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Sunday, June 30, 2013

Ind. Law - "Issues legislators study during summer often become new laws"

Dan Carden reports in the NWI Times on the importance of summer legislative study committees. The story begins:

INDIANAPOLIS | It is still seven months until members of the Indiana General Assembly resume regular daily meetings. But in many ways the 2014 legislative session began earlier this month, when the first study committees convened at the Statehouse.

Hoosier lawmakers use study committees as a tool to help them gain a deeper understanding of issues before they pass new state laws, as well as a way to see how effectively recently passed or long-existing laws are being implemented.

"I have always said that the committees are the workhorses of the Statehouse," said House Speaker Brian Bosma, R-Indianapolis.

For instance, the Department of Child Services Interim Study Committee last year heard from 65 witnesses over seven meetings and made six recommendations it believed would improve the then-beleaguered state child protection agency.

Each recommendation eventually was enacted into law during the 2013 session in part because a significant number of lawmakers already were familiar with the issues facing DCS thanks to their summer study work.

ILB: Many of the study committee meetings this summer will be live-streamed. Here is a current calendar of meetings.

Also created this year by the General Assembly (via HEA 1393) was the Judicial Technology Oversight Committee. Court Times this month has a brief article about the Committee. The membership:

The oversight committee consists of eleven members and will be chaired by the Chief Justice of the Supreme Court or his designee. Chief Justice Brent Dickson has designated Justice Mark Massa to serve as chair of this committee.

Other members include the chief information officer of the Office of Technology, two members of the Senate appointed by the president pro tempore of the Senate, two members of the House of Representatives appointed by the speaker of the house, a trial court judge appointed by the president of the Indiana Judges Association, two circuit court clerks (one clerk representing a county that does not operate under the state’s automated judicial system and one clerk representing a county that operates under the state’s automated judicial system) appointed by the president of the Association of Clerks of Circuit Courts of Indiana, one attorney admitted to the practice of law in Indiana appointed by the president of the Indiana State Bar Association, and an individual affiliated with a taxpayer organization appointed by the governor.

Hopefully, the appointees to this important Committee will be announced soon and the first meeting will be scheduled. And when the Committee does meet, hopefully its meetings too will be live-streamed.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Indiana Law

Ind. Law - "Fireworks lobby ensures nightly barrage in Indiana neighborhoods despite noise, danger"

That is the headline to Matthew Tully's long story today on the power of the fireworks lobby in Indiana. Some quotes:

“They have a very powerful lobby in the state,” said Tracy Boatwright, a former state fire marshal. “They have a lot of money that they pass out to a lot of different legislators and they are very effective.”

Boatwright spent years battling the industry, trying to limit the amount and type of fireworks that could be sold and discharged in the state. He fought the industry in court and in the Statehouse hallways. His message was always the same: It’s simply not safe to turn neighborhoods into free-fire zones. He argued that there was nothing positive to come from allowing amateurs to shoot fireworks high into the air, calling that a recipe for tragedy.

His message was drowned out by the industry and an electorate that includes many people who just love to blow things up.

“Hoosiers think it’s their God-given right to get drunk and shoot bottle rockets at each other,” Boatwright said. “That’s what makes this so hard. But it’s not a good law. It’s dangerous.”

The Indiana State Department of Health produces an annual report on fireworks-related injuries that is worth reading. In it you’ll find that in the past five years an average of 123 injuries a year have been reported to the Health Department, with more than a third of them harming children. (The number was down significantly in 2012 because of local fireworks bans that came with the state’s severe drought.) “Of reported injuries in 2012,” the report states, “there was one amputation of an individual’s leg and one death.”

If you think that 123 injuries a year doesn’t sound so bad, consider this: While state law requires hospitals and other medical facilities to report all fireworks-related injuries, the Department of Health report notes that the law “is not actively enforced and the number of injury reports received is an underestimation of the true burden of fireworks injuries.”

Almost all of the reported injuries involved people who were setting off fireworks. Boatwright says Indiana will stubbornly keeps its lax laws until an innocent bystander — “a beautiful little girl,” he said — is the victim of a house fire or other tragedy.

“Is that what it’s going to take before you people realize how dangerous these fireworks are?” he recalls asking lawmakers.

They didn’t listen. They listened instead to the industry, its campaign cash and its lobbyists, some of them former lawmakers. And the industry has been well represented inside the legislative chambers: State Rep. Eric Turner was the longtime owner of a fireworks business and is now a lobbyist for the industry in other states. His House colleague, Rep. Bob Morris, lists himself as the owner of Best Bang Fireworks.

Neither Turner nor Morris returned my phone calls.

But John Brooke did. He’s a top lawyer for and a fierce defender of the industry. He points to the taxes generated, jobs created and notes that Indiana sells more fireworks each year than all but a handful of much larger states. The current law, he said, simply expresses the wishes of the majority.

“It doesn’t do anything that Hoosiers weren’t doing before,” he said. “They have always loved fireworks. There’s a reason we have such a strong business here — because Hoosiers love fireworks. The law should respect what the majority wants.”

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Indiana Law

Environment - "What are Satellite Manure Storage Lagoons?"

This story in Hoosier Ag Today explains that although the General Assembly passed a law in 2011 to require IDEM to regulate the storage of manure in remote ponds or “lagoons” that are not sited next to existing livestock farms, IDEM has not yet promulgated rules to implement the law.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Environment

Law - "Who’s a Journalist? A Question With Many Facets and One Sure Answer"

Margaret Sullivan, discusses the question in her column, the "Public Editor's Journal". Some quotes:

But this raises a question that is very much of the current moment. Who – and what – is a journalist? It’s not just about semantics.

There is a strong legal component to this discussion: Who will be covered by a federal shield law that would give legal protection to journalists who have promised confidentiality to their sources, if it ever comes to pass? Will it cover only established news organizations or those who get paid for news gathering? Or does it cover everyone with a Facebook page?

The question takes on added heat in the context of the Obama administration’s prosecution of leakers using the Espionage Act, its pursuit of Mr. Assange, and the recent naming of a Fox News reporter, James Rosen, as a co-conspirator in a leak case.

Then, quite separately, there’s a question of the amount of professional respect shown to those like Ms. O’Brien and the columnist Glenn Greenwald, who has broken major news stories about government surveillance for The Guardian in recent weeks.

Is Mr. Greenwald a “blogger,” as a Times headline referred to him recently? That headline was atop a profile that did not use the word journalist to describe the columnist for The Guardian United States, the New York-based Web site associated with the British newspaper. At the time, I wrote (on Twitter) that I found the headline dismissive. There’s nothing wrong with being a blogger, of course – I am one myself. But when the media establishment uses the term, it somehow seems to say, “You’re not quite one of us.” (And that might be just fine with Mr. Greenwald, who has written disparagingly of some media people, whom he calls “courtiers of power.”) * * *

So, who’s a journalist? I could explore the legislative and legal questions, and that may be something worth returning to in this space. (Decisions that have been made in interpreting New Jersey’s strong shield law are of particular interest, as is the language before the Senate now on the proposed federal law.)

But for now, I’ll offer this admittedly partial definition: A real journalist is one who understands, at a cellular level, and doesn’t shy away from, the adversarial relationship between government and press – the very tension that America’s founders had in mind with the First Amendment.

Those who fully meet that description deserve to be respected and protected — not marginalized.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to General Law Related

Environment - "State’s hand abets threats to environment"

From an editorial today in the Fort Wayne Journal Gazette:

Indiana’s environment has been taking a beating. News stories abound showing how state officials are failing to protect Hoosiers’ air, water and land from pollution and defilement.
The editorial then goes on to detail problems involving mercury pollution, increased logging, and toxic algae blooms. Quotes from each section:
Mercury pollution. The outrage pressured BP and Indiana regulators to re-evaluate the lax environmental safeguards. Former Gov. Mitch Daniels stepped in and asked for an independent review of the water discharge permit. And BP promised to adopt cutting-edge technology to reduce the refinery’s toxic discharges into the lake. Unfortunately, it appears neither state regulators nor BP leaders are sticking to their promises.

Increased logging. The initiative, which began under Daniels and continues under Gov. Mike Pence, has increased commercial timber harvesting on public land by about 400 percent.

Toxic algae blooms. State lawmakers spurned an opportunity to address the problem in the last legislative session when they failed to pass bills addressing phosphorus pollution. The legislation would have helped protect Indiana’s lakes as well as its economic interests.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Environment

Ind. Law - "Online threats become crime: State’s intimidation law now covers social media"

Here is another long, interesting story today, this one by Julie Crothers of the Fort Wayne Journal Gazette. Again, no clue as to what enrolled act she is referencing. Some quotes:

Threats posted on social media sites are nothing new, but a law that takes effect Monday will make posting such threats a crime punishable by jail time.

The law extends the charge of intimidation to include using social media sites to post threats.

Part of the change in state law is simply an attempt to play catch-up with technology, said Mike McAlexander, Allen County’s chief deputy prosecutor.

“We’re attempting to keep up with the moving target that is social media and working on defining those things as they come up,” McAlexander said. “ … It’s a struggle.”

In the past, he said, text messages and comments posted on the Internet were used more as corroboration than as evidence of a crime.

But now, prosecutors will be able to use the posts in proving that the threats are happening, he said.

“The legislature is trying to give us more tools to be able to prosecute these crimes,” he said. “The intimidation or threat is just as great whether it’s been said face to face or coming in from an email, Facebook post or text message.

ILB: The ILB was able to locate the new law, it is SEA 361.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Indiana Law

Ind. Law - Some reactions to the projected 2014 ballot battle over marriage equality in Indiana

From the Evansville Courier & Press today, an editorial headed " Indiana debate on same-sex marriage heading to ballot." Some quotes:

Back in Indiana where statutory law already bans same-sex marriages, Gov. Mike Pence and other Republican leaders vowed to continue their push to put a constitutional ban on same-sex marriages and on civil unions on the November 2014 ballot. First, lawmakers would have to approve the measure when they resume state business in January. If that occurs, then the measure would go to a November statewide vote.

This initiative has always struck us a piling on, given that same-sex marriage is already against Indiana law.

Two points: The message Indiana seems to advertise by making gays and lesbians feel unwelcome is just plain stupid, if not boorish. It tells intelligent, skilled people they should take their talents to more accepting states. To their credit, some Indiana businesses and industries already offer the same benefits to same-sex couples as they do to traditional couples. It’s smart business. Oh that our government leaders might exhibit the same sense as those leaders in business and industry.

Second, don’t be surprised if gay and lesbian Hoosiers take this matter to court, asking that they be granted the same benefits of marriage as those same-sex couples in other states.

Indeed, given the changing attitudes in support of gay/lesbian rights in America and even it Indiana, it seems inevitable that one day this whole debate will seem so unnecessary.

From the Muncie Star-Press, an editorial titled "Gay marriage rulings don't go far enough." Some quotes:
Perhaps it was wishful thinking the court would put this debate to rest. After all, the justices were faced with relatively narrow issues on which to decide. Judicial activism has its limits.

Already, Indiana’s elected leaders are vowing to press ahead with a constitutional amendment banning same-sex marriage. The issue is likely to be acted on in the next legislative session, and then put before Hoosier voters next year. Nevermind Indiana has a law on the books since 1997 defining marriage in the “traditional” sense and banning recognition of same-sex marriages performed in other states. Our lawmakers want to enshrine discrimination in the state constitution. That’s wrong.

Gov. Mike Pence weighed in with a statement affirming marriage as between one man and one woman, and he wants Hoosiers to decide the issue.

Barring an unexpected change of heart, Hoosiers will get to decide, but the outcome is far from certain.

These editorials join those of the Indianapolis Star and the Lafayette Journal Courier, posted here June 27th.

Eric Bradner writestoday in the Evansville Courier & Press in a column headed "Indiana a national battleground for gay marriage":

Now that Republican lawmakers are gearing up to put a constitutional same-sex marriage and civil union ban on Indiana’s 2014 ballot, Hoosiers ought to know what they’re in for.

In short: The battle will be extraordinarily expensive, dominating television airwaves. It will turn Indiana into a prime battleground in what many in the United States view as a battle for a basic human right. And it will bring young, single-issue voters to the polls in droves.

A year ago Minnesota a state with a slightly smaller population than Indiana’s put a constitutional same-sex marriage ban to its voters through a statewide referendum, just as Hoosier lawmakers are considering.

At $18 million just between the two largest organizations in the fight, it was that state’s most expensive ballot initiative ever.

The side that spent the most by more than a two-to-one margin the same-sex marriage rights advocates won. And then those advocates succeeded in getting the legislature to approve same-sex marriage there last month.

There is no doubt that Indiana’s electorate is more culturally conservative than Minnesota’s. Still, Indiana’s fight would happen in 2014, and with no presidents, governors or U.S. senators to elect, it would easily be the state’s heavyweight political fight.

More than $18 million would be spent attempting to influence voters’ stances on the ballot initiative. It would likely outpace spending in the state’s 2012 governor’s race.

The financial margins with same-sex marriage supporters spending more than twice as much as opponents would probably hold in Indiana, as well, especially since businesses such as Cummins could get involved.

As Politico noted last week, Republicans nationwide do not appear eager to turn same-sex marriage into a key issue in the 2014 election. That could turn Indiana into one of the key battlegrounds in the marriage fight and it could lure financial contributions from those on both sides who reside elsewhere into the state.

There is a bigger question: For how long does the outcome of Indiana’s 2014 debate really matter?

The political reality is, there is an incredibly strong likelihood that no matter the outcome of today’s battles, the current young generation of voters will eventually legalize same-sex marriage everywhere in the United States.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Indiana Law

About this blog - Tomorrow Google Reader dies, what the ILB will be using

Tomorrow Google Reader dies. In Tyler Helmond's "Q&A with the Indiana Law Blog" the upcoming shut-down was discussed:

Q: Google Reader is shutting down next month. Do you have recommendations on how to follow the ILB in the future for current users of that service?

A: Yes, follow the ILB on Twitter @indianalawblog. I send out a tweet after every new blog post, and also do some retweets of others’ items.

The bigger question is, how will the ILB keep up-to-date with the news without Google Reader? Don’t know yet, but I plan to start looking on June 1st—the announced shutdown is July 1st.

So what did I decide on? Feedly, at least for now. Some of the other readers that may look good are still relying on simply reformatting the feed from Google Reader. If you go to the Feedly site today, while Google Reader is still operating, it will transfer your existing Google Reader RSS subscriptions. See this article by Lauren Goode at All Things Digital:
Feedly. Without getting into too much technical jargon, RSS service Feedly used to rely on Google Reader’s back-end prowess to power its own news feeds. Then, upon news of Reader’s shuttering, Feedly opened up its own API and made it easy for users to come on over — pushing a single button will let you import your existing Reader subscriptions. Think of it as the longtime wingman who finally said, “Hey — I’ve got the goods, too.”

Feedly is free to use. Originally created as a Web browser extension, it now offers optimized mobile apps for both iOS and Android. It integrates with a handful of other, key news reading apps — like Reeder, Press and Newsify — so you can access your saved Feedly feeds from those apps. It also shares to the usual social networking suspects, as well as to Evernote, Instapaper and Pocket.

Feedly seems to be the most well-rounded of the alternatives out there. And it’s certainly prettier than Google Reader (and yet, still simple). Give it a spin.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to About the Indiana Law Blog

Ind. Law - Many New Indiana laws taking effect Monday, July 1st ..., but how to access them? [Updated July 1]

The Indianapolis Star has a long story today by Kasia Hall describing some of the new laws. With a few of the descriptions, the story gives the Enrolled Act number, but no link. With most of them, the story provides neither.

The General Assembly website provides a little more help:

As of this morning, June 30th, the online Indiana Code has not been updated to include the changes made by the 2013 General Assembly. Hopefully by tomorrow, when most of the 2013 changes (those which have not already gone into operation) will take effect, that will have changed ... [Update - see the end of this post]

It is very troubling, however, that the online 2012 Indiana Code is preceded by a link to the 2012 Table of Citations Affected and the 2012 Acts, with the explanation:

To determine if a section of the Indiana Code was added, amended, or repealed in the 2012 Regular Session, click on the TABLE OF CITATIONS AFFECTED hyperlink below.
What users care about is whether the 2012 Indiana Code has been changed by 2013 laws, and when those changes will take effect! In past years, this General Assembly page had linked to the most current Table of Citations affected as soon as the Governor has concluded action on the laws presented to him.

Finally, the ILB has updated The Indiana Law Blog's Legislative Research Shortcuts. I will update the Shortcuts again tomorrow if the 2012 Indiana Code has been updated.

[More] Here is a long story today in the Fort Wayne Journal Gazette reported by Niki Kelly that begins:

Hoosiers of all stripes will be affected by the almost 300 bills passed during the 2013 legislative session.

Drivers, voters, former criminals, parents and police officers are just a few.

Many of the laws go into effect Monday, and here is a breakdown of some key changes.

[Updated at 8:00 AM, July 1] The online Indiana Code has now been updated to 2013. Oddly, the "Table of Citations Affected" and "Acts of Indiana" links are still to 2012, as of this writing. [9:22 AM] Okay, that is fixed now.

Posted by Marcia Oddi on Sunday, June 30, 2013
Posted to Indiana Law

Saturday, June 29, 2013

Ind. Law - Civil unions not enough to grant equal rights under Windsor? What does this mean for Indiana's HJR 6?

The SCOTUS decision this week invalidated DOMA’s Section 3, and recognizes state same sex marriages for the purpose of federal benefits. "Civil unions" are not mentioned.

Our neighboring state, Illinois, has approved civil unions, but failed recently to enacted a marriage equality law. Natasha Korecki and Dave McKinney reported June 26 in a Chicago Sun-Times story:

The U.S. Supreme Court’s landmark decision on Wednesday to strike down the Defense of Marriage Act would do little now for gay and lesbian couples in Illinois.

The ruling that allows equal access to federal benefits will apply only to states that have legalized same-sex marriage.

However, the ruling gave new momentum to so-far failed efforts to legalize same-sex marriage here — but not by way of the Illinois General Assembly.

Illinois’ best chance now, activists and legal experts say, is through an ongoing court battle. They argue that the court’s legal conclusion that it is unconstitutional to deny federal benefits to same-sex married couples bolsters an ongoing Illinois court battle in which legal experts — including Illinois Attorney General Lisa Madigan — argue that the Illinois constitution already allows for legal same-sex marriages. * * *

“What this underscores is what we now have is a situation where there will be people in Minnesota or Iowa that have benefits that will not be extended to couples in Illinois,” [ACLU director Edwin] Yohnka said. “Even having a civil union does not carry with it 1,100 areas of federal law where being married either offers protections or extends particular benefits.”

From a June 27th story in the Champaign-Urbana News-Gazette, written by Tom Kacich:
Bernard Cherkasov, the CEO of the Equality Illinois, a same-sex marriage advocacy group, said that the Defense of Marriage Act ruling "is bittersweet in the states like Illinois where couples are still denied the right and recognition of marriage.

"For anyone who doubts that civil unions in Illinois created an unacceptable second-class status, the court's ruling is a powerful message that the state House urgently needs to join the Senate and pass the freedom to marry."

Ed Yohnka, director of communications for the Illinois ACLU, agreed "that is the sad piece" of the court's verdict.

"The decision means that only those in marriages will get access to these critical federal benefits and protections," he said. "This puts the onus on the Illinois House to take up the marriage bill and pass it as soon as possible. We, as a state, should ensure that families in our state have equal protection in areas critical to family formation and stability. Couples in civil unions already suffered a harm in not being fully recognized as married; now, that harm is more dramatic and tangible."

Civil unions have been legal in Illinois since June 1, 2011. Since that time about 5,200 civil union licenses have been issued statewide, including 196 in Champaign County.

Here is a good June 29th survey article from the AP, that goes through each of the states and its status. There are currently 14 same-sex marriage states, including the DC. There are 4 civil union states, including Illinois. There are, by my count, 29 states with a constitutional ban, most approved by the voters in 2004 or 2006. Re Indiana, the story says:
INDIANA: There's a state law prohibiting same-sex marriage but as yet no constitutional ban. Leaders of the Republican majority in the Legislature hope the Supreme Court rulings will provide motivation to get the ban passed [via HJR 6] so it can be put before voters in 2014. GOP Gov. Mike Pence says he supports a stronger ban.
What does Windsor mean for Indiana's HJR 6?

One of the strongest objections that has been voiced to HJR 6 is that this second sentence of the proposal could also be interpreted to ban civil unions:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
It has been argued that such language in the constitution would prevent any future legislature from approving civil unions "that would give gay couples the same rights and benefits as married couples," and that therefore the pending HJR 6 should be rewritten to eliminate that sentence. To do so, however, would mean the proposal would have to start anew in the General Assembly and identical versions would need to be passed by two different General Assemblies before the proposal could be submitted to the voters.

That was a good argument until Wednesday, when Windsor issued. Now it is meaningless. As this post began: The SCOTUS decision this week invalidated DOMA’s Section 3, and recognizes state same sex marriages for the purpose of federal benefits. "Civil unions" are not mentioned.

Posted by Marcia Oddi on Saturday, June 29, 2013
Posted to Indiana Law

Ind. Gov't. - More on "Pence team not working on Medicaid expansion alternative"

Updating this ILB post from June 27th, the FWJG's "Furthermore" column today begins:

A legislative committee hearing this past week didn’t relieve concerns about Indiana’s preparedness for new federal health care deadlines. As coverage for Americans elsewhere is about to expand, low-income Hoosiers might be left with none.

Debra Minott, secretary of the Indiana Family and Social Services Administration, offered an update on the agency’s efforts to the General Assembly’s Health Finance Commission. She said state officials met with federal officials and discussed their intention to extend the Healthy Indiana Plan.

A federal waiver must be given for Indiana to use HIP in lieu of expanded Medicaid coverage. About 40,000 Hoosiers are covered by HIP, with another 50,000 on a waiting list.

When asked abut a contingency plan if the federal government doesn’t approve the waiver, Minott admitted there is none, suggesting the state’s safety net will suffice.

“I don’t think we can assume that those programs can just absorb additional people,” Rep. Ed Clere, a New Albany Republican, said of community health centers and free clinics around the state. “We need to know that the capacity is available.”

He added that even if the health centers and clinics can handle the demand, he wasn’t sure that was the direction the state should take.

