to the Interim Study Committee on DCS Oversight. "A good chunk of our first meetings was spent looking at the call center."

Now, legislation has addressed these concerns, Broden said, which includes increasing the DCS annual budget by $35 million to increase salaries and hire more staff members for the call center and case management. A Commission on Children's Issues will oversee a DCS Oversight Subcommittee with appointments from many state offices and stakeholders.

But there are no deadlines for appointments or meetings of the commission or subcommittees, he said. If problems arise, they could be addressed at the 2014 General Assembly but might not be addressed until 2015. * * *

Prosecutors and judges also now have the ability to request a Child in Need of Services petition level 6, meaning a child is a danger to him or herself or others.

Cathy Graham, executive director of the Indiana Association of Residential Child Care Agencies (IARCCA), said the new CHINS 6 ability helps address mental issues with a child without having to accuse a parent of wrongdoing.

"Before CHINS 6, you had to have the coercive intervention of the court," Graham said. "It was the only way someone could get funds for treatment."

In the past, services would have to wait until the court had to intervene in a situation, or until a child acted out or a parent was accused -- not before, even though a situation may warrant action. Graham called the new CHINS 6 abilities "an early intervention approach."

Posted by Marcia Oddi on Sunday, May 19, 2013
Posted to Indiana Law

Saturday, May 18, 2013

Courts - "On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences"

That is the heading of this post from the Sentencing Law Blog about yesterday's 2-1 decision by a 6th Circuit panel in US v. Blewett. Here is a post today on reactions to the opinion. The AP had this story yesterday, headed "Court: Law applying crack sentences retroactive."

Posted by Marcia Oddi on Saturday, May 18, 2013
Posted to Courts in general

Friday, May 17, 2013

Ind. Decisions - One today from Tax Court

In Board of Commissioners of the County of Jasper, Indiana v. Micah G. Vincent, Commissioner, Indiana Department of Local Government Finance, an 8-page opinion, Judge Wentworth writes:

This case concerns the Department of Local Government Finance’s (DLGF) determination that Indiana Code § 16-22-5-4 provides for the establishment of only one cumulative building fund and levy during the life of a county hospital. The Court finds it does not. * * *

For the above-stated reasons, the DLGF’s denial of the Commissioners’ request to establish a cumulative building fund and levy under Indiana Code § 16-22-5-4 for the 2010 tax year is arbitrary, capricious, and contrary to law. Consequently, the Court REVERSES the DLGF’s final determination and REMANDS this matter for action consistent with this opinion.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court suspends attorney for 3 years, without automatic reinstatement

In In re Arthur J. Usher, IV, a 14-page (yes, 14-page), 4-1 per curiam opinion in an attorney disciplinary action, the Court writes:

We find that Respondent, Arthur J. Usher, IV, committed attorney misconduct by, among other things, engaging in a pervasive pattern of conduct involving dishonesty and misrepresentation that was prejudicial to the administration of justice. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement.
This is an incredible story, involving an attorney who, spurned in his pursuit of a romantic relationship with a law student, undertook the conduct described in the opinion:
In July of 2008, Respondent asked the producer of a horror movie in which Jane Doe had appeared to help him obtain a clip from another movie in which Jane Doe also appeared. The producer sent Respondent a clip from that movie that appeared to show Jane Doe in a state of undress ("the clip"). After Respondent advised Jane Doe of his meeting with the producer, Jane Doe decided to end their friendship. Respondent then began attempting to humiliate Jane Doe and to interfere with her employment prospects.

In August of 2008, Respondent sent the clip to an attorney at Bose, where Jane Doe had already accepted a job offer. Respondent attempted to convince the attorney that Jane Doe's appearance in a horror film in a state of undress would have an adverse effect on the ability of Bose to retain and/or attract clients. Suspicious of Respondent's motives, the attorney did not take Respondent's suggestion to send the clip to the firm's executive committee. Jane Doe commenced her employment with Bose despite Respondent's efforts to interfere.

On September 17, 2008, Respondent sent Jane Doe an email accusing her of lying to and misleading him regarding her affections. Jane Doe responded with an email stating: "Leave me alone. Do not contact me. You have been harassing me for months now. If you do not stop harassing me, I will file for a restraining order."

Respondent then decided to publish the clip to a much wider audience. To accompany the clip, he drafted a fictitious email thread intended to appear to be an exchange of opinions among lawyers and other fictitious persons ("the email"). The email included the following excerpts: * * *

The email also contained a link to a site where the movie could be purchased on DVD, with the suggestion that copies be sent to in-house counsel.

Respondent recruited his paralegal at Krieg DeVault, "KB," to disseminate the email. KB had been fired from Bose and was very loyal to Respondent.

Respondent gave KB a flash drive containing the email contents and the clip. Respondent suggested to KB that the recipients of the email include attorneys at Bose, that it be sent from a location that would avoid it being traced back to them, that the email appear to have originated from somebody with "clout" at Bose,1 and that it be sent after Respondent departed for vacation over the upcoming Thanksgiving holiday. In her testimony, KB disclaimed any knowledge of the contents of the email or acquaintance with Jane Doe. She believed the email was simply some sort of prank.

There is much, much more.

Re discipline:

Respondent's misconduct involves pervasive dishonesty in the email, the civil action, and this disciplinary action. His misconduct involving the email was motivated by personal revenge and his intent was to harm Jane Doe personally and professionally. He continues to advance hyper-technical interpretations of various discovery requests as an excuse for his failure to provide truthful answers. His evasive attitude toward his duties in the civil and disciplinary actions suggests a danger to the profession and to the public if he continues in practice. * * *

Respondent has shown no substantial remorse or insight into his misconduct. It is this lack of insight that leads us to believe that a substantial sanction is necessary to ensure that the seriousness of his misconduct is impressed upon him and that similar misconduct is not repeated in the future. See Newman, 958 N.E.2d at 800. We conclude that Respondent should be suspended for a period of at least three years and that any possibility of reinstatement thereafter be available only upon satisfaction of Indiana's rigorous standards for reinstatement, which require clear and convincing evidence of the petitioner's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). * * *

All Justices concur, except David, J., who dissents regarding the sanction imposed, believing disbarment is warranted.

ILB: Regarding Justice David's dissent, see this ILB post from May 8th.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: Governor Pence Withdraws State Incentives for Midwest Fertilizer Company for Posey County Project

From a press release just received from the company:


INDIANAPOLIS (May 17, 2013) – Midwest Fertilizer Corporation (MFC), a consortium of international investors from the U.S., Europe, and Asia, expressed its disappointment with Governor Mike Pence’s announcement today – and at the same time thanked the tireless efforts of the people of Southern Indiana for their continuing support of the company’s proposed state-of-the-art fertilizer manufacturing plant in Posey County. This $1.8 billion project in Mount Vernon calls for the creation of approximately 2,500 jobs during three years of construction and 300 permanent, high-wage jobs.

Nevertheless, Midwest Fertilizer is optimistic – working together with the Posey County Economic Development Partnership and the Economic Development Coalition of Southwest Indiana – that a joint effort will be successful. The company is continuing to explore the full range of options to try and advance this critical project to manufacture nitrogenous fertilizer for thousands of farmers in Indiana and the Midwest.

Even in light of today’s decision, the company emphasized that The Fatima Group – one of the investors in Midwest Fertilizer Corporation and headquartered in Pakistan – has implemented a comprehensive product stewardship program in Pakistan that tracks product from factory to farm, as well as voluntarily suspended sales of Calcium Ammonium Nitrate (CAN) fertilizer to the Pakistani provinces of Khyber Pakhtunkhwa and Baluchistan along the Afghan border. These initiatives have already been acknowledged as significant and meaningful by the U.S. Departments of Defense and State.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Environment | Indiana Government

Ind. Decisions - More on: Supreme Court rules in Lake County dispute

Updating this morning's ILB entry, NWI Times reporter Marisa Kwiatkowski has had the opportunity to expand her initial story - some quotes:

In a unanimous decision, the Supreme Court justices ruled that only merit-selected judges can transfer from one court to another in Lake County. They rejected the Lake Superior Court judges' arguments that the law prohibiting Schiralli's transfer is unconstitutional and that Lake County's local transfer rule trumps state law.

It was unclear Friday which, if any, of the merit-selected Superior Court judges would be interested in moving to the Lake Juvenile Court. It would go to the merit-selected judge with the most seniority. Merit selection would be used to fill whichever judicial vacancy remains after the transfers are complete.

"The Supreme Court's decision today underscores the important state public policy behind the merit selection process as set out by our statute," Indiana Attorney General Greg Zoeller said in a statement. "Hopefully the unanimous decision by our five justices will help the Lake County courts quickly move past this conflict so that the important work of the juvenile court can move forward."

Chief Lake Superior Court Judge John Pera said he has not had time to speak with his colleagues to find out if any of the merit-selected judges would like to transfer to juvenile court. He said they will ensure any transition is "seamless."

He called the legal tangle between judges and magistrates a "bona fide dispute" that needed to be resolved by the Indiana Supreme Court.

"We honor and respect their decision in this case and will follow it," Pera said.

If none of the merit-selected judges are interested in transferring to Lake Juvenile Court, the position will be filled through merit selection. The Supreme Court said Schiralli could apply for the judgeship through the merit-selection process.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two more today from Supreme Court

In Kirk B. Lynch v. State of Indiana, a 3-page, 5-0, per curiam opinion, in a case where the Court of Appeals had reduced the trial court's sentence to 20 years and the State appealed, the Court concludes:

The authority granted by Article 7, § 4 of the Indiana Constitution permitting appellate review and revision of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, and as interpreted by case law, appellate courts may revise sentences after due consideration of the trial court's decision, if the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, our collective judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate revision. Accordingly, we affirm the sentence imposed by the trial court and summarily affirm the decision of the Court of Appeals in all other respects. See App. R. 58(A)(2).

In Calvin Merida v. State of Indiana, a 3-page, 5-0, per curiam opinion, the Court concludes:
Citing Indiana Appellate Rule 7(B), the Court of Appeals revised the sentences by ordering them to run concurrently, thus reducing the aggregate term from sixty years to thirty years. See Merida v. State, 977 N.E.2d 406 (Ind. Ct. App. 2012), vacated. We granted the State’s petition to transfer jurisdiction to this Court. See Merida v. State, 980 N.E.2d 841 (Ind. Jan. 11, 2013) (table); App. R. 56(B); 58(A). * * *

[ILB: I have omitted a repetition of the same para. as in today's Lynch opinion, beginning "The authority granted by Article 7, § 4 ..."]

Having reviewed the matter, our collective judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate revision. Accordingly, we affirm the sentence imposed by the trial court.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Governor Pence Withdraws State Incentives for Midwest Fertilizer Company for Posey County Project

From a news release issued this noon:

Indianapolis, IN - Following careful review, Governor Mike Pence announced today that Indiana has withdrawn the incentives the state offered to Midwest Fertilizer Company to build a fertilizer plant in Posey County.

On November 30, 2012, the Indiana Economic Development Corporation (IEDC) offered a package of incentives to Midwest Fertilizer Company to build a fertilizer manufacturing facility in Posey County. The Fatima Group, a Pakistan-based fertilizer company, owns 48 percent of Midwest Fertilizer Company.

In December 2012, Lt. Gen. Michael Barbero, the director of the U.S. Department of Defense's Joint Improvised Explosive Device Defeat Organization (JIEDDO), testified before the U.S. Senate that Fatima Group had been "less than cooperative" in efforts to reduce the improvised explosive device (IED) threat in Central and South Asia.

On January 15, 2013, the day after his inauguration, Governor Pence directed the IEDC to place the incentives for the Posey County project on hold pending a review in light of Fatima Group's ownership interest in Midwest Fertilizer Company.

For the past four months Governor Pence and officials from Indiana have worked closely with officials from the U.S. Department of Defense and others in the federal government to conduct a review of Fatima Group. The company has informed U.S. defense officials that they have a reformulated product that is less explosive, but U.S. officials have not yet tested the product. While testing of Fatima's product may address U.S. concerns, the testing will not be done in time to satisfy what the State understands is the company's financing time schedule.

Governor Pence's statement follows.

"I did not take this decision lightly. Economic development is important, but the safety and security of our soldiers in harm's way is more important.

"Throughout the past four months, our administration has worked in good faith to evaluate whether our state should be involved in this project. I am aware of Fatima Group's efforts and cooperation with federal defense officials in recent weeks and believe their actions to be sincere.

"While we have been encouraged by promises made by Fatima Group to replace production of their current fertilizer with a more inert and less explosive formula in Pakistan, at this point in time, U.S. officials have not been able to independently confirm this fact and, as such, Indiana will not be moving forward with this project.

"Without assurances from our Defense Department that the materials which have been misused by the enemy in Afghanistan will be permanently removed from production by Fatima Group in Pakistan, I cannot in good conscience tell our soldiers and their families that this deal should move forward."

The Indiana Economic Development Corporation informed Midwest Fertilizer Company of the State's decision in this letter.

ILB: Note that this is a different fertilizer plant project from that planned for Rockport, which is being developed by Ohio Valley Resources LLC.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Environment | Indiana Government

Ind. Courts - "Indiana court rulings make it harder to prosecute child abusers, advocates say"

That is the headline to this long article by Matthhew Tully of the Indianapolis Star, which I believe will appear in Sunday's paper. Some quotes:

Laurie Gray is a former teacher and deputy prosecutor who continues to be an advocate of vulnerable and abused children, an expert in the painful, delicate job of interviewing children who have been sexually abused.

These days, the Fort Wayne lawyer is devastated by the latest in a series of Indiana court rulings she and others believe are making it harder to pursue molestation cases involving young children. The rulings have sided with convicted child molesters and set restrictions on the evidence and testimony that can be presented during trials, which by their very nature are difficult to prosecute.

The rulings, two of them by the Indiana Supreme Court, “mean that we’re going to prosecute fewer cases,” said Gray, who spent much of her decade in the Allen County Prosecutor’s Office focused on sex crimes. “We are going to have cases, especially cases where the perpetrator is someone close to the child, that we simply won’t be able to take to court. It’ll be great for statistics — we’ll have fewer child molestation convictions and everyone can say we’re a safer place. But it won’t be true.” * * *

Gray’s fears escalated after the Supreme Court issued a ruling earlier this month in the case of a man convicted in 2011 of molesting his daughter and a friend of hers in 2009, when both girls were 6 years old. The high court overturned the conviction in the case involving the man’s daughter after determining that the testimony of a nurse who interviewed her at a sex-abuse center in Fort Wayne should not have been admitted. Why? Because, the court said, it was not clear that the girl knew she should be truthful when talking to medical professionals. Without that guarantee, an exception to hearsay testimony often given to medical professionals should not have been granted, the court ruled. * * *

Gray believes the jury should have been trusted to consider the conflicts between the girl’s testimony on the stand and her detailed interviews with experts and medical professionals two years earlier. Unlike the other young victim, Gray said, this child “did not have the support of her family to face her father in a crowded courtroom and tell a room full of strangers exactly what he did.”

The father is in prison for molesting the second girl and the court said he could be retried for the case involving his daughter. But without the nurse’s testimony it’s hard to see how the case can be made. And the precedent is the issue, Gray and others believe, saying the court has put potentially damaging roadblocks in the way of testimony from medical professionals.

Making matters worse, two other rulings from 2009 and 2010 further limit the evidence that can come into the court.

In the first, Tyler v. State, the Supreme Court found that prosecutors cannot use a recorded statement from a victimized child in addition to their in-court testimony. This puts immense pressure on the live testimony of the child, on the stand and under duress, Gray and others said. In the second case, Cox v. State, an appellate court tightened this limitation as it ruled in favor of a man found guilty on 15 counts of molestation. * * *

Some are defending the court’s rulings. Joel Schumm, a respected professor at the Indiana University Robert H. McKinney School of Law, said the rulings could make prosecutions more difficult, but he believes they have brought into better balance the scales of justice.

The state attorney general’s office called the most recent ruling “a mixed bag for prosecutors” that “does make it somewhat more onerous to get a child’s statements to doctors and nurses admitted in court.” But in a carefully worded statement the office said the court’s ruling offered a roadmap to prosecutors seeking to secure such testimony. In the end, the statement said, “it’s not yet clear how this case will effect child abuse prosecutions.”

ILB: The cases mentioned in the story are:

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Ladonna A. Reck, As Personal Rep. of the Estate of Evelyn L. Holmes v. Harry Clifton Knight, M.D., Mona Siddiqui Saifullah, M.D., Community Health Network, Inc., et al. (NFP)

NFP criminal opinions today (2):

Robert V. Allen v. State of Indiana (NFP)

Rodney D. Mosby v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court rules in Lake County dispute [Updated]

In State of Indiana ex rel. Glenn D. Commons, et al. v. The Hon. John R. Pera, et al., a 9-page, 5-0, per curiam opinion, the Court concludes:

Indiana Code section 33-33-45-21(e) prevents the Judges from reassigning, transferring, or rotating Judge Schiralli from the County Division to the Juvenile Division. However, this prohibition does not preclude him from applying to be appointed, under the merit-selection process in Indiana Code section 33-33-45-38, to fill a vacancy in the other divisions of the court. The Court denies the Magistrates’ request for a permanent writ that would more broadly prohibit any current Judge from being transferred or reassigned to the Juvenile Division.

This opinion is final. No petitions for rehearing or motions to reconsider shall be filed. Orig. Act. R. 5(C). The Clerk is directed to certify this opinion as final and to send a certified copy to each of the Respondent Judges and to all counsel of record.

For background, see this list of ILB entries.

[Updated at 10:27 AM] Here is NWI Times reporter Marisa Kwiatkowski's just-posted story on the opinion.

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - Still more on "Opponents of fertilizer plant proposed for Rockport, Ind., cite Texas explosion"

Updating this ILB entry from yesterday, here, thanks to beSpecific, is the 20-page, May 9, 2013 report of the Congressional Research Search, titled "Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia."

Posted by Marcia Oddi on Friday, May 17, 2013
Posted to Environment

Thursday, May 16, 2013

Ind. Gov't. - "IURC recommends overlay method for new Southern Indiana area code"

Eric Bradner reports for the Evansville Courier & Press:

The current 812 area code, which spans the full width of the state south of Indianapolis and includes Evansville, Terre Haute, Bloomington and New Albany, is expected to run out of available numbers in 2015.

The Indiana Utility Regulatory Commission is currently trying to decide between two options to remedy the problem: An “overlay” or a geographic split.

The overlay would allow Hoosiers to keep their current numbers, and the state would create a new area code for new phones in the 812 region. If that happens, Hoosiers would have to dial an area code even as they make local calls.

The other possibility is a geographic split. Under that scenario, the current 812 region would be divided, with parts of it keeping their current area code and other parts being shifted into a new area code.

Indiana Utility Consumer Counselor David Stippler recommended the overlay, which his office said is an option that Indiana’s neighboring states – Kentucky, Illinois, Ohio and Michigan – have all already implemented.

“Overlays either have been or are being implemented in 24 states including all four that border Indiana,” Stippler’s Indiana Office of Utility Consumer Counselor said in a news release Thursday.

“With an overlay, consumers must use 10-digit dialing (area code + local number) for local calls. But local calling areas do not change, and calls that are local before a new area code is added remain local afterward.”

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Indiana Government

Ind. Gov't. - "Indiana’s bloated voter registration rolls, which officials say make elections more susceptible to fraud, will soon come under more scrutiny by the state"

That is the start of Maureen Hayden's (CNHI Statehouse Bureau chief) long story today in the New Albany News & Tribune. A few quotes:

The Indiana Secretary of State’s office will spend more than $2 million to purge the voter registration rolls in each of Indiana’s 92 counties, removing the names of voters who are dead, in prison or have moved away.

County election officials are responsible for keeping the voter rolls current, but the lack of money has caused some of them to fall behind. The result: In some counties, the number of people listed on the active voter rolls is higher than the number of voting-age people who live there. * * *

[Secretary of State Connie] Lawson is sensitive to the issue of election fraud and concerns about voters having confidence in the system. There have been several high-profile criminal cases over the last year involving people who’ve had significant influence over voter rolls and the election process.

In April, former Democratic campaign consultant Mike Marshall was sentenced to three counts of voter fraud in Jennings County related to charges that he tampered with absentee ballots. Also in April, a longtime Democratic Party county chairman, Butch Morgan, was found guilty of forging voters’ signatures on petitions to place Democratic candidates on the state primary ballot in 2008

And Lawson was appointed to her job , as Secretary of State, after her Republican predecessor, Charlie White, was convicted on voter fraud charges related to him using his old address to cast his vote, after moving someplace else.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Indiana Government

Environment - More on "Opponents of fertilizer plant proposed for Rockport, Ind., cite Texas explosion"

Updating this ILB entry from yesterday, Shalah Sasse of the Tristatehomepage.com reports on the public hearing yesterday here, with video.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Environment

Ind. Courts - "The National Right to Work Foundation has filed unfair labor practice charges against Domtar Paper Co. and a local union, alleging they violated Indiana’s right to work law"

Chris Sikich's story this afternoon at IndyStar - some quotes:

The foundation lobbied Indiana to pass the landmark legislation in 2012. Under the law, companies and unions can’t negotiate a contract that requires nonmembers to pay fees for representation. * * *

Now, the foundation alleges that six Indianapolis-area Domtar employees are being forced to pay union fees to Graphics Communications International Union 17M, a Teamsters affiliate, despite the law. * * *

They filed the unfair practice allegation with the National Labor Relations Board. The foundation is representing the six employees for free. * * *

Indiana’s “right to work” law, however, only affects contracts negotiated after it took effect March 14, 2012; it does not nullify existing contracts. The union’s contract with Domtar paper expired March 15, according to the foundation, and a new contract has yet to be negotiated.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Indiana Courts

Ind. Decisions - "Camp Wildwood Decision: Justices Put Girl Scout Camp Back To Local Control"

The Supreme Court's decision May 14th in the case of Girl Scouts of Southern Illinois v. Vincennes Indiana Girls, Inc. (ILB summary here), was the subject of a WTHI TV 10 story (with video showing the camp protected by barbed wire and padlocks) last evening by Mike Grant. It begins:

VINCENNES, IND. (WTHI) - A southern Indiana community is celebrating a legal victory that will allow a long time girl scout camp to re-open.

Vincennes Girl Scouts operated Camp Wildwood for decades until a re-organization put it in the hands of an Illinois based Girl Scout Council that then attempted to sell it.

Local groups fought the deal and the legal fight ended in the Indiana Supreme Court.

Now, the camp is now back in local control.

For the last 3 years Camp Wildwood has been locked away from kids in this community, tied up in an adult legal fight between Vincennes Girls Inc. and the Southern Illinois Girl Scout Council.

Now, that fight is over.

"Extremely happy," said Secretary for Vincennes Girls, Inc. Jim Gislason, "it's been a long, long road, but we finally got the supreme court to rule in our favor. The camp is now part of the city of Vincennes."

Local officials had not been able to get into the 12 acre camp until now.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court suspends attorney in billing dispute

In In re Octavia E. Snulligan, a 3-page order, the Court rules:

Violation: The Commission charged Respondent with violating these Indiana Professional Conduct Rules prohibiting the following misconduct:
1.5(a): Collecting an unreasonable fee.
1.16(d): Failure to refund an unearned fee upon termination of representation.

There are no findings that support a conclusion that Respondent's $12,000 total fee or her collection of $6,000 of that fee before she was terminated would have been unreasonable if Respondent had been permitted to complete the representation. The findings, however, support a conclusion that Respondent violated Rule 1.16(d) by failing to refund the unearned part of the $6,000 after she was terminated, which we find to be $5,000 based on the hearing officer's findings.

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 30 days, without automatic reinstatement, effective the date of this order. Respondent is already under a suspension for noncooperation with the Commission under Cause No. 49S00-1301-DI-55.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Henry Circuit Court Judge Mary Willis featured in this month's Court Times

See the article here.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Indiana Courts

Ind. Law - NRA tally of successes and failures in this session

From AmmoLand, a story dated May 16th - some quotes:

Last month, the Indiana General Assembly adjourned after passing two bills of importance to gun owners and sportsmen.

The following bills were recently signed into law by Governor Mike Pence (R):

  • Senate Bill 1, now Public Law 172, specifies how a School Resource Officer (SRO) program may be established in schools and sets forth their duties and responsibilities. This law has already taken effect and provides schools an effective asset in protecting our children and increasing school security.

  • House Bill 1563, now Public Law 289, repeals Indiana’s current prohibition on the use of a suppressor while hunting and also strengthens Indiana’s shooting range protection law. Effective on July 1, this law now provides hunters in Indiana the same opportunities available to sportsmen in more than half of the country. [ILB: these would be silencers]
The story today continues:
Unfortunately, a critical pro-gun reform, House Bill 1473, was not taken up by the state legislature this session. Sponsored by state Representative Jim Lucas (R-69), HB 1473 would have allowed a person who legally possesses a firearm to keep that firearm stored in a locked trunk of their vehicle, a glove box or stored out of plain sight in the vehicle while on school property. This would allow parents to park on school property for a meeting with a teacher or principal to do so without the fear of breaking the law. The NRA is committed to passing this measure next legislative session.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Jason Lee Sowers v. State of Indiana , a 25-page, 2-1 opinion, Judge Brown writes:

Jason Lee Sowers appeals his convictions for criminal recklessness as a class D felony, resisting law enforcement as a class D felony, and his adjudication as an habitual offender. Sowers raises two issues, one of which we find dispositive and restate as whether the communication between the bailiff and the foreperson resulted in fundamental error. We reverse and remand. * * *

RILEY, J., concurs.
BRADFORD, J., dissents with separate opinion [which begins, at p. 19 of 25] Because I believe that the improper communication between the bailiff and the jury foreperson did not amount to fundamental error, I respectfully dissent. In addition, because I believe that Sowers cannot challenge the allegedly inconsistent verdicts on appeal and also that the evidence is sufficient to sustain the jury’s determination that Sowers was guilty but mentally ill of Counts II and III, I would vote to affirm Sowers’s convictions. However, I would vote to remand the matter to the trial court and instruct the trial court to amend the sentencing order to treat the habitual offender enhancement as a sentence enhancement on one of Sowers’s underlying felony convictions rather than treating it as a separate consecutive sentence.