“At some point we’ve got to make a decision in this state and we’ve got to choose what we’re going to do, and then we’ve got to follow it through and execute it,” said Sen. Jean Breaux, D-Indianapolis. “And we just don’t seem to be close to making any of those essential decisions.”

Gov. Mike Pence’s administration is taking a big gamble with its HIP expansion plan, leaving 400,000 Hoosiers at risk of losing out on health coverage for a year. If the state opted to join others in expanding Medicaid eligibility under the Affordable Care Act, it could collect an estimated $10 billion in federal support through 2020.

Posted by Marcia Oddi on Saturday, June 29, 2013
Posted to Indiana Government

Courts - More on "Hobby Lobby Wins Before En Banc Tenth Circuit"

Updating this ILB post from June 28th, Joe Palazzolo of the WSJ Law Blog wrote June 27th about Hobby Lobby in a post headed "For-Profit Corporations Have Religious Rights Too, Says Court." Some quotes:

The U.S. Court of Appeals for the 10th Circuit ruled Thursday that Hobby Lobby and Mardel could likely make their case but stopped short of blocking the contraceptive mandate. The court instead sent the case back to a federal district judge for further consideration.

But five of the eight judges [writing en banc] made a strong statement about corporate personhood — the idea that companies share some legal rights and protections with in-the-flesh people. The majority invoked Citizens United v. FEC, the 2010 case in which the U.S. Supreme Court ruled that corporations have a First Amendment right to spend money to influence political campaigns. * * *

Chief Judge Mary Beck Briscoe said in her dissent that the majority’s faith in Citizens United was misplaced. The decision came 20 years after the passage of the RFRA and dealt with the Free Speech Clause rather than the Free Exercise Clause of the First Amendment, she said.

Posted by Marcia Oddi on Saturday, June 29, 2013
Posted to Courts in general

Environment - More on "Camp Tecumseh operators oppose plan to build large hog operation" [Updated]

Picking up on this June 25th story by Chris Morisse Vizza in the Lafayette Journal Courier, the Indianapolis Star a long story today by Brian Wilson headed "Camp Tecumseh and mega hog farm: Can they be neighbors?" Some quotes:

[Re] the proposal for an industrial farm site — formally called a confined feeding operation, or CFO, capable of housing nearly 10,000 hogs in two buildings — on property a half-mile from the camp’s entrances.

The zoning dispute surrounding the seven-acre property is expected to conclude Monday morning, when the three-person White County Commission decides whether to approve the rezoning request made by local farmer Mark Erickson.

Erickson has met every state environmental requirement necessary and has reassured camp officials that the hogs — and more importantly, their manure — would have zero effect on Camp Tecumseh, a 90-year-old facility that attracts more than 35,000 campers a year.

Scott Brosman, CEO of Camp Tecumseh, isn’t convinced the industrial farm site can operate without water contamination or odors wafting over a camp where outdoor activity is a constant.

“That’s our biggest concern,” he said. “If people start and continue to notice odors, the chances of them coming back diminish greatly.”

When contacted, Erickson referred all questions to his attorney, Joesph Bumbleburg, who said his client met every standard required as he attempted to expand his family farm.
A farmer's plans

Erickson, a fifth-generation farmer, wants to build a CFO, a compact farm that can house thousands of cows, swine, poultry or horses in a handful of buildings.

Erickson already has received a permit to build from the Indiana Department of Environmental Management, as well as White County Plan Commission approval for the property where more than 9,200 hogs would be housed. * * *

According to IDEM, contained farm operations make up 20 percent of the state’s regulated farms but produce 80 percent of its livestock. Dozens of these confined farms already exist in both Carroll and nearby White counties, and Bumbleburg said Erickson’s hog farm would be handled no differently than those which generated much less protest.

“The argument that his farm will produce a bad environment certainly has not been the case in his other farms,” Bumbleburg said. “This is not a guy who is just trying to get by.”
The camp's concerns

Brosman counters that the farm’s proximity to the camp should eliminate most comparisons to other rural CFOs. He said Camp Tecumseh sees about 35,000 people come through its gates each year in spurts of about 800 to 1,000 each week, many of them from the Indianapolis area.

“Our argument always has been if this was close to a town of 35,000, it wouldn’t be approved,” he said. * * *

Palin, the environmental commissioner, said potential damage from the industrial farm should be minimal if all regulations are met. IDEM typically inspects 20 percent of operations in the state each year and rarely finds farms out of compliance.

The department doesn’t monitor odor quality, but Palin said complaints typically occur periodically when farmers spread an operation’s manure.

ILB: The earlier J-C story helpfully noted:
Erickson’s barns would be located on a 7-acre tract of land on the west side of Springboro Road, and north of White county road 1000 south.

The 9,240 pigs would be one-half mile from the 600-acre YMCA Camp Tecumseh located on the east side of Springboro Road.

Here is a link to a Google map of the area. The Camp area is identified with the "A". It appears the "7 acres" is the fields and green patch to the west, across Springboro Rd. and upwind from the Camp. Click the "+" fr a closer view.

View Larger Map

[Updated on 6/30/13] Here now is a map by Thomas Maxfield of the Lafayette Journal & Courier, outlining (1) the location of the hog barn, and (2) the areas allotted for manure spreading.

Posted by Marcia Oddi on Saturday, June 29, 2013
Posted to Environment

Friday, June 28, 2013

Law - "Federal marriage benefits start for same-sex spouses" [Updated]

Lyle Denniston posts at SCOTUSblog this evening, with links to a memo from the Office of Personnel Management and an AG statement:

... that the order covering federal employees was “only the beginning” and that other agencies will start moving “as swiftly and smoothly as possible” to end the benefit ban in their areas of operation.

[Denniston observes that] The OPM guidance issued Friday was noteworthy in that it drew no distinction between legally married gay and lesbian employees living in states that permit them to marry, or in states that still forbid such unions. The memo appeared to indicate that the benefits would be keyed only to the status of legal marriage of the employee, wherever it was performed and regardless of where they now live.

[More] In a second post, Denniston writes that "Gay marriages can start in California."

[Updated at 8:43 PM] The AP is reporting:

WASHINGTON (AP) — A wide range of federal benefits, from health insurance to flexible spending accounts, are now available to married gay and lesbian federal employees and their families following the Supreme Court decision on same-sex marriage.

"These initial changes in federal benefits will make a meaningful, positive difference in the lives of many. But this is only the beginning," Attorney General Eric Holder said after the Office of Personnel Management issued guidance to federal agencies on Friday. Some of the benefit changes outlined in the guidance include: [see the AP story for the long list]

ILB: So it looks pretty clear that these benefits are intended to be available to legally married Indiana residents who are federal employees, whose SSM was performed in a jurisdiction which permits it.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to General Law Related

Ind. Gov't. - Youth Group Plate back on BMV website

Updating this ILB entry from earlier this afternoon, the Indiana Youth Group's PRIDE plate is now again available on the Indiana BMV website.

[More] Chris Sikich has the IndyStar story here, indicating there apparently may still be a dispute to be ironed out about low-numbered plates.

[Updated at 7:30 PM] Tom Coyne of the AP explains the low-number issue here.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Government

Ind. Gov't. - Still more on: Indiana Youth Group files in federal court in response to BMV Commissioner's action [Updated]

Updating this ILB post from June 19th, where it was remarked that "The BMV is acting as both prosecutor and judge," Niki Kelly of the FWJG has just tweeted:

BMV reinstates Indiana Youth Group license plate after review.

Federal lawsuit will be dismissed as a result of BMV action. All this is according to BMV Commissioner R. Scott Waddell.

I expect details will follow.

[Updated at 5:00 PM]
The ACLU has issued a news release. Some quotes:
Indianapolis - Today the American Civil Liberties Union of Indiana prevailed on its case to reinstate a specialty license plate for a nonprofit group that provides counseling and guidance to gay and lesbian youth.

The ACLU of Indiana received an email from Indiana Bureau of Motor Vehicles Commissioner R. Scott Waddell saying he had directed the agency to reinstate IYG's participation in the Specialty Group Recognition program "effective immediately." The email follows a June 26 ruling by the Administrative Law Judge ordering the plate be reinstated and finding that the BMV's requests for "clarification" in a June 14 Order of Remand were "improper."

"We are happy the plates have been returned," said ACLU of Indiana Executive Director Jane Henegar. "IYG does admirable work providing guidance to young people. The ACLU of Indiana hopes this is the end of a series of misguided and hurtful actions by the State."

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Government

Ind. Decisions - Tax Court issues one today

In Geoffrey Odle, Personal Representative of the Estate of Floyd L. Odle, Deceased v. Indiana Dept. of State Revenue, a 9-page opinion, Sr. Judge Fisher writes:

The Estate of Floyd L. Odle through its personal representative, Geoffrey Odle, appeals the Hamilton Superior Court No. 1’s (probate court) determination that the beneficiaries under Floyd’s will were properly classified as Class B and C transferees for Indiana inheritance tax purposes. In challenging the probate court’s determination, the Estate contends that the classification of beneficiaries for purposes of Indiana’s inheritance tax scheme violates Indiana’s Constitution Article 1, Sections 1, 12, 23, and 35 and Article 4, Section 22.1 The Court affirms.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

For publication opinions today (2):

In Indiana Horse Racing Commission v. Edmund W. Martin, Jr., a 16-page opinion, Judge Mathias writes:

The issue presented in this appeal is whether Edmund Martin (“Martin”) participated in pari-mutuel horse racing and was therefore required to be licensed pursuant to Indiana Code section 4-31-6-1 and 71 Indiana Administrative Code rule 5.5-1-1. The Indiana Horse Racing Commission (“the IHRC”) appeals the Marion Superior Court’s decision to vacate its order excluding Martin from its racetracks because he failed to obtain a license in 2010.

Concluding that Martin did indeed participate in horse racing, we reverse the trial court’s order setting aside the IHRC’s decision and remand for proceedings consistent with this opinion. * * *

Our standard of review is well-settled, and Martin has not established that the IHRC’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and its decision was supported by substantial evidence. Martin was required to be licensed pursuant to Indiana Code section 4-31-6-1 and rule 5.5-1-1(a) because he was the ITOBA’s executive director in 2010 and an active participant in the ITOBA’s activities at Indiana’s horse racing tracks. For all of these reasons, we reverse the Marion Superior Court’s order setting aside and vacating the IHRC’s order excluding Martin from IHRC grounds and remand this case with instructions to reinstate the IHRC’s order and exclusion notice.

In Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange , a 7-page opinion, Judge May writes:
Shannon and Bryan Robinson (collectively, “Robinson”) appeal summary judgment for Erie Insurance Exchange, which denied Robinson’s claim for uninsured motorist coverage after a hit-and-run accident. As the car that hit Robinson was uninsured as a matter of law, we reverse.
NFP civil opinions today (6):

John P. Schaub v. The Estate of Edward G. Schaub and David Schaub, Personal Representative (NFP)

Robert J. Lambright, Shirley A. Lambright, and Dutch Land, Inc. a/k/a Dutchland, Inc. v. Dawn M. Gregory, as Guardian for Donna Lee (NFP)

Gersh Zavodnik v. Michela Rinaldi, et al. (NFP)

The Paternity of P.A.B.; K.B. v. J.L. (NFP)

State of Indiana v. Harley Perkins (NFP)

Re: Termination of the Parent-Child Relationship of J.W,. and K.S. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (14):

Calvin McKeller v. State of Indiana (NFP)

Larry G. Brown v. State of Indiana (NFP)

Christopher Gross v. State of Indiana (NFP)

Gregory D. Swagger v. State of Indiana (NFP)

Brandon Shane Fitch v. State of Indiana (NFP)

David Gibbs v. State of Indiana (NFP)

Tony Wombels v. State of Indiana (NFP)

Santos Vasquez v. State of Indiana (NFP)

Layne M. Jefferson v. State of Indiana (NFP)

Daniel Drake v. State of Indiana (NFP)

Heather Renae Ingle v. State of Indiana (NFP)

Marquis Wilcox v. State of Indiana (NFP)

Terrance L. Walton v. State of Indiana (NFP)

Jarrell Outlaw v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Same-sex couple wed in Mass. files petition for dissolution in Marion County court

Updating this earlier ILB post today, where I noted: "The ILB believes this is a first for Indiana, and certainly the first since the SCOTUS rulings on June 26th ..." a reader has reponded by pointing to two ILB posts from 2009.

See this Sept. 14, 2009 ILB post headed " "Lesbians' petition is denied because Indiana doesn't recognize their marriage," quoting at length an IndyStar story by Jon Murray. A follow-up on Sept. 14, 2009 quoted a second Murray story, including:

A Hoosier woman who entered into a same-sex marriage in Canada plans to appeal a Marion County court's refusal this month to grant the couple a divorce, her attorney says.

Marion Superior Court issued an order Sept. 4 dismissing the separated couple's request for a divorce. Tara Ranzy and Larissa Chism were married in 2005 in Toronto. * * *

Attorney Karen Jensen said today that Ranzy authorized her to file a notice of appeal of the order and pursue the issue at the Indiana Court of Appeals. * * *

The court's order, signed by Commissioner Jeffrey Marchal and Judge Heather Welch, says that law bars the court from recognizing Ranzy and Chism's marriage at all, even for purposes of divorce.

However, the ILB does not find any filings in the appellate database.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Courts

Ind. Decisions - Two more Supreme Court decisions today, so far

In Brad W. Passwater v. State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:

After being charged with the murder of his mother, Brad W. Passwater was found guilty but mentally ill and sentenced to an executed term of years. He filed a petition for post-conviction relief alleging ineffective assistance of trial counsel for, among other things, counsel’s failure to object to the trial court’s instruction on the penal consequences of not responsible by reason of insanity and guilty but mentally ill. The post-conviction court denied relief. We affirm.
In Valentin Escobedo v. State of Indiana, a 2-page, 5-0 opinion, Chief Justice Dickson writes (in full):
Sentenced to an aggregate term of fifty-three years upon convictions for Battery, a class A felony, and Neglect of a Dependent as a class D felony, the defendant appealed asserting claims of error in the trial court's evidentiary rulings and seeking appellate sentence review and revision under Indiana Appellate Rule 7(B). The Court of Appeals affirmed. Escobedo v. State, 987 N.E.2d 103 (Ind. Ct. App. 2013). We now grant transfer to address a single point.

In rejecting the defendant's request for appellate sentence revision, the Court of Appeals summarized its analysis as follows: "In other words, the maximum sentence here can be justified as a deontological response giving voice to a community's outrage, based on the facts and circumstances of the crime." Id. at 120. We disagree and disapprove of consideration of a community's outrage in the determination or review of a criminal sentence. Notwithstanding this reference, however, we agree with the ultimate conclusion of the Court of Appeals that the sentence imposed by the trial court is appropriate and should be affirmed.

In all other respects we summarily affirm the opinion of the Court of Appeals. Indiana Appellate Rule 58(A)(2).

ILB: I had to look it up - deontological.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court rules Center Twp. Small Claims Court to stay in City/County Bldg.

In In Re Mandate of Funds for Center Township of Marion County Small Claims Court Order for Mandate and Mandate of Funds, a a15-page, 5-0 opinion, Justice Rucker writes:

This is a mandate action involving a dispute between the Center Township of Marion County Small Claims Court and the Center Township Trustee and Advisory Board over court renovations, additional staff, increase in salaries, and the location of the court. As explained below we approve the renovations, additional staff, and the mandate prohibiting the relocation of the court. We disapprove the mandated salary increases. * * *

In most Indiana counties, small claims cases1 are heard as part of the “small claims docket” of the County Circuit or Superior Courts. See Ind. Code § 33-29-2-4. Marion County operates differently. * * *

In essence, the Marion County small claims courts are township-level judicial entities; and for some time there has been tension between these courts and the township governing bodies with regard to control of court activities. The busiest of the township courts is that in Center Township, which receives approximately 14,000 case filings annually. Center Township encompasses central Marion County, including downtown Indianapolis and the nearest suburbs. * * *

I. Location of the Court

The Township urges that the decree ordering the Small Claims Court to remain in the City-County Building and directing the Township to provide reconfigured space and new furniture and equipment should be reversed. * * *

As we previously observed, an overriding issue presented in this case is the fundamental question of access to justice. Indeed, providing such access is a constitutionally-mandated function of Indiana courts. See Ind. Const. art. 1, § 12 (“All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”). It is undisputed that the Small Claims Court is presently centrally located in Center Township and is in close proximity to all (and within easy walking distance to most) public bus routes in the township and Marion County. Further, there is no dispute that the court is located in the same building as multiple other Marion County Courts and public services frequently used by litigants. We also find it relevant that the court in this case, as with most small claims courts, hears a substantial volume of consumer collection cases and landlord-tenant disputes such as evictions. * * * And it is also worth noting that the Center Township Small Claims Court is not only in the same building, but is on the same floor as courts handling paternity and child support, domestic violence, and protective orders – services also of particular relevance to this demographic.

In sum, we conclude the record is replete with probative evidence that moving the Center Township Small Claims Court away from its present location poses a clear and present danger to access to justice for the litigants it serves, and that maintaining and upgrading the Court in its present location is reasonably necessary to preserve that access. And although the Township does not object to other components of the special judge’s decree, see Br. of Appellants at 40, we think it bears emphasizing that we specifically affirm the special judge’s order that the Township shall allocate funds to hire two additional Court employees, that the Trustee shall relinquish control over Court functions, and that authority over its employees and its financial operations shall be vested solely in the Court. See supra n. 6; see also Task Force Report at 19, 24, 25 (concluding that township courts must have sole authority over their employees and their financial operations).

II. Attorney Fees

Finally, we address attorney fees. Because the proper delivery of judicial services is often at stake in Trial Rule 60.5 proceedings, we have acknowledged the propriety of reasonable compensation for attorneys who represent courts in such matters. * * *

On review the Township makes no claim concerning the reasonableness of the fees and expenses requested, reserving any such issue for an evidentiary hearing before the special judge. Instead, in a one-paragraph argument, the Township contends “This Court should deny Judge Scott’s fee request.” Br. of Appellants at 51. The Township’s contention is premised on the fact that over and above her statutory salary, Judge Scott also received additional revenue for performing wedding ceremonies in her capacity as a judge. According to the Township Judge Scott’s motivation in issuing the order of Mandate was to prevent the Court from relocating in an effort “to preserve and protect her own personal stream of income.” Id. We make the following observations. First, although the special judge determined that “[o]ne consideration” for Judge Scott not wanting the Court to relocate to the Carson Center was the potential loss of wedding income, the special judge specifically found, “[t]he concern that Judge Scott’s Mandate Action was motivated by a perceived loss of wedding income results from speculation and is unsupported by credible evidence.” App. at 26 (emphasis added). Second, and more importantly the question here is not Judge Scott’s motivation, but rather whether mandate was necessitated by a clear and present danger of impairment of the court’s operation. See St. Joseph Cnty. Cmm’rs 929 N.E.2d at 710. As recounted above, there was sufficient evidence presented to the special judge that the mandated action was reasonably necessary for the operation of the court and court-related functions, and that any other governmental interests were not so severely and adversely affected by the order as to require Order of Mandate be set aside. See In re Assignment of Courtrooms, 715 N.E.2d at 375; Morgan Cir. Ct., 550 N.E.2d at 1304.10 We therefore affirm the special judge’s decree concerning attorney fees and expenses.


We affirm the decree of the special judge.

Dickson, C.J., and David, Massa and Rush, JJ., concur.

ILB: For background, see this thorough ILB post from Jan. 26, 2013, and this one from Nov. 12, 2012, containing links to the documents.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Same-sex couple wed in Mass. files petition for dissolution in Marion County court

The ILB has received a copy of the petition for dissolution, filed June 26, 2013. The ILB believes this is a first for Indiana, and certainly the first since the SCOTUS rulings on June 26th ...

From the petition:

The parties have been and are residents of the state of Indiana for more than 6 months as per statute. Although Indiana does not recognize same sex marriage, Indiana must give full faith and credit to this maniage which was duly solemnized in Massachusetts and hereby grant the parties' dissolution of marriage.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Courts

Ind. Law - "Day care providers must adhere to new laws Monday"

A number of new Indiana provisions take effect July 1. Paul Gable reports on two new laws for the Shelby News:

Effective Monday, day care providers not just in Shelby County, but all of Indiana, will have to adhere to a new set of laws enacted by the Indiana General Assembly.

All regulated child care programs will be impacted by the new laws (SEA 305 and HEA 1494) including licensed homes, licensed centers, registered ministries, legally licensed exempt provider homes that receive payments through the Child Care Development Fund and legally licensed exempt facilities that receive payments through the Child Care Development Fund.

Under the new guidelines, all regulated child care providers must comply with national background checks for employees and staff.

Officials with Family and Social Services Administration (FSSA) Bureau of Child Care have said that will present some issues.

“The challenge will be cost. These checks can cost up to about $40 each. However, checks are good for three years and providers have up to one year to come into compliance with the national checks for their current staff and volunteers,” said Marni Lemons, director of communications for FSSA.

The background check changes are a result of the passage of House Bill 1494, and will affect licensed centers, licensed homes, unlicensed registered ministries and unlicensed homes and centers that are accepting Child Care Development funds or federal vouchers.

Lemons said the benefits to the background checks are threefold.

“All regulated providers will be required to conduct the same checks and parents will not have to guess if their child’s caregiver has had a background check. All checks will be conducted using fingerprints so identity is guaranteed.

Currently most checks utilize a name based check and misspellings, an alias or nicknames may cause an incomplete check. Finally, checks will be run against the national FBI database and will not just be a limited check of Indiana. This will identify a criminal history from other states as well as Indiana,” Lemons said.

In addition, on Monday, the 1,500 child care providers who accept Child Care Development Fund taxpayer funded vouchers will have to meet health and safety standards such as keeping medicine out of reach, hand washing, requiring supervisors to be at least 18 years of age and safe sleeping practices for infants.

The new requirements are the result of Senate Bill 305.

Registered ministries, also known as church day cares, will have to meet approximately 21 state standards, while licensed centers currently have to meet 200 health, safety and staffing regulations.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Law

Environment - More on: SCOTUS Koontz decision today may have significant impact here

On Tuesday the ILB made that observation in the headline to this post. Today the NY Times has an op-ed by John D. Echeverria, a professor at Vermont Law School - some quotes:

STRAFFORD, Vt. — LOST amid the Supreme Court’s high-profile decisions on affirmative action, voting rights and same-sex marriage was another ruling that may turn out to have a profound impact on American society. The court handed down a decision on Tuesday that, in the words of Justice Elena Kagan, will “work a revolution in land-use law.”

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Environment

Courts - "Hobby Lobby Wins Before En Banc Tenth Circuit"

This post in The Volokh Conspiracy is of interest because Hobby Lobby is kind of a companion case to Grote Industries, the Indiana case which was argued before the 7th Circuit on May 22nd. Here is the most recent ILB post on Grote.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Courts in general

Ind. Courts - "Officials taking applications for Lake County judge vacancy until July 23"

Bill Dolan reports in the NWI Times:

CROWN POINT | Local officials said they will begin interviewing applicants Aug. 8 for the upcoming judicial vacancy in Lake Criminal Court.

Attorney Richard Wolter, secretary of the Lake County Judicial Nominating Commission, announced Thursday applications will be accepted for the next four weeks from county lawyers seeking to fill the Lake Superior Court, Criminal Division, Courtroom 4 bench.

The vacancy is being created by Judge Thomas Stefaniak Jr.'s transfer to the Lake Juvenile Court bench. Stefaniak is filling a vacancy left by former Judge Mary Beth Bonaventura, who became director of the Indiana Department of Child Services earlier this year.

Lake Superior Court judges are appointed by the governor, rather than elected by voters. The governor makes his appointment from three finalists chosen by four local attorneys, four nonattorneys and Indiana Supreme Court Justice Robert Rucker.

Any of the approximately 1,600 attorneys living in Lake County may pick up application forms in the county clerk's offices. Ten copies of completed forms must be submitted to Wolter's office, 9120 Connecticut Drive, Suite G, Merrillville, by 4 p.m. July 23.

Wolter said the commission will interview all applicants during what could be a two-day period. The commission will then deliberate to select three finalists.

The judgeship in question is one of four that annually preside over thousands of felony criminal cases in which the penalty for conviction is a prison sentence of one year or greater.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Courts

Ind. Law - "Ex-lawyer William Conour jailed after bond revoked"

John Tuohy reports today for the Indianapolis Star in a story that begins:

With his two daughters weeping behind him, former personal injury lawyer William Conour was led from a federal courthouse in Indianapolis to jail Thursday for violating terms of his release on bond.

U.S. District Judge Richard L. Young found Conour showed a “persistent” pattern of “deception” in spending $90,000 without the court’s approval.

Conour, awaiting trial on wire fraud charges, needed to be locked up to save the rest of a victims’ restitution fund, Young said.

“I don’t think Mr. Conour is taking seriously the court’s order,” Young said. “The track record here shows that the remaining assets will not be protected.”

Young raised his eyebrows when Donahoe told him his client wanted to dip into the fund to hire bankruptcy lawyers.

“He wants me to take what little is left in the victims’ account for the alleged victims and pay for a bankruptcy attorney?” Young asked. “I’m not going to grant that motion.”

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Indiana Law

Ind. Decisions - More on "US-born Taliban fighter John Walker Lindh wins prison prayer lawsuit"

Updating this ILB entry from Jan. 13th, Charles Wilson of the AP reports today:

INDIANAPOLIS (AP) — The warden of a federal prison holding high-risk inmates including American Taliban fighter John Walker Lindh insisted Thursday that he was obeying a court order to allow daily group prayer by permitting inmates to pray in pairs within their cells.

Warden John Oliver told a federal judge Thursday that when the prison in Terre Haute, Ind., allowed group prayer earlier this year, Muslim inmates formed gangs and bullied other prisoners.

Lindh attended the hearing in Indianapolis by video conference from the high-security unit that houses he and about 40 other inmates, including several convicted on terror charges. Lindh did not testify, but listened silently with his arms at his sides.

U.S. District Judge Jane Magnus Stinson ruled Jan. 11 that barring Lindh and his fellow Muslims from engaging in daily group prayer violates a 1993 law that bans the government from curtailing religious speech without showing a compelling interest. Magnus Stinson issued an order demanding that the prison allow group prayer.

Ken Falk, legal director of the American Civil Liberties Union of Indiana filed a motion in Lindh's name in April asking the judge to find the warden in contempt. The motion argued that Oliver wasn't meeting the requirements of the court order because he allowed only three group prayers per day in a single room, instead of the five that Lindh said his faith requires.

But Oliver said he believed he was fulfilling the order's mandates, while balancing inmates' religious rights with the security needs of the special unit that severely restricts inmates' communications with the outside world. * * *

Magnus Stinson said she will rule later on whether the prison has violated her order.

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on "ACLU says prisons not complying with court order "

Updating this ILB post from June 26th, Charles Wilson of the AP reports on the hearing held Wednesday before U.S. District Judge Tanya Walton Pratt. Some quotes:

INDIANAPOLIS (AP) — Indiana Department of Correction officials said Wednesday they hope to move all of the prison system's seriously mentally ill inmates to one central location designed for their care by the first of next year.

The department's top financial and mental health officials said during a federal court hearing that they plan to overhaul an unused, 22-bed unit at the prison complex in Pendleton into a new treatment center for the seriously mentally ill.

The hearing was held as an update on the prison agency's progress in complying with a court order mandating it improve its treatment of its estimated 5,000 mentally ill prisoners.

U.S. District Judge Tanya Walton Pratt ruled Dec. 31 that by simply locking mentally ill prisoners up in their cells without adequate treatment, the department was violating the inmates' constitutional right against cruel and unusual punishment.

The American Civil Liberties Union of Indiana had complained that the plans the agency had discussed since Pratt's ruling were ambitious but vague. The ACLU represented the state Protection and Advocacy Services Commission in the class action lawsuit that was filed in 2008. The commission advocates for the rights of the disabled.

Craig Hanks, the department's executive director for mental health, said officials plan to renovate a cell unit at the prison about 25 miles northeast of Indianapolis to house about 200 of the system's most seriously mentally ill offenders. Less seriously ill inmates would continue to be housed at prisons in New Castle and Westville. The change would also require the agency to hire more mental health specialists, officials said.

"This is a really ambitious plan and it looks like we're making progress," ACLU of Indiana legal director Ken Falk said after the 90-minute hearing. "The idea that by Jan. 1 we would be able to get prisoners moved in is great."

Posted by Marcia Oddi on Friday, June 28, 2013
Posted to Ind Fed D.Ct. Decisions

Thursday, June 27, 2013

Ind. Gov't. - "Pence team not working on Medicaid expansion alternative"

Catching up, here is a story from earlier this week by Dan Carden of the NWI Times. It begins:

INDIANAPOLIS | With just three months until millions of low-income Americans start signing up for an expanded Medicaid program, the Pence administration revealed Tuesday it has yet to begin talking with the federal government about creating an Indiana alternative.

Debra Minott, Indiana's secretary of the Family and Social Services Administration, told the General Assembly's Health Finance Commission the governor believes preserving the Healthy Indiana Plan, which covers 37,316 participants, is a higher priority than negotiating a Medicaid alternative, which would cover some 400,000 Hoosiers.

"I think we are dealing with incredibly important and difficult issues and we're dealing with the lives of vulnerable people, and so I don't think we can just be lured by the fact there's a pot of money there without really being certain we're making good and prudent decisions," Minott said.

Republican Gov. Mike Pence has refused to expand Medicaid eligibility as directed by the Affordable Care Act, also known as Obamacare, because he believes the federal government will not keep its promises to adequately fund the program.

As a result, Indiana will give up 30,000 jobs and an estimated $10.45 billion in federal money that otherwise would be spent in the state through 2020, according to the Indiana Hospital Association.

Posted by Marcia Oddi on Thursday, June 27, 2013
Posted to Indiana Government

Law - "Illinois Lawyer Is Accused of Faking His Expenses Over 6 Years"

From the NY Times today, Peter Lattman's story begins:

A prominent corporate lawyer in Chicago has been accused by an Illinois disciplinary board of charging the firm for phony expenses, including about $70,000 in taxi trips, $35,000 in sporting events and a Thanksgiving celebration at his country club.

Lee M. Smolen, a partner at DLA Piper, the world’s largest law firm, was named in a complaint filed this month by the Illinois Attorney Registration and Disciplinary Commission. Before joining DLA, Mr. Smolen was a longtime partner at Sidley Austin. The board said the false expense reporting took place at Sidley.

From 2007 to 2012, Mr. Smolen fabricated more than $120,000 in expenses submitted to Sidley, the commission said. The complaint, which accuses Mr. Smolen of fraud and deceit, asks that the case be assigned to a panel for additional investigation and to make a recommendation “for such discipline as warranted.”

Mr. Smolen resigned abruptly from Sidley last fall, and joined DLA in February. Josh Epstein, a DLA spokesman, said in a statement that the firm was aware of Mr. Smolen’s disciplinary matter when it hired him.

“After our own due diligence and a thorough review of the facts, the firm decided to give great weight to the total body of Lee’s work over his 25-plus years as a lawyer,” the statement said. “Lee is a well-respected attorney who has learned from his experience and taken all the necessary steps to move forward as a productive member of our team.”

Posted by Marcia Oddi on Thursday, June 27, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In Term. of the Parent-Child Rel. of: S.S., J.S., and C.S. (Minor Children) and, T.S. (Mother) v. The Indiana Dept. of Child Services, a 15-page opinion, Judge Baker writes:

In this case, appellant-respondent T.S. (Mother) argues that she was denied due process when the juvenile court terminated her parental rights to three of her children after denying her motion for a continuance. More particularly, Mother contends that she should have been permitted additional time to be present at the termination hearing because she resides in Florida. * * *

Although Mother’s interest in the care and custody of her children is significant, the State’s interest in protecting these children is also very significant in light of Mother’s inability to protect herself from domestic abuse and to properly attend to the Children’s medical and mental needs. When this is balanced against the low risk of error because Mother was represented by counsel, voluntarily left Indiana, and was aware of the termination hearing, we conclude that she was not denied due process when the juvenile court denied her motion to continue. Accordingly, we affirm.

In Stephen G. Smith v. Board of School Trustees of the Monroe County Community School Corporation, an 18-page opinion, Sr. Judge Barteau writes:
Stephen G. Smith appeals the trial court’s order affirming the decision of the Board of School Trustees of the Monroe County Community School Corporation (“Board”) to terminate Smith’s teaching contract. We affirm. * * *

For the reasons stated, we conclude that there is substantial evidence to support the Board’s decision and that the Board followed proper procedures in cancelling Smith’s contract.

In Hickory Creek at Connersville v. Estate of Otto K. Combs, a 10-page opinion, Judge Vaidik writes:
According to the doctrine of necessaries, each spouse is primarily liable for his or her independent debts. To the extent that the debtor spouse is unable to satisfy his or her own necessary expenses, the law will impose limited secondary liability upon the financially superior spouse by means of the doctrine of necessaries.

In this case, Marianne Combs, a Medicaid recipient, died in a nursing home, but no estate was opened for her. The nursing home did not open a creditor’s estate for Marianne in order to preserve its claim. When Marianne’s spouse died a little over a year later, the nursing home filed a claim for her expenses against his estate. We find that according to the doctrine of necessaries, a creditor must first seek satisfaction from the income and property of the spouse who incurred the debt and only if those resources are insufficient may a creditor seek satisfaction from the non-contracting spouse.

In Terry L. Sturgis, Sr. v. State of Indiana, a 14-page opinion, Sr. Judge Barteau writes:
Terry L. Sturgis, Sr., appeals his convictions of murder, a felony, IC 35-42-1-1 (2007); two counts of criminal confinement, both as Class B felonies; IC 35-42-3-3 (2006); eight counts of battery, four as Class B felonies, three as Class C felonies, and one as a Class A misdemeanor, IC 35-42-2-1 (2009); and two counts of neglect of a dependent, both as Class D felonies, IC 35-46-1-4 (2007). We affirm.

Sturgis raises six issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion in limiting Sturgis’s cross-examination of a witness.
II. Whether there is sufficient evidence to sustain Sturgis’s conviction for murder.
III. Whether some of Sturgis’s convictions for battery violate Indiana’s constitutional protection against double jeopardy.

In Timothy W. Parish v. State of Indiana, a 12-page opinion, Judge Vaidik writes:
Timothy W. Parish represented himself at trial and was convicted of two counts of Class D felony strangulation and one count of Class D felony domestic battery. Parish now appeals arguing that the trial court abused its discretion in denying him counsel at public expense and that he did not knowingly, intelligently, and voluntarily waive his right to counsel. We find that the trial court properly denied Parish’s request for counsel at public expense because he had $130,000 in equity in his house. However, we find that the facts and circumstances of this case do not warrant a knowing and intelligent waiver of Parish’s right to counsel because the trial court did not advise him of the dangers and disadvantages of self-representation. We therefore reverse and remand for a new trial.

NFP civil opinions today (5):

D.D. v. D.P. (NFP)

Angela Spurgeon v. Review Board of the Indiana Dept. of Workforce Development and French Lick Professional Management, Inc. (NFP)

C.S. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Nephrology Specialists, P.C., Shahabul Arfeen, M.D., Sanjeev Rastogi, M.D., Maher Ajam, M.D., and Raied Abdullah, M.D. v. Asim Chughtai, M.D., Rafael Fletes, M.D., et al. (NFP)

Jacob K. Smith v. County of Hancock, Indiana (NFP)

NFP criminal opinions today (7):

Timothy Alex Lear v. State of Indiana (NFP)

Jeffrey Baker v. State of Indiana (NFP)

Noel Stack v. State of Indiana (NFP)

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

Noah Mani v. State of Indiana (NFP)

Gerry Lucas v. State of Indiana (NFP)

Leonard Shaw v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 27, 2013
Posted to Ind. App.Ct. Decisions

Courts - More on yesterday's "Rainbow Rulings"

That phrase is the banner headline used by USA Today. There is plenty of state coverage today on Indiana reactions and impact, much of it reporting the immediate response of our legislative leadership and governor, calling for "push[ing] forward on a state constitutional ban against gay marriage," as Niki Kelly writes in this Fort Wayne Journal Gazette story. Maureen Hayden and Scott Smith's story today in the New Albany News & Tribune is headed "Same-sex rulings leave marriage-ban opponents undeterred." Their story includes:

While Republican Gov. Mike Pence, a social conservative, voiced his support for the marriage-ban amendment Wednesday, some conservative Republicans in the GOP-controlled General Assembly voiced their doubts about it, citing both the rapidly evolving public opinion on same-sex marriage and the court’s rulings.

Sen. Luke Kenley — the powerful chairman of the Senate Appropriations Committee and a critic of the proposed marriage-ban amendment — said some of his GOP colleagues who supported the amendment in the past may now balk.

“I don’t know if it will pass or not,” said Kenley of HJR6. “It seems to me these [court] rulings put another barrier in front of passage.”

Republican Rep. Ed Clere, R-New Albany, chair of the House Public Health Committee, has opposed the marriage-ban amendment in the past and said he will again.

He called Wednesday’s court rulings a “major victory for both equal protection and states’ rights” but added: “Just because a state may have the right to do something, however, doesn’t mean it should. The marriage amendment is wrong for Indiana, and I will continue to oppose it.”

State Sen. Ron Grooms, R-Jeffersonville, said while the Supreme Court’s ruling on the Defense of Marriage Act opens up the possibility of putting a same-sex marriage ban amendment into the state’s constitution, he’s going to spend part of the summer getting a feel for what his constituents want.

The Lafayette Journal-Courier has an editorial today headed "Statehouse's unnecessary effort to seal gay marriage ban." Some quotes:
So much for the theory that U.S. Supreme Court rulings might throw cold water on an effort to etch a same-sex marriage ban into the Indiana Constitution.

Within hours of a Supreme Court ruling that knocked down the federal Defense of Marriage Act and essentially cleared the way for same-sex marriages in California, leaders at the Indiana Statehouse sent out statements saying they have no intention of backing away now. * * *

Same-sex marriage already is banned by Indiana law. A host of state lawmakers bent on double-sealing the law with a constitutional amendment must believe they are protecting against the day when the Supreme Court’s notion of equal protection comes rattling home for Indiana.

A public referendum seems unnecessary, other than to rally both sides. But, if we’re reading Statehouse intent correctly (and we’re not sure how much more clear Bosma and Long could have been), get ready for the debate and the national attention in 2014, just the same. * * *

A Ball State survey done in 2012 showed 54 percent of Hoosiers polled opposed a constitutional amendment banning same sex marriage in Indiana.

We’ll see where sentiment is in 2014, when the question would go to voters if a referendum is approved a second time by the legislature.

Who would be surprised if the quickly shifting tide on same-sex marriage — both nationally and in Indiana — gives Statehouse leaders an answer they didn’t expect when the constitutional ban effort started a few years ago?

If asked, Hoosiers should send a message that messing with the Constitution that way is a big mistake.

The Indianapolis Star editorial today is headed "Indiana should avoid constitutional fight over same-sex marriage." Some quotes:
Here’s the practical implication for Indiana of the U.S. Supreme Court’s twin rulings on same-sex marriage: Legal recognition of such unions will continue to be banned under state law.

And that’s unlikely to change in the current political climate, despite evidence that a growing percentage of Hoosiers support gay marriage. In fact, the decisions handed down Wednesday — the first that struck down the federal Defense of Marriage Act and the second that will allow gay marriages to resume in California — make it even less likely that the federal courts will overturn Indiana’s existing ban. The Supreme Court essentially said that each state will be left to decide its individual course of action on the issue.

Still, House Speaker Brian Bosma and Senate President Pro Tempore David Long made clear Wednesday that they expect to revive a proposed state constitutional ban on same-sex marriage during next year’s legislative session. That’s unfortunate and unnecessary.

The proposed constitutional amendment, if it passes the General Assembly, would be sent to voters in November 2014. If they insist on following that path, state lawmakers will set up a highly charged, likely painful fight over not only same-sex marriage but, in the message it sends, social inclusion of gays and lesbians in Indiana as well. * * *

The constitutional route also would seek to engrave a permanent ban into the state’s most important legal document, even though cultural attitudes toward gay marriage are quickly changing. What will be the consensus among Hoosiers on this issue in five years or 10? It’s hard to say with certainty, but proponents of a constitutional ban presume to know.

Finally, Indiana can’t afford to put itself at an economic disadvantage to other states when the competition for top talent is more intense than ever. As executives at Eli Lilly and Co., Cummins Inc. and other major employers in the state have noted, they must be able to recruit and retain world-class talent. For Indiana to send the message that certain workers aren’t welcome because of their sexual orientation would be economically self-defeating.

Indiana needs its elected leaders to concentrate on the state’s most pressing priorities. Education and jobs are atop that list. A bruising fight over same-sex marriage should be nowhere in sight.

Posted by Marcia Oddi on Thursday, June 27, 2013
Posted to Courts in general

Ind. Courts - "Missing IU student Lauren Spierer’s parents sue three men; claim actions led to her death" [Updated]

That is the headline to this long story today in the Bloomington Herald-Times, reported by Abby Tonsing and Laura Lane. Some quotes:

Three men who were with Indiana University student Lauren Spierer the night she went missing two years ago encouraged her to drink heavily and then abandoned her, resulting in her disappearance and likely death, a federal lawsuit filed by her parents claims.

Robert and Charlene Spierer say Corey Rossman, Jason “Jay” Rosenbaum and Michael Beth supplied alcohol to their intoxicated and incapacitated 20-year-old daughter and failed to care for her.

The lawsuit seeks to find answers for the Spierers, who desperately want to know what happened to their daughter and who is responsible for her “disappearance, injury and death.” It also seeks unspecified monetary compensation for damage to them from the loss of their daughter, and asks a jury to find the men guilty of negligent acts that resulted in Spierer’s death.

It was filed four days before the two-year anniversary of the student’s disappearance. Indiana has a two-year statute of limitations for civil filings in cases involving injury or wrongful death.

“Rob and Charlene Spierer authorized the filing of this lawsuit with great reluctance and only after we counseled them that they would lose certain legal rights if not exercised by the two-year anniversary of Lauren’s disappearance,” their attorney, Jason Barclay, said in a written statement Wednesday. “We hope no one will misinterpret this action. Any parent in search of information about a missing child would use every resource available to them. Therefore, we intend to use the rights afforded by the civil justice system to obtain answers to questions that have gone unanswered for too long. We fully expect that those with relevant information will cooperate with this process.”

Through the legal process called discovery, the defendants would be subject to answering questions, under oath, posed by the Spierers’ lawyer during the deposition phase before a trial. On June 20, the lawsuit was transferred from Monroe Circuit Court to U.S. District Court for the Southern District of Indiana. The case has been assigned to Judge Tim A. Baker.

The transfer, requested by the defendants, was allowed because the parties to the lawsuit reside in different states and because the potential for damages exceeds $75,000. Rossman, who is enrolled for the fall semester at IU, lives in Sharon, Mass. Rosenbaum graduated in May 2012 with a SPEA degree and lives in West Bloomfield, Mich. Beth, a May 2012 IU graduate with a telecommunications degree, lives in Morganville, N.J.

The Indianapolis Star also has a long story today, written by Alex Campbell. It links to the complaint filed in Monroe County. The plaintiffs' attorneys are Barnes & Thornburg's Larry Mackey, Jason Barclay, and Jeanine Kerridge.

The case was removed to federal court by this motion of the defendants' attorneys, listed as Greg Garrison, James Voyles, and Carl Salzmann.

Here are earlier ILB entries earlier ILB entries mentioning Lauren Spier.

[Updated at 12:11PM] The copy of the complaint filed in Monroe County that the ILB linked is not file stamped. But Ch. 6 News just flashed a shot of a copy that looked to be stamped "filed May 31, 2013". Looking online at the state's CCS for 53C01-1305-CT-001048, one finds that the case was "opened" 5/31/2013 and the complaint was filed 6/3/2013. Notice of removal was filed 6/21/2013. Looking back in the H-T archive, this story from July 16, 2011 notes: "Twenty-year-old Spierer was reportedly last seen about 4:30 a.m. Friday, June 3, at the intersection of 11th Street and College Avenue, headed south."