In Anthony McCullough v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Anthony McCullough appeals the post-conviction court’s partial denial of his petition for post-conviction relief. He contends that the post-conviction court erred in finding that his plea for Class C felony fraud on a financial institution was knowingly, intelligently, and voluntarily entered into because he had ineffective assistance of trial counsel for his Class D felony failure to register as a sex offender charge, and the pleas were part of a combined plea agreement. Finding that McCullough received effective assistance of trial counsel for his guilty plea for fraud and therefore pled guilty knowingly, intelligently, and voluntarily to that charge, we affirm.
NFP civil opinions today (1):

In the Matter of the Adoption of A.V.W. and R.V.W.; E.S. v. D.K. and J.K. (NFP)

NFP criminal opinions today (2):

Tammy Spengler v. State of Indiana (NFP)

Gregory Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Ind. App.Ct. Decisions

Environment - "To save endangered bats, Benton County wind farm might adjust turbines' speed, timing"

Rick Callahan of the AP reports:

INDIANAPOLIS — The operators of Indiana’s largest wind farm are proposing changing the nighttime operations of the farm’s 300-plus wind turbines to protect endangered Indiana bats from being killed by the turbines’ spinning blades. * * *

Under that plan, the turbines would be programmed to begin spinning and generating power when the wind reaches 11 mph from sunset to sunrise between Aug. 1 and Oct. 15. That’s the period when Indiana bats migrate through the area as they leave summer roosting sites en route to southern Indiana caves, where they’ll hibernate over the winter.

Below the 11 mph wind speed, the plan also calls for the three giant blades that drive each turbine to be oriented parallel to the airflow to make them spin slowly or not at all. Currently, the farms’ turbine blades spin at low wind speeds — the nighttime conditions when bats are actively flying — and are oriented to take advantage of the slightest winds.

Georgia Parham, a Bloomington-based spokeswoman for the Fish and Wildlife Service, said the goal of the farm’s proposed changes will make the turbines’ blades more inactive at night and less dangerous to migrating bats during their fall migration. Bats of numerous species can be killed by collisions with the fast-moving blades or from lung injuries inflicted by rapid air pressure changes the spinning blades create.

Winds above 11 mph are generally too brisk for most bats and the insects they feed on to take to the skies, Parham said.

“At those higher wind speeds, it’s less likely that bats would be flying,” she said.

The wind farm’s conservation plan states that based on surveys which found about 1,500 dead bats around some of the turbines, an estimated 10,000 bats of various species are killed each year passing through the wind farm. That includes an estimated 17 Indiana bats.

An estimated 850,000 to 1.7 million bats have died from collisions with wind turbines in the United States and Canada since 2000, said Mylea Bayless, director of conservation programs for Austin, Texas-based Bats Conservation International.

She said several other U.S. wind farms have drafted similar bat protection plans that have successful reduced bat deaths at those farms.

“We do know it works. All the data suggests that by doing this they’re going to save bats — not just Indiana bats, but all bats,” Bayless said.

She said bats play a key ecological role by devouring pest insects and a recent study found that they in reduced crop damage and pesticide use save U.S. farmers more than $3.7 billion a year.

But Indiana bats and many other bat species already facing pressure from wind farms are also facing the devastating effects of a fungus that’s spreading across North America and has already killed millions of bats across the eastern U.S., Bayless said.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Environment

Ind. Courts - Former "Lawyer William F. Conour must account for $80,000 in missing assets by Friday"

Tim Evans' long story begins on the front-page of today's Indianapolis Star. A quote:

More than a year later, Conour remains free, but more than one-third of the assets identified in an inventory conducted in May 2012 by the FBI are gone. The tally covered a horse farm and stable in Sheridan, artworks, a large wine collection and a multimillion-dollar mansion in Carmel.

Federal prosecutors also allege that Conour received more than $62,000 in November and December from the sale of paintings from his art collection, which was valued at $500,000. Authorities say the paintings were not included in the initial inventory of his assets.

But that money did not go into the pool established for Conour’s alleged victims. Instead, prosecutors contend, Con­our spent the money on “personal expenses.”

Conour faces a Friday deadline to come up with the missing items and money or explain why he did not follow the court’s order. It is the latest development in a push by lead federal prosecutor Jason Bohm to have Con­our’s bond revoked. His court-appointed attorney, Michael Donahoe, did not return calls for comment.

If U.S. District Judge Richard L. Young approves Bohm’s request, Conour might have to trade his 25-room home, luxury vehicle and exotic wine collection for a jail cell.

Here is a long list of earlier ILB entries on Mr. Conour. This one from July 5, 2012, indicates that Mr. Concour has resigned from the Indiana bar.

Posted by Marcia Oddi on Thursday, May 16, 2013
Posted to Ind Fed D.Ct. Decisions

Wednesday, May 15, 2013

Not law - There is a lesson here!

"Two bald eagles in air battle crash-land at airport: Fighting eagles lock talons and are unable to disengage, but both survive" is the headline to this story with great photos, reported by David Strege at GrindTV.

The Lafayette Journal Courier has a briefer AP version of the story, but a sharper photo of the two, still angry, birds.

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Environment | General News

Environment - "IDEM ruling temporarily halts South Bend home demolitions"

Erin Blasko of the South Bend Tribune reports in a story that begins:

SOUTH BEND -- A ruling by the Indiana Department of Environmental Management has temporarily halted the planned immediate demolition of dozens of vacant and abandoned structures in the city.

According to Mike Schmuhl, the mayor's chief of staff, the agency ruled recently that the city's goal of addressing 1,000 vacant and abandoned structures in 1,000 days constitutes a "plan" and therefore rightfully is subject to rules and regulations regarding asbestos inspection and removal.

"They (IDEM) believe that benchmark constitutes a plan, a quote-unquote 'plan,' " Schmuhl told the Common Council Monday.

In a letter to the council dated May 2, Schmuhl wrote:

"Due to the city's announcement of addressing 1,000 properties in 1,000 days, IDEM has taken the position that this constitutes a plan (even though our demolition procedures have been the same over the years).

"While the city believes this to be more of a communications issue, the city will certainly comply with (the National Emission Standard for Hazardous Air Pollutants) and IDEM, invest in asbestos inspections as needed, and determine abatements as warranted."

The council first alerted the administration to the problem a couple of weeks ago, as council President Derek Dieter pointed out Monday.

In accordance with the ruling, the city now must inspect a home for the presence of asbestos, a known carcinogen, before tearing it down.

If any asbestos is found, it must be removed by a licensed contractor and disposed of in a certified landfill.

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Environment

Courts - "Federal Courts Ask for Emergency Funding"

From The Blog of LegalTimes, a story that begins:

Federal courts officials have asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices.

In a letter sent Tuesday to the White House Office of Management and Budget, the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million—$41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Courts in general

Ind. Gov't. - "Kentucky sets up health-benefit exchange online"

Story here in the Louisville Courier Journal, reported by Laura Ungar.

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Indiana Government

Ind. Decisions - "Supreme Court rules state's limit on punitive damages is constitutional"

Tim Evans has this story today in the Indianapolis Star, re yesterday's Supreme Court decision in the case of State of Indiana v. John Doe (ILB summary here, 2nd case. Some quotes from the story:

The Indiana Supreme Court has upheld a state limit on the amount of punitive damages that may be awarded in lawsuits.

The unanimous ruling issued Tuesday overturned a Marion Superior Court decision in which an unnamed victim in a clergy childhood sexual abuse case was awarded more than the maximum established by Indiana law.

Punitive damages typically are awarded to “punish and thereby deter blameworthy conduct,” the ruling explains, and can be ordered on top of compensatory damages that cover actual losses or costs.

But Indiana law provides that “punitive damage awards may not be more than the greater of: three times the amount of compensatory damages awarded in the action or $50,000.”

Even when punitive damages are awarded, the plaintiff receives just 25 percent of the total. The remaining 75 percent goes to a state victim compensation fund.

The Supreme Court decision reversed Marion Superior Judge David J. Dreyer’s ruling in the 2011 case of John Doe that granted the victim $150,000 in punitive damages.

The court sent the case back to Dreyer’s court “to reduce the punitive damages to the statutory maximum and order that 75 percent of the award be deposited into the Violent Crime Victim Compensation Fund.”

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Richard J. Bond and Janet A. Bond, et al. v. Templeton Coal Company, Inc., a 14-page opinion, Judge Najam writes:

Richard J. Bond and Janet A. Bond (“the Bonds”) appeal the trial court’s grant of summary judgment for Templeton Coal Company, Inc. (“Templeton”) on Templeton’s complaint to quiet title to certain mineral interests. The Bonds present a single issue for our review, which we restate as whether Templeton’s use of the mineral interests from 1964 to the present, following a thirty-five-year period of nonuse, precludes lapse of those interests under the Indiana Mineral Lapse Act, Indiana Code Sections 32-23-10-1 to -8 (“the Act”) [aka the Dormant Mineral Act]. We affirm the trial court’s grant of summary judgment for Templeton. * * *

Conversely, if an owner of mineral interests on September 2, 1951, failed to use those interests during the twenty-year period between then and the effective date of the Act, the Act granted the owner an additional two-year grace period to file a statement of claim to preserve its interests. But if the owner began to use its mineral interests after September 2, 1951, and before the effective date of the Act, there is no twenty-year period of nonuse for purposes of the Act and, hence, no lapse of the interests.

The latter scenario is what the parties’ stipulated facts demonstrate happened here. After a thirty-five-year period of nonuse from 1929 to 1964, Templeton began paying appropriate taxes on its mineral interests, which is a “use” of those interests under Indiana Code Section 32-23-10-3(a)(6). Templeton has paid its taxes on those interests every year since 1964. The trial court entered a detailed and well-reasoned order for summary judgment on the issue of retroactivity, and we agree with the court that on the stipulated facts Templeton holds the record title to the mineral interests and that there has been no lapse of the mineral interests under the Act.[12] Therefore, we affirm.
[12] The trial court acknowledged the extraordinary quality of the lawyering in this case as follows:

The Court commends counsel for the parties on what is truly a shining example of masterful lawyering on behalf of their clients that distilled down to one count of the complaint the central issue in a massive, complex piece of litigation involving thousands of acres, thousands of pages of title and tax documentation, and an area of the law that is a matter of first impression in Indiana state courts concerning the interpretation and application of the Mineral Lapse Act.
NFP civil opinions today (2):

Hugo Torres v. City of Hammond (NFP)

Maria Collaros v. Gary Community School Corp. (NFP)

NFP criminal opinions today (2):

Lee Yoder v. State of Indiana (NFP)

Christopher S. Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Ind. App.Ct. Decisions

Environment - "Opponents of fertilizer plant proposed for Rockport, Ind., cite Texas explosion"

Eric Bradner reports in the Evansville Courier & Press on today's upcoming air permit hearing in Rockport. Some quotes:

INDIANAPOLIS — Opponents of a fertilizer plant proposed to be built in Spencer County are arguing that last month’s deadly explosion of a fertilizer manufacturer in West, Texas, is a good reason for the Indiana Department of Environmental Management to scrap plans for the one here.

A public hearing on the draft air permit prepared by state officials for the plant planned for Rockport and being developed by Ohio Valley Resources LLC is scheduled for Wednesday evening at South Spencer County High School. An informational meeting will begin at 5:30 p. m. with the formal public hearing starting at 6:30 p.m.

Opponents say the plant — as well as one proposed for Posey County that Gov. Mike Pence has put on hold due to national security concerns with the Pakistani company that planned to build it — should be halted.

They point to the April explosion at West, Texas, that killed 14 public safety workers and nearby residents.

“By scale alone, the proposals for Southwest Indiana are giant compared to the plant that blew up in Texas,” said John Blair, the head of Evansville-based environmental organization Valley Watch.

“Ohio Valley Resources’ Rockport draft permit calls for ammonium nitrate manufacture of 3,600 tons per day, compared to the West plant of 4,771 tons per year.”

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Environment

Ind. Decisions - More on "COA OKs parents' suit against fraternity in Wabash College alcohol death"

Updating this ILB entry from May 12th, the May 8th Court of Appeals opinion in Smith v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al is the subject of a long story today by David Glovin of Bloomberg that begins:

A national fraternity with chapters on more than 125 campuses must stand trial over the drinking death of a Wabash College freshman, an Indiana court said in a ruling that may force the organizations to take more responsibility for misconduct at chapter houses.

The Indiana Court of Appeals on May 8 reinstated a lawsuit against Delta Tau Delta by the family of Johnny Dupree Smith. Smith, 18, was found dead on Oct. 5, 2008, his blood alcohol level at five times the limit for legal intoxication. He had passed out during “Pledge Family Drink Night,” according to the complaint in the wrongful-death case.

The ruling is the first by an appellate court in Indiana, where many fraternities are based, that a national fraternity must face a trial for injury or death at a chapter house, Stephen Wagner, a lawyer for Smith’s parents, said.

Unless reversed on appeal, the decision may compel national fraternities “to re-double their efforts to protect all their members” from injury, said Robert Heidt, who teaches negligence law at Indiana University’s Maurer School of Law in Bloomington. “If every court in the country did this, I bet it would change the structure of fraternities.”

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Indiana General Assembly Adjourns with Key Victories for REALTORS®"

That is the headline to this news release from MIBOR.

Posted by Marcia Oddi on Wednesday, May 15, 2013
Posted to Indiana Law

Tuesday, May 14, 2013

Law - "Gov. Mark Dayton legalized same-sex marriage in Minnesota on Tuesday "

From the Minneapolis Star-Tribune this evening, a story by Baird Helgeson:

Dayton signed the marriage measure at a historic outdoor ceremony, a day after the Senate and House passed the proposal.

Minnesota will become the first Midwestern state to legalize same-sex marriage by legislative vote and the 12th state in the nation to recognize such unions. Dayton’s action technically repeals a state statute that had prohibited same-sex marriage.

The law will take effect Aug. 1.

Dayton acknowledged that a difficult step has been taken, but called it a crucial moment for equality.

“Progress has often been difficult, controversial and, initially, divisive,” Dayton said. “However, it has always been the next step ahead to fulfilling this country’s promise to every American.”

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to General Law Related

Ind. Courts - "Convenience Stores Pursue Legal Action to be able to Sell Cold Beer"

From the press release:

INDIANAPOLIS (May 14, 2013) – Executives and members of the Indiana Petroleum Marketers and Convenience Store Association (IPCA), a statewide trade association, announced today that they have filed a complaint in U.S. District Court against the State of Indiana challenging the law governing the sale of cold beer.

Under current law, convenience, grocery and pharmacy stores are only allowed to sell beer warm, while their competitors in the carryout market are allowed to sell beer cold.

IPCA and three of its members - Ricker’s, Thorntons and Freedom Express – claim this Indiana law violates the equal protection clause of the U.S. Constitution by restricting convenience, grocery and pharmacy stores to selling beer only at room temperature. In the complaint, the plaintiffs charge that Indiana statutes and regulations have evolved into an irrational and discriminatory regulatory regime that favors one class of retailer over another.

“This lawsuit is about fairness, convenience, and promoting competition for the sale of cold beer in a rational and responsible way so that my members can serve their customers,” said IPCA Executive Director Scot Imus. “We are confident that the court will agree with us that it is not the job of government to pick winners and losers in the marketplace.”

Indiana is the only state in the country that regulates beer sales based on temperature. The current law doesn’t apply to wine products, thus allowing convenience stores to sell these products cold. On average wine products, including wine coolers, contain higher levels of alcohol compared to beer.

Here is the 19-page complaint, filed today. The file size is quite large (3.06 MB) because it contains color photos. It begins:
Indiana statutes and regulations create an irrational and discriminatory regulatory regime that prevents certain qualified retail permit holders — such as grocery and convenience stores — from selling refrigerated beer, while allowing the sales at package liquor stores. This arbitrary distinction among licensed beer sellers does not advance any rational public policy goal. In fact, this discriminatory treatment violates the state and federal constitutions and prevents grocery and convenience stores from participating in the growing market for craft beer sales. Further, the resulting lack of competition hurts consumers who must pay higher prices. The prohibition against cold beer sales should not apply to plaintiffs as a matter of federal and state constitutional law.

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Indiana Courts

Courts - More on: SCOTUS decides Monsanto case, ruling goes against Indiana farmer

Updating yesterday's ILB entry, Eric Bradner has this story today in the Evansville Courier & Press. It begins:

INDIANAPOLIS — A Southwestern Indiana farmer’s planting of second and subsequent generations of Roundup Ready soybeans violated the patent rights of agribusiness giant Monsanto Co., the U.S. Supreme Court ruled Monday.

The decision marked the end of a legal battle for Vernon Hugh Bowman, a 75-year-old Knox County man who was sued by Monsanto in 2007 and ordered by a federal court to pay the company $84,456 for soybeans he bought from a grain elevator and planted over eight years.

The high court ruled that Bowman violated Monsanto’s patent when he purchased from the elevator soybeans that had been genetically-modified to withstand applications of the weed-control chemical glyphosate and planted them to produce a crop. The elevator would typically sell such soybeans for animal feed, milling and other uses, but not as seed.

Monsanto requires farmers to purchase new seeds from the company or authorized dealers for each planting. Buyers must agree to plant the purchased seeds in only one season and cannot save any of the harvested soybeans for replanting or supply them to anyone else for that use.

Justice Elena Kagan dubbed Bowman’s argument in support of his actions as a “blame-the-bean defense” and wrote that it is “tough to credit.”

“Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops,” she wrote.

“Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium.”

Bowman bought and used Monsanto’s “Roundup Ready” seed for his first crops of each season — and in doing so, agreed to the company’s standard requirement not to save any of his harvest to replant the next year.

That requirement is in place to protect the company’s investment in developing the product. The company last year spent more than $1.5 billion on research and development, and developing a genetic trait in a plant costs, on average, $136 million over 13 years, according to a study by CropLife International.

Bowman, though, thought he’d found an end-around when he used a less conventional method for a second late-season round of planting — one that he considered more risky, which led him to look for ways to cut costs.

He purchased other local farmers’ already-harvested soybeans from a nearby grain elevator — knowing that many of those soybeans were planted using the Roundup Ready seed — and planted them in his fields.

After using the herbicide that Roundup Ready seed is designed to resist, Bowman had a soybean crop that contained Monsanto’s technology. He used it for his second, late-season round of planting for eight total years.

Here is Andy Eubank's story for Hoosier Ag Today. A quote:
Indianapolis based attorney Todd Janzen explained the Monday decision.

“Ultimately what the Supreme Court held was that Bowman’s replanting of commodity soybeans, or soybeans from a grain elevator, violated Monsanto’s Roundup Ready patent. The reason was because Bowman did not have a license to make additional copies of the seed, so it’s very different than if you plant just one seed, you harvest one seed, and replant another seed.”

Janzen added, “If the law held the way that Bowman had wanted the court said Monsanto would lose the rights to its patent because all a farmer would have to do is buy Roundup Ready seeds one time and they could plant it forever and ever after that point.”

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Courts in general

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

For publication opinions today (1):

In Terrence T. Walker v. State of Indiana, a 19-page opinion, Judge Crone writes:

Terrence T. Walker appeals his conviction for class C felony child molesting involving fondling or touching. He argues that the victim’s father made several inadmissible statements concerning Walker’s guilt, resulting in fundamental error. He also argues that the trial court erred in failing to instruct the jury on class D felony sexual battery because it is a lesser-included offense. Finally, he argues that the trial court abused its discretion in replacing a juror because that juror was the only African-American juror.

We conclude that fundamental error did not occur as a result of any inadmissible testimony. We also conclude that the trial court did not err in failing to instruct the jury on class D felony sexual battery because it is not an inherently or factually included offense of class C felony child molesting as charged here. We further conclude that the trial court did not abuse its discretion in replacing the juror. Therefore, we affirm.

NFP civil opinions today (0):

NFP criminal opinions today (1):

David A. Warner v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today, both direct appeals

In Girl Scouts of Southern Illinois v. Vincennes Indiana Girls, Inc., a 10-page, 5-0 opinion, Justice Rush writes:

The Contracts Clause of the Indiana Constitution protects vested contract rights, including agreed contractual restrictions on land use, against retroactive impairment. Here, one Scouting organization deeded its campground to another on the condition that the Scouting use continue for 49 years, with the deed providing that ownership of the campground would revert to the original owner (the grantor) if the Scouting-use condition was breached during that time. We conclude that the Contracts Clause of the Indiana Constitution protects the enforceability of this 49-year land use limitation despite a subsequently enacted statute, Indiana Code section 32-17-10-2, that purports to limit reversionary clauses in land transactions to a maximum of 30 years.* * *

The trial court granted summary judgment quieting title in VIG, and GSSI appealed. The appeal was initially filed in the Court of Appeals, but because the trial court’s judgment declared a state statute unconstitutional, Appellate Rule 4(A)(1)(b) gives this Court mandatory and exclusive jurisdiction over the appeal. The case was therefore transferred to this Court under Appellate Rule 6, and proceeded as a direct appeal. * * *

Conclusion. A corporation continues a limited corporate existence even while it is administratively dis-solved, and reinstatement restores its full status as if the dissolution never happened. VIG’s administrative dissolution, and subsequent reinstatement, therefore did not trigger the deed’s provision extinguishing VIG’s reversionary interest if its “existence is terminated or corporate charter surrendered.”

And because VIG’s interest imposes a land-use restriction similar to a restrictive covenant, it deserves the same level of Contracts Clause protection. Since the parties bargained for a 49-year land use limitation on Camp Wildwood, terminating that restriction after just 30 years would substantially impair VIG’s contract rights. Indiana Code section 32-17-10-2 is therefore unconstitutional as applied retroactively to the land-use restriction in VIG’s deed to GSSI. Accordingly, we affirm the trial court.

In the following case, after a jury awarded the plaintiff in a personal injury action $150,000 in punitive damages, the Marion Superior Court declared that the limitations on punitive damage awards set out in IC 34-51-3-4 and 5 violate Article 3, Section 1 and Article 1, Section 20 of the Indiana Constitution. The State of Indiana intervened and initiated this direct civil appeal. Oral argument was held Dec. 13, 2012. Today, in State of Indiana v. John Doe, a 9-page, 5-0 opinion, Justice Massa writes:
The State here appeals from a judgment declaring Indiana Code §§ 34-51-3-4, -5, and -6 impermissibly inconsistent with Article 1, Section 20 and Article 3, Section 1 of our Indiana Constitution. We reverse. * * *

In April 2008, a jury awarded John Doe $150,000 in punitive damages as part of a judgment in his lawsuit against Father Jonathan Lovill Stewart for childhood sexual abuse. Stewart moved to reduce the punitive damages pursuant to the statutory cap. Ind. Code §§ 34-51-3-4 & -5. On February 27, 2009, the trial court denied that motion, holding those statutes violated two provisions of our state Constitution: Article 3, Section 1, which requires the separation of governmental powers, and Article 1, Section 20, which guarantees the right to trial by jury in civil cases.

In March 2009, the State intervened in the case to protect its interest in the punitive damages award. Doe filed various documents contending the allocation provision was unconstitutional as applied to him. His argument was initially based solely on the state and federal Takings Clauses, although he later raised separation of powers and jury trial arguments.

On September 27, 2011, without holding a hearing on Doe’s constitutional claims or allowing the State to respond to his late-raised arguments, the trial court issued an order declaring both cap and allocation violated the separation of powers and right to jury trial. The State moved to correct error, seeking an opportunity to demonstrate the statutes comport with those constitutional provisions, but the trial court denied that motion.

The State now appeals. We have mandatory and exclusive jurisdiction over this and all appeals from judgments invalidating state statutes on constitutional grounds. Ind. Appellate Rule 4(A)(1)(b). * * *

[W]e agree with the State that, as we have said before, the jury’s determination of the amount of punitive damages is not the sort of “finding of fact” that implicates the right to jury trial under our state constitution. Stroud v. Lints, 790 N.E.2d 440, 445 (Ind. 2003). We believe the allocation of punitive damages is similarly not a “finding of fact” for constitutional purposes. Therefore, we find the cap and allocation provisions are fully consonant with the right to jury trial protected by Article 1, Section 20 of our state constitution. * * *

[B]oth cap and allocation delineate a boundary within which the court may exercise its discretion to award damages, order remittitur, or otherwise modify the judgment as appropriate in light of the evidence and circumstances of the particular case before it. That boundary is within the legislature’s power to set, and the exercise of that power does not offend Article 3, Section 1 of our Indiana Constitution.

Conclusion. We hold that Indiana Code §§ 34-51-3-4, -5, and -6 do not violate either Article 1, Section 20 or Article 3, Section 1 of our Indiana Constitution. We therefore reverse the trial court and remand this case with instructions to (1) grant Stewart’s motion to reduce the punitive damages to the statutory maximum and (2) order that 75% of the award be deposited into the Violent Crime Victim Compensation Fund.

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on "Former Marion County deputy prosecutor David Wyser pleads guilty to federal charges"

Updating this ILB entry from last evening, here is Tim Evans very long, front-page Indianapolis Star story this morning, headed "Ex-Aide Pleads Guilty." A quote:

A few days after Memorial Day in 2009, Wyser had a conversation with the attorney representing Paula Willoughby, according to the federal charging document. Willoughby, Indianapolis, had been convicted more than 15 years earlier of murder and conspiracy to commit murder in the death of her husband.