Posted by Marcia Oddi on Thursday, June 27, 2013
Posted to Indiana Courts

Wednesday, June 26, 2013

Ind. Law - "In wake of rulings, gay marriage battle looms in Indiana"

Some quotes from Dan Carden's story this evening for the NWI Times:

Pence, who has no official role in the amendment process, nevertheless vowed to support lawmakers who want to preserve opposite-sex marriage as a "unique institution" that "has served as the glue that holds families and societies together and so it should ever be."

That stance is at odds with a majority of Hoosier voters, according to a public opinion poll from November.

The Ball State University telephone survey of 602 Indiana adults found 54 percent oppose a constitutional amendment prohibiting gay marriage and civil unions, 38 percent support the amendment and 8 percent said they don't know. The poll has a margin of error of plus-or-minus 4 percent.

The poll also found 45 percent of Hoosiers want the state law limiting marriage to opposite-sex couples repealed and gay marriage legalized in the state. An equal number want gay marriage to remain prohibited.

House Democratic Leader Scott Pelath, D-Michigan City, said given those results it would be wrong for the Republican-controlled Legislature to waste precious time writing discrimination into the constitution while many middle-class families still lack access to good jobs and schools.

"There is no need to muddy up our state's highest document with an amendment that is likely to be a blemish on Indiana's history," Pelath said. "Public support for marriage equality continues to grow at a time when any legal justification for inequality is withering."

At the same time, there is a question of whether the proposed Indiana amendment violates the federal constitution.

The U.S. Supreme Court's Hollingsworth v. Perry ruling focused mostly on the legal issue of who has standing, or justification, to bring a case to the U.S. Circuit Court of Appeals.

But the core of the decision upheld a federal district court ruling that found Proposition 8, the California constitutional amendment limiting marriage to one man and one woman, runs afoul of the U.S. Constitution's 14th Amendment by treating gays unequally.

"Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians," wrote Judge Vaughn Walker in striking down the California amendment. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples."

Indiana Attorney General Greg Zoeller, a Republican who supported the losing side in both gay rights cases decided Wednesday by the Supreme Court, declined to say how he would advise state lawmakers on the constitutionality of the proposed Indiana amendment.

"We are still reviewing the Supreme Court opinions as to their potential impact on the Legislature's policy-making authority," said Bryan Corbin, Zoeller's spokesman.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Law

Ind. Gov't. - "Officials: Motor malfunction caused fatal grain elevator blast"

Updating this June 24th post, Stan Maddux of the NWI Times reports this evening:

UNION MILLS | A motor malfunctioned and ignited grain dust, causing a fatal explosion Monday at a Co-Op in Union Mills, officials said.

The ruling Wednesday came a day after a fire erupted in the silo where the blast occurred, triggering an evacuation of nearby homes.

In short, there was never a "fertilizer explosion," as had been initially reported.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Government

Courts - "Next on the agenda for marriage equality litigators…"

Steve Sanders, an associate professor at the Maurer School of Law, has posted an excellent commentary on SCOTUSblog this evening. Some samples:

There are two major marriage-equality problems yet to be dealt with: (1) couples who are still barred from marrying in 36 “mini-DOMA” states where marriage discrimination remains embedded in statutes or constitutional amendments, and (2) couples who are already legally married, but whose marriages are denied recognition in those mini-DOMA states. I focus here on the second issue.

Ostensibly, the Court today did not deal with either of these problems. Windsor struck down DOMA’s Section 3, which barred federal recognition of extant same-sex marriages, but the Court said nothing about Section 2, which purports to authorize states to deny recognition to each other’s marriages. And Hollingsworth, while effectively vindicating District Judge Vaughn Walker’s masterful opinion striking down California’s Proposition 8, said nothing of substance about equality or liberty. * * *

In striking down DOMA’s Section 3, Windsor addressed the problem of “same-sex couples who are married for the purpose of state law but unmarried for the purpose of federal law.” But it did not touch what the Court more than 70 years ago (in the context of divorce) called “the most perplexing and distressing complication[] in the domestic relations of . . . citizens”: the idea that a person could be married in one state and unmarried in another. This is a complication that more than 30 states, backed up by DOMA’s Section 2, still inflict on same-sex couples. Their mini-DOMAs are understood to deny legal recognition to the marriages of same-sex couples who migrate from states where such marriages are perfectly legal; some expressly purport to “void” such marriages. Such laws transform married gays and lesbians into legal strangers, effectively divorcing them against their will by operation of law.

This is a serious problem of both constitutional law and federalism, and it deserves a central place in the landscape of marriage equality litigation going forward. It has been a sleeper issue throughout the marriage equality debate, and I predict it is about to emerge front and center.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Courts in general

Ind. Law - "Supreme Court gay marriage rulings clear path for 2014 battle at Ind. Statehouse, across state"

Some quotes from Tom LoBianco's AP story this evening on the SCOTUS marriage equality decision today, and its impact in Indiana:

A pair of U.S. Supreme Court rulings on gay marriage issued Wednesday quickly re-set the stage for a Statehouse battle over writing Indiana's ban into the constitution.

House Speaker Brian Bosma, R-Indianapolis, and Senate President Pro Tem David Long, R-Fort Wayne, quickly said the General Assembly would take up the ban next session, possibly putting the question to voters in 2014. The Supreme Court struck down a ban on federal benefits for same-sex couples and effectively dismissed a ban in California, but left untouched state laws limiting marriage to being between one man and one woman.

"The members of the General Assembly will be fully equipped to address the issue of the constitutional amendment in the coming legislative session, and with today's decision, I am confident the matter will come before the General Assembly and ultimately be placed on a referenda ballot for voter consideration," Bosma said in a statement.

Voters will not decide whether gay marriage is legalized in Indiana, however, only whether the state's existing ban is solidified in the constitution.

Gov. Mike Pence, weighing in on the issue for the first time as governor, said he supports a stronger ban.

"I believe marriage is the union between a man and a woman and is a unique institution worth defending in our state and nation. For thousands of years, marriage has served as the glue that holds families and societies together and so it should ever be," Pence said.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Law

Courts - 7th Circuit Judge Posner on Voting Rights decision

Writing for Slate, Judge Richard A. Posner's post begins:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as [Eric Posner, a professor at the University of Chicago Law School] points out and I will elaborate upon briefly, there is no such principle.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Courts in general

Ind. Decisions - "Supreme Court: Home sale disclosures must be truthful"

The Supreme Court decision yesterday in Johnson v. Wysocki is the subject of a story today by Dan Carden in the NWI Times. Some quotes:

INDIANAPOLIS | Home sellers who fail to honestly disclose any known problems with major home systems may have to pay the buyers' future repair bills, the Indiana Supreme Court ruled Tuesday.

In a 5-0 decision involving a Crown Point house, the state's high court set aside its 1881 "buyer beware" precedent that essentially allowed sellers to claim anything they wanted about a property so long as the buyer had an opportunity to personally inspect it.

Instead, the court said a 1993 state law requiring a home seller complete a disclosure form attesting to the condition of the home's foundation, mechanical systems, roof, structure and plumbing bars a seller from knowingly misrepresenting the condition of those items.

"The disclosure statutes create liability for sellers when they fail to fully or truthfully disclose the condition of those certain features of their property," wrote Justice Steven David for the court.

The Supreme Court decision follows four recent Indiana Court of Appeals rulings that refused to follow the "buyer beware" precedent.

Appeals Court Judge Nancy Vaidik, a Porter County native, first declared the law demands honest disclosure in 2009.

Vaidik said the Legislature intended to protect buyers, in limited circumstances, when they purchase a home – usually their largest and most important asset. Allowing sellers to knowingly lie on the disclosure form contradicts the Legislature's intent, she said.

For much more, see this July 31, 2012 ILB post, also quoting a Dan Carden story, and providing background and links to all the earlier COA opinions.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on HJR 6: Will the voters really "have their say" on marriage equality? Or is this a Hobson's choice?

Supplementing the ILB post from earlier this afternoon, I'm thinking the General Assembly should tie together repeal of the existing statute banning same-sex marriage with placing the marriage equality constitutional amendment (HJR 6) before the voters in 2014.

In other words, the General Assembly should devise a way to make a repeal of IC 31-11-1-1, the statute that currently bans same sex marriage, contingent upon the voters defeating the proposed constitutional amendment.

That way, the voters would be be given a meaningful decision. Otherwise, as I wrote earlier, even if they do defeat HJR 6, it really means nothing because the statute prohibiting sex marriages, IC 31-11-1-1, remains on the books!

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Law

Ind. Law - HJR 6: Will the voters really "have their say"? Or is this a Hobson's choice?

This is the Indiana law:

IC 31-11-1-1 - Same sex marriages prohibited

Sec. 1. (a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.
It has been the Indiana law since 1997. So same sex marriage is already prohibited in Indiana.

The proposed constitutional amendment, HJR 6, that may be approved by the General Assembly for the second time in 2014 (meaning it would go on the ballot in the 2014 general election), reads:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana.

A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The proposed constitutional amendment would: (1) put the prohibition into the Indiana constitution, a status which would be very difficult to change - that would take another completely new constitutional amendment process; (2) it would not only prohibit same sex marriage, as the statute already does, but any "legal status identical or substantially similar to that of marriage."

Yet, quoting an Eric Bradner tweet: "Gov. Mike Pence says he supports #INLegis efforts to place constitutional same-sex marriage and civil union ban on November 2014 ballot." And from Jon Murray: "From @GovPenceIN: "...the people of Indiana should have their say about how marriage is understood and defined in our state." Indiana news stories today have headlines like "Supreme Court rulings on gay marriage clear way for Indiana voters to decide."

But will the people really have "their say"? Or is this a Hobson's choice?

If the Indiana voters pass the constitutional amendment, they will have banned for at a minimum the next half-dozen years both same-sex marriage and civil unions.

Yet even if they defeat HJR 6, IC 31-11-1-1, the law prohibiting sex marriages, remains on the books!

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Law

Law - "The Supreme Court Ruling on the Defense of Marriage Act: What it Means"

This looks like a useful guidance, put out by LambdaLegal and a number of contributing orgnaizations. It covers federal taxes, military spousal benefits, social security benefits, etc.

First read the introductory FAQ, which includes a caution, which begins:

CAUTION: If you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part of the federal so-called Defense of Marriage Act does NOT mean that your state must respect your marriage or that you will be eligible for all marriage-based federal benefits. Further work is still required to end marriage discrimination nationwide and to secure both state and federal equal treatment for all marriages.

Depending on your individual circumstances, the current patchwork of discriminatory laws may be financially detrimental to you or your partner and may create financial and legal complications for you and your family. Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who have or are applying for government benefits. Getting married may jeopardize your eligibility for certain public benefits without providing you the full measure of protections other married couples enjoy.

In addition, if you travel to another place to marry and then return to live in a state that does not respect your marriage, you may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. Same-sex couples will continue to endure a mix of respect, discrimination, and uncertainty until we have secured the freedom to marry and full respect nationwide. People must make careful decisions when and where to marry, even as we work together to end this injustice.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to General Law Related

Law - ALEC on the defensive?

PRWatch has this post by Rebekah Wilce, headed "Shareholders Push Firms to Cut Ties to ALEC; 49 Corporations Now Out." It begins:

Scores of investors working together through Ceres and the Interfaith Center on Corporate Responsibility are challenging companies that fund the American Legislative Exchange Council (ALEC), reminding them that such support backs ALEC's anti-environmental agenda. In response, four corporations have confirmed that they have cut or are cutting ties with ALEC:
  • GlaxoSmithKline (GSK), a British pharmaceutical company with £26.4 billion in annual revenue;
  • Brown-Forman, a Louisville, Kentucky alcohol company with $2.8 billion in annual revenue;
  • Unilever, a food, home, and personal care products corporation based in the Netherlands and the United Kingdom with a combined €51.3 billion in annual revenue;
  • and ConocoPhillips, a Houston oil company with $58 billion in annual revenue.
In addition, Publix Super Markets announced via social media in response to a customer challenge this week that it "has not been a member of ALEC since 2011."

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to General Law Related

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

In MICHAEL ALEXANDER v. UNITED STATES OF AMERICA (SD Ind., Barker), a 14-page opinion, Judge Wood writes:

Michael Alexander, an Indiana criminal defense lawyer, brings this suit for malicious prosecution and intentional infliction of emotional distress against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. His core allegation is that Neal Freeman and James Howell, agents with the Federal Bureau of Investigation (FBI), conspired with Indiana state prosecutor Mark McKinney and father-son criminal duo Stanley Chrisp and Adrian Kirtz to frame him for bribery. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), finding that it failed to state a claim for malicious prosecution and that the claim for intentional infliction of emotional distress was time-barred. For the reasons discussed below, we reverse.

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

Ind. Gov't. - Still more on "West Lafayette officials say the banana constitutes a sign"

Updating this most-recent ILB entry from June 10th, Ron Wilkins has another report today, with photo, in the Lafayette Journal-Courier, headed "West Lafayette taking fresh look at sign rules
Banana mural to remain pending review of regulations."
Some quotes:

From the city’s standpoint, the ambiguity over whether the banana violates the ordinance might mean the ordinance needs tweaked, West Lafayette City Attorney Eric Burns said.

“I think what came from the meeting was the fact that we all acknowledged there was a need to look at it (the ordinance), and that there was an issue with the banana that was going to be dealt with,” Burns said. “The city did not make a specific demand upon them, nor did they make a specific offer.

“That will be coming as part of the larger conversation, which is what needs to be done with signs in general in West Lafayette to protect the neighborhoods and make sure the signs that appear in certain areas are appropriate for those particular areas.”

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Government

Ind. Law - "Rulings won't have immediate effect on Indiana same-sex marriage ban effort" [Updated]

Eric Bradner of the Evansville Courier & Press has this just filed story. Some quotes:

Indiana lawmakers’ push to impose a constitutional ban on same-sex marriages and civil unions – already illegal in the state – can continue despite Wednesday’s U.S. Supreme Court rulings.

The nation’s high court struck down a federal same-sex marriage ban and gave the green light to those marriages in California. But it did not extend those rulings to require the recognition of same-sex marriages in all states.

The Indiana legislature can vote next year on whether to put the constitutional same-sex marriage and civil union ban on Hoosiers’ ballots for a November 2014 statewide referendum – and top Republican lawmakers said Wednesday that they plan to do just that. * * *

The proposed Indiana constitutional amendment reads: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

The second sentence – which bans civil unions or any other legal recognition of same-sex couples’ relationships – could be the proposed amendment’s most controversial element, since some lawmakers say they see it as a problem even though they support defining marriage as between one man and one woman.

ILB: But difficult legal questions begin immediately. Same sex couples married in states so permitting will be able to file joint federal tax returns, for instance. Will the same apply to Indiana couples who travel out-of-state to be legally married, or those who move here legally married elsewhere? If so, what of their Indiana tax return, which is based on the federal return? And what of same sex Indiana couples who cannot marry here, who because of geography cannot file joint federal returns, will they in effect be treated unequally by the IRS? The same questions apply to other federal programs, such as Social Security benefits.

More: As Jon Murray points out, SEC. 2 of DOMA remains intact, not part of suit, which impacted SEC. 3. 2 says states can ignore other states' unions (i.e. no full faith & credit). but that does not answer the Qs posed above.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Hamilton Heights School Corp. v. Review Board of the Indiana Dept. of Workforce Development and Sherri K. Stepp, and The Indiana Dept. of Workforce Development, a 15-page, 2-1 opinion, Judge Bradford writes:

Appellant-Respondent Hamilton Heights School Corporation (“Employer”) appeals the determination of the Review Board of the Indiana Department of Workforce Development (the “Review Board”) in which the Review Board found Employer liable for unemployment benefits relating to its dismissal of a former employee. Concluding that the notice of the in-person hearing that was given to Employer was inadequate in light of the procedural history of the instant matter together with the confusing and seemingly inconsistent information contained in the documentation issued by the Department of Workforce Development (the “Department”), we reverse and remand to the Review Board with instructions. * * *

BROWN, J., concurs.
RILEY, J., dissents with opinion. [beginning on p. 11 of 15] Based upon the inattentiveness of the person charged with calendaring the hearing, Hamilton Heights assumed that the August Hearing was to be held by phone and thus failed to appear in person. Sherri Stepp (Stepp), a custodian who worked for Hamilton Heights for more than 16 years, was awarded unemployment insurance benefits because no present evidence was presented in opposition to her claim. * * *

We are therefore left with the following legal precedent: an employer is denied due process by failing to participate at an unemployment compensation hearing when such failure is caused by a) the employer’s reliance on procedures followed at a prior hearing and b) its confusion resulting from the language contained in the notice of a subsequent hearing.

In Sterlen Shane Keller v. State of Indiana , a 6-page opinion, Judge Barnes writes:
The State petitions for rehearing following our opinion in Keller v. State, No. 59A01-1206-CR-271 (Ind. Ct. App. Apr. 4, 2013). Although we grant the State’s petition, we affirm our opinion in all regards. * * *

Because the evidence does not clearly establish that the Social Security check and the Edward Jones checks were taken from the mailbox on separate occasions, separate convictions are not warranted. We affirm our original opinion in all regards.

BAKER, J., concurs.
RILEY, J., would deny petition for rehearing.

NFP civil opinions today (3):

Rachel Van Alstine v. Review Board of the Indiana Dept. of Workforce Development and Dept. of Child Services (NFP)

Term. of the Parent-Child Rel. of: K.W., Minor Child, and D.F., Father v. The Indiana Dept. of Child Services (NFP)

Clarenda Love v. Bruce Love (NFP)

NFP criminal opinions today (1):

Patrick Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS decisions today ...

This IS a big day.

There are three cases left to be decided. Hollingsworth v. Perry, the Prop 8 case, United States v. Windsor, the Defense of Marriage Act case, and Sekhar, the case involving whether a lawyer's advice is property for purposes of the Hobbs Act.

Opinions will start being issued at 10 AM.

As always, watch SCOTUSblog for complete coverage, or here for the ILB's highpoints.

Check back for updates.

Windsor first up. 5-4 per Kennedy ... Strikes down DOMA. Equal protection, not states rights.

Amy Howe: DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Amy Howe: "DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty."

Amy Howe: There is a "careful consideration" standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles. That is page 20.

ILB: So far, I think this new ruling applies only in states where same-sex couples legally married...

Maureen Groppe ‏@mgroppe tweet: In a brief filed on DOMA, IN AG Zoeller argued that state bans on gay marriage would be jeopardized if the court strikes down DOMA. "It requires no great leap of logic to conclude that a judicial rejection of DOMA would erode constitutional support for similar state laws," Zoeller wrote in the brief that was supported by 16 other attorneys general.

ILB: Today's ruling does not impact Indiana, where same sex couples cannot legally marry. Q however, about those who get married in other states and return to Indiana.

Amy Howe (SCOTUSblog): What this means, in plain terms, is that same-sex couples who are legally married will be entitled to equal treatment under federal law-- with regard to, for example, income taxes and Social Security benefits.

Kevin Russell (SCOTUSblog): To be clear: Windsor does not establish a constitutional right to same sex marriage. It was important to the outcome that the couple in the case was legally married under state law. The equal protection violation arose from Congress's disrespecting that decision by New York to allow the marriage.

Hollingsworth v. Perry, Prop. 8 case. Result is same-sex marriage legal in Calif.

Amy Howe: The Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

ILB: See "What DOMA ruling means for same-sex couples" from Slate, here.

Amy Howe: Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

ILB: Now back to regular posts.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Courts in general

Ind. Decisions - "ACLU says prisons not complying with court order "

Charles Wilson reports for the AP in a story that begins:

A federal judge has ordered the Indiana Department of Correction to come to her courtroom Wednesday and explain its "precise plans" for improving the treatment of mentally ill prisoners after the American Civil Liberties Union of Indiana argued the state doesn't seem to be taking the situation seriously.

U.S. District Judge Tanya Walton Pratt scheduled a hearing for Wednesday and told DOC attorneys to what the agency was doing to comply with the order she issued on Dec. 31. That was when she found prison agency's treatment of the nearly 6,000 mentally ill inmates in the system was inadequate, and ordered it to do more.

The ACLU represented the state Protection and Advocacy Services Commission in the class action lawsuit that was filed in 2008. The commission advocates for the rights of the disabled.

Pratt ruled that by simply locking mentally ill prisoners up in their cells without adequate treatment, the state system was violating the inmates' constitutional right against cruel and unusual punishment.

In a report both sides filed with the court in April, the prison agency said it was exploring options including increasing staff and space for care, perhaps at the Pendleton Correctional Facility, but cost estimates had been higher than expected. It said the changes would be phased in over several years. The report did not cite a figure for the cost.

"However, at this point the plan appears to be largely aspirational," ACLU legal director Ken Falk said in a motion a filed last month. It said the DOC's last report "has no detail whatsoever about the plan."

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Law forcing murder defendants to prove need for bail is unconstitutional, Supreme Court rules"

John Russell has a long story in today's Indianapolis Star on yesterday's Supreme Court ruling in Loren Hamilton Fry v. State of Indiana. Some quotes:

People charged with murder in Indiana do not need to prove they are entitled to bail, the Indiana Supreme Court ruled Tuesday, overturning nearly 150 years of legal tradition.

The court said the right to bail is “a traditional and cherished right,” and it ordered the burden of proof for bail in murder cases to be shifted from defendants to the state.

The court ruled unconstitutional an Indiana law that says murder defendants who seek bail must carry the burden of demonstrating that proof of their crime is not evident and the presumption of their guilt is not strong.

The Supreme Court, by a 3-2 ruling, stated that “the presumption of innocence must trump.” In doing so, the court found the law unconstitutional and it overruled many of its own opinions dating back to 1866.

The court also announced a new standard that prosecutors must meet in seeking to deny bail in murder cases. The prosecutors need only show that the accused “more likely than not committed the charged crime.”

The ramifications for Indiana probably will be fairly minor, said Joel Schumm, clinical professor of law at Indiana University's McKinney School of Law in Indianapolis. He said the new standard is so low that murder cases with solid evidence probably will be able to meet the burden and get a judge to deny bail to murder defendants.

“In most murder cases, the state usually has very good evidence,” he said.

As Prof. Schumm told the ILB:
And the State need only meet a preponderance of the evidence standard to deny bail. That's not a very high bar for a case they will have to prove beyond a reasonable doubt at trial.
More from the story:
But at least one defense attorney, Linda Pence of Indianapolis, called the ruling a “huge deal.” Pence represents Bei Bei Shuai, an Indianapolis woman accused of killing her infant child in a failed suicide attempt.

Prosecutors allege Shuai killed her child by eating rat poison in December 2010, when she was eight months pregnant, in a failed suicide attempt. Her trial is scheduled to begin Sept. 3. Shaui spent 14 months in Marion County Jail, but last year, the Indiana Court of Appeals ruled that Shuai could post bond.

The Supreme Court ruling would have made a huge difference at the time, Pence said, probably allowing Shuai out of jail on bond earlier.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Two Magistrate Positions open for Hendricks Superior Court

Updating this ILB entry from May 1st (unfortunately the link to the earlier notice no longer works), this notice went out yesterday from Hendricks County Courts re the new magistrates:


The Judges of the Hendricks County Superior Courts are pleased to announce the appointments of Tammy Somers and Michael “Joe” Manning as Magistrates for the Superior Courts. Ms. Somers has accepted the position effective July 1, 2013. Mr. Manning has accepted the position effective August 5, 2013.

Ms. Somers previously served as Deputy Attorney General at the Office of the Indiana Attorney General located in Indianapolis. Before that, she served as Magistrate for the Lake County Superior Courts and Deputy Prosecutor for the Lake County Prosecutor’s Office. A graduate of Valparaiso University Law School, Ms. Somers also recently completed the Indiana State Bar Association’s Leadership Development Academy.

Mr. Manning previously operated the Manning Law Office, located in Danville. While his practice’s primary focus was criminal defense, Mr. Manning also served as Deputy Prosecutor for both the Hendricks County Prosecutor’s Office and Marion County Prosecutor’s Office before entering private practice. Mr. Manning is a graduate of Indiana University School of Law – Indianapolis.

The Judges of the Hendricks County Superior Courts are excited to welcome Tammy and Joe and invite everyone to join them in welcoming the new Magistrates. The Magistrates’ robing ceremony will take place on Friday, August 2, 2013, beginning at noon in Superior 1. All HCBA members are invited to attend.

Posted by Marcia Oddi on Wednesday, June 26, 2013
Posted to Indiana Courts

Tuesday, June 25, 2013

Environment - SCOTUS Koontz decision today may have significant impact here

Here are some quotes from a story today by Michael Doyle of McClatchy Washington Bureau:

Koontz purchased the Orange County land in 1972 with hopes of building a small commercial project. The St. Johns River Water Management District, which covers 18 counties in northeast Florida, subsequently designated much of the property as a “riparian habitat protection zone.” In exchange for securing a permit, Koontz reluctantly agreed to give the district a conservation easement on about 11.5 acres.

Citing the loss of valuable wetlands, water district officials told Koontz that he also would have to offer additional mitigation, such as paying to restore about 50 acres of district land elsewhere. He refused, and the district rejected his permit application. So Koontz sued.

“Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation,” Alito declared.

The Fifth Amendment states that “nor shall private property be taken for public use, without just compensation.” If a public agency simply takes property, as with condemnation, it must pay. This becomes more complicated when, instead of seizing property, the public agency tries to impose conditions on its use.

In previous cases, the court said that rigorous standards must be applied when the government conditions a land-use permit on the conveyance of property or something like an easement. Specifically, these previous cases have specified there must be a “nexus” and “rough proportionality” between the government’s demands and the effects of the proposed land use.

The ruling Tuesday extends this strict standard to cover cases where the government denies a permit because private property wasn’t conveyed. The ruling also extends this to cover cases where the government demands money instead of property.

Here is a report from Jeremy P. Jacobs, E&E reporter in Greenwire. Some quotes from the long, informative article:
The 5-4 decision along ideological lines in Koontz v. St. Johns River Water Management District is a major win for property rights activists who have long claimed the government has too much control over landowners in the permitting process.

Advocates contend landowners deserve greater protections under the Fifth Amendment's "takings clause," which states that no private property may be taken for public use "without just compensation."

Justice Samuel Alito, writing for the majority, said a more stringent takings standard established by two previous Supreme Court decisions should apply to permit terms that require the landowner to spend money.

In its 1987 Nollan v. California Coastal Commission and 1994 Dolan v. City of Tigard, the high court held that the government may not condition the approval of a land-use permit on owners' relinquishing a portion of their property unless there is a "nexus" or "rough proportionality" between the government's demand and the effects of the proposed land use.

Reversing a Florida Supreme Court decision, Alito said such a standard should have applied to the case of Coy Koontz Sr., even though Florida regulators denied the permit and the land was never developed. * * *

Several legal experts said that although many of the implications of the ruling are unclear, one thing is certain: There will likely be a rise in lawsuits challenging monetary conditions attached to land-use permits.

Over time, Beard said, agencies will likely incorporate the Nollan and Dolan standard when weighing permit applications.

Landowners who currently disagree with terms placed on their permits have another strong arrow in their quiver, he said, and that may lead to a flood of new litigation.

Other wetland mitigation experts, however, cautioned that mitigation requirements -- even off-site -- should stand up if they follow current national and state standards.

Jan Goldman-Carter of the National Wildlife Federation said current guidelines, if implemented correctly, would satisfy the Nollan and Dolan standard.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court issues another this afternoon

In Michael D. Perkinson, Jr. v. Kay Char Perkinson, a 10-page, 5-0 opinion, Justice David writes:

The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.

In addition, under the circumstances of this case, the trial court’s prohibition against parenting time is not supported by the record. Trial courts are equipped with a plethora of options and a broad range of discretion to tailor each decision to the particular circumstances. However, their discretion is not absolute. We reverse the decision of the trial court which prohibited the father from exercising any parenting time with his child and provided no means by which he could earn parenting time. * * *

A dissolution decree was entered in February 2006. It distributed marital assets and debts between Father and Mother and set out child support payments for L.P. Father and Mother entered into an agreement in which Father agreed to waive his parenting time rights in exchange for Mother assuming sole financial responsibility and waiving enforcement of Father’s child support arrearage.

The agreement also set out that if Father sought parenting time in the future, “he shall be obligated to pay any support arrearage through the date of the approval” of the agreement by the trial court. The agreement was approved by the court in March 2006. * * *

In February 2008, Father filed a verified petition for modification of parenting time, seeking to reestablish visitation with L.P. The trial court denied that petition in April 2008. Father filed a motion to correct error in May 2008, which was denied by the trial court in July 2008. In December 2010, Father filed a second verified petition for modification of parenting time. In March 2011, a hearing was conducted on the petition and the trial court again denied his petition. Father submitted a motion to correct error in March 2011 and in June 2011, the trial court denied the motion to correct error. The Court of Appeals reversed and remanded. We granted transfer. * * *

The trial court has a host of tools at its disposal. It could order phased in professionally guided supervised visitation at Father’s expense. The trial court could require the testimony of a child psychiatrist or child psychologist to assist it in determining how best to structure reunification. Or perhaps the testimony of an expert would support the fact that even the introduction of parenting time would endanger the child’s well being. The trial court could even appoint a GAL or CASA to investigate and make recommendations to the trial court. These are but a few of the many courses of action the trial court could take, when, as the situation here, the facts do not support the child would be endangered by parenting time with his Father.

Conclusion. The decision of the trial court is reversed and this case is remanded.

Dickson, C.J., and Massa and Rush, J.J., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - More on "Indiana gives BP a pass on mercury"

Updating this ILB post from June 23rd, Ann Alexander writes (in part) in the NRDC blog "Switchboard" that:

IDEM officials have acknowledged weaknesses with the permit, and indicated a willingness to revise it to address the problems we’ve highlighted. We’re cautiously optimistic that they mean business about fixing the permit and keeping mercury out of our Lake. We’ll find out whether our optimism is justified when we see the final permit.

The real scandal, though, is how we ever got to a place where BP is allowed to discharge such massive amounts of toxic mercury when the Clean Water Act – and BP’s last permit – set the appropriate limit for the Great Lakes at a tiny fraction of that amount. The law sets the standard for mercury in the Lakes 1.3 parts per trillion. BP was given 5 years in its 2007 permit – the one that provoked massive controversy in the region – to come into compliance with it. However, to the surprise of absolutely no one who was watching the situation, BP in the interim took advantage of a massive loophole. Indiana law allows BP to monitor its mercury discharge for two years, pick the very highest mercury hit over that entire time period, and then use that hit – get this – as its average limit over the course of a year in a permit variance. Think about that. They get to pick their very worst mercury day in two years, and then that’s not even the highest amount they’re allowed to discharge. They can discharge a whole lot more than that, so long as over the course of a year it all averages out to that highest hit. If you told industry to write its own regulations, that’s pretty much what you’d get. You can almost envision them laughing over the drafts.

And that’s how BP came to get a permit variance, over our protests, allowing it to discharge nearly 20 times the Great Lakes standard. In their two years of monitoring, they got one hit of 23.1 parts per trillion – which was an outlier, way higher than their other samples. And under the truck-sized loophole in Indiana law, IDEM gave it to them as their average.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Environment

Courts - "Justice Ginsburg Can Take Care of Herself"

Updating this ILB entry from earlier this morning ("Justice Samuel Alito’s middle-school antics"), Emily Bazelon writes for Slate:

Justice Samuel Alito made a public show of exasperation on the bench Monday. While Justice Ruth Bader Ginsburg was reading from her dissent in a couple of cases about employment discrimination—cases in which Alito wrote the majority opinions—“Alito pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no,’ ” as Garrett Epps wrote for the Atlantic. This does not fit with Supreme Court decorum, but then it was also indecorous of Alito to shake his head, raise his eyebrows, and mouth “not true” during President Obama’s 2010 State of the Union. Decorum isn’t his thing. * * *

I just want to say that Ginsburg is one justice who can defend herself. I don’t care how old she is: This is the woman who litigated her way to some of the biggest feminist victories of the 1970s. In the dissent she read from Monday, she called on Congress to fix the misinterpretation of Title VII (the federal anti-discrimination law) she thinks Alito made, in which as per usual he sided with business interests over workers. Ginsburg’s last shout-out to Congress, in the case of Lilly Ledbetter, led President Obama to sign a law that cleaned up the mess made by another wrongheaded Supreme Court decision, also in the area of discrimination law, on his first day of office. * * *

[S]he is a fiercely outspoken judge and public person. She can take a little rudeness from Alito in stride.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Courts in general

Ind. Decisions - Another opinion today from our Supreme Court

In Barbara A. Johnson and William T. Johnson, Both Individually and as Trustees of the Barbara A. Johnson Living Trust Dated 12-17-1996 v. Joseph Wysocki and M. Carmen Wysocki, a 16-page, 4-1 opinion, Justice David writes:

The owners of a home sold it after completing Indiana’s statutory disclosure forms, attesting to the home’s condition. Shortly after moving in, the buyers discovered a number of defects that required considerable expense to remedy. The buyers sued the former owners, alleging fraudulent misrepresentation. The question is whether Indiana’s Disclosure Statutes create such a claim or if the common law still prevails and the principle of caveat emptor effectively ends the buyers’ case. Today we hold that the General Assembly’s adoption of the Disclosure Statutes abrogated our common law jurisprudence for those transactions falling within their scope. * * *

Thus, for those types of residential real estate transactions to which they apply—and for the property features which are addressed within them—we hold that Indiana’s Disclosure Statutes abrogated the common law principles originally set forth in Cagney. In such transactions, the seller may be liable for fraudulent misrepresentations made on the Disclosure Form when he or she had actual knowledge that the representation was false at the time he or she completed the form. But because statutes in derogation of common law are strictly construed, and we presume that the General Assembly is aware of the existing common law and does not intend to change it “beyond what the express terms of its enactments and fair implications allow,” Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d 598, 603 (Ind. 2011), we view our common law principles as being undisturbed for transactions falling outside the scope of the Disclosure Statutes. * * *

We decline to assess whether a finding of actual knowledge can be inferred from the facts and surrounding circumstances as reflected in the record before us. We neither weigh evidence nor assess witness credibility. Rose Acre Farms, Inc. v. Greemann Real Estate, 516 N.E.2d 1095, 1097 (Ind. Ct. App. 1987), trans. denied. Therefore in this case the wiser approach would be to allow the trial court to take the guidance set forth in this opinion and make his own determination first with the full benefit of having been able to assess and weigh the credibility of witnesses and evidence presented at trial.

Conclusion. We reverse the trial court and remand for new findings pursuant to this opinion.

Dickson, C.J., Massa and Rush, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion. [which reads in full] I fully concur with Part I of the majority opinion. I also concur with that portion of Part II declaring that the trial court “applied the wrong legal standard to the facts” of this case. Slip op. at 14. However, I disagree with the necessity of remanding this cause to the trial court for new findings. It is certainly true the trial court did not use the magic words “actual knowledge.” But as recounted in the Facts section of the majority opinion, the record before us is more than sufficient to support the conclusion that the Johnsons had such knowledge of the various defects prior to the time they sold the property to the Wysockis. I would therefore affirm the judgment of the trial court in all respects and put this litigation to rest. Therefore, on this point I respectfully dissent.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 4 NFP)

For publication opinions today (5):

In Gerry Scheub, and the Lake County Draingage Board v. Van Kalker Family Limited Partnership, Lake County Trust Company as Trustee of Trust No. 5240 and Singleton Stone, LLC., a 15-page opinion, Judge Riley writes:

The Appellants raise one issue on appeal, which we restate as follows: Whether the trial properly denied the Appellants’ motion to dismiss for lack of subject matter jurisdiction. * * *

Here, as in Rumpke, it is clear that Scheub’s actions in the quarry project amounted to an actual bias against Singleton. In order to give the Drainage Board an opportunity to prevent an error as a result of bias, Singleton requested Scheub’s disqualification. See New Trend, 518 N.E.2d at 1105. Upon the Drainage Board’s refusal to disqualify Scheub, any further action by the Drainage Board became futile and of no value under the circumstances because any decision in which a biased Board Member participates will be vacated. See Patriotic Fireworks, 871 N.E.2d at 994; Couch v. Hamilton County Bd of Zoning Appeals, 609 N.E.2d 39, 42 (Ind. Ct. App. 1993). Therefore, as the exhaustion of administrative remedies was excused, the trial court acquired subject matter jurisdiction over the cause and properly denied Appellants’ motion to dismiss.[2]
[2]Appellants only challenge the trial court’s denial of their motion to dismiss; they do not challenge the trial court’s enforcement of the settlement agreement, disqualifying Scheub and replacing him with McDevitt.

In Elnesto Ray Valle v. State of Indiana, an 11-page opinion [including a "concurs in part and dissents in part" without opinion (!)], Judge Bradford writes:
As a result of two misbegotten schemes to bail himself out of jail, Appellant-Defendant Elnesto Ray Valle was charged with and convicted of two counts of Class C felony forgery and one count each of Class D felony attempted theft, Class C felony inmate fraud, and Class A misdemeanor resisting law enforcement. The trial court sentenced Valle to an aggregate term of sixteen years of incarceration. On appeal, Valle argues that Appellee-Plaintiff the State of Indiana presented insufficient evidence to support his conviction for Class C felony inmate fraud, claiming he did not obtain money or property by misrepresenting his ability to re-pay his alleged victim. The evidence shows that Valle obtained a future interest in the bail money as well as his release from prison, both of which, we conclude, constitute property under Indiana Code section 35-31.5-2-253(a). Valle also argues that his sixteen-year aggregate sentence is inappropriate in light of his character and the nature of his crimes. We affirm.
In George Cole v. State of Indiana, a 6-page opinion, Sr. Judge Barteau concludes:
Given that the trial court did not believe Cole’s claim as well as the fact that nearly five decades had passed from the time of his conviction until he finally sought an appeal under Post-Conviction Rule 2, we cannot say the court abused its discretion by concluding Cole was not diligent in pursuing permission to file a belated notice of appeal and by thus denying his petition for permission to file a belated notice of appeal. We therefore affirm.
In Daniel J. Hollen v. State of Indiana, a 20-page opinion with a pro se appellant, Judge Brown writes:
Daniel J. Hollen appeals the trial court’s denial of his Petition to Remove Registration Act, Sexual Violent Predator Status, and Global Positioning Satellite. Hollen raises nine issues which we consolidate and restate as whether the court erred in denying his petition. We affirm.
In Timmy T. Zieman v. State of Indiana, a 19-page opinion, Judge Crone writes:
Timmy T. Zieman fled from police and crashed his car into an officer’s vehicle, causing that officer serious bodily injury. The State charged Zieman with several crimes including attempted murder and class C felony resisting law enforcement resulting in serious bodily injury. A jury found Zieman guilty but mentally ill of these offenses. The trial court sentenced Zieman to an aggregate sentence of thirty-five years.

Zieman filed a petition for post-conviction relief (“PCR”), arguing that his trial and appellate counsel were ineffective in failing to argue that the same evidence supporting the attempted murder conviction also supported the serious bodily injury element that elevated the resisting law enforcement conviction to a class C felony and therefore his convictions violated double jeopardy principles. The post-conviction (“PC”) court found that there was no double jeopardy violation and denied Zieman’s petition.

Zieman now appeals the denial of his PCR petition. He argues that trial counsel was ineffective in failing to challenge the elevation of his resisting law enforcement conviction to a class C felony based on serious bodily injury because there is a reasonable possibility that the jury used the same evidence to support the substantial step element of his attempted murder conviction. Based on the prosecutor’s arguments at trial and the lack of specificity in the charging information and jury instructions, we conclude that such a reasonable possibility existed, and therefore double jeopardy principles were violated. Accordingly, the PC court clearly erred in finding that trial counsel did not provide ineffective assistance, and we reverse the denial of Zieman’s PCR petition. We remand with instructions for the PC court to reduce Zieman’s class C felony conviction to a class D felony conviction and sentence him to one and a half years on that count, for an aggregate sentence of thirty-three and a half years.

NFP civil opinions today (1):

Daniel M. Sulkoske v. Statewide Credit Association (NFP)

NFP criminal opinions today (3):

Cornelious Elliott v. State of Indiana (NFP)

Ryan Byfield v. State of Indiana (NFP)

Shawn Anthony Craft v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from Supreme Court

In Erving Sanders v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Dickson writes:

The defendant, facing charges of Possession of Cocaine, a class D felony, has brought this interlocutory appeal from the trial court's denial of his motion to suppress evidence obtained following a traffic stop. Concluding that the motion should have been granted, the Court of Appeals reversed. Sanders v. State, 981 N.E.2d 616, 623 (Ind. Ct. App. 2013). We granted transfer and now affirm the trial court. * * *

We hold that the officer had reasonable suspicion that the tint on the windows of the defendant's vehicle was in violation of the Window Tint Statute such that the initial stop was justified. At the initial stop, the officer smelled marijuana, which provided probable cause to search the defendant's person. The search of the defendant's person revealed a bag of cocaine, the evidence at issue in this case. Because the evidence was obtained as a result of a fully justified and legal search, the trial court was correct in denying the defendant's motion to suppress. We hereby affirm the ruling of the trial court.

In Loren Hamilton Fry v. State of Indiana, a 39-page, 3-2 "fractured" set of 4 separate opinions, Justice David writes for the majority:
The Indiana Constitution provides a qualified right to bail, exempting murder and treason from that right when “the proof is evident, or the presumption strong.” For nearly 150 years, every time we have addressed the issue in the context of a murder charge, this Court has held that the defendant must carry the burden of demonstrating that the proof is not evident and the presumption not strong, and that he is thus entitled to bail. And the Indiana General Assembly has codified this constitutional provision and our jurisprudence into the Indiana Code.

A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court’s decision denying the defendant bail. * * *

Conclusion [at p. 31 of 39] We hold today that when a defendant charged with murder or treason seeks bail, the burden is on the State, if it seeks to deny bail, to show—by a preponderance of the evidence—that the proof is evident or the presumption strong. This change notwithstanding, we also affirm the trial court’s denial of Fry’s bail in this case.

Dickson, C.J., concurs with separate opinion which Rush, J., joins.
Rush, J., concurs.
Massa, J., concurs in result and dissents with separate opinion.
Rucker, J., dissents with separate opinion in which Massa, J., concurs.

Dickson, CJ [at pp. 31-32 of 39] I applaud the carefully researched and thoughtful separate opinions of Justices Rucker and Massa. But I find determinative the actual language of the Right to Bail Clause of the Indiana Constitution.

Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident or the presumption strong. Ind. Const. art. 1, § 17.

Put another way, this provision declares a general rule that criminal offenses are bailable, with one exception, for murder and treason, that arises upon satisfaction of a prerequisite—where "the proof is evident or the presumption strong." When such prerequisite is satisfied, then the exception to the right to bail applies, and murder or treason "shall not be bailable." * * *

The Court today announces a measured approach that fully implements the requirements of the Right to Bail Clause of our Constitution while at the same time honoring and adhering to the presumption of innocence. To obtain pre-trial detention without bail of a person charged with murder or treason, the State need only show that the accused more likely than not commit-ted the charged crime. Only if the State cannot make this minimal showing may the trial court establish monetary bail or other conditions of pre-trial release. I am convinced that the standard established today represents a proper understanding and application of the Indiana Constitution's Right to Bail Clause, and I thus concur.

Massa, J [at pp. 34-37 of 39] I agree with the majority insofar as it affirms the trial court’s decision to deny Fry bail, but I dissent from the majority holding that Ind. Code § 35-33-8-2(b) is unconstitutional. While I agree with Justice Rucker and join in his dissent, I write separately to reaffirm and support this Court’s past precedent and its long-standing adherence to an originalist interpretation of our state constitution. * * *

The language of the Constitution, the convention debates, and the judicial and legislative history all demonstrate the purpose behind the murder bail provision. The framers specifically excluded those charged with murder or treason from the possibility of bail in most cases because of the seriousness of those crimes. They feared that if a defendant were admitted to bail, he may flee rather than face a judge or jury. Thus, only those defendants who could show they were likely innocent—who could show the proof of guilt was not evident nor the presumption strong—should be let to bail. While my colleagues may disagree with that policy, it is what the framers intended and what the Constitution says, and we are bound to uphold it until such time as the citizens of Indiana see fit to amend it.

Rucker, J [at pp. 38-39 of 39] In one fell swoop, today the Court overrules nearly 150 years of precedent and declares a 30-year-old statute unconstitutional. Because I am not prepared to go that far, I respectfully dissent.