Willoughby, the daughter of wealthy Indianapolis businessman Harrison Epperly, was sentenced in 1992 to 110 years in prison. An appeal in 1996 cut the sentence to 70 years, but Willoughby still faced at least 15 more years behind bars before she would become eligible for release.

Court documents say Wyser and Willoughby’s attorney, Jennifer Lukemeyer, on May 29, 2009, “discussed receiving a campaign contribution from the father” of Willoughby. Epperly quickly wrote a $2,500 check to the Committee to Elect David Wyser.

Lukemeyer did not respond to telephone and email messages from The Star.

About three weeks later — “ on or about June 22, 2009,” according to a court document — Epperly’s check was deposited in Wyser’s campaign account.

The next day, court records say, “an agreement to modify (Willoughby’s) sentence, signed by David Wyser and (Lukemeyer), was filed with the division of the Marion Superior Court with jurisdiction over (Willoughby’s) sentence and was granted the same day.”

Campaign finance records show Willoughby’s father also gave Brizzi at least $29,000 from 2006 to 2008 — before his daughter was released.

After the donations were made public and questioned, Brizzi and Wyser returned them.

At the time, Brizzi and Wyser defended their rare agreement to modify Willoughby’s sentence. They also said they didn’t initially know the full scope of her father’s campaign donations, in part because most of Brizzi’s money came from the father’s company.

Wyser and Brizzi also received donations from other attorneys in the firm representing Willoughby, and Lukemeyer sponsored a fundraiser for Wyser shortly after Willoughby’s release was approved.

Sentence modifications were almost impossible to obtain under Brizzi and Wyser, said Indianapolis defense attorney Robert Hammerle.

“When it was me, a public defender, someone who was poor or unimportant,” Hammerle said, “the prosecutor always said ‘no’ to sentence modifications. It was just something we had to live with. Willoughby was the exception.”

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Indiana Government

Ind. Courts - Today: Formal Swearing-In Ceremony Scheduled for U. S. Bankruptcy Judge James M. Carr

From the news release:

INDIANAPOLIS, Indiana (May 13, 2013): The United States District Court for the Southern District of Indiana announced that a formal swearing-in ceremony for United States Bankruptcy Judge James M. Carr will be held Tuesday, May 14, 2013, at 3:00 p.m. Chief Judge Richard L. Young will preside over the ceremony in the William E. Steckler Ceremonial Courtroom (Courtroom 202) of the Birch Bayh Federal Building and United States Courthouse in Indianapolis. Judge Carr fills the vacancy created by the retirement of Judge Frank J. Otte, who now serves the bankruptcy court in a recall capacity.
See also this March 7th notice for U. S. Bankruptcy Judge Moberly.

Posted by Marcia Oddi on Tuesday, May 14, 2013
Posted to Indiana Courts

Monday, May 13, 2013

Ind. Gov't. - More on "Former Marion County deputy prosecutor David Wyser pleads guilty to federal charges"

Updating this ILB post from earlier today with a link to the IndyStar story, here are the Information/Charging Document and the Plea Agreement filed today by the U.S. Attorney in the case of U.S. v. David Wyser. Note Para. #7 of the Information.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Indiana Government

Courts - "Justice Roberts to speak at La Lumiere commencement"

Stan Maddux of the NWI Times writes this evening in a story that reports:

U.S. Supreme Court Chief Justice John Roberts will deliver the commencement address at La Lumiere School north of LaPorte, where he graduated in 1973.

Roberts, who grew up in Long Beach, will speak at the May 24 graduation ceremony, which starts at 10 a.m. at the school at 6801 N. Wilhelm Road. * * *

According to the school's website, Roberts' speech kicks off the private college preparatory school's 50th anniversary year.

The event is not open to the general public.

It's open mainly to family members of graduates and seating in Marsch Gymnasium, where the commencement will be held, is very limited, school officials said.

Free tickets are required to get into the ceremony and all of the tickets have been issued, said Colleen Kennedy, director of advancement at the school.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Courts in general

Not Law - Decline of newspapers continues

David Carr, in his weekly "The Media Equation" column for the NY Times, writes today in a lengthy article that begins:

A year after announcing a plan to reorganize The Times-Picayune of New Orleans into a more digitally focused enterprise that produced a newspaper just three days a week — enraging local residents — its owners have added a new innovation: they will go back to producing a printed product every day.

“We are excited about this opportunity to extend our daily reach in print,” an advertising executive at the newspaper said in the announcement.

You don’t say.

Meanwhile, competitors have come into New Orleans, and its Pulitzer prize-winning journalists [for the paper's Katrina coverage] have moved on. More:
The much ballyhooed unmaking of daily newspapering seems to be unmaking itself, and there’s a reason for that. Most newspapers have hung onto the ancient practice of embedding prose on a page and throwing it in people’s yards because that’s where the money and the customers are for the time being.

The industry tried chasing clicks for a while to win back fleeing advertisers, decided it was a fool’s errand and is now turning to customers for revenue. But in order to charge people for news, you have to prosecute journalism.

The belief that historic monopolies will hold together just on the basis of inertia has proved to be wrong. Newspapers that have cut their operations beyond usefulness or quit delivering a daily print presence have suffered. The audience has to be earned every day.

Slate's Justin Peters writes today:
For the past week, I’ve been riveted to the website of the Cleveland Plain Dealer, which has been my go-to source for reporting, context, and analysis on Ariel Castro’s alleged kidnapping of three women. National outlets, which lack regional knowledge and the bodies on the ground, can’t compete with local dailies on these sorts of stories. Just as the Boston Globe did with its blanket coverage of the Boston Marathon bombing, the Plain Dealer has outshone the competition with multiple updates a day that have helped outsiders understand what’s happening on Cleveland’s west side. * * *

It’s also the paper’s swan song. This summer, the Plain Dealer will switch to a three-day-a-week home delivery schedule and lay off at least 53 members of its newsroom. Though the paper will continue to publish every day, don’t expect greatness from the non-delivery editions. * * *

The [Syracuse] Post-Standard and the Plain Dealer are both owned by a company called Advance Publications. Advance also owns the New Orleans Times-Picayune, long the dominant daily in New Orleans. Last year, the Times-Picayune went to a three-day-a-week publication schedule, in what was billed as a shift-to-digital strategy—an odd move in a poor city with scant broadband penetration. The paper has since shed staff and readers, and ceded market share to the Baton Rouge Advocate, which hired away many of the Times-Picayune’s top reporters and editors and has made inroads in the New Orleans newspaper market. Just last week, the Times-Picauyne’s owners announced that that paper would revert to some sort of daily publication schedule. But the damage has been done.

Also interesting today, a $$$ long WSJ story by L. Gordon Crovitz that begins:
In the early days of the Internet, there was Craigslist. In 1995, Craig Newmark got the brilliant idea of letting people post classified advertisements online, usually free. Renting apartments, selling cars and getting jobs has never been the same for the 60 million people who use the website.

Another result: Craigslist obliterated the longtime business model of local journalism that relied on classified-ad revenues, which have fallen by 80%. Old media companies can derive some consolation from Craigslist now joining their ranks as a newly old media company: It has employed a battalion of lawyers to stop competitors from offering innovations in online classifieds, not wanting anyone to do to Craigslist what Craigslist did to newspapers.

And who are these new, disruptive competitors? From later in the story:
The latest lawsuit is against several startups, including PadMapper, which aggregates listings from Craigslist and other sites such as Apartments.com and Rent.com, giving users access to many more listings. It cleverly added a Google GOOG -0.21% Maps overlay showing the location of available houses and apartments.

A federal court recently threw out many of Craigslist's legal claims, including that it had a copyright claim to its users' ads. The court ruled that the mere facts presented in Craigslist listings are not subject to copyright protection. Users revolted when Craigslist briefly asked for exclusive access to their listings.

But it's still not clear that PadMapper and other competitors will be allowed to operate. Craigslist threw in a kitchen sink of legal claims, including violation of the Computer Fraud and Abuse Act. This is a vague law that many Internet activists have at the top of their reform agenda.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to General News

Ind. Gov't. - "Former Marion County deputy prosecutor David Wyser pleads guilty to federal charges"

Bill McCleery, Tim Evans and Kristine Guerra have the story on the IndyStar site. Some quotes:

Former Marion County Deputy Prosecutor David Wyser has pleaded guilty to federal bribery charges, U.S. Attorney Joe Hogsett announced today.

Wyser is cooperating with federal prosecutors, Hogsett said.

Federal prosecutors had been investigating the approval by Brizzi's office of an early prison release for Paula Willoughby. The Indianapolis woman had been convicted of murder and conspiracy to commit murder for arranging the killing of her husband.

Wyser is accused of trading campaign donations for helping Willoughby get out of prison early.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending May 10, 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, May 10, 2013. It is two pages (and 24 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Indiana Transfer Lists

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

For publication opinions today (2):

In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, on Behalf of the Indiana Dept. of Insurance, a 16-page opinion, Chief Judge Robb writes:

First American Title Insurance Company (“First American”) filed a verified petition for judicial review and declaratory relief against Stephen W. Robertson in his official capacity as Insurance Commissioner of the State of Indiana (the “Commissioner”). First American sought a declaration and judgment that the Commissioner’s order setting an investigatory hearing was void because it was issued outside the statutory time frame. First American appeals the trial court’s subsequent denial of its petition, raising the following restated issues: 1) whether the Commissioner’s failure to comply with the statutory deadline rendered his order void, and 2) whether the trial court erred by requiring a separate showing of prejudice. On cross-appeal, the Commissioner appeals the trial court’s denial of his motion to dismiss First American’s petition, raising the following restated issues: 1) whether First American’s failure to exhaust its administrative remedies deprived the trial court of subject matter jurisdiction over the petition, and 2) whether First American submitted sufficient materials for judicial review. Concluding the Commissioner’s claim with regard to the failure to exhaust administrative remedies is waived and there were sufficient materials to enable judicial review, but that the Commissioner’s failure to comply with the statutory deadline rendered his order void and the trial court erred by requiring a separate showing of prejudice, we affirm in part, reverse in part, and remand. * * *

The Commissioner waived its claim regarding exhaustion of administrative remedies by waiting to raise the issue for the first time on appeal. Because the materials submitted by First American with its petition were sufficient for judicial review, the trial court properly considered the merits of First American’s petition. Thus, we affirm the court’s denial of the Commissioner’s motion to dismiss. We conclude, however, that the Commissioner’s failure to comply with the statutory deadline rendered his order void and that the trial court erred by requiring a separate showing of prejudice. Thus, we reverse the trial court’s denial of First American’s verified petition for judicial review and declaratory relief and remand with instructions to grant the petition.[8]
[8] We note that in many instances, when a court sets aside an agency action, it remands the case to the agency for further proceedings. See Ind. Code § 4-21.5-5-15. Considering our holding that the Commissioner’s failure to comply with the statutory deadline rendered his order void and he can no longer take action on the report that was the subject of the order, remand to the agency would serve no purpose and is, therefore, unnecessary. See Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 865 N.E.2d 660, 668 (Ind. Ct. App. 2007) (“Simply put, where remand would serve no purposes—as in instances where no additional issues remain for determination—remand is unnecessary.”). On remand, the trial court must simply issue an order granting First American’s petition and declaring the Commissioner’s order void.

In Joseph Matheny v. State of Indiana , a 7-page opinion on a State petition for rehearing, Judge Crone writes:
The State petitions for rehearing in Matheny v. State, 983 N.E.2d 672 (Ind. Ct. App. 2013), in which we affirmed Matheny’s conviction for class D felony auto theft. In so doing, we concluded that although the trial court erred in refusing Matheny’s tendered jury instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, that error was harmless. Id. at 680-81. The State asks us to reconsider our conclusion that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State, No. 45A03-1207-CR-304, 2013 WL 796066 (Ind. Ct. App. Mar. 5, 2013), and Albores v. State, No. 45A03-1207-CR-327, 2013 WL 1341563 (Ind. Ct. App. Apr. 4, 2013). In each of those cases, another panel of this court concluded that the trial court did not err in refusing an instruction that was conceptually similar to that tendered by Matheny. We grant the State’s petition solely to clarify that our holding does not conflict with the holdings in those cases, and we affirm our original opinion in all respects.

NFP civil opinions today (4):

David D. Kiely v. Kathryn Starnes-Kiely (NFP)

Vickie Fenoglio as Personal Representative of the Estate of Paul Fenoglio v. Boguslaw Gluszak, M.D. and Steve Robertson, Commissioner of the Indiana Dept. of Ins. and Boguslaw Gluszak, M.D. (NFP)

Stephen Harriman and Elena Ivanova v. Smith Brothers Ultimate Builders, Inc. (NFP)

Paul Komyatti, Jr. v. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group (NFP)

NFP criminal opinions today (1):

Chris Griner v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Tennessee's proposed "ag-gag" bill

As described in this Justica article by Julie Hilden, headed "Why Tennessee Might—and Should—Reject Its Proposed 'Ag Gag' Bill," Tennessee's proposed "ag-gag" bill sounds much like Indiana's initial proposal. Some quotes:

Tennessee Attorney General Bob Cooper has called the state’s pending “ag gag” bill “constitutionally suspect,” and for good reason, as I will explain.

The bill, if passed into law, would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours.

The article goes into detail, but here is the list of Attorney General Cooper’s issues:

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Indiana Law

Courts - More on "Who’s the Boss? The Supreme Court Hears Argument on the Meaning of the Term 'Supervisor' in Workplace Harassment Law"

Another opinion we are awaiting this month from the SCOTUS is in the case of Vance v. Ball State University. For background, start with this Nov. 27, 2012 post.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Courts in general

Courts - SCOTUS decides Monsanto case, ruling goes against Indiana farmer [Updated]

From SCOTUSblog, which is watching the Supreme Court opinions being issued this morning:

First opinion is Bowman v. Monsanto. Federal Circuit is affirmed in a unanimous opinion by Justice Kagan. Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder's permission.
For background, start with this ILB post.

Here is today's opinion; here is the SCOTUSblog case page.

[Updated at 1:45 PM]
Here is Adam Liptak's story in the NYT. An important point from the story:

The ruling has implications for many aspects of modern agriculture and for businesses based on vaccines, cell lines and software. But Justice Elena Kagan, writing for the court, emphasized that the justices intended the decision to be narrow.

"Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product," she wrote. "We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”

But Justice Kagan had little difficulty ruling that an Indiana farmer’s conduct had run afoul of the patent law.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Courts in general

Law - "Nullification: How States Are Making It a Felony to Enforce Federal Gun Laws"

Updating this Jan. 10, 2013 ILB post, re SB 230, which inter alia sought to nullify several federal statutes, this May 2nd article by Lois Beckett of Pro Publica is of interest. A few quotes:

But the growing number of such bills -- which have passed by large majorities in at least one chamber of seven state legislatures--highlight the challenge gun control advocates face in their attempt to fight for gun regulation at the state level.

It also shows how nullification is fast becoming a mainstream option for state politicians. In Pennsylvania, 76 state legislators signed on to sponsor a measure that would invalidate any new federal ban of certain weapons or ammunition. The bill would impose a minimum penalty of one year in prison for federal agents who attempt to enforce any new law.

Supporters of nullification are not simply frustrated at what they see as congressional and presidential overreach. During a hearing about one of the nullification bills she had introduced, Tennessee State Sen. Mae Beavers called the Supreme Court a “dictatorship.”

“You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution,” Beavers was quoted as saying in The Tennessean. (Reached by phone, she asked to comment later, then did not respond to further requests.)

The Supreme Court rejected nullification in 1958, after Southern states tried to use the concept to avoid desegregating public schools. “No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it,” the Court ruled.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to General Law Related

Law - "Hospital Mergers Reset Abortion-Access Battle"

Kirk Johnson had this story in the Sunday NY Times. The digest: "A wave of proposed and completed mergers between secular and Roman Catholic hospitals prompt concerns in the left-leaning Pacific Northwest." The lengthy report begins:

MOUNT VERNON, Wash. — Politicians seeking to restrict access to abortion, a marked trend this year from North Dakota to Arkansas, tend not to get much traction in this part of the country.

Washington is heavily Democratic, leaning left especially on social issues. A majority of voters even put into law a statutory right to abortion in 1970 — the only state ever to do that. The governor, Jay Inslee, a Democrat, is pushing the Legislature even now to pass a law at a special session on Monday requiring health insurers to pay for elective abortions, another first for the state if it makes it to Mr. Inslee’s desk.

But now a wave of proposed and completed mergers between secular and Roman Catholic hospitals, which are barred by church doctrine from performing procedures that could harm the unborn, is raising the prospect that unelected health care administrators could go where politicians could not.

The merger wave is mirrored around the country, driven by the shifting economic landscape in health care and the looming changes in federal regulation. Previous Catholic takeovers in Kentucky, Illinois and Pennsylvania have made news and drawn scrutiny.

The concentration of mergers here, through happenstance and history — Catholic nuns arrived in Washington with the first waves of settlers in the 1850s — is particularly pronounced. If all the proposed religious and secular combinations go through, almost half of the hospital beds in the state — the highest percentage in the nation, and up from less than a third at the beginning of last year — would be controlled by the Catholic health systems, according to Merger Watch, a nonprofit group in New York that tracks hospitals.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to General Law Related

Courts - Book Review: “The Federalist Society: How Conservatives Took the Law Back From Liberals”

From the Sunday NY Times, this book review by Jeffrey Rosen, headed "Packing the Courts: A primer on the Federalist Society and its extraordinary influence."

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Courts in general

Environment - Delaware County "Opposition to wind farm increases"

Seth Slabaugh's story today in the Muncie Star-Press includes:

SELMA — Opposition to a possible wind farm in Delaware County is growing.

An overflow crowd of about 75 people showed up at a city-county plan commission meeting on May 2 to voice objections to a potential wind farm.

The opponents then conducted a meeting of their own last week attended by about 125 people. * * *

While many Indiana counties have adopted zoning ordinances requiring a setback of at least 1,000 feet between a commercial wind turbine and a residential dwelling unit, “we are asking for a minimum setback of two miles,” Gresh said.

That’s 10,560 feet.

“Our rural population in Delaware County is so much greater than in other counties,” Gresh said. “It’s more like a city in the rural area of Delaware County. We’re just too populated (for a wind farm). No one is opposed to green energy. That’s not our dispute. But there’s a place for these, and it’s not in the middle of our neighborhoods.”

The plan commission is considering a zoning amendment that would permit wind farms in farming zones and also establish regulations, including setback distances between wind turbines and residences.

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Environment

Ind. Law - "Criminal code revamp long way from over"

From this story today in the NWI Times, reported by Susan Brown:

CROWN POINT | Despite being signed into law last week, the first revision of the Indiana Criminal Code in decades is far from a done deal.

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said the bill has a long way to go before it can be implemented.

"It clearly can't go into effect without a lot more work," he said Friday.

Powell said the coming months will find much pressure put on stakeholders, including prosecutors, before the law goes into effect on July 1, 2014, a full year longer than typical for new legislation.

Its major features include the expansion of the four levels of felonies to six, the most serious of felons to serve 75 percent of their sentence instead of 50 percent, and low-level felons to serve time in county jails or alternative community corrections programs.

Powell joined Larry Landis, executive director of the Indiana Public Defender Council, in saying the goal of the re-write was largely to create proportionality in sentencing.

"This is the first time we've taken a comprehensive look at all felonies," Landis said. The intent was to rank them in severity. * * *

Powell said at least 68 penalties for the most serious crimes have been increased, while those for drug offenses and property crimes have been reduced.

Higher-level felons will serve more time in prison while lower level felons will serve less, resulting in an overall reduced prison population, Powell said.

"We realize there's only so much money but would never risk public safety," Powell said of the task.

However, Landis said some of the increased penalties are significant, creating a whole new set of potential problems.

"There was no data presented for increasing sentences," he said. "They send people to prison who don't need to be there and who will actually get worse."

Landis also questions the benefit of reducing the credit time earned by serious felons, a feature insisted on by prosecutors. He questions the purpose of keeping a 19-year-old with no long history of violence in prison until his 60s.

For prosecutors, Powell said that has been an issue for a long time. People question why a 40-year sentence for child molesting, for example, gets reduced by half or even more depending on educational credits, he said.

Joel Schumm, a professor at Indiana University Maurer School of Law, said while the overhaul was long overdue, he questions if the bill will achieve the goal of reducing the need for more prisons. His primary concern is the reduction in credit time for good behavior, he said.

"Because the sentencing ranges are so large, it's hard to know how the revisions will play out in trial courtrooms across the state," he said. "Although judges will have more discretion to put defendants on probation, there is no guarantee this will happen, or will happen consistently."

Posted by Marcia Oddi on Monday, May 13, 2013
Posted to Indiana Law

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

From Sunday, May 12, 2013:

From Saturday, May 11, 2013:

From late Friday afternoon, May 10, 2012:

Posted by Marcia Oddi on Monday, May 13, 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 (5/13/13):

Thursday, May 16th

Next week's oral arguments before the Supreme Court (week of 5/20/13):

Thursday, May 23rd

Webcasts of Supreme Court oral arguments are available here.

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

Monday, May 13th

Next week's oral arguments before the Court of Appeals (week of 5/20/13):

Wednesday, May 22nd

Friday, May 24th 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, May 13, 2013
Posted to Upcoming Oral Arguments

Sunday, May 12, 2013

Courts - More on "Anonymous online reviews may not be so anonymous"

Updating this post from earlier today, see also this May 1st post from the blog Likelihood of Confusion: Ron Coleman's blog on trademark, copyright, Internet law and free speech. A sample:

Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:...
(h/t: SBM Blog)

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Courts in general

Courts - "The Breadth of the Ministerial Exception and Ecclesiastical Deference: A State Supreme Court Case Highlights Questions Left Open by Last Year’s U.S. Supreme Court Hosanna-Tabor Ruling"

Vikram David Amar, a Justia columnist, and Professor of Law at the University of California, Davis School of Law, has a column today on the ministerial exception that begins:

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment. In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year’s blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called “ministerial exception” enjoyed by religious institutions in employment discrimination suits. I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.
ILB readers may recall the lawsuit pending in an Indiana federal court -- here is how an April 12, 2012 story by Rebecca S. Green of the Fort Wayne Journal Gazette began:
FORT WAYNE – A former teacher at St. Vincent de Paul Catholic School sued the school and the Fort Wayne-South Bend Catholic Diocese in federal court for firing her because she underwent in vitro fertilization.

Filed this month in U.S. District Court by Emily Herx, the lawsuit comes after the Equal Employment Opportunity Commission found the diocese violated her civil rights – specifically by sex discrimination – as well as violating the Americans with Disabilities Act.

Here is the list of ILB entries on the Herx suit, most headed ""Teacher Fired After Receiving Fertility Treatments"."

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Courts in general

Courts - Michigan Supreme Court, "a secretive, corrupt arm of the insurance industry and other special interests"?

Detroit Free Press columnist Brian Dickerson writes today:

The last thing you want when you have made your way to the top position on your state’s highest court is for a bunch of your most distinguished predecessors to start suggesting — all at once, and very publicly — that you are making a hash of the job.

But that is precisely the circumstance in which Robert Young Jr. finds himself midway through his second two-year term as chief justice of the Michigan Supreme Court.

The court has faced accusations of growing partisanship since 2007, when Elizabeth Weaver — the only Republican justice at the time who did not owe her judicial career to former Gov. John Engler — began complaining loudly that Young and three of his GOP colleagues had turned the Michigan judiciary into a secretive, corrupt arm of the insurance industry and other special interests. * * *

Last summer, a bipartisan commission co-chaired by retiring state Supreme Court Justice Marilyn Kelly and U.S. Court of Appeals Judge Jim Ryan issued a report expressing alarm about public perceptions of the court’s partisanship and urged the governor and Legislature to alter the way justices are selected.

Among other things, the Ryan-Kelly commission urged lawmakers to replace the current selection scheme, in which justices are nominated (and largely bankrolled) by the major political parties, with the same sort of nonpartisan primary used to select lower court judges.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Courts in general

Ind. Gov't. - "Pence makes good on promise to oppose new regulations"

That is the headline to Lesley Weidenbener's Sunday column in the Louisville Courier Journal. It begins:

Gov. Mike Pence vetoed his first bills last week and it turns out the moves should have been fairly predictable.

He was looking for less regulation of occupational licenses — not more.

Pence axed bills that would have created licenses for diabetes educators, anesthesiologist assistants and dietitians. One of the bills also would have established a state certification for music therapists.

Lawmakers can override the vetoes with simple majority votes. That certainly seems like a possibility in these cases. The bill passed with overwhelming, bipartisan support in both chambers.

And there likely will be pressure for the lawmakers to do so. Professionals or specialists tend to have love-hate relationships with regulation. Many dislike the licensing fees, continuing education and other requirements that come with a state license but they appreciate the recognition that those bring — the idea that not everyone can do the job they’re doing.

That’s why it’s been so difficult over the years for lawmakers to reduce occupational licenses.

One bill Pence did sign, however, was HEA 1135, regulating midwives, which provides for 2-year certificates to be issued for a licensing board and contains many directives requiring the adoption of rules.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Indiana Government

Law - Survey shows "Nearly half of all death certificates are wrong"

Sarah Kliff's story is in the Washington Post today. It begins:

Death certificates are important public health documents. They help epidemiologists understand leading causes of deaths and how they are changing. They power big studies of what killed us in the past—and what kills us now. And, according to a new Center for Disease Control study, about half of them may be wrong.

Columbia University’s Barbara A. Wexelman lead a survey of 521 resident physicians in New York City. About one- third of those doctors completed more than 11 death certificates in the past year, making them pretty familiar with how the system works.