First, the Court need not address the constitutional issue at all. Whatever may be said of the statutory burden of proof, the trial court in this case imposed upon the State the burden of establishing that Fry should be denied bail. And the trial court determined that the State carried its burden. The record supports the trial court’s judgment, which this Court correctly affirms. In my view that should be the end of the matter. We need not inquire any further.

As for the merits, I applaud Justice David’s scholarly research and in-depth analysis. But for ill or good, this State has charted a course different from that of some other jurisdictions. * * *

In any event we need not overrule existing precedent or declare the bail statute unconstitutional in the journey to chart a different course. Instead, again if a proper case were before us, then I would be in favor of harmonizing the statute in a way to uphold its constitutionality, and in the process distinguish rather than overrule existing precedent. This can be accomplished in my view by continuing to read the statute as imposing on the defendant “the burden of proof that he should be admitted to bail.” Ind. Code § 35-33-8-2(b). But clarifying that this burden does not come into play until after the State first introduces evidence demonstrating “more likely than not,” slip op. at 26, that the proof of the defendant’s guilt is evident or the presumption of guilt strong. In essence, we would accomplish the same end result the majority reaches today, but without the collateral consequences.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS decisions today ... [Updated]

This will be a big day. There are 6 opinions remaining to be issued. Opinions will start being issued at 10 AM. As always, watch SCOTUSblog for minute-by-minute coverage, or here for highpoints.

Three of the four "big" cases remain, there are the two marriage equality cases (Windsor/DOMA and Hollingsworth/Prop.8), plus the voting rights act case (Shelby County, Ga). The fourth "big" case, Fisher re affirmative action in college admissions, was decided yesterday.

It has been reported that that Court will issue opinions both today and another day this week, which may indicate that the "big three" will be split between the two days. I'd guess that today will be voting rights ...

This post will be updated, so check back regularly.

[Update] I've moved this post to the top of the today's listing so it is easier to find (although that may change the link ...).

From the pre-10AM Q&A on Scotusblog, this:

Comment From Lee Hawn

When Justice Kagan is rucused, does she not sit in on the actual hearing of the case or does she not engage in the "discussions" of deciding the case? Describe recusal please. Thank you!

From Amy: It means that she does not participate at all: she does not vote on the decision whether to grant review in the case, she does not participate in the oral argument (she leaves the bench before the oral argument starts), and she does not participate in the discussions after oral argument.

First opinion is Koontz, 5-4, a takings case. Case page. "Amy Howe: This is a significant victory for property rights advocates complaining about permitting conditions on their building."

Adoptive Couple v. Baby Girl "Amy Howe: The holding: Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights." Case page. The opinion is by Alito, as was Koontz. "Amy Howe: There is a dissent by Justice Scalia; there is a dissent by Sotomayor which Ginsburg and Kagan join and Scalia joins in part. This is a victory for the adoptive parents. And, as a commenter notes, a loss for the biological father."

Shelby County - Amy Howe: Holding: Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Amy Howe: Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory. Case page. Amy Howe: From the Chief's opinion. The Court makes clear that: "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions" Amy Howe: In Justice Ginsburg's dissent, she says: "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

There are no more opinions today.

Amy Howe: There are three cases left to be decided. Hollingsworth v. Perry, the Prop 8 case, United States v. Windsor, the Defense of Marriage Act case, and Sekhar, the case involving whether a lawyer's advice is property for purposes of the Hobbs Act.

Comment From Guest: So it's the Chief for Perry, Kennedy for Windsor, and Scalia for Sekhar? (reading the blanks on your stats page...) From Amy: I haven't had a chance to look, but going into today it did look like the Chief for Perry and Kennedy for Windsor, so that might make sense.

Amy Howe: From the Chief Justice: Tomorrow at 10 a.m. will be the last day and we will release all the remaining opinions.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Courts in general

Courts - "Justice Samuel Alito’s middle-school antics"

Dana Milbank writes in a column today in the Washington Post on Justice Alito's demeanor on the bench. A sample:

When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

His treatment of the 80-year-old Ginsburg, 17 years his elder and with 13 years more seniority, was a curious display of judicial temperament or, more accurately, judicial intemperance. Typically, justices state their differences in words — and Alito, as it happens, had just spoken several hundred of his own from the bench. But he frequently supplements words with middle-school gestures.

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

Another time, Sotomayor, reading a little-watched case about water rights, joked that “every student in the audience is going to look up the word ‘preemption’ today.” Alito rolled his eyes and shook his head.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Courts in general

Ind. Courts - More on: Bobay to fill Allen Superior Court vacancy

Updating this ILB entry from yesterday, Niki Kelly's story today in the Fort Wayne Journal Gazette concludes:

For the past 16 years, Bobay’s work as a magistrate has involved primarily family cases. In recent years he has handled a problem-solving criminal court, and said that will be the hardest caseload for him to leave due to the positive impact it is having on the community.

In his new post, Bobay will handle solely civil cases. He thinks he will start there sometime next week.

Allen Circuit Court Judge Tom Felts will name Bobay’s replacement as magistrate.

A lifelong Fort Wayne resident, Bobay earned his undergraduate degree from Indiana University-Purdue University Fort Wayne and graduated cum laude from Indiana University School of Law-Bloomington.

He has 22 years of experience practicing law in Allen County. Since 1997, he has served as a magistrate in Allen County.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Indiana Courts

Environment - "Camp Tecumseh operators oppose plan to build large hog operation"

From the Lafayette Journal Courier, a story today by Chris Morisse Vizza - some quotes:

BROOKSTON — The competing interests of a pork producer and advocates of outdoor education are wrapped up in a rezoning request pending before the White County commissioners.

John Erickson wants to build a concentrated animal feeding operation or CAFO that would include two barns, each with a self-contained concrete tank to store liquid manure from 4,620 pigs per barn.

Erickson’s barns would be located on a 7-acre tract of land on the west side of Springboro Road, and north of White county road 1000 south.

The 9,240 pigs would be one-half mile from the 600-acre YMCA Camp Tecumseh located on the east side of Springboro Road.

“We acknowledge Mr. Erickson is a good farmer and runs a good operation,” said Scott Brosman, camp CEO.

“We’re not anti-agriculture. We feel the scope and size of the project is too big and too close.” * * *

“We had 50 asthmatic kids at camp one week. We serve as the state burn camp, and the kidney camp. This is their chance to be outdoors.”

So far, the camp alumnae and supporters have not swayed county and state regulators.

In December, the Indiana Department of Environmental Management issued a permit authorizing the CAFO operation on the condition it complies with state regulations.

On June 10, a majority of the White County Area Plan Commission followed the staff recommendation and voted to affirm Erickson’s request to rezone the seven acres from general agriculture to agricultural industrial.

On June 17, the commissioners tabled a vote on the rezoning so they could obtain more information.

Brosman and Bien said they recognize that Indiana laws support agriculture because it is a big part of the state economy.

Also, the camp supporters recognize they are asking White County leaders to consider their property, which is in Carroll County.

Despite the setbacks, rezoning opponents are continuing their campaign to protect the the camp.

“We have woods, meadows, diverse types of natural settings, and in the afternoons, the lake is full of kids,” said Bien. “We serve 35,000 users year round.”

That number includes 5,000 summer campers, 12,000 students from Indiana schools, Scouts, church groups and corporate retreats, according to Bien.

“We are the largest outdoor education program in the state,” Brosman said.

“We’ve been here 90 years, and we’ve invested heavily in building infrastructure on our property. It’s not like we can move.”

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Environment

Ind. Courts - "Lawyers argue over who should testify during David Camm's third murder trial"

That is the headline to Grace Schneider's story yesterday for the Louisville Courier Journal, dateline Lebanon, Indiana. Somequotes:

Defense lawyers and two special prosecutors spent an afternoon in court challenging each other’s list of expert witnesses and whether the reputation of a key prosecution witness can be examined during the third murder trial of David Camm.

Special Judge Jonathan Dartt said he would rule promptly on several pending motions to set the table for a trial that’s expected to start in early August and last at least eight weeks.

Special Prosecutor Stan Levco has submitted a witness list that includes many of the same blood spatter and forensics experts who were called during the first two Camm murder trials. Among them is Rod Englert, a Portland, Ore.-based blood-stain pattern analyst who said spatter on Camm showed he was shooter.

Defense lawyers have said that they think Englert is a “liar for hire” and they told Dartt that they should be allowed to call witnesses not only to provide an analysis of Englert’s work but also to discuss his reputation.

“His reputation is suspect ... (and) we have the right for the jury to know that,” Richard Kammen, one of Camm’s lawyers, said at one point. Levco countered that the man’s reputation should not be a part of the case. * * *

The case has been moved to the Boone County seat, about 30 miles northwest of Indianapolis, to ensure a fair trial. The parties are expected to spend the week in Lebanon working on jury questionnaires and arguing pending motions to prepare for the trial.

Even on a quiet Monday in the city of 20,000, security was noticeably tighter than past Camm hearings held in Spencer County. An Indiana State police trooper dressed in black fatigues walked a dog around the courthouse before a gold SUV carrying Camm pulled up on the courthouse square.

Four officers, two from Floyd and two from Boone, surrounded the former Indiana State trooper as they escorted him through a basement entrance to the building.

Here is a list of some of the earlier ILB entries re David Camm.

Posted by Marcia Oddi on Tuesday, June 25, 2013
Posted to Indiana Courts

Monday, June 24, 2013

Courts - Interesting commentary on today's SCOTUS ruling on SORNA

"United States v. Kebodeaux and Congressional Power under the Necessary and Proper Clause' is the heading of this post, by Prof. Ilya Somin, in The Volokh Conspirary.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

Courts - "SCOTUS to weigh in on Obama’s recess appointments"

Robert Barnes reports in the Washington Post in a long story that begins:

The Supreme Court announced Monday that it will decide next term whether President Obama exceeded his constitutional authority by making appointments while the Senate was on break last year.

The case at hand involves Obama’s appointment of three members of the National Labor Relations Board (NLRB), but the broader issue concerns the power that presidents throughout history have used to fill their administrations in the face of Senate opposition and inaction.

The justices will review a broad ruling by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that upset decades of understanding about the president’s recess appointment power. The court ruled that presidents may make recess appointments only between sessions of the Senate — they generally come at the end of each year — and not when senators take an intra-session break.

Recent presidents have made appointments during both kinds of recesses.

Solicitor General Donald B. Verrilli Jr. said in a petition to the Supreme Court that the appeals court’s reading of the clause would “drastically curtail the scope of the president’s authority.”

In addition, the Supreme Court will consider a narrower question presented by the specifics of Obama’s January 2012 appointments: whether the president can make appointments when the Senate is holding pro forma sessions designed to thwart such action.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

Courts - Good news for the EPA in today's cert grants

Tejinder Singh has this post in SCOTUSblog this evening that begins:

The Supreme Court and the Environmental Protection Agency saw eye to eye today, as the Court granted the agency’s petition seeking review of a decision that invalidated an important rule relating to cross-state air pollution; at the same time, it denied a separate set of petitions by challengers to the EPA’s decision to authorize a blend of ethanol.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

Ind. Gov't. - "Police confirm one fatality in Union Mills fertilizer explosion" [Updated]

See preiminary SB Tribune story here. The incident occurred at the Union Mills plant in LaPorte County.

[Updated 6/25/13] Here is the updated story, which now is headed "Investigators trying to determine what sparked deadly grain elevator explosion" and begins:

UNION MILLS – Police have named the man killed when a grain elevator exploded Monday afternoon in the LaPorte County town of Union Mills.

He was James Swank, 67, of Union Mills.

Swank was an employee of Co-Alliance LLP, operator of the grain elevator.

LaPorte County police say the exact cause of the explosion has yet to be determined and is being investigated by the La Porte County Sheriff's Department, Indiana State Fire Marshal's office, and Bureau of Alcohol Tobacco, Firearms and Explosives.

“It just shook our whole house,” said Loretta Scarborough, who lives nearby.

According to the LaPorte County Coroner, Swank was on top of one of the roughly 175 foot grain elevator towers when a possible grain dust blast knocked him off the edge. He fell to his death and died of multiple blunt force trauma.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Government

Ind. Courts - Motion filed in federal court to have Conour bond revoked

Tim Evans has the story here, at IndyStar. It begins:

Former Indianapolis attorney William Conour violated terms of his bond in a federal wire fraud case by spending nearly $90,000 since October without court approval and attempting to mislead the court on multiple occasions regarding his dissipation of other assets, according to a motion filed today by federal prosecutors.

The motion seeking revocation of Conour’s bond was filed in U.S. District Court for the Southern District of Indiana by federal prosecutor Jason M. Bohm. The prosecutor had previously made an oral request to have the bond revoked, but filed the formal written motion at the request of U.S. District Judge Richard L. Young.

Once one of the state’s top construction injury attorneys, Conour has been free on bond since he was charged April 27, 2012, with wire fraud. He is accused of misusing more than $4.5 million meant for 25 former clients — including widows, orphans and people who suffered injuries requiring lifelong medical care.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Courts

Ind. Courts - And what about Allen County?

On June 8th the ILB posted an entry headed ""Thomas Stefaniak to become new Lake Juvenile Court judge" And what about Allen County?"

FWJG reporter Niki Kelly has just tweeted: "Gov. Mike Pence to name replacement for Allen Superior Judge Dan Heath today; will let you know as soon as I can."

Per the June 8th tweet: According to IC 33-33-2-43, the governor has 60 days to act. The three were selected April 26th:

FORT WAYNE – The Allen County judicial nominating commission picked three names Friday to send off to Indianapolis for the vacant Allen Superior Court judicial seat.

Those three include two currently-serving Allen County magistrates and a partner at a local law firm.

Allen Circuit Magistrate Craig Bobay, Allen Superior Court Magistrate Jennifer DeGroote and Michael Michmerhuizen, a partner at Barrett & McNagny, have been nominated to fill the seat of Allen Superior Judge Dan Heath.

Jon Murray has just tweeted:
Jon Murray ‏@indyJonMurray Gov. Pence has appointed Craig J. Bobay to fill a judge vacancy on Allen County Superior Court
From the news replease:
INDIANAPOLIS – Governor Mike Pence today announced the appointment of Craig J. Bobay to the Allen County Superior Court. The appointment of Bobay will fill a vacancy created by the retirement of Family Relations Division Judge Stephen M. Sims on April 26, 2013 and subsequent transfer of Civil Division Judge Daniel G. Heath to the Family Relations Division.

“Craig Bobay is uniquely qualified to serve on the Allen County Superior Court, a court system in which he has played a valuable and integral role for more than 20 years,” said Governor Pence. “I am confident Craig’s academic background, experience, integrity, and heart for his community will enable him to continue to be a strong leader for Allen County and Indiana as he assumes his new role as Superior Court Judge.”

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Courts

Ind. Gov't. - "Agencies find way to skirt rules freeze"

Supplementing this ILB post from March 1, 2013, Niki Kelly of the Fort Wayne Journal Gazette has a story today headed "Agencies find way to skirt rules freeze: Moratorium exceptions let 30 new regulations kick in." Some quotes:

On Gov. Mike Pence’s first day in office, he signed an executive order creating a moratorium on state rules and regulations.

The freeze was meant to give the Indiana Office of Management and Budget a chance to review the myriad rules and weed out burdensome or unnecessary policies.

But the moratorium isn’t absolute. First, any rules agencies had already started were allowed to continue through the long process, which involves publication and hearing requirements.

And Pence also included a number of exceptions, which state agencies have been using to get around the current ban.

So far the Office of Management and Budget has approved about 30 new rules and regulations – with a handful of others waiting for action. Two have been denied.

The exception used most often to bypass the moratorium is for rules whose predominant purpose and effect are to address matters of emergency or health or safety. One example was licensing and operational standards for health facilities.

Another common exception is for a rule that must be passed to meet a federal requirement or mandate. This was used on a number of rules in the Medicaid arena involving mental health services.

State Budget Director Chris Atkins said since the guidelines were spelled out to agencies early, some haven’t even tried to start the rulemaking process for rules that don’t expressly fall under an exception.

In the first five months of 2013, the notices of intent to file a new rule have dropped 72 percent from the same period in 2012. * * *

While the moratorium is in place, OMB staffers have started to review the rules already in the books.

Atkins said the next step is to ask the public for help in identifying burdensome rules. This can either mean a rule is unnecessary or too expensive to comply.

The state will set up a website to get these opinions, and it will drive the focus of the review. The department will also look specifically at permitting processes people must use.

“Once we gather ideas from the public we will have a better idea what to target for recommendations,” Atkins said.

Eventually it could fall on agencies to rescind rules or the legislature could eliminate them en masse.

Legislators have already gotten more interested in the process.

Sen. Mike Young, R-Indianapolis, former chairman of the Administrative Rules Oversight Committee, said the legislature this year passed legislation to more systematically review administrative rules that have a statewide impact of $500,000 or more.

He acknowledged the need for agencies to use rules to implement state laws. If not, legislators would be in session year-round.

“But it’s hard for citizens to track the rules process,” Young said. “And once these rules go in unless it’s really outrageous it’s really difficult to get them out.”

ILB: A minor quibble with the beginning of the story:
Indiana has 11,000 pages of administrative rules that Hoosiers have to wade through every day.

They govern everything from building codes and election procedure to hunting limits and traffic citations.

These regulations are formulated by state agencies to implement laws passed by the Indiana General Assembly.

If citizens want to "wade though" the building codes, they will have to go to the library or buy a copy. As the ILB has noted a number of times in the past, these codes are simply incorporated by reference in the Indiana rules, because the trade organizations that write them have copyrighted them and sell them for $$$.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Government

Ind. Law - "I’ve written more marijuana stories in the last few months than I have in the last few decades"

Maureen Hayden, CNHI Statehouse Bureau, has an interesting story today in the New Albany News & Tribune that begins:

I grew up in a city of potheads. That’s a wild exaggeration, but I did grow up in a city that was one of the first in the nation to decriminalize marijuana.

In 1972, when I was high school freshman in Ann Arbor, Mich., the city council passed an ordinance making possession of small amounts of marijuana a civil infraction, subject to a $5 fine. The penalty has since been raised to $25.

The vote made national headlines, but as I recall, it seemed almost anti-climatic. The vote — challenged in court but later re-affirmed by a voter referendum — wasn’t nearly as exciting as having John Lennon and Yoko Ono come to town.

They came in 1971, just as the pro-weed, anti-war movement was starting to take hold in Ann Arbor. They took part in the John Sinclair Freedom Rally, named for the hippie poet and activist who’d been sentenced to 10 years in a Michigan prison for giving two joints to an undercover police officer.

No way was my mother going to let me or any of my siblings go to the rally. But I can still remember some lyrics to the song Lennon wrote for it (“It ain’t fair, John Sinclair / In the stir for breathing air …”). And thanks to 21st Century technology, my grown children can see a clip of Lennon performing his song “John Sinclair” on the video-sharing website, You Tube.

Why this blast from the past? Because I’ve written more marijuana stories in the last few months than I have in the last few decades.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Law

Courts - SCOTUS "makes it harder to sue businesses"

Vance and another decision today, University of Texas Southwestern Medical Center v. Nassar, are discussed in this long AP story by Jesse J. Holland.

From a story by Richard Wolf, USA TODAY, another decision today, Mutual Pharmaceutical, is added to the pro-business list. Some quotes:

In another example of its well-documented pro-business tilt, the high court ruled Monday that the generic drug maker wasn't liable for the painkiller's content or warning label because it must mimic the brand-name drug in both instances.

Not that the justices didn't sympathize with Bartlett's plight. The 5-4 decision, written by Justice Samuel Alito, said the case "arises out of tragic circumstances" and spread blame at the feet of doctors, Congress and the Food and Drug Administration. * * *

Because the U.S. Food and Drug Administration approved the brand-name drug for sale -- and because the generic is identical, right down to the warning label -- the company challenging the jury award argued that it had no liability for Bartlett's injuries. It had most federal court precedent on its side, along with the Justice Department and the U.S. Chamber of Commerce.

But during oral arguments in March, Justice Elena Kagan noted that FDA approval merely allowed the company to sell the drug; it didn't require it. And Bartlett's attorney argued that under state law, the company must be liable for her injuries, just as a brand-name manufacturer would be.

All four liberal justices on the court dissented from the ruling.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

Ind. Decisions - "U.S. justices rule against college worker in harassment case"

This is about the SCOTUS decision in Vance v. Ball State. Jonathan Stempel and Lawrence Hurley write for Reuters:

The U.S. Supreme Court on Monday made it harder for workers to sue their employers over alleged harassment in the workplace, ruling against a catering assistant at an Indiana university who claimed she was discriminated against on the basis of race.

In a 5-4 vote divided along familiar ideological lines, the court said Maetta Vance, who is black, could not sue Ball State University over the alleged taunts and threats made by a white colleague who Vance considered to be her supervisor. * * *

Liberal Justice Ruth Bader Ginsburg dissented. She said the majority "ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the nation's workplaces."

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the dissent.

Monday's decision upheld a June 2011 ruling by the 7th U.S. Circuit Court of Appeals in favor of Ball State, which is based in Muncie, Indiana.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending June 21, 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, June 21, 2013. It is three pages (and 27 cases) long.

Two cases, both NFP, were granted transfer:

These were the COA opinions upholding the Evansville smoking ban. See this Feb. 17, 2013 ILB post for links and details. AND the question, why were these two opinions deemed Not-for-Publication by the Court of Appeals panel?

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker, a 7-page opinion, Judge Bradford writes:

Appellant-Petitioner Michael Howard appeals the trial court’s dismissal of his petition for judicial review of the decision by Appellee-Respondent the Allen County Board of Zoning Appeals (“the Board”) to grant a use variance for property owned by Appellee-Respondent Alvin Schmucker. The trial court determined that it lacked jurisdiction to hear the case because Howard failed to timely file the board record or timely request an extension of the filing deadline. Because the timing of filing the board record does not implicate matters of jurisdiction, we conclude that the trial court’s determination was clearly erroneous. But, because we interpret Indiana Code section 36-7-4-1613 to require dismissal where no materials supporting judicial review of the petitioner’s claim are timely filed and an extension of the filing deadline is not timely requested, we affirm the trial court’s judgment. * * *

For the reasons explained above, we reject Howard’s claim under Trial Rule 15 that the relation back doctrine forgives the tardiness of his second belated extension request, which Howard included in his amended petition for judicial review. Moreover, “[a]fter a filing deadline has elapsed, a party is not permitted to amend a petition to cure its procedural defects.” Corcoran v. State, 845 N.E.2d 1019, 1022 (Ind. 2006).

NFP civil opinions today (0):

NFP criminal opinions today (2):

Anthony Wilson v. State of Indiana (NFP)

Aaron W. Prater v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS decisions today ...

This could be a big day. There are 11 opinions remaining to be issued. Opinions will start being issued at 10 AM (unfortunately I have an appointment until slightly after 10, but will catch up quickly).

As always, watch SCOTUSblog for complete coverage, or here for the ILB's highpoints.

The SCOTUS affirms the 7th Circuit in Vance v. Ball State. Here is the case page. Kevin Russell: SCOTUSblog: "One more note about Vance -- echos of Ledbetter v. Goodyear: a majority opinion by Justice Alito, with a dissent from Justice Ginsburg accusing the majority of not understanding workplace realities and ending with the admonition that '[t]he ball is once again in Congress's court...'"

"Amy Howe: U.S. v. Kebodoeux. The Fifth Circuit is reversed and remanded. Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause."

Fisher v. UT Austin -"Amy Howe: The majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case." "Amy Howe: Here's the money quote: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

UT Southwestern v. Nassar
, the retaliation claims case. The Court holds that Title VII retaliation claims must be proved according to traditional principles of "but for" causation, not the lesser causation standards stated in the law. The final opinion of the day. Amy Howe: the decision is 5-4. Ginsburg dissents, joined by Breyer, Sotomayor, and Kagan.

The Court has announced that they will be back at 10 AM tomorrow. "We got five opinions today, and we have six cases remaining."

The fifth opinion today was Mutual Pharm. v. Bartlett.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

Ind. Gov't. - "IU board pick might rub Hoosiers the wrong way"

Supplementing this ILB entry from June 21st, Eric Bradner of the Evansville Courier & Press wrote in his "Notebook" column yesterday why some people may object to Tobias' appointment to the IU Board of Trustees.

My objection, as I wrote in the earlier post, to the dual appointments of Tobias and James Morris, was different:

Both were undergrads with me, in the first half of the 1960s, although I didn't know them. No disrespect, but the role of the traditional university is currently beset from all sides, a revolution is underway, and it might be good to start replacing the "old guard" with some hipper, high-quality but more current, voices.
Bradner also writes that:
Derica Rice, who was reappointed to the board [by Pence], is the chief financial officer for Eli Lilly & Co.
That means at least two of the nine trustees have strong Lilly connections. Tobias was the CEO. Rice, who is currently CFO, was initally appointed by then-Gov. Daniels, also notably a Lilly alum. Morris, who Bradner writes, "was a member of the Indiana University board of trustees from 1996 to 2002 and was chair from 2000 to 2002," has been president of the Lilly Endowment. It seems like there is a very small universe from which governors select IU trustees.

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Indiana Government

Courts - "A Test Track for Tuning Up Supreme Court Arguments"

Many lawyers appealing to our Indiana appellate courts first hold moot sessions before some of their peers. The NY Times today has an Adam Liptak story about preparing to argue before the SCOTUS and how, to paraphrase the end of the story, the attention the case receives "through moot courts and other preparation, can alter its very nature. “Once you actually put a case under a microscope,” says one litigator, “it shows you how much a case can change.”

Posted by Marcia Oddi on Monday, June 24, 2013
Posted to Courts in general

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

From Sunday, July 23, 2013:

From Saturday, July 22, 2013:

Posted by Marcia Oddi on Monday, June 24, 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 6/24/13):

Thursday, June 27th

Next week's oral arguments before the Supreme Court (week of 7/1/13):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 6/24/13):

Tuesday, June 25th

Wednesday, June 27th

Next week's oral arguments before the Court of Appeals (week of 7/1/13):

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, June 24, 2013
Posted to Upcoming Oral Arguments

Sunday, June 23, 2013

Ind. Courts - Judge concerned there won’t be enough unbiased jurors in Howard County for the trial

Scott Smith of the Kokomo Tribune reported yesterday in a story that begins:

The judge presiding over the criminal case against two Kokomo doctors expressed concerns Friday there won’t be enough unbiased jurors in Howard County to try Don and Marilyn Wagoner.

But those concerns weren’t enough for Howard Superior Court 1 Judge William Menges to grant the Wagoners a venue change.

Menges also turned back defense suggestions that he’d be biased because one of his relatives by marriage was a patient of the Wagoners about six or seven years ago.

“I think it’s more problematic that there are 40,000 [current or former] Wagoner patients in the area,” Menges said during Friday’s hearing. “It may be tough getting a jury.”

Posted by Marcia Oddi on Sunday, June 23, 2013
Posted to Indiana Courts

Ind. Gov't. - "Voucher success could cause new choice problems"

That is the heading to Lesley Weidenbener's column today for the Louisville Courier Journal. A quote:

When the General Assembly authorized vouchers two years ago, educators estimated that there were some 20,000 available slots in private schools. Since then, a few have announced expansions or new locations.

But private school operators told lawmakers this year that without boosts in the voucher amounts, they can’t afford to build more schools. Andrew Hart, director of the Oaks Academy in Indianapolis, told a Senate committee that his school already has a waiting list.

“There are more families that wish to enroll their children than we have capacity for,” Hart said in April. He told lawmakers that the voucher — which had been capped at $4,500 for elementary school — has been too low to cover all the costs of educating a student and therefore discourages expansion to make more room.

The General Assembly voted to raise the cap to $4,700 for the upcoming school year and to $4,800 for fall 2014. Still, Hart said the cost for one year of education at the Oaks Academy is $9,000 per student, which he said helps to pay for small class sizes and competitive salaries for teachers.

And the Oaks Academy isn’t alone. Many private schools charge tuition that’s significantly higher than the vouchers they accept — and higher than the per-student funding the state gives to public schools.

Private school leaders argue those public schools also receive funding for buildings and buses from property taxes, money that’s not available to private schools. And it’s unlikely the General Assembly will give them any of that cash.

That means the voucher program could be on a collision course with financial reality. Once existing private school slots are filled, the state could be facing new questions about whether parents really do have a choice — a dilemma that already exists in some smaller or rural communities where private schools are less available.

Posted by Marcia Oddi on Sunday, June 23, 2013
Posted to Indiana Government

Environment - "Indiana gives BP a pass on mercury"

Michael Hawthorne of the Chicago Tribune has this story today. Hawthorne and Gitte Laasby, then of the Gary Post-Tribune, covered BP's Whiting refinery's toxic discharges into Lake Michigan and into the air, and the IDEM permits, in depth in 2008 - see, e.g., this ILB post. Some quotes from today's lengthy story:

Faced with public outrage and congressional pressure, the oil company BP vowed six years ago to develop cutting-edge technology that could sharply reduce toxic mercury discharged into Lake Michigan by its massive refinery about 20 miles southeast of downtown Chicago.

BP enlisted scientists at Argonne National Laboratory and the Purdue-Calumet Water Institute to come up with methods that company officials said could set a model for factories and sewage treatment plants throughout the Great Lakes region. But despite promising results from two options tested, a new draft permit from Indiana regulators allows BP to avoid installing the mercury-filtering equipment at the Whiting refinery.

Under the terms of an earlier decision by the Indiana Department of Environmental Management, the BP refinery can legally discharge an annual average of 23.1 parts per trillion of mercury — nearly 20 times the federal water quality standard for Great Lakes polluters. The proposed new permit would allow that special exemption to continue indefinitely.

Though the amount of mercury that BP's treatment plant puts into the lake is small compared with what falls into the water from air pollution, the federal limit of 1.3 parts per trillion reflects decades of research showing that even tiny drops of the brain-damaging metal can contaminate fish and threaten people. The Whiting refinery is among a handful of industrial polluters that still release mercury-laden wastewater into southern Lake Michigan, according to federal records. * * *

After insisting for months that they couldn't come up with a solution, BP executives backed down and promised to abide by the terms of an older permit that imposed more stringent limits on ammonia, which promotes algae blooms that can kill fish, and on suspended solids, tiny particles of refinery sludge concentrated with mercury and other heavy metals.

Indiana gave BP until 2012 to meet the strict federal mercury limit but predicted the refinery would fail to meet the deadline. In late 2011, state regulators exempted the refinery from complying and set its mercury limit at 23.1 parts per trillion, allowing BP to continue legally violating the federal standard.

The proposed new permit renews the more stringent limits on ammonia and suspended solids for at least the next five years. But the wording leaves it to Indiana regulators to decide whether to reduce the refinery's mercury limit sometime in the future.

Posted by Marcia Oddi on Sunday, June 23, 2013
Posted to Environment

Saturday, June 22, 2013

Ind. Courts - More on: Compare Ind. case involving Dearborn County judge and fed. case involving 7th Cir. judges

Updating this ILB post from yesterday, How Appealing now has another post (here was the first) on the 2nd Circuit opinion in United States v. Turner issued yesterday, re threats against three 7th Circuit judges.

Among the links given is this one to the NY Law Journal story by Mark Hamblett headed "Circuit Finds Blogger Issued 'True Threat' Against Judges," that includes:

Turner published a blog post on June 2, 2009 following the Seventh Circuit 's decision in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009).

"Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to assure freedom for millions," he wrote.

Turner then referred to the murders of U.S. District Judge Joan Lefkow's husband and mother in the judge's Chicago home in 2005, connecting it to Lefkow's role in a case involving white supremacist Mathew Hale and his organization "World Church of the Creator."

Lefkow had ruled against Hale in a 2002 trademark infringement case, finding that his church infringed on a trademark belonging to another group. In 2003, Hale was arrested for plotting to kill Lefkow. In 2005, Hale was convicted of soliciting Lefkow's murder, and he was sentenced to 40 years in prison.

On June 3, 2009, Turner posted photos of the three Seventh Circuit judges, the room numbers of their chambers at the Everett McKinley Dirksen U.S. Courthouse, photos of the courthouse and a map that indicated the location of "Anti-truck bomb barriers."

From earlier in the story:
Second Circuit Judge Debra Ann Livingston and Eastern District Judge Brian Cogan, sitting by designation, said the evidence at Turner's trial in Brooklyn federal court was "more than sufficient" to meet each of the elements for threatening a federal judge under 18 U.S.C. §115(a)(1)(B) and that "Turner's conduct was unprotected by the First Amendment."

Judge Rosemary Pooler dissented in United States v. Turner, 11-196-cr, saying "as a matter of law" Turner's speech was not a "true threat" under the statute and the First Amendment.

Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Posted by Marcia Oddi on Saturday, June 22, 2013
Posted to Indiana Courts

Ind. Decisions - Illinois COA discusses Indiana law re insurer's duty to defend in unsolicited fax suit

In Bridgeview Health Care v. State Farm, a June 19th decision of an Illinois Court of Appeals, Bridgeport:

... filed a complaint against Jerry Clark for sending it unsolicited faxes. Bridgeview then filed a declaratory judgment action against Clark's insurer, State Farm Fire and Casualty Company, seeking a declaration that State Farm had a duty to defend and indemnify Clark in the underlying lawsuit for the unsolicited faxes.

Bridgeview filed a motion for summary judgment in the declaratory judgment action, relying on decisions of the Illinois courts to show that State Farm had a duty to defend Clark. State Farm filed a motion for summary judgment claiming that Indiana law applied and that decisions of the federal court sitting in Indiana established that State Farm had no duty to those cases did not provide coverage for charges that the insureds violated the TCPA or that they caused property damage to the recipients of unwelcome faxes. defend. The trial court found that the federal decisions did not prove a conflict between Indiana law and Illinois law, so Illinois law applied. Under Illinois law, State Farm had a duty to defend Clark. The trial court granted summary judgment in favor of Bridgeview.

In this appeal, we find that in the absence of controlling authority from Indiana's state courts on the question at issue in a case, this court should conduct a conflict analysis. We reverse the trial court's judgment and remand for the trial court to determine which state has the most significant contacts with the dispute, and for the application of that state's law to the dispute.

In 2009, Bridgeview filed the underlying lawsuit against Clark in the United States District Court for the Northern District of Illinois, alleging that in 2006, Clark faxed an unsolicited advertisement to Bridgeview's business offices in Chicago. In the first count of the complaint, Bridgeview claimed that Clark violated the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227 (2000)). The second count charged Clark with conversion of Bridgeview's toner, paper and employee time, and the third count charged Clark with violating the Illinois Consumer Fraud and Deceptive Business Practices Act. * * *

State Farm admitted that it has its principal place of business in Illinois. However, State Farm argued that Indiana law should apply to the coverage dispute because Indiana had the most significant contacts with the dispute. * * *

The parties agreed that no published decision of the Indiana state courts had addressed the issue of whether a commercial liability policy covered claims for violations of the TCPA as either advertising injury or property damage. Pekin relied on two decisions of federal courts sitting in Indiana. The district courts that decided Ace Mortgage Funding, Inc. v. Travelers Indemnity Co. of America, 2008 U.S. Dist. LEXIS 18696 (S.D. Ind. Mar. 10, 2008), and Erie Insurance Exchange v. Kevin T. Watts, Inc., No. 1:05-CV-163 DFHTAB, No. 1:05-CV-867-JDT-TAB, 2006 U.S. Dist. LEXIS 35828 (S.D. Ind. May 30, 2006), predicted that Indiana courts would hold that the commercial liability policies at issue in those cases did not provide coverage for charges that the insureds violated the TCPA or that they caused property damage to the recipients of unwelcome faxes. * * *

This lawsuit raises the issue of whether an insurer that provides coverage for accidental property damage and advertising injury must defend an insured against charges that it sent unsolicited faxes. Because Indiana state courts have not yet addressed this issue, the potential conflict with Illinois law requires the trial court to determine whether Illinois law or Indiana law governs this coverage dispute. We reverse the trial court's judgment and remand for further proceedings in accord with this opinion.

Posted by Marcia Oddi on Saturday, June 22, 2013
Posted to Indiana Decisions

Environment - " State threatens to mar beauty of pristine Indiana forest"

That is the headline of Matthew Tully's Indianapolis Star column, dated June 21st. Some quotes:

Why in a state with a short supply of natural beauty, one without the mountains or plains or oceans that grace so many other states, are Indiana government officials so eager to bring loggers and their chainsaws into places such as Morgan-Monroe with increasing frequency?

In case you missed the story, which the state has done its best to underplay, DNR is taking another big step in the most aggressive logging plan in state forests in decades, targeting the backcountry areas that environmentalists, hikers, birdwatchers and others value so much. Morgan-Monroe, just 45 minutes south of Indianapolis but a world away, is on the latest list, as is Yellowwood State Forest. It’s all part of a dramatic increase in state forest logging that began during the Daniels administration and looks certain to continue under Gov. Mike Pence.

But why? To please the politically connected logging industry, which counts key legislators as its friends but has so much private land on which to work? To raise money for the state, roughly $2 million annually, according to DNR? It doesn’t make sense.

That’s not to argue against logging in general, or against the need for smart timber management. But this ongoing effort to invade state forests is just another example — along with over-the-top protections for factory farms and attacks on industrial regulations — in the never-ending disregard for basic environmental protections in Indiana. * * *

In its newsletters in recent years the timber industry has celebrated elections that have put friendly faces into key government spots — from legislative committee chairmanships to the governor’s office. Over that time, timber harvesting on state land has increased by up to 400 percent, DNR spokesman Phil Bloom said, though he added that only 1 percent of the land is harvested each year. * * *

The question is when will the increase in logging stop, and when will environmental concerns begin to get a seat at the adult table when decisions are made. Logging has increased to this point with little outcry from Hoosiers and at absolutely no political cost for former Gov. Mitch Daniels and now Gov. Mike Pence. If bumping the figure up to 1 percent of state forests is acceptable, will anything change if, and when, that figure doubles or triples?

Indiana has its strengths and its weaknesses, both now and in its long history. And one of its consistent weaknesses has been an unwillingness to protect its environment. I’m not talking about an Oregon-like belief in placing environmental concerns at the top of the list of every debate, but rather just a basic understanding that clean air and water, open spaces and reasonable controls on industry and factory farms, can add much to the quality of life.

The logging in Morgan-Monroe State Forest is certain to move forward. DNR’s spokesman told me that the environmentalists who have objected to the plan “brought no new issues to light.”

But that’s the point. They shouldn’t have to. In Indiana, the old issues still haven’t received their due.

ILB: Here are some earlier Star stories:

May 31, 2011 - "State forest trees are sold for logging: Group trying to save 1,300-plus specimens, thought to be protected". The story began:

More than 1,300 trees that environmentalists thought had been protected when Gov. Bob Orr declared them part of a backcountry haven in 1981 may soon be mere stumps.

The state Department of Natural Resources auctioned rights to cut down the trees in the Morgan-Monroe and Yellowwood state forests Thursday morning to an Indiana logging company for $52,702. Now, the only thing standing between the trees and a chainsaw is legal action by the Indiana Forest Alliance.

Sept. 16, 2005 - "Daniels plans to cut down up to five times the number of trees in state forests". A quote:
The state Department of Natural Resources has historically harvested about 3.4 million board-feet of forest each year. Under the Republican governor’s plan, that figure would jump to between 10 million and 17 million board-feet.

Posted by Marcia Oddi on Saturday, June 22, 2013
Posted to Environment

Friday, June 21, 2013

Ind. Decisions - Supreme Court issues one (so far) this afternoon

In Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group, an 11-page, 4-1 opinion, Chief Justice Dickson writes:

Plaintiffs Sharon and Leslie Wright appeal the striking of their expert witness and the dismissal of their medical malpractice claim against Dr. Anthony Miller and Achilles Podiatry Group pursuant to Trial Rules 37(B) and 41(E). We reverse. * * *

1. Enforcing Discovery and Trial Court Management Orders * * *

When challenged on appeal, trial court sanctions for failure to comply with court orders are reviewed for an abuse of discretion. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993). We presume that the trial court will "act in accord with what is fair and equitable in each case," and thus we will only reverse "if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law." Id. The conduct and equities will vary with each case, and we thus generally leave that determination to the sound discretion of the trial courts.

In the present case, we discern from the trial court's order of judgment and order denying the plaintiffs' motion to correct error that the court's decision to dismiss was predicated upon its determination excluding the plaintiffs' expert witness. It was the court's decision to exclude the witness that resulted from plaintiffs' counsel's persistent disregard and violation of the court's discovery and case management orders. For this reason, we will first address the propriety of the trial court's exclusion of the plaintiffs' expert witness. Then we will address the trial court's resulting dismissal decision.

2. Exclusion of Plaintiffs' Expert Witness

Applying the above principles, we find that the exclusion of the expert witness was in consistent with the logic and effect of the facts and circumstances before the court. * * *

While we critically view counsel's haphazard and disrespectful pattern of inattention to or disregard of the trial court’s management and discovery orders and deadlines, the prejudice to the defendants was minimal. * * *

We continue to recognize the trial court's inherent powers in "maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior," Major, 822 N.E.2d at 169, and we encourage trial judges to actively oversee and manage the cases pending before them. The use and enforcement of case management orders and deadlines are essential to sound judicial administration. But we conclude that the circumstances of the present case warranted some lesser, preliminary, or more pointed sanction fashioned to address counsel's unsatisfactory conduct in this case without depriving the plaintiffs of their ability to present the merits of their case at trial. Accordingly, we hold that the trial court's exclusion of the plaintiffs' expert witness was inconsistent with the logic and effect of the facts and circumstances presented.

3. Dismissal of the Plaintiffs' Action

As noted above, the trial court's order of dismissal was directly grounded upon its decision to exclude the plaintiffs' expert witness for violation of discovery deadlines and its belief that the plaintiffs could not establish their case without such witness. Because we have concluded that such witness exclusion was erroneous, the basis for the resulting case dismissal evaporates and the granting of the defendants' motion to dismiss was likewise erroneous.


We reverse the trial court's order of judgment granting the defendants' motions to strike the plaintiffs' expert witness and to dismiss this action. These motions should have been denied. This cause is remanded for further proceedings.

Rucker, Massa, and Rush, JJ., concur.
David, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 11 of 11] I concur in that portion of the majority opinion reversing dismissal of this case pursuant to the Indiana Rules of Trial Procedure. I agree that it was an abuse of discretion to dismiss the case entirely under the circumstances presented here. I also concur that a formulaic adherence to the factors from Wiseheart v. State, 491 N.E.2d 985 (Ind. 1986), diminishes the discretionary authority of the trial court judge to manage and maintain the dignity, business, and process of the court.

Nevertheless, I cannot concur with the subsequent reversal of the trial court’s decision to exclude Wright’s expert witness.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Compare Ind. case involving county judge and fed. case involving 7th Cir. judges

See this How Appealing post and compare to Brewington case pending before the Indiana Supreme Court. The post begins:

"On June 2, 2009, Harold Turner published a blog post declaring that three Seventh Circuit judges deserved to die for their recent decision that the Second Amendment did not apply to the states": So begins the majority opinion that a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today in United States v. Turner.
[More] See Reuters story headed "U.S. court upholds radio host's conviction for threats to judges."

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: What's this? Star reports: "Towing prices to remain same under new Indianapolis contract"

Updating this ILB post from first thing this morning, the IndyStar has now updated its story to include:

But the cost will rise over the five years of the deal, Department of Code Enforcement Spokesman Adam Baker said. During years two and three, the cost of picking up a towed car will increase to $110 and then during the fourth and fifth year of the contract jump to $130.
But the headline, "Towing prices to remain same under new Indianapolis contract," remains. Trusted Star reporter Jon Murray (who did not write the story) tweeted a few minutes ago:
Story updated: Towing prices to remain same initially, then rise 44% by year 4 under new Indianapolis contract.

It was an unfortunate oversight. Problem is they aren't giving out the contract yet.