Here is the study, from the CDC, titled "Survey of New York City Resident Physicians on Cause-of-Death Reporting, 2010."

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to General Law Related

Courts - "Anonymous online reviews may not be so anonymous"

Reminiscent of the Indiana Newspapers case (see May 3 transfer grant here) and this case out of Illinois, Alison Frankel's long and useful May 9th On the Case column begins:

On Wednesday, the Public Citizen Litigation Group filed an appeal for the online review site Yelp, asking the Virginia Court of Appeals to review a trial-court order compelling Yelp to reveal the identity of seven anonymous reviewers who complained about a Washington carpet-cleaning service that subsequently sued them for libel and defamation. Yelp and Public Citizen contend that Alexandria City Circuit Court Judge James Clark got it wrong when he ruled that despite First Amendment protection for anonymous online critics, a Virginia statute requires the disclosure of their names when their identity is central to claims against them.

That's a pretty scary holding if you live in Virginia and are in the habit of expressing yourself anonymously on the Internet. I should note that there are restrictions on how far the ruling goes. Hadeed Carpet Cleaning's libel suit asserts that the seven particular John Does named as defendants were actually competitors smearing Hadeed, not customers posting genuine reviews. Judge Clark agreed that because Hadeed claimed the seven reviewers falsely represented themselves, it met the standard set out in the state law governing disclosure of their identity.

The problem, at least according to Public Citizen, is that the standard in Virginia isn't clearly defined by that law. Appeals courts in the state have not previously considered this question, but Public Citizen argues in the brief filed Wednesday that other state appellate courts have, and they've all reached conclusions contrary to Judge Clark's. "Every other appellate court has held, whether under the First Amendment or under state procedures, that anonymous defendants are entitled to demand that the plaintiff make a factual showing, not just that the anonymous defendant has made critical statements, but also that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim," the brief said. Yelp's lead counsel, Paul Alan Levy of Public Citizen, told me the Virginia trial judge flat out erred in his interpretation of both the Virginia statute - which Levy says is merely procedural and does not set out a standard for disclosing a critic's identity - and prevailing precedent.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Courts in general

Courts - "SCOTUS weighing public school graduation in a church"

From the LA Times today, a story by David G. Savage on a 7th Circuit opinion pending SCOTUS review. Some quotes:

WASHINGTON — Can a public high school hold its graduation ceremony in a local church?

The Supreme Court has been pondering that question in its private conference for six weeks, discussing whether to take up a Wisconsin case that could reset the line separating church and state.

Last year, the U.S. 7th Circuit Court of Appeals in Chicago ruled that the Elmbrook School District, near Milwaukee, violated the 1st Amendment and its ban on "an establishment of religion" by holding a high school graduation ceremony in the sanctuary of an evangelical Christian church.

The choice had been popular with students and school officials for a decade. The old high school gym was hot, cramped and uncomfortable, they said. The Elmbrook Church was modern, spacious and air-conditioned. But as the court noted, "towering over the graduation proceedings … was a 15- to 20-foot-tall Latin cross, the preeminent symbol of Christianity."

The appeals court said that goes too far, turning a public school ceremony into an "endorsement" of a particular religion.

Nine students and parents, all unnamed, sued the school district, saying they felt uncomfortable and offended by having graduation in an evangelical church. Christians should "stop and think about how it would feel if their high school graduation ceremonies were held in a Jewish temple or Muslim mosque, where diplomas were handed out beneath a looming Star of David or Islamic crescent," said Ayesha Khan, legal director for Americans United for Separation of Church and State, which represented the winning plaintiffs.

Since March 29, the justices have considered the Elmbrook case at their weekly conferences but taken no action, raising the chances the appeal will be turned down.

If so, the 7th Circuit's decision will stand as a warning to school districts that they could be forced to pay damages and heavy court costs if they hold events in church buildings.

Here is the SCOTUSblog page for the pending petition in Elmbrook School District v. Doe, including a link to the 7th Circuit opinion.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Decisions - "COA OKs parents' suit against fraternity in Wabash College alcohol death"

The May 8th Court of Appeals opinion in Smith v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al was the subject of a story last week by Sophia Voravong in the Lafayette Journal Courier. Some quotes:

The national Delta Tau Delta fraternity will remain a defendant in a wrongful death lawsuit filed by the parents of a Wabash College student who died of alcohol poisoning after a party in 2008.

In a ruling issued Wednesday, the Indiana Court of Appeals reversed a prior order by special Judge Don Daniel of Tippecanoe Circuit Court that granted summary judgment in favor of the Fishers-headquartered fraternity.

Delta Tau Delta, in its request for summary judgment, claimed that the Wabash chapter was not acting as an agent of the national fraternity. But the appellate court disagreed on grounds that Delta Tau Delta maintains a constitution, bylaws and member responsibility guidelines and requires local chapters to comply with its rules.

The lawsuit was filed in 2010 in Montgomery Superior Court 1 by the parents of 18-year-old Johnny D. Smith, a freshman pledge from Tucson, Ariz. He was found dead at the Delta Tau Delta house at Wabash College in Crawfordsville, facedown in a pool of vomit, in October 2008.

An autopsy showed that he had a blood-alcohol content of nearly 0.40 percent, five times what Indiana considers legally intoxicated for drivers. * * *

The lawsuit claims that Wabash College and the national Delta Tau Delta fraternity share blame for Smith’s death and ignored illegal alcohol consumption by minors and hazing activities at school-owned fraternity houses.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from April 29th, Jon Murray of the Indianapolis Star reported May 10th:

The Indianapolis Airport Authority is dropping its legal fight against a company’s plans to build a competing private off-site parking lot.

Executive Director Robert Duncan confirmed the airport’s change in course Friday to The Indianapolis Star.

The decision to press the case after losing a land-use decision by the Metropolitan Development Commission and an appeal in Marion Superior Court had drawn criticism from City-County Council members and others.

Airport officials were seeking to protect a lucrative revenue stream. The Indianapolis International Airport draws more than a quarter of its operating income from its parking operations.

Airport officials also contended that the 3,700-space parking development planned by Cincinnati-based Chavez Properties and Parking would be a poor fit for the site, an industrial park just south of the airport.

Airport officials argued that the City-County Council had the legal right to decide the issue, not the Metropolitan Development Commission, whose members are appointed.

Authority Board President Mike Wells discussed the issue with other board members and found consensus to drop the lawsuit, Duncan said Friday.

“When you look at it, we still think, to some extent, that our legal position is accurate,” Duncan said. “But the reality of it is that it’s apparent — certainly from comments we’ve gotten from council members and others — that even if we were to prevail in the case,” Chavez Properties’ plans would become reality in the long run.

“At this point, it’s probably OK to drop the appeal.”

It’s unclear how soon Chavez Properties might break ground on the project’s first phase.

The Star reported in late April that the airport’s legal fees in the case had reached at least $45,000. The airport’s case has been pending in the Indiana Court of Appeals.

The council planned this Monday to consider a special resolution urging the Airport Authority to drop its legal fight. Thirteen members from both parties signed on as co-sponsors.

Posted by Marcia Oddi on Sunday, May 12, 2013
Posted to Indiana Government

Friday, May 10, 2013

Ind. Law - Many bills still awaiting Gov. Pence's action [Updated numberous times]

To see what bills remain for Governor Pence's action tomorrow, check out the Governor's 2013 Bill Watch page. I count nearly 60 bills still awaiting the Governor's signature or veto.

Unfortunately as of this writing the list is not up-to-date, as for example SEA 305 reportedly has been signed, and neither the Governor's list nor the General Assembly bill page show it.

It doesn't seem unreasonable to expect that this information would be kept current ...

[Updated at 7:45 PM
] The Governor has updated his list and SEA 305 is now shown as signed, but the General Assembly bill page for SEA 305 remains out-of-date. About 54 bills still await the Governor's action. A number of these are of interest to the ILB.

[Updated at 7:47 AM, 5/11/13] The Governor's list indicates that among the handful of bills he signed yesterday was HEA 1135, regulating midwives. (The General Assembly bill page for SEA 305 remains out-of-date, showing the last action as "signed by the Speaker of the House").

[Updated at 1:00 PM] Gov. Pence has now signed several education bills (press release) plus, according to several reporters' tweets, SEA 621, which makes changes to Marion County government. None of his actions today, May 11th, show up yet on his 2013 Bill Watch page.

[Updated at 1:14 PM] Here now is the press release on SEA 621.

[Updated at 3:53 PM] It's over, the Gov. has signed all the remaining bills needing action by May 13th.

At some point, this useful 20-page chart from LSA will be updated with the final action.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Indiana Law

Ind. Courts - More on "Some Brown County Residents Protest Courthouse Remodel Bonds" [Updated]

Referencing this ILB post earlier today, a reader writes:

I just wanted to provide the following comments to your post about the Brown County courthouse. I’ve had a couple of cases there.

The courthouse is very small and not well-organized for the traffic and volume of cases they have. For example, in order to get to the court staff offices, you have to walk through the courtroom, which is disruptive if court is in session, but not being able to get to the staff can prevent you from letting them know you’re there or getting other things done.

Also, Circuit Court has both Judge Stewart and a magistrate, but I believe only the single courtroom, so it is difficult for them to schedule concurrent proceedings.

I was recently in Owen County and they have a similar structure: Circuit Court Judge Quillen and a magistrate. While Judge Quillen was in a jury trial, the magistrate heard my matter in what they call the “small claims courtroom,” which was a small room with a bench and recording equipment, and just simple banquet-type tables set up for the litigants. I’m not sure that Brown County even has that flexibility.

[Updated at 4:40 PM] Another reader has sent the following:
I’ve had both civil and criminal cases in the Brown County Courthouse while I was in private practice. Although it’s admittedly not very well set up, there’s enough of a pathway through the gallery that you don’t really have to step in front of the bar to get to the clerk’s offices.

As for the issue of concurrent proceedings, there actually is a magistrate “courtroom”, if you can call it that. There’s a bench with a seat for the reporter, two counsel tables and maybe two rows of 8 chairs each. It’s small, but that was always where they held criminal pretrial conferences, and the “gallery” waited for their hearing to be called in the hallway. Expansion would be welcome, no doubt, but it’s at the very least functional as is.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Indiana Courts

Ind. Decisions - What not to do if you receive a complaint from the Disciplinary Commission

In In re Jeffery T. Fetters, a 3-page "Published Order Finding Misconduct and Imposing Discipline," filed May 7th, the 5-0 order begins:

The Commission filed its Verified Complaint on May 22, 2012. Under Rule 23(14)(a), Respondent had 30 days from the date of service to file an answer. Respondent filed nothing within this period. On June 19, 2012, he mailed a one sentence Motion for Extension ("June 19 Motion") to the "Indiana Supreme Court" using the address of the Commission. He did not send the June 19 Motion to the Clerk, and thus it was not filed. The Commission filed an Application for Judgment on the Complaint on June 29, 2012. On July 5, 2012, Respondent filed a response to the Commission's application and a Motion for Extension ("July 5 Motion") that was substantially identical to the unfiled June 19 Motion.

Respondent asserts that he mistakenly believed that he was properly submitting the June 19 Motion for filing with the Clerk by mailing it to the Commission's address. The Court concurs with the hearing officer's conclusion that there was no excuse for Respondent's failure to understand and comply with the procedures for filing documents with the Clerk of this Court. See, e.g., Admis. Disc. R. 23(11.2) (distinguishing between filing with the Clerk and service on parties). Moreover, the contents of neither the June 19 Motion nor the July 5 Motion complied with the substantive requirements of Admis. Disc. R. 23(14)(a), which governs motions for extensions of time to file an answer.

In the absence of an answer to the Commission's verified complaint, the hearing officer properly took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c).

More from the order:
In July 2009, a client hired Respondent to represent him a dispute with his landlord. Respondent entered an appearance, and the issue of immediate possession was resolved in the client's favor. After Respondent and the client failed to appear at a hearing regarding unpaid rent and damages, Respondent did not notify the client that the court entered default judgment in the amount of $6,089, and he did not respond to the client's attempts to contact him. After the client discovered that default judgment had been entered against him, Respondent told the client he would "appeal" it within the next 30 days, but he took no action. Respondent then refused to talk to the client when he called Respondent's office.

During the Commission's investigation, Respondent stated that he had withdrawn from the client's case in court before the judge, but the chronological case summary for the case makes no reference to Respondent's withdrawal. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning as of the date of this order.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal [Updated]

In ROYCE BROWN v. JOHN F. CARAWAY, WARDEN (SD Ind., Lawrence), a 28-page opinion before Judges POSNER , FLAUM , and SYKES, followed by a unusual 10-page statement by Chief Judge Easterbrook, Judge Flaum writes:

In 1996, a jury in the district court for the District of Delaware convicted Royce Brown of one count of possession with intent to distribute cocaine base and one count of possession of a firearm by a felon. At sentencing, the district court classified Brown as a “career offender” under U.S.S.G. § 4B1.1. Brown filed a timely 28 U.S.C. § 2255 motion arguing that “counsel was ineffective for failure to object to his sentencing as a career offender which resulted in his sentence being a minimum of 360 months instead of between 262 and 327 months.” The district court rejected this argument, and the Third Circuit denied a certificate of appealability.

Now incarcerated in Indiana, Brown filed a pro se habeas petition under 28 U.S.C. § 2241 in the Southern District of Indiana, contending that under Begay v. United States, 553 U.S. 137 (2008), his prior Delaware conviction for Arson in the Third Degree did not qualify as a crime of violence under U.S.S.G. § 4B1.1. The district court dismissed his habeas petition sua sponte, reasoning that “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” Brown now appeals, aided by appointed counsel.

As an initial matter, the district court erred in concluding that challenges to a sentence (rather than the underlying conviction) are categorically barred under 28 U.S.C. § 2241. On the merits, Brown is entitled to relief under § 2241. Under Begay, Brown’s prior conviction for Arson in the Third Degree under Delaware law does not qualify as “generic” arson under the enumerated crimes clause of the career offender Guideline, nor is it covered by the residual clause. We therefore reverse the decision of the district court and hold that Brown is entitled to relief under § 2241. * * *

For the foregoing reasons, we REVERSE the decision below and REMAND with instructions to reduce Brown’s sentence to reflect our finding that he is not a career offender within the meaning of § 4B1.1.

[Beginning on p. 28 of 38 is a "Statement of EASTERBROOK, Chief Judge, concerning the circulation under Circuit Rule 40(e)" that begins] Justices of the Supreme Court sometimes file statements explaining why they have voted not to grant certiorari, even though they doubt the soundness of the decision under review. See, e.g., Calhoun v. United States, 133 S. Ct. 1136 (2013) (statement of Sotomayor, J.). Likewise appellate judges may explain why they have not voted to hear a case en banc, even though they doubt the soundness of the panel’s decision. See, e.g., Freeman United Coal Mining Co. v. Director, OWCP, 999 F.2d 291 (7th Cir. 1993) (statement of Easterbrook, J.), vacated, 512 U.S. 1231 (1994), in light of Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). Here, too, I have doubts about the panel’s decision, though I do not think that a hearing en banc would help.

[Updated 5/13/13] The 7th Circuit has posted a correction to this opinion. Access it here.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Dwight L. Cobbs v. State of Indiana , a 10-page opinion, Judge Barnes writes:

Dwight Cobbs appeals his conviction for Class B felony dealing in cocaine. We affirm.

Cobbs raises one issue, which we restate as whether the trial court properly admitted the testimony of a confidential informant. * * *

The trial court properly admitted the confidential informant’s testimony. Even if the trial court erred by admitting the testimony, any error was harmless. We affirm.

In Bobby Alexander v. State of Indiana , a 7-page opinion, Judge Pyle writes:
[Issue] Whether this appeal should be dismissed because the order from which Alexander is attempting to appeal is not a final judgment. * * *

Here, the State was prepared at the sentencing hearing with its request for restitution. Specifically, the State introduced copies of the Seger’s medical bills and requested that that the trial court order Alexander to pay restitution in the amount of $96,674.53 for Seger’s medical costs. Alexander, however, requested the trial court to delay the entry of a restitution order so that he could investigate possible “discounts” for Seger’s medical bills. (Tr. 579). The trial court granted Alexander’s request to take restitution under advisement and to hold a restitution hearing at a later date.

Now, Alexander is attempting to appeal one of his two convictions, but we have nothing in the record to indicate that the trial court has ever entered a restitution order. Additionally, the parties have not indicated that any such order has been entered. Under these specific circumstances, we dismiss this appeal. * * *

Finally, we note that it is a common practice in trial courts throughout our state for a trial judge to impose a sentence upon a defendant while taking restitution under advisement for various reasons. This practice, however, can prove to be problematic—as it has in this case—because it delays a defendant’s ability to begin an appeal due to the fact that a final order has not been entered. Consequently, this practice would affect a trial judge’s ability to advise a defendant of his appellate rights. Furthermore, when a trial court enters a sentence but takes restitution under advisement, the trial court is still subject to the ninety (90) day time limitation in Indiana Trial Rule 53.2 (“the lazy judge rule”), which is applicable to criminal proceedings pursuant to Indiana Criminal Rule 15. Therefore, the best practice would be for trial courts to enter an order of restitution at the same time as sentencing.

In Roberto Barajas v. State of Indiana , an 11-page opinion, Judge Vaidik writes:
Roberto Barajas appeals the post-conviction court’s denial of his petition for post-conviction relief. Barajas argues that his trial counsel was ineffective for failing to explain the deportation consequences of his guilty plea to Class D felony possession of cocaine. Concluding that Barajas has failed to demonstrate prejudice in light of the trial court’s advisements at his guilty-plea hearing, we affirm the post-conviction court.
NFP civil opinions today (3):

Term. of the Parent-Child Rel. of C.T. and D.T., minor children, and C.T., biological father, and K.P., biological mother: C.T. and K.P. v. Indiana Dept. of Child Services (NFP)

Mr. Bults, Inc. D/B/A MBI v. Nathan Orlando (NFP)

In Re: The Paternity of V.A.; R.A. v. B.Y. (NFP)

NFP criminal opinions today (2):

Karina Wilson v. State of Indiana (NFP)

Daon L. Bellamy v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Governor Mike Pence today appointed Cameron Clark as director of the Indiana Department of Natural Resources

From the news release:

"When it comes to Indiana's natural resources, our administration is focused on continuing the good work already begun in Indiana's parks, furthering conservation efforts around the state, expanding recreational opportunities and improving services for Hoosiers," said Governor Pence. "With a shared vision for the future of the department and a true love for the outdoors, Cameron Clark is the right man at the right time to lead Indiana's Department of Natural Resources in the years ahead."

Clark most recently served as Chief Legal Counsel within DNR, a role he has held since 2011. Prior to his time in state government, Clark worked for more than two decades at the law firm of Clark, Quinn, Moses, Scott & Grahn in Indianapolis, where he primarily focused on assisting clients in the purchase, sale and zoning of real estate and busineses. He also advised on matters related to state and local licensing and land usage permitted by local, state and federal laws and guidelines. Clark earned his undergraduate degree in economics from Vanderbilt University and his law degree from Indiana University in Indianapolis.

"This Agency is comprised of a lot of very talented and passionate people, and I am delighted for the opportunity to be a part of that culture," said Clark. "My hope is to continue to increase the recreational opportunities available to Indiana citizens, particularly our children, while at the same time holding fast to our strong conservation ethic."

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Indiana Government

Environment - "How did the environment fare in the recently concluded session of the Indiana General Assembly?"

A few quotes from an editorial today in the Fort Wayne Journal Gazette:

[Jesse Kharbanda, executive director of the Hoosier Environmental Council] said passage of the ag-gag bill would have been harmful and got a lot of media attention. “But even more significant is the Right to Farm Act, which we labeled the ‘Right to Harm Act.’ ”

Advancing the proposed constitutional amendment would have enshrined special protections for farmers in the Indiana constitution. The amendment would have made it unconstitutional for future lawmakers to adopt laws regulating agriculture. It would also have restricted any laws protecting public health or property rights for Hoosiers who are not farmers. [ILB: See however recent Indiana decisions applying the Right to Farm statute, including this one from last month.]

Proponents of the constitutional amendment are likely to push it again next session. If approved in 2014, it could return for a vote in the separately elected 2015 session and be placed on the November general election ballot for statewide approval that year.

It’s also likely ag-gag legislation will rear its head again.

“It’s our hope legislators will recognize the current approach is fine for balancing agriculture and environmental protection,” Kharbanda said. “If you put undue emphasis on factory farming, so many other aspects of rural life are overlooked.”

If state legislators give large agricultural businesses such as confined animal feeding operations undue legal protection, it limits local governments’ ability to address things such as noise or odor problems. That could damage a smaller farm located near a CAFO that is interested in promoting agri-tourism, for example.

More from the FWJG:
The most obvious example [of failure] is lawmakers’ failure to pass the bills addressing phosphorus pollution.

Excessive phosphorus runoff from lawn fertilizers and agriculture has caused the contamination of several Indiana lakes. High phosphorus levels can produce toxic blue-green algae blooms that cause skin rashes, eye irritation and stomachaches.

It was a toxic algae infestation that led officials to restrict activities on Grand Lake St. Marys in Ohio three years ago. That state lost millions of dollars in tourism revenue because of the pollution. Algae blooms were also linked to the deaths of two dogs at Salamonie Reservoir last summer.

The phosphorus legislation would have protected Indiana lakes and Indiana’s economic interests.

According to the Indiana Office of Tourism Development, the tourism industry brings in about $9 billion each year. Kharbanda said at least $5 billion of that comes from water-based tourism.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Environment

Ind. Courts - "Some Brown County Residents Protest Courthouse Remodel Bonds"

Looking at the photo accompanying this article made me realize I'd never seen (or perhaps never noticed) the Brown County Courthouse. From the story at Indiana Public Media, written by Kyle Clayton, which begins:

Some Brown County residents are banding together to protest more than $6.5 million in bonds the county commissioners gave preliminary approval to pay for the expansion of the county courthouse.

Residents are concerned about the costs and designs proposed by two architectural firms, Perdue Architectural Design Studio and Miller Architects. Petitioner Ruth Reichmann says Miller’s proposal, which was completed free of charge and is cheaper than Perdue’s, was shot down by the commissioners without good cause. So she began circulating a petition.

“So that the Brown County Citizens can decide which ones they want or that maybe adjustments can be made and maybe the price can be brought down because it seems very high.” Reichmann says.

If 100 people sign petitions by May 10th, a new set of signatures will be needed initiating what’s called a remonstrance. Those backing the bond and those against it will race for 30 days to see which camp gathers more signatures.

“It’s like a game, it’s like whoever gets the highest score wins,” County Administrator Mike Thompson says.

Thompson says Miller’s proposal isn’t as in-depth as Perdue’s and that offering the county a free proposal hoping to get the work later isn’t a good way to do business.

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Indiana Courts

Ind. Courts - Highlights of the Court of Appeals’ 2012 Report

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The Indiana Court of Appeals’ annual report for 2012 is available online.

The number of majority opinions has steadily declined more than 20% over the past five years as shown in the table.

Indiana Court of Appeals Majority Opinions, 2008 - 2012*
Year Criminal/PCR Civil Expedited/Other Total
2012 1271 594 278 2143
2011 1408 654 335 2397
2010 1411 610 583 2375
2009 1613 583 373 2569
2008 1700 716 323 2739

The decline has been across all categories of cases but particularly steep in criminal cases. Moreover, the number of majority opinions written by each judge who served the full year was fairly consistent in the range of 125 to 146. Judge Crone authored more opinions than any of his colleagues with 156. Judge John Baker authored 137 majority opinions in 2012, which is quite a change from 2008 when he wrote 242 and 2007 when he authored a whopping 313.

The court of appeals’ judges overwhelmingly issue unanimous opinions. Judge Najam wrote no concurring opinions and only one dissenting opinion, while on the high end of the spectrum Judge Riley and Judge Baker issued twelve and thirteen dissenting opinions, respectively.

The number of oral argument has been roughly the same over the five-year period with 78 in 2012; 88 in 2011; 105 in 2010; 74 in 2009; and 78 in 2008.

The percentage of cases issued as published decisions has consistently been in the low to mid-20s with the 27% rate (excluding senior judges) in 2012 as the high mark. The rate at which individual judges issue published decisions varies considerably with Judges Friedlander and Kirsch under 17% and Judge Najam just over 30% in 2012. Senior Judge Shepard issued 50% of his 14 opinions for publication; as Chief Justice, of course, 100% of his opinions were published. Unfortunately, the court of appeals does not include statistics on rulings on motions to publish filed by parties after opinions are issued. The court's website lists opinions reclassified from not-for-publication to published, which suggests about thirty motions were granted in 2012 but sheds no light on how many motions were denied.

The court granted 45.8% of the 216 petitions for permissive interlocutory appeals filed in 2012. This is similar to the 2010 and 2011 rates but significantly higher than the 27% in 2008 and 2009.

Finally, the court granted 12% of the 258 petitions for rehearing filed last year.

*The Court of Appeals report runs January to December (remember all those December 31 opinions?), while the Indiana Supreme Court runs on a July to June fiscal year.

ILB Note: To aid readers interested in finding past commentaries for the ILB written by Prof. Schumm, the ILB has created a new category (see right column or the end of the entry,) "Schumm - Commentary". Currently it only lists 2013 commentary, but I intend to add past years to the list.

Finding Prof. Schumm's many ILB contributions relating to the filling of the Supreme Court vacancy in 2010 and the two vacancies in 2012 may be facilitated by scrolling through the established categories for Vacancy on the Supreme Ct. 2010, and Vacancy on the Supreme Ct. 2012(1) and Vacancy on the Supreme Ct.2012(2).

Posted by Marcia Oddi on Friday, May 10, 2013
Posted to Ind. App.Ct. Decisions | Indiana Courts | Schumm - Commentary

Thursday, May 09, 2013

Ind. Courts - "Indiana Supreme Court hears appeal at Merrillville High School " [Updated]

A long story this evening in the Gary Post-Tribune, by Karen Caffarini, that begins:

MERRILLVILLE--Approximately 400 area students Thursday received an inside look at how the Indiana Supreme Court handles appeals cases as they watched five justices hear oral arguments at Merrillville High School.

The Lake County Bar Association hosted the Indiana Supreme Court Oral Argument Event, in which attorneys for the appellant and the state argued whether a Fort Wayne man’s constitutional rights were violated when he was arrested, and later convicted, of possession of marijuana.

See also the galley of four photos.

[Updated at 9:56 PM] Here is the NWI Times coverage of the oral argument, reported by Susan Brown. The story concludes:

Then taking questions from the audience, the justices discussed their process, with Justice Steven David describing a fluid, multilayered process involving case selection and vote-taking.

"I think it's a very good system," David said.

Several justices, including Justices Robert Rucker and Mark Massa, said among their considerations is the potential impact on millions of Indiana residents, not just the defendant.

"We wrestle with that," Rucker said.

The newest member of the court, Justice Loretta Rush, admitted to much research and note-taking in developing questioning for oral arguments.

"Oral arguments are an opportunity to explore areas where more information is needed," Dickson said.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Indiana Courts

Ind. Courts - " David Bisard to remain in jail until trial"

From John Tuohy and Kristine Guerra's report in the IndyStar:

Allen Superior Court Judge John Surbeck has revoked the bond of suspended IMPD officer David Bisard after an hourlong hearing today.

“I am prepared to find that in fact there is convincing evidence that the defendant committed a Class A misdemeanor which demonstrated his instability and this misconduct poses a risk of safety for another person in the community,’’ Surbeck said in issuing the ruling. “It is clear that the conduct in the April 2013 arrest does demonstrate instability and disdain for authority.’’

Bisard will be held without bond but it’s unclear where he will be detained until his trial begins in October. * * *

Bisard was transferred Monday from the Marion County Jail to the jail in Allen County, where he is scheduled to be tried Oct. 15 on charges of operating a vehicle while intoxicated, reckless homicide and criminal recklessness in connection with a fatal accident in August, 2010.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Ind. Trial Ct. Decisions

Law - "The Minnesota Legislature is considering a bill to legalize marriage for same-sex couples"

Dale Carpenter, who teaches constitutional law, including religious freedom, at the University of Minnesota Law School, and whose posts often appear on The Volokh Conspiracy, writes today about the bill in a very long article at TwinCities.com It begins:

As the Minnesota Legislature is considering a bill to legalize marriage for same-sex couples, some opponents are claiming that the law would erode religious liberty. These fears are misplaced.

The marriage bill creates no legal ground to sue beyond what Minnesota has already furnished for a generation. In fact, the bill grants unprecedented legal protection to religious freedom in a state that already protects it more than most. As a decade of same-sex marriage around the country has demonstrated, the bill will not open the floodgates of litigation against people of faith.

Religious concerns about extending marriage to same-sex couples generally take two forms. The first is the fear that a religion itself will be forced to recognize or solemnize marriages it does not accept. The second is that the marriage bill will force business owners and religiously affiliated organizations (like schools and charitable groups) to serve gay couples. Neither of these objections is warranted.

More from the article:
It's true that the bill does not specifically permit government employees (like licensing clerks) to refuse to provide public services to gay couples. There's a good reason for this. Government and its services, funded by us all, must be open to us all on an impartial basis. Government employees should not be able to pick and choose which citizens they will and will not serve. They work for all of us, not just for those of us they approve.

The bill also does not grant an exemption to for-profit businesses, like caterers or banquet-hall owners, who provide services to the public. But that is nothing new in Minnesota, which for decades has forbidden large and small businesses to discriminate against people on account of their race, sex, religion, or sexual orientation. If opponents of same-sex marriage don't want Minnesota law to forbid such discrimination, they should propose an amendment limiting the state's human rights act, not oppose gay marriage. The marriage bill should not be the occasion to roll back the historic commitment of this state to equality under the law and in daily life.

That said, there's nothing in the marriage bill that authorizes any lawsuit against caterers, florists, or photographers who refuse their services for same-sex weddings. The frustrated gay couple will have to find some pre-existing basis in state law for a lawsuit against these businesses, such as a claim that they are discriminating on the basis of sexual orientation. They can't claim simply that the business is discriminating against their marriage, because there is no such claim in state law. Additionally, the vast majority of gay couples have no interest in doing business with someone who objects to their marriage, so rather than filing a lawsuit they find another service provider who will gladly take their money.

The few celebrated cases from other states that are often cited as examples of litigation-gone-wild actually had nothing to do with the legalization of gay marriage. In one oft-cited case, a New Mexico photographer was sued when she refused to take professional photos at a lesbian couple's commitment ceremony. But this claim, which is still under appellate review, was based on that state's longstanding human rights act, not based on same-sex marriage, which New Mexico hasn't even legalized.

In another case, Catholic Charities in Massachusetts chose to stop providing adoption services rather than to place children with married gay couples. But the requirement that they provide such services came from an antidiscrimination law that had been on the books for 15 years before the state allowed same-sex marriage. Minnesota's marriage bill, going beyond what most other states have done, specifically leaves untouched previously legal and non-publicly-funded "adoption services" offered by religious organizations.

Extensive experience with actual gay marriage -- now approved in 11 states, including Iowa -- has discredited hysterical fears about the effects of legalizing it. Over the past 10 years, tens of thousands of gay couples have been married, civilly unionized, or domestically partnered. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxes, chosen professional photographers, hired clergy and non-clergy alike to officiate, gotten licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, claimed health benefits for their spouses, sought employment to support their families, trudged through relationship counseling, and done every other ridiculously expensive and anxiety-laden thing married people do.

The opportunity has certainly been there for massive legal conflict. Yet the legal conflicts between gay couples and religious objectors -- all under pre-existing anti-discrimination laws -- have been very few. I can find no reported decisions, for example, where a small landlord refused to rent to an unmarried gay couple, much less a married one.

And the number of these conflicts in which the state's formal legal recognition of the gay couple determined the outcome is ... zero. The number of cases in which a gay couple's marriage provided them a cause of action they wouldn't have previously had is ... zero. The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-exemption claim is ... zero. In short, after 10 years of same-sex marriage in the U.S., there is not a single case whose outcome turned on whether the complaining person or couple was married.

ILB: Here, from the Minnesota Legislative Reference Library, is a lengthy set of resources on "Same-Sex Marriage in Minnesota".

According to the StarTribune:

The Minnesota House will hold a final floor vote Thursday afternoon on a measure to legalize same-sex marriage, after weeks of behind-the-scenes lobbying at the Capitol. Floor debate started just after noon.

The proposal would go to the Senate for a final vote Monday after House passage. DFL Gov. Mark Dayton said he would sign the measure, making Minnesota the 12th state to legalize same-sex marriage.

If approved, gay and lesbian couples in Minnesota could get married starting Aug. 1.

HF 1054 appears to be the bill the Minnesota House is considering on third reading this afternoon.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to General Law Related

Law - "ALEC's Latest "Transparency' Move: Asserting Immunity From Freedom of Information Laws"

Brendan Fischer writes at The Center for Media and Democracy's PRWatch in a story that begins:

Shortly after the American Legislative Exchange Council (ALEC) told the press "we really believe in transparency," new documents show the organization directing legislators to hide ALEC meeting agendas and model legislation from the public. This effort to circumvent state freedom of information laws is being called "shocking" and "disturbing" by transparency advocates.

A disclaimer published at the bottom of meeting agendas and model bills from ALEC's most recent meeting in Oklahoma City, obtained by the Center for Media and Democracy, reads: "Because this is an internal ALEC document, ALEC believes it is not subject to disclosure under any state Freedom of Information or Public Records Act."

"If you receive a request for disclosure of this or any other ALEC document under your state's Freedom of Information or Public Records Act, please contact Michael Bowman, Senior Director, Policy and Strategic Initiatives," it says.

For a private organization to assert that its interactions with state legislators are not subject to public records laws is "shocking," says Mark Caramanica, Freedom of Information Director at the Reporters Committee for Freedom of the Press.

"Private individuals or organizations cannot simply label a document private and say it is private on their own. It is not their decision to make."

Legislators attend ALEC meetings in their official capacity, and ALEC has claimed that they do so "on behalf of and for the benefit of the state." Under almost every state’s public records law, all documents related to official business are considered public unless there is a specific exemption, defined and passed by the legislature, and embodied in the statutes. "ALEC cannot create exemptions of [its] own imagination," Caramanica told the Center for Media and Democracy.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to General Law Related

Courts - "Righthaven’s Collective Copyright Enforcement Project Loses in the Ninth Circuit"

See The Volokh Conspiracy post.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court issues disciplinary order against candidate in Franklin Co. Circuit Court race

Updating this ILB entry from Oct. 27, 2012, which was headed "The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Tammy R. Davis, a candidate for judge of the Franklin Circuit Court," the Supreme Court has today released this disciplinary order, In re Tammy R. Davis, Candidate for Judge of the Franklin Circuit Court. The order was filed May 7th. The upshot is that Davis is barred from seeking judicial office for five years and is publicly reprimanded.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Gov. Mike Pence vetoes professional licensing bills"

Mary Beth Schneider has the story in the Indianapolis Star. It begins:

Gov. Mike Pence issued the first vetoes of his administration Wednesday, rejecting two bills that required licensing for several professions.

Arguing that licensing requirements hamper job growth, Pence vetoed House Enrolled Act 1242, which required licenses for diabetes educators, and Senate Enrolled Act 273, which created licenses for anesthesiologist assistants and dietitians, along with state certification for music therapists.

Both easily passed the legislature. HEA 1242, sponsored by Rep. David Frizzell, R-Indianapolis, passed the House 73-12 and the Senate 46-3. SEA 273, authored by Sen. Patricia Miller, R-Indianapolis, passed the Senate 50-0 and the House 82-4.

“Lower taxes and less regulation, including fewer licensing requirements, will mean more jobs for Hoosiers,” Pence said in a statement. “I am vetoing these licensing bills because I believe they create barriers to the marketplace for Hoosiers and restrict competition.” * * *

And he appeared to chide the legislature for not passing one of his agenda items: Senate Bill 520, which would have created the “ERASER Committee” to review occupational licensing and establish a procedure to automatically sunset unnecessary licenses, permits and certifications.

“I will continue to work with members of the General Assembly as we pursue efforts to reduce red tape and reform licensing in Indiana, because less regulation will mean more jobs for Hoosiers,” he said.

The legislature can still enact the bills. Lawmakers have scheduled June 12 as the day to deal with any vetoes, and it takes only a simple majority of lawmakers in each chamber — 51 in the 100-member House and 26 in the 50-member Senate — to override a veto. * * *

Gov. Mitch Daniels, in his first year as governor in 2005, vetoed three bills. In his eight years in office, he vetoed 13 bills, with only one overridden.

Here is the Governor's 2013 Bill Watch page. Here is his press release on the two vetoes.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Indiana Law

Ind. Gov't. - "Blogger wrong about eliminating full-time IU staff"

That is the headline to this story today in the $$$ Bloomington Herald-Times, reported by Dann Denny. The subhead: "IU spokesman Land says some hours will be cut to avoid insurance costs, but viral Web post was ‘inaccurate’". The long story begins:

Indiana University spokesman Mark Land is calling a blogger’s accusation that Indiana University is circumventing the provisions of the Patient Protection and Affordable Care Act by eliminating full-time hourly employees from its workforce “both incomplete and inaccurate.”

The assertions by the blogger, Dan Bimrose, drew a wider audience this week when they were republished by the Huffington Post.

“The writer indicated that IU will no longer have full-time hourly employees as result of a new definition of full-time worker soon to be enacted under the provisions of the ACA,” he told The Herald-Times Wednesday afternoon. “That is categorically false. Full-time employees who are paid by the hour already are entitled to medical benefits and will continue to receive them. In fact, IU will insure more of these employees next fiscal year due to the change in the definition of full-time employment.”

Land, who wrote a forceful denial of the blogger’s claims in his own blog that now appears on the Huffington Post, said the blogger based his conclusions on a portion of an administrative presentation to the IU Board of Trustees that outlined the implications of the ACA “on IU’s medical care spending and IU’s effort to balance its obligations to employees with those to the taxpayers of the state of Indiana, which help support the university, and to our students who expect an affordable education.”

Land said that presentation cited the ACA’s definition of a full-time employee as one who works at least 30 hours a week, which represents a change from the previous definition of full time as 40 hours per week. He said this new definition has prompted IU to limit part-time hourly employees to fewer than 30 hours per week beginning with its new fiscal year July 1.

“This is much different than eliminating full-time hourly employees as has been written,” Land said. “At IU, this group of (part-time hourly) employees is typically student and seasonal workers, none of whom currently qualify for medical coverage because they don’t regularly work 40 hours a week. Additionally, in the case of students, most likely already have medical insurance through their parents.”

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Indiana Government

Ind. Gov't. - Still more on: New IU general counsel pulls Kinsey Institute app

Updating this ILB entry from Sept. 9, 2012, Shari Rudavsky reports today in the Indianapolis Star in a story that begins:

The Kinsey Reporter, a free app developed by the Indiana University School of Informatics and Computing and the Kinsey Institute to allow people to report data about sexual behaviors, is back.

Last fall university officials decided to delay the launch of the project, worried about potential violations of privacy and protection of data.

Today the university announced it had re-released the app.

The project allows “citizen scientists” to share information on experiences, such as sexual activity, flirting, fetishes and birth control use. This information will be available to the public and researchers at the Kinsey Reporter website.

The monthslong review of the project led to only one change, according to an IU news release. Original plans had called for a time-delay when reports came from low-population areas to protect privacy.

Under the new version, the system will delay posting these reports until enough other reports from that same area come in to ensure no one’s privacy is compromised, IU officials said.

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Bonnie Moryl, as Surviving Spouse and Personal Rep. of the Estate of Richard A. Moryl, Deceased v. Carey B. Ransone, M.D.; La Porte Hospital; Dawn Forney, RN; Wanda Wakeman, RN BSBA; et al., a 10-page opinion [emphasis added by ILB], Judge Baker writes:

In this case of first impression, the appellant-plaintiff Bonnie Moryl, the widow of the deceased, Richard A. Moryl (Richard), appeals the trial court’s grant of summary judgment in favor of the appellees-defendants, LaPorte Hospital, Dawn Forney, RN, Wanda Wakeman, RN, B. Prast, RN, and Dr. Carey B. Ransone (collectively, the appellees), when it determined as a matter of law that Moryl’s proposed complaint for medical malpractice was not timely filed with the Indiana Department of Insurance (Department).

Moryl claims that because the Indiana Rules of Trial Procedure and the Indiana Rules of Appellate Procedure consider a pleading filed on the date that it was deposited with a third-party carrier, such as Fed Express (FedEx), the Medical Malpractice Act should also permit a proposed complaint to be considered filed with the Department on the day it was sent via FedEx Priority Overnight. Moryl suggests that the best “common sense resolution of this matter is for us to construe the Medical Malpractice statute to include the use of third party private carriers for filing.”

Notwithstanding Moryl’s contentions, Trial Rule 5(F) makes it clear that mailing by registered or certified mail is not the same as depositing it with a third-party commercial carrier such as FedEx. And Indiana Code section 34-18-7-3(b) provides that a proposed complaint is considered filed when it is delivered to the Department or mailed by registered or certified mail to the Department.

In this case, the trial court properly found that Moryl’s complaint sent to the Department by FedEx was filed one day late under the two-year statute of limitations. Thus, the trial court properly entered summary judgment in the appellees’ favor. * * *

We note that our Supreme Court has made it clear that the trial rules do not govern the operations of administrative agencies, or even conditions precedent to the judicial review of administrative decisions:

Each of the several administrative agencies is a creature of the Legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.
Clary v. Nat’l Friction Prods., 259 Ind. 581, 584-85, 290 N.E.2d 53, 55 (1972).

In light of the above, while Trial Rule 5 and Appellate Rule 23 permit pleadings, motions, and other papers that are sent by a third-party carrier to be deemed filed on the date of deposit with the carrier, these rules to not apply to proposed complaints filed with the Department, an administrative agency. And because Indiana Code section 34-18-7-3(b) expressly states that registered and certified mail are the only two types of mailings by which a proposed complaint will be considered filed as of the date of mailing, a third-party carrier is not included, because that method is not expressly named in the statute.

In G.H. v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
G.H. appeals the trial court’s true finding for what would be Class D felony criminal gang activity if committed by an adult. He argues that there is insufficient evidence to support his adjudication. We conclude that the State failed to prove that G.H. had a specific intent to further a gang’s criminal goals, which is necessary to sustain an adjudication for criminal gang activity. We reverse.
NFP civil opinions today (3):

In Re: the Paternity of M.R.; A.K. v. J.R. (NFP)

Ronald L. Hoffman and Christy G. Hoffman, and Johnson Sunnybrook Farm, LLC, an Indiana Limited Liability Co. v. Lake Co. Indiana, a unit of government, its County Council, et al. (NFP)

LP XXIV, LLC d/b/a Las Palmas Apartment Homes and SLS Management, Inc. v. American Family Mutual Insurance Company and Carl Long (NFP)

NFP criminal opinions today (7):

Bradley Ryan v. State of Indiana (NFP)

Eldon E. Harmon v. State of Indiana (NFP)

James Q. Bryant v. State of Indiana (NFP)

Carmell D. Nelson v. State of Indiana (NFP)

Mark A. Centofante v. State of Indiana (NFP)

Demetrick Cameron v. State of Indiana (NFP)

Deborah Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 09, 2013
Posted to Ind. App.Ct. Decisions

Wednesday, May 08, 2013

Ind. Courts - The Supreme Court happens to be in Merrillville tonight [Updated]

When I read the story just posted about the failure of talks between Lake Superior judges and magistrates to reach a deal over the juvenile court vacancy vacated by Judge Bonaventura, I wondered at the quote from Chief Justice Dickson, who appeared by the story to be present, on site. Well, it turns out he is in Lake County, as are all the justices, getting ready for an oral argument tomorrow in Merrillville - see "Upcoming Oral Arguments" - here.

See photo here via ISBA, accompanying its tweet:

"On eve of oral arguments @ Merrillville H.S., IN Supreme Court gathers with Lake Co. Bar & Women Lawyers Assn. CJ tickles the ivories along with Valpo atty Scott Wagenblast's South Shore Brass Band! He plays a mean piano!
[Updated at 8:12 AM, 5/9/13] From NWI Times tweet:
Marisa Kwiatkowski ‏@nwi_MarisaK 7h
@indianalawblog Thanks for your interest. Yes, I (and others from The Times) met with Chief Justice Dickson and Justice Massa.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Indiana Courts

Ind. Courts - "Lake Superior judges, magistrates fail to reach deal over Juvenile Court vacancy"

Marisa Kwiatkowski reported in the NWI Times late this afternoon:

Lake Juvenile Court Magistrates Glenn Commons, Jeffery Miller and Charlotte Peller sued in March to stop Lake Superior Court Judge Nicholas Schiralli from taking the position vacated by former Juvenile Judge Mary Beth Bonaventura.

Bonaventura left the bench to become the new director of the Indiana Department of Child Services.

Schiralli, who did not go through merit selection, had planned to transfer into the Lake Juvenile Court vacancy based on seniority — even though his move would violate a state law prohibiting the transfer of a judge who has not gone through merit selection.

Through merit selection, a Judicial Nominating Commission interviews applicants and chooses three finalists to present to the governor, who has final choice.

The magistrates argued Schiralli's move would harm their opportunity for career advancement and open the juvenile court to other legal challenges. The Lake Superior Court judges countered that the state law preventing Schiralli's transfer was "a legislative overreach," court records show.

The Superior Court judges voted to ignore the law.

After the magistrates' petition was filed, the Indiana Supreme Court named Senior Judge Thomas Webber Sr. to serve as the temporary Juvenile Court judge pending the outcome of the case. The high court also appointed retired Indiana Supreme Court Justice Frank Sullivan Jr. to act as mediator in the lawsuit.

Indiana Supreme Court Chief Justice Brent Dickson told The Times on Wednesday the justices appointed Sullivan because he was respected on both sides and was familiar with the "intricacies" of Lake County.

The state's high court hoped the Lake County-based judicial officers would reach an agreement through mediation without either side being proclaimed right or wrong in a way that also would "enhance public confidence" in the judiciary, he added.

"That didn't work, but that was the hope," Dickson said.

Because the Superior Court judges and Juvenile Court magistrates could not reach an agreement, Dickson said the Supreme Court will decided the case. He said he expects the court to issue an opinion within 60 days.

"We want to put this to rest so the position can be filled," he said.

ILB: Here is a long list of earlier coverage of this dispute.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Indiana Courts

Ind. Decisions - Two Indiana decisions today from the 7th Circuit

In UNITED STATES OF AMERICA v. TYRONE REYNOLDS (ND Ind., Lozano), a 13-page opinion, Judge Williams writes:

Tyrone Reynolds and seven confederates held a drug dealer captive for more than 12 hours while they robbed his home, transported him across state lines, and demanded that he give them money and drugs. Reynolds was later caught, convicted by a jury of kidnapping, 18 U.S.C. § 1201(a)(1), among other offenses, and sentenced to life imprisonment. On appeal Reynolds argues that the district court clearly erred in its guidelines calculations by finding that he was a “leader or organizer” of the criminal activity, see U.S.S.G. § 3B1.1(a), and that he and the other assailants made a “ransom demand” during the crime, see id. § 2A4.1(b)(1). We uphold the leadership adjustment due to the overwhelming evidence in support of it. However, because we hold that the “ransom demand” provision of § 2A4.1(b)(1) requires, at a minimum, that the ransom demand be “made” to a third party, and because nothing in the record suggests such a demand was made, we vacate Reynolds’s sentence and remand for resentencing.
In TERRI BASDEN v. PROFESSIONAL TRANSPORTATION, INC. (SD Ind., Lawrence), a 9-page opinion, Judge Coleman (Hon. Sharon ΠJohnson Coleman of the ND Ill., sitting by designation) writes:
Terri Basden filed a complaint alleging that she was terminated from her employment with Professional Transportation, Inc. (PTI) in violation of the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). The district court found that Basden had failed to present evidence sufficient to establish a prima facie right to the protection of either statute and granted summary judgment in favor of PTI. We affirm. * * *

However, the failure to engage in the interactive process required by the ADA is not an independent basis for liability under the statute, and that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual. Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000). Even if an employer fails to engage in the required process, that failure need not be considered if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996). Because there was no evidence permitting a conclusion that Basden was a qualified individual for ADA purposes, the district court correctly entered summary judgment for PTI on her ADA claim despite any shortcomings in PTI’s response to her request.

Basden also sought relief from PTI for interference with her FMLA rights. It is undisputed that Basden was terminated before she had been employed by PTI for 12 months. According to the statute’s explicit terms, employees without 12 months of tenure are ineligible for its protection. 29 U.S.C. § 2611(2)(A)(I). Basden argues that the statute should not be interpreted to preclude relief for non-eligible employees who request leave for future periods. However, her request, made before she was eligible for FMLA protection, sought leave that would have commenced before her eligibility began. Basden cites no authority for extending the statute’s protections to her situation, and arguments for such extension have been squarely rejected elsewhere.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - "Recent amendments to Federal Rules"

See this SCOTUSblog post on some of the changes of interest.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al, a 28-page opinion with a separate concurring opinion, Judge Riley writes:

[The Smiths appeal the trial court’s summary judgment in favor of Delta Tau Delta] with respect to claims arising from the wrongful death of Johnny Dupree Smith (Johnny), a Wabash College freshman, following acute alcohol intoxication. We affirm in part, reverse in part, and remand for further proceedings.

The Smiths raise two issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion by denying the Smiths’ motion to strike certain designated evidence purporting to contain unsworn, unverified, and uncertified statements; and (2) Whether the trial court erred in granting Delta Tau Delta’s motion for summary judgment, finding that there is no genuine issue of material fact that an agency relationship existed between the national fraternity and its local chapter and that the national fraternity did not assume a duty to protect its freshmen pledges. * * *

Based on the foregoing, we hold that the trial court abused its discretion by admitting certain paragraphs of Russell’s affidavit and by admitting two unsworn, unverified, and uncertified statements. Additionally, we find that the trial court erred in granting Delta Tau Delta’s motion for summary judgment as there is a genuine issue of material fact that (1) an agency relationship existed between the national fraternity and its local chapter and (2) the national fraternity assumed a duty to protect its freshmen pledges.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

BARNES, J. concurs
BAKER, J. concurs in part and in result with separate opinion [which is on p. 28, and begins] While I concur in the result reached by the majority and in most of its analysis, I write separately to detach myself from a conclusion reached by the majority pertaining to the motion to strike.

In Michael E. Lyons, Denita L. Lyons, as Co-Personal Representatives of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp. d/b/a Richmond High School; Joe Spicer; et al, a 33-page, 2-1 opinion, Judge Bradford writes:
Appellees/Plaintiffs Michael and Denita Lyons appeal the trial court’s grant of summary judgment in favor of Appellees/Defendants Richmond Community School Corporation and certain school administrators (“RCSC”). The Lyonses’ daughter, Megan, was a Richmond High School student with Down syndrome, a medical condition that rendered her “Severely Mentally Disabled.” Tragically, Megan choked on a sandwich in the school cafeteria, was deprived of oxygen for fifteen to twenty minutes, and ultimately died at a hospital two days later. The Lyonses sued RCSC under the Indiana Tort Claims Act (“ITCA”) and 42 U.S.C. § 1983, alleging RCSC’s acts or omissions caused Megan’s death. The trial court granted RCSC summary judgment on the issues of compliance with the ITCA’s notice provision and contributory negligence as well as on the Lyonses’ § 1983 claims.

We conclude that summary judgment was inappropriate on the Lyonses’ ITCA claims by virtue of the discovery rule: when the Lyonses’ cause of action accrued remains a question of fact for the jury to decide. The issue of contributory negligence also should not have been judged as a matter of law. We agree with the trial court, however, that there remains no genuine issue of material fact as to the Lyonses’ claims of fraudulent concealment and substantial compliance with the ITCA’s notice provision; summary judgment would have been proper on these grounds. We further conclude that summary judgment was appropriate on the Lyonses’ § 1983 claims: RCSC did not owe Megan a duty of protection under the special relationship or state-created danger doctrine, and it did not deprive the Lyonses of their due process right of judicial access.

The trial court also granted a motion to quash the Lyonses’ third-party discovery requests against Appellee/Non-Party-Respondent Indiana Insurance, RCSC’s insurer, and subsequently denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant. We conclude that the Lyonses cannot assert a third-party spoliation claim against Indiana Insurance, and therefore, that the trial court did not abuse its discretion in denying the Lyonses’ motions. The judgment of the trial court is affirmed in part and reversed in part. * * *

BAKER, J., concurs.
ROBB, C.J., concurs in part, concurs in result in part, and dissents with opinion [which begins on p. 27 of 33, with] I concur with the majority’s decision that the trial court improperly granted summary judgment on the Lyonses’ ITCA claims because a genuine issue of material fact remains as to when the Lyonses could have learned of RCSC’s alleged acts or omissions and whether that was within 180 days of filing their notice of claim. I, however, would also hold that the Lyonses have made a case for tolling the time period in which they could file their notice of claim because of fraudulent concealment. I also respectfully dissent from the majority’s decision that that trial court properly granted summary judgment to RCSC on the Lyonses’ Section 1983 claims. As to all other aspects of the majority opinion, I concur.

NFP civil opinions today (3):

Robert Graber, Jr. and Barbara Graber v. Allen County, Indiana Building Department (NFP)

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

John A. Schmidt v. Karen Elaine Schmidt Denton (NFP)

NFP criminal opinions today (3):

Robert Bowen v. State of Indiana (NFP)

Michael Edward Groves v. State of Indiana (NFP)

Ashley N. Lawrence v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Observations on some Supreme Court disciplinary rulings

This ILB has received this note from a member of the Indiana bar currently serving as a federal law clerk:

I've noticed an increasing trend of Justice David voting (in dissent) to disbar attorneys in disciplinary hearings. Four times in the past nine months (In re Dempsey; In re Denney; In re Engebretsen; In re Julian), Justice David has gone beyond the recommendation of the hearing officer and sought disbarment of the attorney.

In his earlier dissents, Justice David typically went just a bit farther than the rest of the Court. He wanted a suspension to be without automatic reinstatement (In re Barkes; In re Buckley); wanted JLAP counseling as a condition of reinstatement (In re Reiber); or simply stated that the imposed discipline was insufficient (In re Royer; In re Chovanec; In re Goldberg; In re Relphorde).

Not only is Justice David unlikely to show leniency to disciplined attorneys, but his proposed punishments are growing harsher. It's an area of the Supreme Court's jurisdiction that gets very little attention, but I wonder if Justice David will be able to cobble together a coalition of Justices who will share his approach.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Hospital Billing Varies Wildly, Government Data Shows"

Updating this Feb. 22, 2013 ILB entry, headed "Law - TIME report "reveals the shocking degree to which we enrich pharmaceutical companies, medical device makers, hospital administrators, laboratories and medical suppliers with lavish profits at the expense of patients", particularly this quote:

Brill explains that hospitals arbitrarily set prices based on inconsistent and subjective lists known as ‘chargemasters.’ These prices vary from hospital to hospital and are often marked up as much as 10,000% the actual cost of an item.”
Today the NY Times has a long story by Barry Meier, Jo Craven McGinty and Julie Creswell, headed "Hospital Billing Varies Wildly, Government Data Shows." It begins:
A hospital in Livingston, N.J., charged $70,712 on average to implant a pacemaker, while a hospital in nearby Rahway, N.J., charged $101,945.

In Saint Augustine, Fla., one hospital typically billed nearly $40,000 to remove a gallbladder using minimally invasive surgery, while one in Orange Park, Fla., charged $91,000.

In one hospital in Dallas, the average bill for treating simple pneumonia was $14,610, while another there charged over $38,000.

Data being released for the first time by the government on Wednesday shows that hospitals charge Medicare wildly differing amounts — sometimes 10 to 20 times what Medicare typically reimburses — for the same procedure, raising questions about how hospitals determine prices and why they differ so widely.

The data for 3,300 hospitals, released by the federal Center for Medicare and Medicaid Services, shows wide variations not only regionally but among hospitals in the same area or city.

Later in the story:
Medicare does not actually pay the amount a hospital charges but instead uses a system of standardized payments to reimburse hospitals for treating specific conditions. Private insurers do not pay the full charge either, but negotiate payments with hospitals for specific treatments. Since many patients are covered by Medicare or have private insurance, they are not directly affected by what hospitals charge.

Experts say it is likely that the people who can afford it least — those with little or no insurance — are getting hit with extremely high hospitals bills that may bear little connection to the cost of treatment.

“If you’re uninsured, they’re going to ask you to pay,” said Gerard Anderson, the director of the Johns Hopkins Center for Hospital Finance and Management.

Readers may recall the Dec.19, 2012 Indiana Supreme Court decision in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. See this ILB post headed: "Supreme Court allows hospital to charge uninsured patients more"

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to General Law Related

Ind. Courts - Transfer Grants in Criminal Cases, A Summer Break, and Brewington Speculation

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Transfer Grants in Criminal Cases

Someone recently asked me if the Indiana Supreme Court was granting transfer more frequently in petitions filed by the State in criminal cases. The three most recent grants in criminal cases have been petitions from the State: Delagrange (the infamous shoe camera case), Sanders (propriety of a traffic stop for tinted windows), and Smith (the principal who did a short investigation before reporting a rape allegation to DCS). But so far in 2013, transfer grants have been nearly equal: the State has had eight petitions granted while criminal defendants have had seven granted.*

A grant of transfer is more often than not bad news for the party who prevailed in the court of appeals. But sometimes the supreme court reaches the same result through different reasoning or even adopts the court of appeals opinion in full, as in a 2012 case involving jury instructions. For example, of the eight petitions from the State granted this year, the supreme court has issued opinions in two cases. In K.W. v. State the court reached the same result as the court of appeals, while in Peterink v. State it disagreed with the court of appeals on the misdemeanor sentencing issue decided the same day in Jennings. The other cases awaiting opinions on petitions from the State involve challenges to the appropriateness of a sentence(Merida and Lynch) and ineffective assistance of counsel regarding a jury instruction (McWhorter).

Summer Oral Argument Break?

Although the Indiana Supreme Court does not have an official term like the U.S. Supreme Court, its annual report counts cases on a July-June fiscal year, which usually means several opinions are issued in June each year. The court has also generally taken a break from oral arguments in July and August. A quick look at the court’s convenient, searchable calendar shows that since 2005 only five oral arguments have been held in July (two in 2008, one in 2009, and two in 2010) and only six in August (one in 2007, four in 2008, and one in 2010). No oral arguments have been scheduled in either month since 2010. The court’s calendar currently shows six cases scheduled for June of 2013 and none scheduled beyond that. The recent transfer grants (two from April 19 and three from March 28) have not yet been scheduled for argument.


Which brings me to the subject of the Brewington case discussed here. The case transmitted on transfer on March 26, and a decision is usually made in criminal cases within two to three weeks. The recent transfer lists include rulings on cases transmitted several days after Brewington, including the Smith case that was transmitted on April 8.

The case has almost certainly been discussed at conference, and an order denying transfer has not been issued. That suggests the court may be scheduling the case for oral argument to decide whether to grant transfer, as it has done in several criminal cases in recent months. The argument would not likely occur until September (or even later) if the court continues its historic scheduling practices. Alternatively, the justice could be divided and one or more could be working on a draft opinion or dissent from the denial of transfer, although this seems less likely.
* These statistics include juvenile delinquency cases.

Posted by Marcia Oddi on Wednesday, May 08, 2013
Posted to Indiana Courts | Schumm - Commentary

Tuesday, May 07, 2013

Ind. Courts - "One-third of former super lawyer's assets missing; feds want bond revoked"

Updating a long list of earlier ILB entries, Tim Evans reported today for the IndyStar that:

Federal authorities have asked a judge to revoke the bond of former Indianapolis “Super Lawyer” William F. Conour after he allegedly disposed of assets without court approval.

Conour, once one of the state’s most successful and respected construction accident attorneys, is facing federal charges that he misused millions of dollars from client settlements.

A new asset inventory ordered last month by U.S. District Judge Richard L. Young revealed that the FBI was unable to locate many of Conour’s possessions, which had been inventoried last year and designated to go into a restitution pool for his victims.

The updated 16-page inventory — which covered a horse stable in Sheridan, Conour’s 25-room mansion in Carmel and his former law office — revealed nearly one-third of the items included in the original inventory are now gone.

Items that could not longer be accounted for included a tractor and horse trailer, large- screen televisions, dozens of artworks and collectibles, and autographed sports memorabilia. Court records indicate Conour told authorities some of the missing items had been seized by creditors.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Indiana Courts

Ind. Courts - More on "Judge Fee Pitches Renovated Courtroom To Commissioners"

Updating this ILB entry from April 3, WLKI 100.3 reported Monday, May 6, in an item headed "Commissioners Put Off Court Renovation Until Bond Payoff":

(ANGOLA) - Steuben County Commissioners decided on Monday to put off renovation work on the second floor of the Steuben County Courthouse until an energy savings bond is retired in 2016. Superior Court Judge William Fee approached Commissioners and the County Council recently and asked them to get the ball rolling into enlarging and renovating the court room. The judge made the request after space was at a premium during the March murder trial of Zao Burrell. But Commissioners were hesitant to take on additional debt after the County Council recently decided not to finance anything else until the energy savings bond is retired. Commission Chair Ron Smith suggested an input meeting be held with the county judges. Commissioner Loretta Smart felt while they need to do something, she did not want a "band-aid" solution. In a reponse to the judge, Commissioners agreed that any short term work under the A.D.A. compliance act would be considered.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Indiana Courts

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

In JOSE J. LOERA, JR. v. UNITED STATES OF AMERICA (ND Ind., Simon), a 14-page opinion, Judge Posner writes:

The petitioner, Jose Loera, asks us to set aside his conviction on the ground that his trial lawyer had been ineffective. See 28 U.S.C. § 2255. Loera had been indicted back in 2005 on drug charges. In response to a motion to suppress, the judge had forbidden the government to offer evidence of what the petitioner had told DEA agents after he allegedly asked for a lawyer. After repeated continuances the judge dismissed the indictment (though without prejudice), on the ground that the delay resulting from the continuances had violated the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. Loera was reindicted and again sought to suppress his statements to the agents. But this time the judge—the same judge—denied the motion on the ground that actually Loera had not told the DEA agents he wanted a lawyer. So the statements were admitted into evidence. The jury convicted Loera and the judge sentenced him to 240 months in prison. We affirmed the conviction and sentence. 565 F.3d 406 (7th Cir. 2009).

Loera faults his lawyer first for having failed to argue to the district judge that the denial of the motion to suppress in the first round of the criminal proceeding should be binding in the second round—the trial—by virtue of the doctrine of collateral estoppel; and second for having failed to argue in that first round that the delay in the proceeding had violated not only the Speedy Trial Act but also the speedy trial clause of the Sixth Amendment; if so, the dismissal of that proceeding should have been with prejudice, Strunk v. United States, 412 U.S. 434, 439-40 (1973); 3B Charles Alan Wright & Peter J. Henning, Federal Practice & Procedure § 803, p. 358 (4th ed. 2013), in which event Loera could not be tried subsequently for the same offense. * * *

With no prejudice from delay within the meaning given “prejudice” by Doggett and other cases (no prejudice in part because of the defendant’s acquiescence in the delay, see Doggett v. United States, supra, 505 U.S. at 658), and no indication of any invidious or otherwise improper ground of or motive for protracted detention, there is no justification for vacating a conviction on constitutional speedy trial grounds, which has the effect of acquittal. The Speedy Trial Act, it is true, imposes much tighter (though still porous) deadlines. But it offsets them by allowing the judge to impose for their violation only the mild sanction of dismissal without prejudice, thus permitting retrial. Given the availability of the Act, there shouldn’t be many cases in which federal defendants successfully invoke the speedy trial clause. The constitutional clause plays a greater role in state prosecutions, to which the Act is inapplicable.

Loera has not shown that his lawyer was ineffective. The denial of his section 2255 motion is therefore AFFIRMED.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court suspends attorney for three years

In In the Matter of Gordon B. DEMPSEY, a 3-page order which was filed May 2 and posted this week, the Supreme Court writes in part:

In the course of these proceedings, Respondent initiated three appeals in the foreclosure action and a consolidated appeal in the bankruptcy case. The appellate courts at various points found that Respondent attempted to relitigate issues that were res judicata (even after being warned not to do so), that he committed egregious violations of the Appellate Rules, that he misstated facts and ignored court rulings, that he had become obstreperous, indicating a lack of good faith, and that he made baseless, inflammatory accusations against Seller husband and his non-party daughter (alleging mental disabilities), against Sellers' attorneys, and against the courts.

In 2009, Respondent handed out flyers entitled "Stop the Plunder in Bankruptcy Court" in downtown Indianapolis. The flyer, which was based upon Respondent's Chapter 13 bankruptcy case, called Sellers (without naming them) "slumlords," called their attorneys (naming the firm) "bloodsucking shylocks" who were part of a "heavily jewish (sic) . . . reorganization cartel," and made free-ranging disparaging remarks about Jews generally, from the fall of Jericho, through 1925 Berlin, to their alleged involvement in the 9/11 attacks. * * *

Discipline: Respondent's history of unethical litigation practices, his continued attacks on those involved in the bankruptcy and foreclosure actions and in this disciplinary proceeding, the virulent bigotry he has manifested in these proceedings, and his lack of any insight into his misconduct suggest that disbarment may be justified. Nevertheless, a majority of this Court has decided not to close the door permanently on the possibility of Respondent's professional rehabilitation. The Court will therefore impose a substantial suspension, after which Respondent may choose to undergo a rigorous reinstatement process to prove his understanding of his ethical duties and remorse 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 three years, without automatic reinstatement, beginning June 12, 2013. * * *

All Justices concur, except David, J., who votes to disbar Respondent.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Think Tank Software Development Corp. d/b/a Think Tank Networking Technologies Group, et al. v. Chester, Inc., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, et al., a 17-page opinion, Sr. Judge Sharpnack writes:

In this interlocutory appeal, Think Tank Software Development Corporation d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems (“Think Tank”) seeks review of the trial court’s grant of a motion to exclude testimony from its expert witness on economics and business valuation. * * *

Think Tank raises two issues, which we restate as:
I. Whether the trial court abused its discretion by granting Chester’s motion to exclude Think Tank’s expert witness testimony.
II. Whether this Court’s prior decision in this case requires clarification on the subject of damages. * * *

For the reasons stated above, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

In In the Matter of the Termination of the Parent-Child Relationship of: A.D.S. & A.S. and L.S. v. The Indiana Department of Child Services , a 14-page opinion, Judges Mathias concludes:
We conclude there was sufficient evidence that there is a reasonable probability that the reasons for the Children’s placement outside the home will not be remedied and conclude that the totality of the evidence supports the trial court’s conclusion that termination of Mother’s parental rights is in the Children’s best interest. Affirmed.
In Ryan Westlake v. State of Indiana , an 11-page opinion, Judge Crone writes:
Ryan Westlake was charged under two cause numbers with various offenses stemming from his sexual relationships with two teenage girls. Westlake entered a plea agreement whereby he pled guilty to class A felony child molesting and class B felony sexual misconduct with a minor in exchange for the dismissal of four other charges. Sentencing was left to the trial court’s discretion. The trial court identified one aggravating factor, Westlake’s criminal and juvenile record, and one mitigating factor, his mental health issues. Finding the factors to be of equal weight, the trial court imposed concurrent advisory sentences.

Westlake appeals his sentence, arguing that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor and that his sentence is inappropriate. The State argues that Westlake waived his right to appeal his sentence by signing a document titled “Advisement of Rights and Waiver” that was submitted to the court along with his plea agreement. We conclude that the waiver clearly forecloses Westlake’s right to challenge his sentence pursuant to Indiana Appellate Rule 7(B), but does not prohibit him from raising the issue of whether the trial court abused its discretion. However, because Westlake had already confessed to having sexual intercourse with the victims and received a substantial benefit in the form of dismissed charges, he has not persuaded us that the trial court abused its discretion by failing to identify his guilty plea as a mitigating factor. Therefore, we affirm.

NFP civil opinions today (2):

Patti S. Maxfield and Ronald G. Maxfield v. Women's Health Partnership, P.C. and Corporate Cleaning Systems, Inc. (NFP)

Amy (Winton) Otis v. Marketing Three LLC (NFP)

NFP criminal opinions today (3):

Tracy Lawrence v. State of Indiana (NFP)

Brice Dutrow v. State of Indiana (NFP)

Jonathan Reiner v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Ind. App.Ct. Decisions

Law - "Are digitization and budget cuts compromising history?"

Here is a long, important article by Hollee Schwartz Temple in the May issue of the ABA Journal. Long-time ILB readers will recognize many of the issues raised in this article. Some quotes:

Across the country, law libraries are trying to adapt to the digital revolution and preserve historic and precedential documents. But budget cuts have hit hard at academic law libraries, which historically have hosted some of the most robust legal collections. And the pressures are creating concerns that the public will lose access to essential legal documents. * * *

While librarians see an enormous upside in increasing public access to material that once was buried in less romantic storage facilities, they are concerned about the accuracy and preservation of legal information that is “born digital,” according to Michelle Wu, director of the Georgetown Law Library.

Wu says the concerns facing modern law libraries are incredibly complex, noting that it’s difficult to keep up with the sheer volume of legal information being generated. She worries about legal information being kept behind subscription walls, and wants to feel confident that libraries have the capacity to capture new information and ensure access to it in perpetuity.

“So much is now represented by what’s online,” Wu says. “The concern is that materials that are not online will disappear from history and won’t be part of our societal knowledge.”

In some states, important legal information is no longer published in books at all. According to the American Association of Law Libraries, numerous states have eliminated some print publications in favor of exclusively online access, including Alaska, Arkansas, Florida, Georgia, Indiana, Michigan, Ohio, South Carolina, Tennessee and Utah. Further, the AALL’s most recent study of state legal resources revealed that 24 states had designated at least one online primary resource as official. * * *

Librarians and lawyers are joining forces to guarantee the accuracy of that information, most recently by urging states to pass the Uniform Electronic Legal Material Act. The UELMA ensures that users can verify the trustworthiness of digital material and suggests a framework for states to provide permanent access.

The legislation, approved by the Uniform Law Commission in 2011, requires that official electronic legal material be authenticated using a methodology to determine that digital material hasn’t been altered. It also requires that legal materials be preserved in either electronic or print form and be accessible to the public on a permanent basis.

According to Liz Medaglia, a Washington, D.C., lawyer who chairs the ABA’s Standing Committee on the Law Library of Congress—which has worked on the UELMA and related issues—the goal behind the legislation is to harmonize standards for acceptance of electronic materials across jurisdictional boundaries, and to help lawyers feel confident that the digital material they rely upon is current.

“Preservation and authentication of digital materials is very important to our committee,” Medaglia says. “With the increasing number of materials that are born digital and never get into hard copy, how do you make sure that what you have is accurate, current and preserved? We think the UELMA can help.” * * *

Dupont adds that municipal codes, regulations and ordinances are particularly tough to find. Because these types of resources are not consulted regularly by many attorneys—therefore commercial publishers lack interest—local laws have become “the most neglected part of the literature.”

“It might seem esoteric, but for the one lawyer who needs it in that one case, it’s essential,” Dupont says. “And the lawyer then has to do detective work and hope some county official kept it and didn’t throw it out because he thought it was getting old.”

Although most state governments are convinced of the long-term savings and increased public access that will eventually result from digitization, the transition is fraught with challenges. Bill Raftery, a knowledge and information services analyst with the National Center for State Courts in Williamsburg, Va., notes that while the two primary issues—ensuring perpetual access to new electronic records and digitizing existing ones—seem relatively straightforward, uniformity is an ongoing problem.

While the federal PACER service provides an effective system for determining whether a party is involved in federal litigation, states have taken a more patchwork approach to both building e-filing systems and digitizing legal materials. The scope of trial-level legal documents available online varies widely. “Research is really hard to come by for state court information,” says Raftery. “In most states there is still not a one-stop shop for finding out if a case even exists.”

Raftery says state court research has become increasingly complex because lawyers must learn to navigate different systems depending on the county of filing, and the systems of two neighboring counties are often incompatible. He notes that Kansas and California invested heavily in case management systems, but individual counties haven’t necessarily adopted the technology. * * *

The ideal format for digitized information also complicates matters, says Jean Wenger, president of the American Association of Law Libraries. While PDFs seem to be the trend, librarians are concerned about whether the format will stand the test of time.

“We know what happened to the eight-track tape and floppy disk,” Wenger says.

Wenger is also concerned about access to justice and says it is a myth that lawyers and citizens can easily find all the legal information they need on the Internet.

In her work at the Cook County Law Library in Chicago, Wenger estimates that half of her patron base is composed of pro se litigants who have no legal research training. About a third of Wenger’s patrons are looking for a prior version of legislation, which is often not digitally available. That’s when the librarian’s value takes center stage, she says.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to General Law Related

Courts - "Wrongfully Convicted Often Find Their Record, Unexpunged, Haunts Them"

Some quotes from this long, May 5th story in the NY Times by Jack Healy:

Across much of the country, sealing or clearing a criminal record after a wrongful conviction is a tangled and expensive process, advocates and former prisoners say. It can take years of appeals to courts and pleas to governors to wipe the slate clean. Even then, many felony convictions remain on federal databases and pop up during background checks or at traffic stops.

Aside from the practical challenges — a criminal record can impede big things like finding housing and employment, and smaller things like getting a hunting license — people who have been exonerated say they feel unfairly marked, branded with a scarlet letter from a justice system that should not have locked them up in the first place. * * *

Clearing a criminal record can take years and cost thousands of dollars in legal fees, and differs widely state to state. Many require that defendants return to court to prove their innocence, a higher hurdle than showing that charges were dismissed or a conviction was overturned. In some states, a governor’s pardon is needed. It can be a complex process, which advocates say is made even more difficult by a lack of support services for the exonerated.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Courts in general

Ind. Decisions - "Supreme Court to hear Smith case"

Updating yesterday's ILB entry on the Supreme Court's grant of transfer, a story in the Muncie Star-Press today begins:

The Indiana Supreme Court announced Monday it would review an appellate court’s decision to overturn a former Central High School principal’s misdemeanor conviction.

In March 2012, ex-Central principal Chris Smith was found guilty of failing to immediately report child abuse or neglect.

Local prosecutors alleged Smith violated state law in November 2010 when he failed to immediately notify authorities — including off-duty police officers working as school security guards — of a 16-year-old student’s claim she had been raped in a school bathroom. Another student would eventually plead guilty to assaulting her.

Delaware Circuit Court 5 Judge Thomas Cannon Jr. found Smith guilty of the misdemeanor after a bench trial. The judge later placed Smith on probation for 120 days and ordered him to perform 100 hours of community service.

In January, the Indiana Court of Appeals overturned Smith’s conviction in a 2-1 vote. The office of Indiana Attorney General Greg Zoeller later asked the Supreme Court to reinstate the conviction.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A Toolkit for Helping Children"

From the new issue of Indiana Court Times, a long article by Elana Salzman - some quotes from the start:

Juvenile courts handling termination of parental rights (TPR) and Children in Need of Services (CHINS) cases are faced daily with the dilemma of how to improve court procedures and provide more stability for children going through the system. Judges want to ensure that these cases are moving toward permanency efficiently, without sacrificing due process protections and the welfare and safety of the children. Knowing whether these goals are being met requires review and analysis of empirical data and improved data collection of the critical events that take place in these cases. * * *

In 2008, the Office of Juvenile Justice and Delinquency Prevention, the National Center on State Courts, the National Council of Juvenile and Family Court Judges, and the ABA Center on Children and the Law developed a set of tools that measure safety, permanency, due process and timeliness in child dependency cases. These measures are collectively known as the Court Performance Measures in Child Abuse and Neglect Cases, and are often referred to as the Toolkit.

In 2009, Allen County courts undertook a pilot project, funded by a Court Improvement Project grant from the Indiana Supreme Court, to report on many of these measures. The results of the pilot project can be found in Allen Superior Court Family Relations Division’s publication, Report of Allen County’s Court Performance Measures, which is available on the state judiciary website.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Indiana Courts

Ind. Gov't. - "NWI Times reporter wins national public service award"

Remember the "Children in Peril" series in the NWI Times, reported by Marisa Kwiatkowski? From an April 23rd NWI Times story:

Times investigative reporter Marisa Kwiatkowski has won a national public service award for her ongoing series detailing Indiana's fragmented system of providing services to children in need of state services.

The Sigma Delta Chi public service award, announced Tuesday by the national chapter of the Society of Professional Journalists, was awarded for Kwiatkowski's series titled "Children in Peril."

Kwiatkowski won in the 50,000-100,000 daily circulation category.

Her series revealed families throughout Indiana struggling to find services for children with severe mental illnesses or developmental disabilities and a fragmented state system that was failing children.

It revealed cases in which children ended up in the juvenile justice system rather than receiving needed mental health services. It also revealed parents who were forced to plead guilty to neglect charges to obtain services for their children — even though they had been diligent in the care they provided.

In response to The Times series, state officials pledged about $25 million in funding to help fix the problem, and dialogue has begun statewide among lawmakers and social service agencies.

See this ILB post from May 20, 2012 where Ms. Kwiatkowski reports on the CHINS problems.

See also this May 2nd ILB report on SEA 164, which the Governor received on May 4th.

Posted by Marcia Oddi on Tuesday, May 07, 2013
Posted to Indiana Government

Monday, May 06, 2013

Courts - Volokh on PBS’s Constitution USA Series

Check it out here. A quote:

PBS’s Constitution USA with Peter Sagal premieres tomorrow, Tuesday, May 7, and runs each Tuesday until May 28; it sounds like a very interesting project. The show will include, among many other things, interviews with Akhil Amar, Jody Freeman, Rick Garnett, P.J. O’Rourke, Jack Rakove, Judge J. Harvie Wiklinson, and me.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Courts in general

Ind. Law - Governor receives a slew of bills from the General Assembly

The Governor's 2013 Bill Watch page now contains a slew of new Enrolled Acts that weren't there when I checked earlier today. I believe I can now safely say that the Governor has received all the bills - see this post from May 3rd that had to be corrected. This new list appears to contain all the "big bills" such as the budget (HEA 1001) and the criminal law revision (HEA 1006). And the notorious SEA 621, re Marion County government.

The table shows that all these enrolled acts were "presented to the Governor" on May 4th. He has 7 days after presentment to act on the bills; his last day to act is Saturday, May 11th.

The Bill Watch table shows that he has already acted on one of them, HEA 1006, plus another received on April 30th, HEA 1482, expungement. From the Governor's press release:

Governor Mike Pence today signed HEA 1006, which reforms Indiana's criminal code and HEA 1482, which outlines conditions for giving certain offenders a fresh start.

"Indiana should be the worst place in America to commit a serious crime and the best place, once you've done your time, to get a second chance," said Pence. "The legislation that I sign today will reform and strengthen Indiana's criminal code by focusing resources on the most serious offenses, and the related legislation will give a second chance to those who strive to re-enter society and become productive, law-abiding citizens."

HEA 1006 strengthens the penalties for B and C felonies, computer crimes, sex crimes and hazing. It also allows a judge to report suspected child abuse or neglect directly to the local Department of Child Services after they have reported the suspicion to the child abuse hotline.

HEA 1482 helps offenders rebuild their lives by allowing them to have their records expunged after a sustained period without re-offending, which will strengthen their opportunities for gainful employment.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Indiana Law

Courts - Iowa Supreme Court: Birth certificate should name both same-sex parents

From the May 3rd DesMoines Register, a long story by Jeff Eckhoof that begins:

Married same-sex couples have the same rights as married heterosexuals to have both parents listed on the birth certificates of their newborn children, the Iowa Supreme Court ruled this morning.

Justices ruled 6-0 to require that the Iowa Department of Public Health begin listing both married parents on a newborn child’s birth certificate, despite state concerns that biological-based parenting rights would be cast aside if a Des Moines lesbian was allowed to establish paternity of her child.

Here is the opinion in HEATHER MARTIN GARTNER and MELISSA GARTNER, Individually and as Next Friends of MACKENZIE JEAN GARTNER, a Minor Child vs. IOWA DEPARTMENT OF PUBLIC HEALTH.

The 29-page, 6-0 opinion is written by Justice David Wiggins. "All justices concur except Mansfield and Waterman, JJ., who specially concur and Zager, J., who takes no part." For more on Justice Wiggins, see this Nov. 7, 2012 ILB post. Also see this earlier, Oct. 23, 2012 ILB entry which, inter alia, quoted an AP story that reported:

Wiggins’ critics are asking voters to remove him Nov. 6, claiming he and his colleagues abused their power when they struck down Iowa’s ban on gay marriage in a 7-0 ruling in 2009. They are hoping for a repeat of 2010 — when voters took the unprecedented step of firing three of the justices — but acknowledge the state’s legal establishment and liberal groups are mounting a stronger campaign for Wiggins this year.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Courts in general

Law - "Once Home to Kagan and Warren, HLS Faculty Still Only 20 Percent Female"

From the Harvard Crimson, this long story by Dev A. Patel. It begins:

Just 20 percent of U.S. senators are female. Women make up a mere 21.6 percent of the lawyers who serve as general counsels to Fortune 500 companies. Only three of the nine Supreme Court Justices are women.

But these figures are still higher than the proportion of women within the ranks of the Harvard Law School faculty.

At Elizabeth Warren and Elena Kagan’s former place of work, women constitute fewer than a fifth of all professors and assistant professors of law—a disparity that Harvard Law School Dean Martha L. Minow called “absolutely inadequate.” With only 17 women among 92 tenure-track faculty members, according to the Law School’s online directory as of May 6, the gender imbalance of Harvard Law School’s faculty is comparable to that of other elite law schools, yet still among the most severe of the approximately 200 law schools nationwide.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to General Law Related

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

For publication opinions today (1):

In Love Jeet Kaur v. State of Indiana , a 9-page opinion, Judge Bradford writes:

To combat what it perceives to be the growing problem of synthetic drugs such as “Spice,” “Bath Salt,” and “Black Mamba,” the General Assembly has enacted a statutory scheme that defines such drugs and criminalizes dealing or possessing them (referred to collectively as “the Synthetic Drug Law”). One feature of the Synthetic Drug Law is that the Indiana Board of Pharmacy (“the Board”) is given the power to declare new compounds illegal synthetic drugs by emergency rule. Appellant/Defendant Love Jeet Kaur has been charged with dealing and possession of a synthetic drug, AM-2201. In this interlocutory appeal, Kaur contends that the trial court erred in denying her motion to dismiss the charges against her because (1) the charging information was not specific enough to put her on notice of the crime with which she was being charged, (2) the Synthetic Drug Law is unconstitutionally vague, and (3) the Synthetic Drug Law represents an unconstitutional delegation of legislative authority. The State counters that the charging information along with the probable cause affidavit are sufficient to put Kaur on notice regarding the criminal charges against her. Responding to the vagueness argument, the State counters that the Synthetic Drug Law is not vague as applied to Kaur and is not inherently vague in any event. As for the delegation argument, the State argues that Kaur’s charges, because they are not based on a synthetic drug designated by the Board, are not the result of any delegation and also that the delegation itself was proper. Because we conclude that the charging information and probable cause affidavit were sufficient to place Kaur on notice, the Synthetic Drug Law is not vague as applied to Kaur, and the Synthetic Drug Law does not represent an unconstitutional delegation of legislative power as applied to Kaur, we affirm the trial court’s denial of Kaur’s motion to dismiss. * * *

Kaur contends that the General Assembly’s delegation to the Board of the power to designate new synthetic drugs violates the Distribution of Powers Clause.

We need not reach the merits of Kaur’s argument on this point. The State argues that because AM-2201 was specifically made illegal by the General Assembly, not through the rulemaking power of the Board, the Distribution of Powers Clause is not implicated in this case. We agree.

NFP civil opinions today (2):

Property-Owners Insurance Company v. Grandview One (NFP)

Carol Raper, Executor of the Estate of Timothy Raper v. Jill A. Haber, Darrell Havey, and Jane Harvey (NFP)

NFP criminal opinions today (1):

Bryan Delaney v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisoins - Two opinions today from the Tax Court

In Indiana MHC, LLC v. Scott County Assessor, a 6-page opinion, Judge Wentworth writes:

Indiana MHC, LLC appeals from the Indiana Board of Tax Review’s final determination that Indiana MHC failed to prove its 2007 real property assessment was incorrect. The Court affirms the Indiana Board’s final determination. * * *

On appeal, Indiana MHC argues that the Indiana Board’s final determination is arbitrary and capricious because it disregarded the “substantial evidence” it presented demonstrating that Amberly Pointe’s 2007 assessment should have been much lower: it had an occupancy rate of only 40% and its green space was “worthless.” (Pet’r Br. at 1, 5-8.) Indiana MHC is incorrect. * * *

Based on Indiana MHC’s failure to examine, analyze and reconcile its 40% occupancy rate in light of the much higher occupancy rates prevalent in the marketplace, the Indiana Board did not err in finding that Indiana MHC’s income capitalization approach lacked probative value. Because Indiana MHC’s income capitalization approach lacked probative value, the Indiana Board was correct in determining that Indiana MHC failed to prove its 2007 real property assessment was incorrect.[4]
[4] Given that Indiana MHC’s income capitalization approach to value fails to comport with generally accepted appraisal principles and therefore lacks probative value, its argument that Amberly Pointe’s green space is worthless also fails.

In Indianapolis Public Transportation Corporation v. Indiana Dept. of Local Government Finance, a 10-page opinion, Judge Wentworth writes:
Indianapolis Public Transportation Corporation (IndyGo) appeals the Department of Local Government Finance’s (DLGF) final determination denying its excess property tax levy request for the 2007 budget year. On appeal, IndyGo argues that the DLGF’s final determination must be reversed because it is unlawful, not supported by the evidence, and an abuse of discretion. The Court disagrees. * * *

As the party challenging the DLGF’s final determination, IndyGo bears the burden of demonstrating that it is either contrary to law or an abuse of discretion. See Scopelite, 939 N.E.2d at 1145. To meet this burden, IndyGo must show that the DLGF’s final determination “violates a[] statute, constitutional provision, legal principle, or rule of substantive or procedural law” or “is clearly against the logic and effect of the facts and circumstances” of the case. See Shelbyville MHPI, LLC v. Thurston, 978 N.E.2d 527, 529 (Ind. Tax Ct. 2013) (citation omitted); Hubler Realty Co. v. Hendricks Cnty. Assessor, 938 N.E.2d 311, 315 n.5 (Ind. Tax Ct. 2010) (citation omitted). Here, IndyGo has done neither. Rather, it has merely invited the Court to reweigh the evidence in its favor or to hold that the DLGF should have provided more, different, or better evidence to support its collections number. But see Grant Cnty. Assessor v. Kerasotes Showplace Theatres, LLC, 955 N.E.2d 876, 880 (Ind. Tax Ct. 2011) (explaining that in reviewing administrative agency final determinations, this Court will not reweigh the evidence presented during the administrative proceedings nor will it assess the credibility of any witnesses who testified at the administrative hearing). Accordingly, the Court will not overturn the DLGF’s final determination on this basis. * * *

A final determination is not supported by the evidence if, in reviewing that evidence, the Court determines that a reasonable mind would not accept the evidence as adequate to support the conclusion at issue. Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990).

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending May 3, 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, May 3, 2013. It is two pages (and 21 cases) long. Two cases were granted transfer:

[More] See also this AP story.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "Problem-solving courts law allows more to use for minor crimes "

Matt Mikus reports briefly in the Gary Post-Tribune:

House Enrolled Act 1016 would allow those who are either sentenced to a misdemeanor or currently under the jurisdiction of either the Department of Correction or the local sheriff’s office to have the alternative sentence.

Problem solving courts are programs started in the 1990s to help promote solutions for issues like drug addictions and mental illness.

Current law only allows someone who is placed on probation to participate into a problem-solving court.

The law will also allow courts to provide rehabilitative services, like classes or programs, directly to participants.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Indiana Courts

Ind. Law - "State budget contains offer to settle Gary schools lawsuit"

Dan Carden reports today in the NWI Times:

INDIANAPOLIS | The state budget approved April 27 by the Indiana General Assembly contains, as expected, appropriations for every state agency to carry out its work over the next two years.

Also included in the 279-page budget in House Bill 1001 are dozens of other sections setting state policy, adding new regulations, correcting previously approved legislation and, in at least one instance, trying to resolve a lawsuit.

Gary Community School Corp. sued the State Board of Education last year, challenging the estimated student count used to distribute funding to Roosevelt College and Career Academy, currently operated by EdisonLearning, Inc. on a turnaround basis.

A Marion County judge ruled in December the Indiana Department of Education, under Republican former Superintendent Tony Bennett, improperly paid Edison for the 2012-13 school year using Roosevelt's 2011-12 student count -- which was higher than the current number of students attending Roosevelt.

The judge ordered the state repay Gary Community School Corp. approximately $2 million wrongly taken from its funding and given to the turnaround operator.

Indianapolis Public Schools were awarded some $6 million for excessive deductions made by the state from their funding and given to four Indianapolis turnaround school operators.

The state has indicated it plans to appeal the ruling.

But state Sen. Luke Kenley, R-Noblesville, chairman of the Senate Appropriations Committee, isn't waiting for the court to act.

Seeking to cut out the middleman and save some money, Kenley inserted a settlement offer in the state budget: If Gary and Indianapolis schools agree to drop their claims against the state and the turnaround operators, the State Board of Education is immediately authorized to give them $7.4 million, about 90 percent of the money awarded in the lawsuit.

The story also, in a side-bar, quotes the text of the provision, SECTION 257 of HEA 1001. You can find it starting on p. 260 of the 305-page Enrolled Act.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Indiana Law

Ind. Law - "Should medical marijuana be legal in Indiana? " [Updated]

Here is an editorial that was in the May 5th South Bend Tribune. It begins:

Indiana's General Assembly in the session just concluded bucked the national trend on marijuana law.

Within criminal sentencing reforms, legislators stiffened penalties for people caught with small quantities of "pot."

[Updated at 11:06] A knowledgable reader writes:
Just an FYI in case you wanted to correct it or comment on it, the editorial in the South Bend Tribune stating that penalties were "stiffened" for possession of small amounts of marijuana this legislative session is just dead wrong. Under HEA 1006, set to go into effect in July of 2014, marijuana penalties for possession were relaxed, not stiffened. First time possession went from an A misdemeanor to a B misdemeanor. Possession with a prior conviction is going from a D felony to an A misdemeanor. And to get to the felony level at all for possession, you must now have both a prior conviction AND possess at least 30 grams of marijuana. Either one of those factors alone would elevate possession to a felony under current law. See HEA 1006, p. 384.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Indiana Law

Courts - "Wigged Out: Hong Kong's Lawyers Bristle Over Horsehair Headpieces"

This story in the April 30th WSJ ($$$ by Te-Ping Chen and Allison Murrow, includes a great photo of bewigged barristers (solicitors are not permitted wigs). It begins:

In hypermodern Hong Kong, a debate over 17th-century fashion is dividing the city's legal circles.

The city's lawyers are among the last in the world to wear judicial wigs, those curly, horsehair headpieces that are a legacy of more than 150 years of British colonial rule. The affection is so great that one group of lawyers that doesn't wear wigs wants the right to don them. The city's wig-wearers are resisting.

Later in the story:
The split over wigs mirrors the divide in Hong Kong's legal profession. As in the U.K. and some former British colonies, Hong Kong's lawyers are split between solicitors, who work directly with clients, and barristers, who represent those clients in court. The difference has historically been easy to spot: Barristers, like judges, work in an elaborate uniform of robes topped with hand-woven hairpieces.

For years, solicitors have been expanding their professional reach into areas traditionally considered barristers' turf. In 2010, solicitors in Hong Kong gained the right to apply for a special status that would allow them to represent their clients in higher courts. But still, barristers are reluctant to embrace more curly-haired colleagues.

"Solicitors should not wear wigs. If we have two professions, we have to represent their demarcation by something obvious, like a wig," says Mr. Lai. "People like the wig. Some may say it's ridiculous, but others see it as an icon of a people who—under the wig—are thinking in a logical, authoritative way."

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Courts in general

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

From Sunday, May 5, 2013:

From Saturday, May 4, 2013:

Posted by Marcia Oddi on Monday, May 06, 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 5/6/13):

Thursday, May 9th

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

Thursday, May 16th

Webcasts of Supreme Court oral arguments are available here.

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

Wednesday, May 8th

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

Monday, May 13th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, May 06, 2013
Posted to Upcoming Oral Arguments

Sunday, May 05, 2013

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

Updating this April 30th ILB entry, here are some additional stories:

"As Indiana gasification plant stalls, so does CO2 pipeline" by Christa Marshall, for E&E Publishing. Some quotes from the beginning of the long story:

A major “clean” coal project that was once viewed as a keystone for cleaning up the Midwest’s greenhouse gas emissions appears near collapse. * * *

The $2.8 billion project’s suspension also stalls a first-of-its-kind CO2 pipeline from Denbury Resources that was considered a potential emissions game changer because it would have provided a link for additional, emissions-heavy Midwestern projects to carry captured carbon dioxide to enhanced oil recovery operations in the Gulf Coast.

Indiana Gasification, a subsidiary of Leucadia Corp., planned to carry captured carbon dioxide through the Midwest-Gulf Coast line, which Denbury explored in 2009 via a feasibility study, but had not yet built.

The CO2 pipeline “is not looking like a viable project at this point,” Denbury Resources spokesman Ernesto Alegria said Wednesday. The Indiana Gasification plant was the last remaining potential source of carbon dioxide for the proposed pipeline, Alegria said, and without it, there simply is no incentive to move forward with the greenhouse gas conduit.

“You have to have enough CO2 to make a project,” he said.

5/3/13 "Stepping off the gas", an editorial in the Fort Wayne Journal Gazette.

5/4/13 "Developers, lawmakers looks to Supreme Court for Rockport decision ", from Eric Bradner of the Evansville Courier Journal. Some quotes from the long story:

Now that lawmakers have approved tough new regulatory oversight of the proposed $2.8 billion Rockport coal-to-gas plant, all eyes are on how the Indiana Supreme Court will handle the ongoing legal battle over the project.

Developers of the plant were dealt a tough blow by the General Assembly and acknowledged that the chances of their project going forward are now about 5 percent. They are looking to thread a tough needle now in court. * * *

The question is whether lawmakers left any room for the Supreme Court to find a way to strike the 37 words and yet green-light the contract in a way that doesn’t set into motion the new regulatory review. * * *

Opponents of the project which includes Vectren Corp., the Indiana Manufacturers Association, the Indiana Chamber of Commerce and several consumer advocacy and environmental organizations are seeking a broader win.

They are asking the Supreme Court to also determine whether consumers should be guaranteed savings during the course of the 30-year contract, rather than just at its end, as well as whether the contract actually provides for a solid guarantee of those savings.

There is another key question related to the Supreme Court’s consideration of the Rockport contract: Whether one justice will recuse himself.

Justice Mark Massa, who was appointed by former Gov. Mitch Daniels, previously served as Daniels’ general counsel and worked in the governor’s office when the Rockport project was in its early stages.

Lubbers, the Rockport project manager, is Massa’s friend he actually hired Massa from the Evansville Press to work in former Gov. Robert D. Orr’s administration and spoke at the justice’s investiture ceremony.

A cadre of opponents of the project said last week that Massa should not be involved in the court’s decision on Rockport.

Posted by Marcia Oddi on Sunday, May 05, 2013
Posted to Indiana Government

Environment - "Weed control treatment begins at LaPorte's Pine Lake"

Matt Fritz reported in the LaPorte Herald Argus on May 2:

La PORTE — The battle to control the onslaught of a fish-strangling weed in La Porte starts today.

That's when workers of Aquatic Control, an aquatic weed control company out of Seymour, will start treating Pine Lake for Eurasian Milfoil, an invasive species of plant spreading across the area's bodies of water.

The treatment is the latest development in the city's invasive weed issue, which members of the La Porte Area Lake Association say threatens the lake-based economies of the area.

In a previous interview, association President Don Bowman said the weed wraps around propellers, tangles paddles and has been washing ashore with fish caught up in its tendrils. Ducks have also been sighted walking on top of it.

The association's efforts have helped the city secure a grant amounting to more than $65,000 to clean up the weeds. Hand-sized yellow signs have been placed around residences by the lakes to alert them to the treatment. * * *

Bowman said the association is still raising money to treat the lakes in the coming years, hoping to preserve the economy that's dependent on water recreation. He said it usually takes a few years of treatment, with each subsequent year cheaper than the last. But he said the water still needs to be monitored every year after that to make sure the weed doesn't become a problem like this again.

Posted by Marcia Oddi on Sunday, May 05, 2013
Posted to Environment

Ind. Gov't. - Otis R. Bowen dies at 95

From the AP story by Tom Davies, here in the Fort Wayne Journal Gazette:

Bowen died Saturday at the Catherine Kasper Life Center, a nursing home in Donaldson, about 25 miles south of South Bend and near Bowen's hometown of Bremen. * * *

"Governor Otis R. Bowen's contributions to the life of this state and nation are incalculable, and I mark his passing with a sense of personal loss. His story is as inspiring as it is uniquely Hoosier," said [Governor] Pence, who also expressed his sympathies to Bowen's children and grandchildren.

Bowen, known among Hoosiers for decades as "Doc," was a doctor in the northern Indiana town of Bremen when he first was elected to office in 1952 as Marshall County coroner, starting a political rise that saw him become a wildly popular Republican governor during 1973-81. * * *

Bowen made state-backed property tax relief his top campaign pledge as those taxes had more than doubled in the previous decade. Legislation passed the next year doubled the sales tax to 4 percent and dedicating the extra revenue to property tax cuts. The proposal was so hotly contested that it only passed the state Senate when Bowen's lieutenant governor, Robert D. Orr, cast a tiebreaking vote. * * *

Under an amendment to the state constitution, he was the first governor since the mid-1800s eligible to seek a second consecutive term and easily won re-election in 1976 over Indiana Secretary of State Larry Conrad.

In 1979, Bowen refused to extradite Indiana University basketball coach Bob Knight to Puerto Rico after the coach was convicted in absentia and sentenced to six months in jail for hitting a policeman during the Pan Am Games.

Republican leaders wanted Bowen to challenge Democratic Sen. Birch Bayh in 1980, but he declined as his wife, Beth, was in the midst of cancer treatment. His decision cleared the way for Dan Quayle, then a 33-year-old congressman, to win the GOP nomination and unseat Bayh.

Beth Bowen died on New Year's Day 1981 after more than 40 years of marriage and just days before her husband's second gubernatorial term ended.

Bowen was born Feb. 26, 1918, near the northern Indiana town of Rochester. He received bachelor's and medical degrees from Indiana University and joined the Army Medical Corps after completing his internship in 1943. His World War II service included going ashore with the first waves of Allied troops during the invasion of Okinawa in 1945.

He then returned to Indiana and, in 1946, started a family medical practice in Bremen, a small town about 20 miles south of South Bend, which he continued for 25 years.

Bowen once said his medical career, during which he estimated he delivered 3,000 babies, taught him "how to approach emergencies and problems with a certain amount of calmness and common sense."

Neither the AP nor the IndyStar stories currently mention Bowen's service in the Indiana House. But the IN/gov site gives a detailed bio. Some quotes about his House service:
Dr. Bowen served as county coroner before his election to the Indiana House of Representatives in 1956. He lost a race for re-election to the House by four votes in 1958 but was elected to seven consecutive House terms beginning in 1960. He became minority leader in 1965 and speaker in 1967. He served as Speaker through four legislative sessions (1967, 1969, 1971, and 1972).

After unsuccessfully seeking the Republican nomination for Governor in 1968, Dr. Bowen was elected to that office in 1972. That year voters also ratified a Constitutional amendment allowing Governors to serve successive terms. Dr. Bowen won re-election in 1976 to become the first Governor since 1851 to serve two consecutive four-year terms. His tenure in Indiana's highest public office was marked by a major tax restructuring reducing reliance on property taxes, major improvements to state park facilities, development of a statewide emergency medical services system, and adoption of a medical malpractice law that was destined to become a national model.

I first met then-Rep. Bowen in the mid-60s, when I began working for the General Assembly. He had not yet become House Speaker. But no matter what his position, Representative, Speaker, or Governor, he was always known as "Doc" Bowen.

Posted by Marcia Oddi on Sunday, May 05, 2013
Posted to Indiana Government

Ind. Decisions - More on "Court slaps down IDEM's plan to relax pollution rules at ethanol refineries"

Updating this ILB entry from May 1st, about the COA's April 30th decision in Natural Resources Defense Council v. Poet Biorefining, Mitchell Kirk reports today in the Logansport Pharos-Tribune in a story headed " The Andersons’ Clymers plant air permit questioned: Case rules IDEM wrongly reclassified ethanol plants." Some quotes:

LOGANSPORT — Management and lawyers for The Andersons’ Clymers ethanol plant are working to determine what impact the ruling of a recent Indiana Court of Appeals case regarding air pollutant emissions may have on the plant. * * *

An IDEM spokeswoman, Amy Hartsock, said the department is still conferring with attorneys as to whether or not to appeal. She did not reply to requests regarding whether or not IDEM would pursue getting EPA approval to reclassify the plants in the future.

Along with the two POET plants, four other ethanol plants in Indiana may be affected by the decision, including The Andersons’s Clymers ethanol plant south of Logansport. Each has a challenge pending with the Indiana Office of Environmental Adjudication.

Debra Crow, corporate communications manager at The Andersons, Inc., said the company is working to determine what kind of impact the decision may have on the plant.

“Keeping in mind the ruling is just three days old, the attorneys for all parties involved are still working to determine the impacts and next steps,” Crow said in an email Friday. “In the meantime, we will continue to operate our Clymers facility in concert with our existing air permit.”

Posted by Marcia Oddi on Sunday, May 05, 2013
Posted to Environment | Ind. App.Ct. Decisions

Friday, May 03, 2013

Courts - Their compensation shall not be "diminished during their continuance in office"

Article 7, Section 19 of the Indiana Constitution:

Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office.
The ILB referenced that section Jan. 9, 2013, with respect to a bill offered this past session, which "would limit the salary of state and local public officers and employees, including the judiciary, to the salary paid to the governor," observing that it would not impact current justices and judges.

In this Nov. 19, 2005 post, the ILB compared Indiana's provision with a similar, but somewhat different provision from Pennsylvania's constitution.

This Dec. 4, 2007 ILB post describes the only decision the ILB has knowledge of construing Indiana's Art. 7, Sec. 19. It is a trial court ruling. (The trial court does quote a sentence out of Board of Tr. of Pub. Emp. Ret. F. v. Hill, 472 NE 2d 204 - Ind. Supreme Court 1985 which reads "The purpose of this provision is to preserve the independence of the working judiciary" and the provision is also referenced in TIPTON COUNTY v. State ex rel. Nash, 731 NE 2d 12 - Ind: Court of Appeals 2000.)

The State Bar of Michigan blog in a post on Monday quoted a story out of Iowa re a proposed amendment:

Their amendment to House File 120, the judicial branch budget bill, would lower the salaries of the four justices on the seven-member court who were part of the unanimous Varnum v. Brein [marriage equality] decision to $25,000 – the same as a state legislator.

It’s not meant to be punitive, Alons and Shaw said Tuesday.

“We’re just holding them responsible for their decision, for going beyond their bounds,” Shaw said.

“It’s not the merits of what they said in that decision,” added Alons. He’s trying to stop “an encroaching wave” of judicial activity including decisions on nude dancing and landowner liability – decisions the Legislature also is trying to correct through legislation this session.

Posted by Marcia Oddi on Friday, May 03, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Re: The Guardianship of R.B. and S.B., minor children, M.N. and D.N. v. E.B. (NFP)

In the Matter of the Marriage of: Sarah L. Jacobson v. Matthew C. Jacobson (NFP)

NFP criminal opinions today (2):

Kevin Brodley v. State of Indiana (NFP)

Dennis C. Burgher v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "New IHSAA rule provides options for athletes schooled at home"

Nathan Baird reports the story in the Lafayette Journal Courier. A quote:

A measure passed by the IHSAA Board of Directors on Monday gives home-school students ... the option of playing sports at the public school in their district of residence — if other criteria are also met.

The student-athlete must complete the IHSAA eligibility requirements, including passing a physical and participating in the required number of practices; must have been home-schooled for the previous three consecutive years; must complete all Indiana Department of Education statewide testing; must submit grade information to the school; and must be enrolled at the school in which it is participating in athletics for a least one class per day.

IHSAA commissioner Bobby Cox said the idea originated in the legislature in 2011. Rep. Tim Wesco (R-Osceola) introduced a bill allowing home-school students to participate in athletics that did not pass the Senate, but Cox said the IHSAA continued to discuss the option with Wesco and other legislators.

Posted by Marcia Oddi on Friday, May 03, 2013
Posted to Indiana Government

Ind. Law - Enrolled acts at the Governor's office [Corrected]

Here is Governor Pence's bill watch page. As of April 30th, he had received all some of the bills passed by the General Assembly. Receipt is called "presentment". Under Article 5, section 14 of the Indiana Constitution:

(a) Every bill which shall have passed the General Assembly shall be presented to the Governor. The Governor shall have seven days after the day of presentment to act upon such bill as follows:
(1) He may sign it, in which event it shall become a law.
(2) He may veto it * * *
(3) He may refuse to sign or veto such bill in which event it shall become a law without his signature on the eighth day after presentment to the Governor.
Section 14 has much more on the veto option, but for now what is important is that the Governor has through Tuesday, May 7th, to act on the remaining bills in his possession. seven days to act on a bill after he receives it.

[Corrected at 11:32 AM] The original version, before the corrections, was wrong! Niki Kelly of the Fort Wayne Journal Gazette tweeted:

He still has more bills coming. None of the big ones from the last night are on that list yet, like the budget.
The ILB apologizes!

Posted by Marcia Oddi on Friday, May 03, 2013
Posted to Indiana Law

Thursday, May 02, 2013

Ind. Law - SEA 164 would restore power of prosecutors re CHINS 6 petitions

Updating this ILB entry from March 19th, quoting a Fort Wayne Journal Gazette editorial that began:

Over the last several years, state laws and policies have changed to increase the power of the state executive branch’s Department of Child Services at the expense of local judicial branch officials. Two northeast Indiana lawmakers are behind a bill moving through this year’s General Assembly that would give a little power back to the judicial system.

Senate Bill 164 would allow a county prosecutor to file a Child In Need of Services (CHINs) petition with a local juvenile court. The petition is the first step in bringing court review of allegations that a child is being mistreated by a parent or guardian. Just as important, it would allow the prosecutor rather than the DCS to represent the state.

and this ILB entry from May 24, 2012, headed "Mentally ill kids caught in Catch-22: Prosecutors at odds with DCS over care" and its links to other background posts --- SEA 164 is now awaiting Governor Pence's signature.

See this post
from Indiana Juvenile Justice Blog for more.

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court issues one today

In Gerald P. VanPatten v. State of Indiana, a 26-page, 5-0 opinion (including a separate, highly footnoted, 5-page concurring opinion signed by two justices), Justice David writes:

When a competent adult patient visits a doctor and provides the physician with a medical history intending to aid in their diagnosis or treatment, we presume those statements are made truthfully because adults know that lying to one’s doctor risks misdiagnosis or mistreatment. Accordingly, the Rules of Evidence generally allow medical professionals to provide substantive testimony as to the statements their patients make in the course of providing their medical history—even though that testimony would ordinarily be excluded as hearsay. When the patient is a young child, however, it is not so easy to assume that he or she recognized the merit of providing a nurse or doctor with truthful information. Because of this, we require a more robust evidentiary foundation be laid before the same type of hearsay testimony is seen as reliable enough to be admitted.

Here, a defendant was convicted on two counts of child molestation and the only substantive evidence implicating him in those crimes was a forensic nurse examiner who testified about statements made by the alleged victim—a six-year-old child who, at the time of trial, had recanted. Based on our review of the trial record, however, there was an insufficient showing that the child victim in this case was motivated to provide truthful information to her nurse. Because of this, the nurse’s testimony should not have been admitted as substantive evidence against the defendant and we therefore vacate his convictions with respect to those two counts of child molestation. * * *

Dickson, C.J., and Rucker, J., concur.

Massa, J., concurs in result with separate opinion in which Rush, J., concurs [which begins] Although I agree with the majority’s analysis of S.D.’s statements to Moss under our Rules of Evidence, I write separately because I believe the admissibility of such evidence can and should be evaluated pursuant to the Protected Person Statute, Indiana Code § 35-37-4-6 (2008 & Supp. 2012), not Rule 803(4). Child victim hearsay presents a unique evidentiary problem in prosecutions for abuse and molestation. In cases where the child is unavailable to testify, these statements are frequently the strongest evidence of a defendant’s guilt. Deborah Paruch, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85, 114–15 (2012). Even when the child does testify, the hearsay statements—made soon after the offense was committed, while it was still a fresh memory—are often more detailed and thus more convincing than live testimony. Id.

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Dekuita Steen v. State of Indiana, a 7-page opinion, Judge Vaidik writes:

Dekuita Steen appeals her Class D felony theft conviction. She contends that the trial court erred in admitting a loss-prevention officer’s testimony concerning security tags and store labels into evidence because it was inadmissible hearsay and there is insufficient evidence to sustain her conviction. Finding that the evidence was properly admitted and the evidence is sufficient, we affirm. * * *

Steen contends that the trial court erred in admitting the loss-prevention officer’s testimony concerning the security tags and store labels that were on the clothing because it was inadmissible double hearsay. * * *

Steen argues that both the security tags and store labels on the clothing and Hadley’s testimony about the tags and labels constitute hearsay. We disagree. * * *

Since the security tags and store labels inside the clothing were not out-of-court assertions admitted for the truth of the matter asserted, they did not constitute hearsay evidence.

As for Hadley’s testimony about the clothing labels, the trial court stated that Hadley was “testifying to what he observed,” and we agree. A witness may testify to what he observed as long as it is based on his personal knowledge of the matter.

In Johann Schmidt v. State of Indiana, a 12-page opinion, Judge Baker writes:
In this interlocutory appeal, appellant-defendant Johann Schmidt appeals the trial court’s denial of his motion to dismiss two counts of Theft, a class C felony, that were filed in Howard County. Schmidt contends that those charges were part of an earlier investigation in Miami County and that he was previously subjected to prosecution in Miami County on those charges. Thus, Schmidt maintains that the Howard County charges must be dismissed in accordance with the Successive Prosecution Statute, Indiana Code section 35-41-4-4.

The record shows that the Howard County prosecutor properly filed charges against Schmidt as to the offenses that were committed in that county, and the Miami County charges did not relate to the Howard County offenses. Therefore, the successive prosecution statute was not violated, and we conclude that the trial court properly denied Schmidt’s motion to dismiss.

The judgment of the trial court is affirmed and we remand this cause for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jason Tye Myers v. State of Indiana (NFP)

Dywan Masterson v. State of Indiana (NFP)

Frank T. Grannan v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Taxpayers may get hit with 'convenience fee' under new pay-to-pay law" [Updated]

Dan Carden's report yesterday in the NWI Times describing some of the enrolled acts signed in to law by the Governor late Monday begins:

Hoosiers soon may be forced to pay a "convenience fee" when using a credit or debit card to pay municipal or utility charges under a new law signed by Republican Gov. Mike Pence.

House Enrolled Act 1145, sponsored by state Rep. Mara Candelaria Reardon, D-Munster, allows local governments and government-owned utilities to charge up to $3 for the convenience of accepting credit or bank cards.

That's on top of the credit card charge those entities can already collect to recover the bank fees they pay on each transaction. The new law authorizes the extra convenience fee, even though most credit card agreements prohibit it.

ILB: That is on p. 3 of the linked HEA.

This is the first I've seen this new law, but SECTION 3 (p. 4) is somewhat troubling. It changes the current law [IC 36-5-2-10] that:

(b) An ordinance prescribing a penalty or forfeiture for a violation must, before it takes effect, be published in the manner prescribed by IC 5-3-1, unless:
And adds this exception:
... if a town publishes any of its ordinances in book or pamphlet form, no other publication is required. If an ordinance prescribing a penalty or forfeiture for a violation is published under this subsection, it takes effect two (2) weeks after the publication of the book or pamphlet.
I see no requirement that this "ordinance prescribing a penalty or forfeiture" must be promulgated in any way, by newspaper notice or on the internet. It appears that the pamphlet may simply be "filed" in a desk drawer.

[More] IC 36-5-2, discussed above, deals with the Government of Towns, and their Legislative Bodies.

Attorney Ted Waggoner writes to point to IC 36-2-4, which deals with County Government and its Legislative Procedures, which has stricter requirements for publication and promulgation, as at Sec. 8

(b) An ordinance prescribing a penalty or forfeiture for a violation must, before it takes effect, be published once each week for two (2) consecutive weeks, according to IC 5-3-1. However, if such an ordinance is adopted by the legislative body of a county subject to IC 36-2-3.5 and there is an urgent necessity requiring its immediate effectiveness, it need not be published if:
(1) the county executive proclaims the urgent necessity; and
(2) copies of the ordinance are posted in three (3) public places in each of the districts of the county before it takes effect.

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Indiana Government

Ind. Decisions - "Court of Appeals Rules in Favor of Gibson County Dairy Farm"

These are the first stories/posts the ILB has seen on Tuesday's COA decision in Parker v. Obert's Legacy Diary, LLC.

The first is from Cayla McLeland and appears in Hoosier Ag Today:

The Obert family has been farming in Gibson County since 1830. It wasn’t until 2006 that they decided to expand their dairy operation for estate planning and tax purposes. They increased the number of cows and added new facilities and equipment on farm field right next door to their historical farm, much to their longtime neighbors’ displeasure. Todd Janzen from Plews Shadley Racher & Braun was the lead attorney for Obert’s Legacy Dairy in this case.

“Their farm expanded from 100 cows to about 760 cows over the course of a couple of years as this farm was constructed. What happened was that some neighbors, who were okay with living next to a 100 cow farm, were not okay with living next to a 760 cow farm. So they filed suit alleging nuisance, saying they could smell the new, modern farm. They could smell the odor from both the silage and the manure.”

Janzen said the original case was heard in Gibson Superior Court where The Right to Farm Act was asserted as a defense. The Obert’s dairy was in a proper agricultural location and had been in existence for more than one year in that locale, so the nuisance claim didn’t hold up in court. But it wasn’t quite over.

“The trial court agreed with us and ultimately granted the Obert’s family summary judgment. The case recently went up to the Indiana Court of Appeals where the plaintiff challenged the ruling of the trial court. We were fortunate enough to get a ruling from the Indiana Court of Appeals affirming the Trial Court’s judgment in favor of Obert’s Legacy Dairy.”

Janzen says there are three key holdings from this case that farmers should know.

  1. Farmers should know that they are allowed to expand their farms without losing their protections from the Right to Farm Act. The Obert’s took a farm field that was used to support their dairy operation on the historical farm and they built a modern dairy farm. The court said that was all tied together and part of the original farm because it was all covered by the same permit from the Indiana Department of Environmental Management.
  2. You are allowed to convert cropland into some other form of farming and still keep protections from the Right to Farm Act. It doesn’t become a new farm just because you convert cornfields into a dairy.
  3. When a farmer gets sued (especially by another farmer), courts will dig in deeper. The Right to Farm Act will look at whether or not the harm is alleged is related to the residential property or agricultural production. If a farmer sues another farmer because it’s affecting his agricultural production, the Right to Farm Act may not apply. It would, however, if it were affecting their residential property.
This case could be important to farmers moving forward, Janzen says.

“This case – and there may be others like it – may have a chilling effect on people wanting to sue going forward. Maybe next time someone will think twice before filing a nuisance suit against a farm given the ruling of this case.”

Here is a similar post by Todd Janzen, who represented the Oberts. It appears at his blog, Janzen Ag Law.

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - February Indiana bar exam results

"The following is a list of those applicants who were successful on the February 2013 Indiana Bar Examination.

"Not all examinees listed are eligible for admission. A successful result on the Indiana Bar Examination is only one of the eligibility requirements to be admitted to the Bar of Indiana. Only examinees that have met all requirements are eligible for admission. No examinee is permitted to practice law until admitted."

Posted by Marcia Oddi on Thursday, May 02, 2013
Posted to Indiana Courts

Wednesday, May 01, 2013

Ind. Gov't. - Even more on: "3 Democrats file suit challenging redistricting plan approved by Mayor Ballard" [Updated]

Updating earlier ILB entries, the most recent being from March 4th, the City-County Council Democrats’ legal challenge of a redistricting plan signed by Republican Mayor Greg Ballard continued today with the filing of plaintiffs' motion for partial summary judgment.

Here is the motion, and here is the supporting memorandum, which concludes:

WHEREFORE, and for each of the foregoing reasons, this Court should enter partial summary judgment in favor of Plaintiffs, declare that the 2011 division embodied in General Ordinance No. 61, 2011 is void and invalid, and then undertake, with or without the aid of a master and after giving the parties a further opportunity to be heard, the task of dividing the County pursuant to I. C. § 36-3-4-3 (d) and in accordance with the principles laid down by our Supreme Court in Peterson I and II.
[Updated at 9:15 PM]

Here is the Mayor's motion for summary judgment and supporting memorandum.

Here is the 107-page stipulation of facts.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Indiana Government

Ind. Courts - Marion County Civil Courts Moving to Odyssey, some service delays anticipated

Per tweets of the Marion County Clerk Beth White @MCCOindy

April 30:

May 1:Here is an information sheet explaining the move and the operational impacts expected during the fist half of May.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Indiana Courts

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

Updating Monday's ILB entry, Jim Dalrymple II of The Salt Lake Tribune had a followup late last night headed "Utah prosecutor dismisses suddenly high-profile ‘ag gag’ case." Some quotes:

Prosecutor Benjamin Rasmussen said his office moved to dismiss the case after he received new evidence during a hearing April 18. At the hearing, Rasmussen explained, Meyer, 25, provided video footage showing that she was on public property during at least some of the time she was recording the slaughterhouse. Rasmussen added that other footage left Meyer’s position ambiguous but he nevertheless decided to drop the case.

"I determined that in interest of justice I wouldn’t pursue the matter," he said. * * *

The dismissal comes a day after the case shot to national attention. Monday morning, a journalist broke the story in a piece about Meyer on the website Green is the New Red. Meyer’s defense attorney, Stewart Gollan, said later in the day that he had received numerous inquires about the case from national and Utah media.

Rasmussen said the media interest did not have bearing on his decision to dismiss the case.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Courts in general

Ind. Decisions - No COA opinions today

In case you are checking, the COA posted no new opinions today, although they posted 25 yesterday, perhaps to mark the end of April.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indy's Urban Chicken Farmers"

Adding to this long ILB list of earlier "urban chicken" or "chicken underground" entries, Indianapolis Monthly has an April 2013 story by Julia Spalding and Alicia Garceau titled "Meet the Flockers: Indy's Urban Chicken Farmers" with a 20-photo slide show. My favorite is the chicken coop at #6.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Indiana Government

Ind. Gov't. - "Floyd County auditor bond is at issue"

Grace Schneider of the Louisville Courier-Journal reports. Some quotes:

Floyd County leaders say unexpected concerns have been raised recently about arranging a surety performance bond for incoming interim Floyd County Auditor Scott Clark.

The county’s insurance agent, Kevin Paul, told Floyd officials last Thursday that an insurance carrier it uses to line up surety bonds indicated it would not issue a bond for Clark, who is scheduled to take office Monday, said Theresa Plaiss, a former Floyd County auditor who now works as an administrative assistant to Floyd operations director Don Lopp.

The reasons were not specified, but “something had come to their attention” in checking into Clark. Paul called to inform officials of the development and of the possibility that he’d need to find another carrier that sells high-risk policies, Plaiss said. * * *

Bonding is required under Indiana law for many city, town and county officials who handle money and tax funds, including auditors, treasurers, controllers, clerks, recorders, sheriffs and township trustees.

The law specifies that county auditors must be covered for no less than $30,000. The idea is that counties and taxpayers are protected in the event of a theft or mishandling, said Debbie Gibson, county office supervisor with the Indiana State Board of Accounts.

“I know that there have been more difficulties” lining up performance bonds for some officials around the state, Gibson said, adding that “the bond companies are being a little more careful” about whom they underwrite now. * * *

Clark, a Republican, was chosen by Floyd’s GOP precinct committeemen during an April 17 caucus to serve the unexpired term of current Floyd Auditor Darin Coddington.

Coddington announced in March that he would resign, effective this Friday, shortly after County Council leaders revealed that the state had not certified Floyd’s 2013 budget and that the county government may face a shortfall exceeding $2 million.

ILB: Readers may remember this complicated post last month from Posey County about the failure of County Treasurer(s) to secure a $300,000 bond.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Indiana Government

Ind. Courts - Two Magistrate Positions open for Hendricks Superior Court

Here is the notice.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Indiana Courts

Courts - "Unabomber lawyer Judy Clarke is appointed to represent Boston Marathon bombing suspect"

From the ABA Journal blog, this post compiling a number of links, including this long Bloomberg story by Erik Larson headed "Unabomber Lawyer Chosen to Defend Boston Bombing Suspect." It begins:

A judge approved the appointment of the lawyer who represented convicted 1996 Olympics bomber Eric Rudolph to the legal defense team of Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombing.

U.S. Magistrate Judge Marianne Bowler in Boston yesterday approved Federal Public Defender Miriam Conrad’s request to hire Judy Clarke, who has represented some of America’s most infamous murder and terrorism convicts, including “Unabomber” Ted Kaczynski, to expand the defense’s expertise in federal death penalty cases. Prosecutors haven’t said if they’ll seek a death sentence.

“In light of the circumstances in this case, the defendant requires an attorney with more background, knowledge and experience in federal death penalty cases than that possessed by current counsel,” Bowler said. The appointment will “provide the defendant with adequate and proper representation.”

The ILB has several 2011 posts on Ms. Clarke as the public defender for the man charged in the Tucson shooting, Jared L. Loughner.

Similarly, another high-level, very specialized attorney, Kenneth Feinberg, was appointed to administer the One Boston Fund. ABA Now writes about him:

WASHINGTON, D.C., April 22, 2013 – Renowned mediator Kenneth Feinberg, who was appointed last week to design and administer The One Fund Boston to aid victims of the Boston Marathon bombings, will speak at an American Bar Association meeting April 24 in Washington, D.C.

Feinberg served as special master for numerous high-profile matters including the Sept. 11 Victim Compensation Fund of 2001, Agent Orange, asbestos and Dalkon Shield cases.

Mr. Feinberg also worked with the State of Indiana in 2011 after our State Fair stage collapse tragedy.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Courts in general

Ind. Decisions - "Court slaps down IDEM's plan to relax pollution rules at ethanol refineries"

Here is the updated version of Ryan Sabalow's IndyStar story on yesterday's Court of Appeals opinion in Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC; Poet Biorefining-Cloverdale, LLC; Central Indiana Ethanol, Inc., et al. (more here, 7th case). The long story begins:

A state appeals court on Tuesday struck down Indiana’s decision to unilaterally relax air pollution standards for ethanol plants, which sidestepped federal authority on the issue.

The court said the Indiana Department of Environmental Management improperly changed state rules without seeking approval from the U.S. Environmental Protection Agency.

The state changes came during the administration of then-Gov. Mitch Daniels, who once derided the EPA as the Employment Prevention Agency, and were challenged in court by environmental groups.

Those groups said Tuesday they were troubled that Indiana regulators fought beside industry lawyers to raise pollution limits at each of six plants by 150 tons per year.

“Clearly, IDEM was breaking federal law and siding with in-state polluters over the interests of clean air and citizens in the state,” said John Walke, clean-air director for the Natural Resources Defense Council, which challenged IDEM over its rule changes. “It is quite unfortunate that IDEM chose to fight for over five years rather than simply requiring more protective air-pollution limits on these ethanol refineries.”

The effects of the decision remain unclear. IDEM officials didn’t respond to requests for comment Tuesday, except to say they were consulting their lawyers to determine whether they will ­appeal the ruling. Whether any Indiana plants will be forced to curb emissions also is unclear.

Here is a brief AP story.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Environment | Ind. App.Ct. Decisions

Ind. Decisions - "David Bisard pleads not guilty; judge suspends his license"

Updating this ILB entry from April 28th, John Tuohy has filed this story this morning on the IndyStar site. It begins:

For 2/12 years, suspended Indianapolis Police Officer David Bisard has gone to court in a dark suit with his wife on his arm.

This morning, he wore a bright jumpsuit with shackles on his wrist.

Bisard pleaded innocent during an initial hearing in Marion County misdemeanor court on charges that he drove drunk in Lawrence last Saturday. Judge Linda E. Brown also suspended his driver’s license. She scheduled his next hearing for June 30.

It was the first time Bisard appeared in court while in custody. Before last weekend, the 39-year-old canine unit officer had been free on bond since August 2010, when he was arrested for striking motorcyclist Eric Wells with his squad car, killing him.

That trial is pending and is scheduled to be held in Allen County in October.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Muncie car dealer cited for wetland violations

Seth Slabaugh reports in the Muncie Star-Press in a long story, with photo, that begins:

YORKTOWN — The Indiana Department of Environmental Management claims local car dealer Sam Pierce illegally filled in wetlands during the clearing of a woods south of Yorktown.

The agency takes destruction of wetlands seriously, because they are home to threatened and endangered plants and animals; rest stops for migratory birds; provide areas for hunting, fishing, bird watching and wildlife photography; soak up flood waters and filter sediment and nutrients.

IDEM issued Pierce an informal violation letter on March 1 after conducting two inspections, both based on complaints.

The letter indicates Pierce and his contractor continued to destroy wetlands after being warned against doing so.

Pierce’s contractor, Todd Brown, used a National Wetland Inventory Map as a guide to avoid wetlands during the tree clearing.

But on Jan. 22, an IDEM inspector pointed out to Brown other areas to avoid because they contained wetlands not delineated on the map, the agency asserts.

“Your contractor was advised to avoid any clearing in those areas and consult with you in order to get a wetland delineation performed,” Mary Hollingsworth, chief of the enforcement branch of IDEM’S office of water quality, told Pierce in the letter. “With a wetland delineation, you could then either apply for an isolated wetland permit or avoid any additional wetlands identified on the property.”

IDEM says it also contacted Pierce by phone and email to notify him that there were likely additional wetlands on the property, thus requiring an expert to gather field information about the topography, soils and vegetation.

At the time of the Jan. 22 inspection, there were no violations.

“However, after another complaint investigation, the IDEM representative observed (on Feb. 11) that the parcel had been cleared, including the areas observed to be isolated wetlands,” Hollingsworth wrote.

After receiving the letter, which threatened further enforcement action that could include a civil penalty, “Mr. Pierce ... hired an environmental consultant to address the problems,” said IDEM spokesman Barry Sneed. “It will involve wetland mitigation.” * * *

“They pretty much bulldozed the woods,” said Toni Cecil, construction compliance inspector for the Muncie-Delaware County Storm Water Management office.

ILB: According to IDEM's enforcement database, this is not Mr. Pierce's first encounter with IDEM, whose enforcement records show, for a "Sam Pierce of Delaware County", a Notice of Violation (13827) on 12/14/04, followed by an Agreed Order with $2,125 penalty on 10/19/05; and a Notice of Violation on 4/3/07 (16064), followed by an Agreed Order on Feb. 15, 2008. However, in this most recent case, IDEM did not, according to the story, issue a Notice of Violation, but instead simply sent an informal letter.

Posted by Marcia Oddi on Wednesday, May 01, 2013
Posted to Environment | Indiana Government