The City has no excuse for not making the contract available at this point.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Indiana Government

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

For publication opinions today (3):

In Gasser Chair Company, Inc. v. Marlene J. Nordengreen, Horseshoe Hammond, LLC, d/b/a Horseshoe Casino, a 9-page opinion, Judge May writes:

Marlene Nordengreen sued Horseshoe Casino and Gasser Chair Company, alleging she was injured at Horseshoe while using a chair Gasser manufactured. The trial court granted summary judgment for Horseshoe but denied Gasser’s motion. Gasser appeals, arguing the trial court should not have granted summary judgment for Horseshoe because Horseshoe did not provide evidence the Gasser chair was the proximate cause of Nordengreen’s injury; it did not apply the correct standard of care by Horseshoe to its invitees; and there were issues of fact as to Horseshoe’s knowledge of a defect on its premises. We affirm the summary judgment for Horseshoe.

On cross-appeal, Horseshoe argues the trial court erred to the extent it determined certain third-party claims Horseshoe made against Gasser became moot by virtue of the summary judgment for Horseshoe. We agree and remand for consideration of those claims. * * *

In the case before us, the evidence was that Horseshoe inspected the chairs daily.3 There had been no reported problems with the chair Nordengreen used. When a gas cylinder fails, the chair generally “doesn’t collapse all at once.” (App. at 163.) Instead, when someone sits on it, “it starts to drift downward.” (Id.) Gasser did not warn Horseshoe a gas cylinder could suddenly fail, or warn it about what might happen if a gas cylinder failed. While the trial court noted there had been unspecified “issues” with gas cylinders on one-half of one percent of the chairs at Horseshoe, none of the problems had resulted in injuries. We cannot find a genuine issue of fact as to Horseshoe’s knowledge the chair was a dangerous condition on its premises, and summary judgment for Horseshoe was not error.

In John M. Mayer, Jr., as Special Administrator of the Estate of Paige R. Winn, Deceased v. Michael. W. Davis, a 10-page opinion, Judge Bradford writes:
On October 12, 2007, Appellee-Plaintiff Michael Davis was injured when the vehicle he was driving collided with a vehicle that was being driven by Paige Winn. Winn subsequently died of unrelated causes. On September 25, 2009, Davis filed a civil suit against Winn’s Estate, claiming to have suffered personal injuries and lost employment wages as a result of the October 12, 2007 automobile accident. Following a two-day jury trial, the jury awarded Davis $60,000, and the trial court entered a judgment reflecting this amount. Soon thereafter, Winn’s Estate filed a motion to amend the judgment, claiming that Davis’s recovery was limited to the funds available under Winn’s insurance liability policy because, pursuant to the time limitations set forth in the probate code, Davis failed to timely file his claim against Winn’s Estate. The trial court denied this motion.

We conclude that Davis’s claim against Winn’s Estate was not filed in a timely manner, and, as a result, Davis is barred from recovering any funds from the Estate. Davis’s recovery is limited to funds recovered from Winn’s insurance carrier in the amount of Winn’s insurance liability policy limits. However, the trial court did not abuse its discretion in denying the motion to amend the judgment because the judgment is a valid judgment despite the fact that the excess judgment cannot be collected from Winn’s Estate. Accordingly, we affirm.

In Constance Anderson V. State of Indiana, a 7-page opinion, Judge May writes:
Constance Anderson appeals following her convictions of two counts of Class D felony criminal mischief and five counts of Class A misdemeanor animal cruelty. She presents two issues for review:
1. Whether her three-year sentence was an abuse of discretion; and 2. Whether Anderson’s sentence is inappropriate in light of her character and offenses. * * *

Anderson’s convictions of animal cruelty required the State to prove that Anderson recklessly, knowingly, or intentionally abandoned or neglected an animal by restraining it in a manner that seriously endangered the animal’s life or health. See Ind. Code § 35-46-3-7. Anderson and her roommate resided at the Elmer Street property in 2006, but left the property around 2010 due to its dilapidated state. They left upwards of eighty-five cats in that dwelling with inadequate nourishment. The air quality test showed ammonia levels four times higher than normally expected for a living space. Anderson kept upwards of thirty-seven dead cats in her refrigerators and freezers. As a consequence of Anderson’s actions another 103 cats had to be euthanized. Anderson’s conduct far exceeded the necessary showing under these counts, and permitted an enhanced sentence.

As to Anderson’s character, she knew the state of affairs in the two properties and ignored the problem. Despite her education and occupation in the mental health profession, Anderson exhibited a lack of concern for the well-being of the cats. Nor did she exhibit concern for the welfare of her neighbors when she permitted the Elmer Street property to become an environmental hazard.

We cannot find Anderson’s sentence inappropriate based on her offense or character.

CONCLUSION. Anderson has not demonstrated the trial court abused its discretion in its consideration of mitigating factors. Additionally, we decline to exercise our authority to revise a sentence under App. R. 7(B) as Anderson’s sentence cannot be said to be inappropriate in light of her character and the nature of her offense. Affirmed.

NFP civil opinions today (1):

In the Matter of Minor Children Alleged to be in Need of Services, R.C. and J.C., Minor Children, D.S. Mother, and E.S. Stepfather v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Mark A. Sheese v. State of Indiana (NFP)

Kenneth Alexander v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Oral Argument at the Court of Appeals is a Rarity, Even When Requested

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

Oral argument was among the topics discussed at an informative Appellate Roundtable with Justice Rush and Judge Baker sponsored by the IBA Appellate Practice Section Wednesday. Although the two courts generally set arguments for the same length of time (40 minutes or 20 per side), their approaches to oral argument are otherwise quite different.

The Indiana Supreme Court hears oral argument in nearly every case it plans to decide (and several it is considering or ultimately decides to deny review, as explained here) while oral argument at the Court of Appeals is the exception—not the rule. For example, in 2012 the court heard argument in roughly 3.6% (78 cases) of the 2143 cases in which it issued opinions.*

Requests for Oral Argument

Because oral argument is rarely held at the Court of Appeals, Judge Baker emphasized that lawyers who desire an oral argument file a motion explaining the specific reasons for their request. He always (or nearly always) votes to grant oral argument when counsel provides a reasonable basis for the request. Moreover, whether requested or not, argument may be set in other cases where the judges believe it would be helpful and may even be set in a case after a draft opinion is written and circulated to the panel —- if one of the members believes it is warranted.

Orders Limiting Issues

The Court may also issue an order directing counsel to focus on specific issues, such as this order in Wright v. Miller, which was argued last February:

Or an order in Johnson v. Dr. A, et al. argued in July:
Judges at Oral Argument

The Court of Appeals 2012 Annual Report shows considerable variance in the number of arguments held by judge. Judge Baker tops the list at 26, followed by Judges Kirsch, Bradford, and Vaidik, who each did 20 or 21. Judges Darden and Pyle, who each served a partial year, were in single digits while a third of the judges who served the full year heard between 10 and 12 arguments.

About 65% of Requests for Oral Argument at the Court of Appeals are Denied

The unanswered question in the Annual Report and acknowledged at the Roundtable was the percentage of cases in which oral argument was requested but denied. The Annual Report notes that 86 orders setting oral argument were issued in 2012, and orders denying argument were issued in 66 cases. Of the 78 arguments held last year, review of the court’s oral argument calendar and online docket shows 42 of those cases were set without a motion filed by either party. That means 36 motions for argument were granted and roughly 65% (66/102) were denied.**

One in three may seem like long odds, but without a request for oral argument the chances of receiving an order setting a case for argument was 2% (42/2041). And more than half of those cases were set outside the Statehouse as as a "traveling" oral argument. Judges have explained they try to find interesting and relatively easy-to-understand issues when taking an argument to a high school, college, or similar venue. Most of these have been criminal cases, and very seldom is a recording made to archive on the Court's website. Some of the court's most interesting arguments are therefore lost to history.
*I use the word “roughly” because oral arguments will not always be held the same calendar year in which a case is decided. For example, a case argued in December may not be decided until January of the following year. The vast majority of cases, however, are decided within a month of oral argument and within the same year.
** Again, this is a close approximation. Occasionally orders are issued setting an argument that must later be rescheduled or vacated because the case settles —- or orders issued during one calendar year may be set for the following year.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Schumm - Commentary

Courts - "What hope remains for consumers, employees after SCOTUS Amex ruling?"

Read Alison Frankel's long Reuters opinion piece today on yesterday's SCOTUS ruling in "American Express v. Italian Colors". It begins:

The U.S. Supreme Court’s ruling Thursday in American Express v. Italian Colors has narrowed to an irrelevant pinhole the so-called “effective vindication exception” to mandatory arbitration. Despite dicta in previous Supreme Court cases that suggested arbitration clauses are not enforceable when it is prohibitively expensive for claimants to enforce their rights through the arbitration process, the five justices in the Amex majority held that plaintiffs who sign arbitration agreements don’t have the right to pursue their claims on anything but an individual basis, even if the cost of that pursuit dwarfs their potential recovery.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Courts in general

Not Law - IU trustees election, be sure to vote [Updated 6/22/13]

Mike Leonard reports in the Bloomington Herald-Times ($$$) this morning that Gov. Pence:

... has appointed two well-known names to the Indiana University Board of Trustees.

The new appointees are: Randall Tobias, former CEO at Eli Lilly and Co., and James T. Morris, president of Pacers Sports and Entertainment and former executive director of the United Nations World Food Programme.

Both were undergrads with me, in the first half of the 1960s, although I didn't know them. No disrespect, but the role of the traditional university is currently beset from all sides, a revolution is underway, and it might be good to start replacing the "old guard" with some hipper, high-quality but more current, voices.

Today's story concludes:

The governor appoints six of IU’s nine trustees. The term of trustees chairman and political appointee William R. Cast of Fort Wayne will expire in 2014. The term of appointee Thomas Reilly Jr. of Indianapolis also expires in 2014.

Trustees elected by IU graduates include Patrick A. Shoulders of Evansville, whose term expires in 2014, and Philip N. Eskew Jr., whose term ends in 2015.

Elected Hamilton County Trustee MaryEllen Kiley Bishop’s term expires at the end of this month. She is running for re-election and is being challenged by Ann Delaney of Indianapolis.

Reading the story made me realize I haven't received a ballot for the trustee election currently underway. So I looked online and discovered, one can vote online, provided of course that you are an eligible graduate. Check here. Voting closes at 11 a.m. ET on June 29 -- a week from this Saturday.

[Updated 6/22/13] An interesting item from this story by Eric Bradner in today's Evansville C&P:

Pence last week appointed four new members to the Indiana University board of trustees. Among them was Randall Tobias, who gave Pence’s gubernatorial campaign more than $35,000 in 2012 and gave Pence another $10,000 in May.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to General Law Related

Ind. Gov't. - What's this? Star reports: "Towing prices to remain same under new Indianapolis contract"

Updating this ILB entry from May 29th, quoting from Jon Murray's story: "Code Enforcement officials declined to release details such as Auto Return’s proposed pricing structure," we have all been waiting for the announcement of the pricing structure which would permit the Calif. company to "guarantee the city at least $1.5 million in revenue each year," without charging more for tows.

Yet the IndyStar story this morning by Kasia Hall reports:

Vehicle owners whose cars get towed will still pay $90 to get them back under the city’s new towing management contract, city officials announced Thursday.
However, WRTV6 reporter Jack Rinehart's story last night, with video, reported:
INDIANAPOLIS - Expectations are high as the California-based company AutoReturn will make its official debut July 1. * * *

Through the first year of the contract, the cost of redeeming a vehicle from the police impound lot will remain at $90.

In years two and three of the contract, the cost will jump to $110, and in the last two years of the contract, the cost will increase to $130.

ILB: In addition to the higher fees (it would be good to see the contract, especially re possible "add-ons" charges), the ILB anticipates the sheer number of tows to increase markedly.

Posted by Marcia Oddi on Friday, June 21, 2013
Posted to Indiana Government

Thursday, June 20, 2013

Courts - Nina Totenberg covers today's three SCOTUS decisions

The NPR audio is nearly 7:30 minutes. There is also a transcript of her long, comprehensive story.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Courts in general

Ind. Courts - Advisory Opinion: Courts Are Not Revenue Centers

Tucked away here on the Indiana Courts website is "an index of formal Advisory Opinions issued by the Commission, with links to the text of the opinions." It is arranged by the Cannons of the Code of Judicial Conduct. But the Advisory Opinions are numbered by what appears to be month and year. Very few have been issued in this century and none since 2007, until this one titled "Judicial pay arrangements", issued, it appears, "1/13". It is filed under Canon #1, "A Judge Shall Uphold and Promote the Independence, Integrity, and Impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of Impropriety". The Advisory Opinion begins:

The Indiana Commission on Judicial Qualifications issues the following advisory opinion concerning the Code of Judicial Conduct. The views of the Commission are not necessarily those of a majority of the Indiana Supreme Court, the ultimate arbiter of judicial disciplinary issues. Compliance with an opinion of the Commission will be considered by it to be a good faith effort to comply with the Code of Judicial Conduct. The Commission may withdraw any opinion.
Who is on the Commission on Judicial Qualifications? Recall that it has the same membership as the Judicial Nominating Commission.

The issue before the Commission is:

At issue are salary payments to judges and judicial officers which may be made contingent on the number of cases filed with the court – i.e., being paid a token sum per traffic ticket filed with the court or per case disposed by the court. This opinion states the Commission’s position on the practical effect of these types of pay arrangements with regard to public perception of the judiciary.
Who is the subject of this Advisory Opinion?
Full-time judges are paid an annual salary, set by the Indiana General Assembly. However, city and town court judges, as well as some small claims court judges, may be paid pursuant to local ordinance or by vote of the city or county council. This pay may vary on an annual basis depending on the number of cases filed, tax revenue collected, and other measures.

Judges who are paid by some measure other than an annual fixed salary must carefully analyze both the source of the funding and the entity’s function within the court to avoid any appearance of conflict.1 Judges who are paid per case filed in their court, or who are paid by an organization that holds a frequent role in court proceedings (such as a police department or debt collection agency), are especially susceptible to allegations of conflict or bias. Such payments need not be based on the type or frequency of case dispositions in order to be problematic.

The two-page Addvisory Opinion concludes:
The Commission advises that judges subject to variable pay arrangements must be very cautious as to the source of these funds and to the source’s function (if any) within the court system. Judges and judicial officers should avoid compensation arrangements which have any basis in the number of cases filed or disposed by the court.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Indiana Courts

Ind. Law - "Ice Miller, Bingham firms reduce downtown office space"

See the story by Scott Olsen in the IBJ. A few quotes:

A couple of Indianapolis’ largest law firms are giving up space in two downtown office towers, exemplifying how the legal profession is shifting the way in which it conducts business.

Ice Miller LLP and Bingham Greenebaum Doll LLP have resigned long-term leases to retain their large downtown presences. But Ice Miller gave up two of its nine floors at OneAmerica Tower, on the northwest corner of Illinois and Ohio streets. Bingham gave up one of its six floors at Market Tower, 10 W. Market St. * * *

Another huge relic: the law library. Ice Miller once had the largest in the state outside the law schools, [Phil Bayt, one of the managing partners] said. Most tomes and documents have been converted to electronic volumes, making the rows of binders and shelves nearly obsolete.

“[Reducing space] is definitely a trend simply because technology has enhanced our ability to do more with less,” said Mary Solada, Bingham’s managing partner. "We're essentially right-sizing. We don't need as much library space."

ILB: Sad, I loved those big old libraries.

And then there is this heresy!

“Just because you’re a senior partner who’s been around 30 years, you probably don’t need that office if you’re only coming in once a week,” said Julie Armstrong, executive director of the Indianapolis Bar Association.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Indiana Law

Courts - "Michigan Supreme Court orders Wayne judge off bench for lying under oath"

From the story in the Detroit Free Press, reported by Paul Egan:

LANSING — The Michigan Supreme Court today ordered Wayne Family Circuit Judge Deborah Ross Adams removed from office for lying under oath and other transgressions.

In a 5-2 decision, the court said a 180-day suspension recommended by the Judicial Tenure Commission is too lax and Adams, who serves as a family court judge, should be removed from the bench. * * *

“When a judge testifies falsely under oath, he or she has failed to demonstrate in his or her personal affairs standards of conduct indispensable to a judge of this state and becomes unfit to sit in judgment of others.” * * *

The commission said Adams lied to Oakland County Circuit Judge Mary Ellen Brennan about repeatedly calling her office concerning her divorce from former Detroit Deputy Mayor Anthony Adams. After the divorce was finalized, the commission said, Ross Adams forged her lawyer's name to a court document. The commission said Ross Adams lied when it confronted her about both incidents.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Courts in general

Courts - SCOTUS decisions today ...

As always, watch SCOTUSblog for complete coverage, or here for the ILB's highpoints.

First opinion, Descamps, about enhanced sentences for repeat offenders, 8-1, written by J. Kagen. SCOTUSblog case page. "Tom: In Plain English, it is now harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence."

American Express v. Italian Colors Restaurant - arbitration issue. Case page. Per @RickHasen tweet: "Strong J. Kagan dissent in that Amex case. She says "nutshell" of majority opinion is "Too darn bad" for plaintiffs."

AID v. Alliance for Open Society - case page. "The gov't can't require groups to affirm their opposition to sex trafficking and prostitution. Violates 1st Am."

That is it for today.

Posted by Marcia Oddi on Thursday, June 20, 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 (0):

NFP criminal opinions today (4):

Corey L. Grier v. State of Indiana (NFP)

Robert Dashon James v. State of Indiana (NFP)

Samuel Bradbury v. State of Indiana (NFP)

Joseph Barefield v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Report highlights disparities in marijuana arrests"

Maureen Hayden, CNHI, has the story today in the Goshen News. The long story begins:

INDIANAPOLIS — A new report that shows significant racial disparity in marijuana arrests may revive the debate over pot penalties in Indiana.

The report, issued in early June by the American Civil Liberties Union, uses a decade’s worth of federal crime reporting data to show that black Americans are disproportionately arrested on marijuana possession charges in Indiana and across the nation.

In 2010 alone, blacks in Indiana were three times more likely to be arrested for possessing marijuana as whites, according to the ACLU report. Nationally, blacks were nearly four times more likely to be arrested on marijuana possession charges in 2010.

The report, “The War on Marijuana in Black and White”, found the disparity exists, despite studies that show blacks and whites use marijuana at about the same rate.

State Sen. Karen Tallian, a liberal Democrat who forged an alliance with some conservative Republican legislators in a failed push to decriminalize marijuana possession earlier this year, said the report validates her concerns about the fairness of the state’s pot laws.

“When you have about 9 percent of the population with almost 28 percent of the arrests, you know something is wrong,” said Tallian of numbers found in the ACLU report comparing the state’s black population in 2010 to that year’s marijuana possession arrests.

Tallian said the report’s findings on the fiscal impact of pot laws may also help re-ignite the debate over the state’s pot penalties, which are some of the toughest in the nation.

It found that Indiana spent almost $29 million in 2010 alone on police, courts and prison costs to enforce Indiana’s marijuana possession laws.

“When you look at the fiscal costs, it’s just amazing,” Tallian said.

There is much more in the story.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Indiana Law

Courts - Glossary of legal terms

SCOTUSblog has a Glossary of Legal Terms I hadn't noticed before, including terms like "CVSG" and "GVR".

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Courts in general

Ind. Courts - Reports of two COA oral arguments held Tuesday

Tuesday's oral argument before a Court of Appeals panel in the case of Robert E. Redington v. State of Indiana is the subject of a long story in the Bloomington Herald-Times ($$$), reported by Laura Lane. Some quotes:

Should disturbing and deadly shooting sprees in movie theaters and elementary schools play a role in deciding if it’s constitutional to take away a man’s guns because of a concern he might someday use the weapons to harm others?

Indiana Court of Appeals Judge Elaine Brown’s query was the heart of a 40-minute debate before a three-judge panel Tuesday regarding the fate of Robert Redington and the 51 shotguns, rifles and pistols Bloomington police confiscated from him last fall. Appellate Court Judge Cale Bradford seemed uncomfortable with the notion of pre-emptive gun seizure unless a person is deemed mentally ill. “To decide this case on what happened in those situations runs contrary to deciding every case, and law, on its own merits,” he said as lawyers argued both sides. “Those were terrible situations, but we cannot react emotionally.”

In September, Monroe Circuit Judge Mary Ellen Diekhoff ruled that 56-year-old Redington, from Indianapolis, was dangerous and should not be allowed to possess or use guns, despite the Second Amendment to the U.S. Constitution granting Americans the right to bear arms.

She also revoked his license to carry a handgun. Under the law, he can challenge the ruling in Monroe Circuit Court every six months. Once five years have passed, the judge can convene a hearing and order police to destroy the guns.

Redington decided to appeal Diekhoff’s decision at the state level, and Tuesday afternoon, attorney Guy Relford argued Redington’s position. He said his client was never diagnosed as mentally ill and that any speculation he might become dangerous in the future is unfair and violates his rights. * * *

“They diagnosed him with a personality disorder and said he was not dangerous. He was not a danger to himself or others,” Relford said.

Attorney Brian Reitz from the Indiana Attorney General’s Office said Diekhoff’s ruling should stand because of the nature of Redington’s actions and the fact that he owned more than 50 guns, mostly rifles and shotguns, and had an ammunition-loading station in his basement and enough bullets and shells to fill the bed of a pickup truck.

Redington came to the attention of Bloomington police the night of Aug. 4, 2012, when two officers confronted him on the third floor of the parking garage at Seventh and Walnut streets in downtown Bloomington. He had a hand-held range finder and was watching people come and go from Kilroy’s Sports bar across the street. Redington had two guns in his pants pockets and a shotgun in the trunk of his car.

He said he had been shooting at a state park in the area, and also searching for missing Indiana University student Lauren Spierer. He talked about thinking he had met Spierer and that he had a premonition about her abduction and felt guilty he had not warned her. Police interrogated him for three hours before taking him to the hospital for a mental health evaluation.

Reitz said Redington’s actions and his strange behavior, combined with his personality disorder and the number of guns he owns, are reasons to restrict his possession of firearms.

“There is more than just speculation here that he might be a danger,” Reitz said. “There’s no reason the state has to wait until there is actual violence before we can act. We can look to the future.”

He said the government’s interest in protecting public safety should trump Redington’s right to own guns.

But Relford disagreed. “You have to have dangerousness, and documented evidence of that,” he said.

That was a case out of Monroe County, with the oral argument held here in the Statehouse. Another case out of Monroe County, Winston K. Wood v. State of Indiana, was heard Tuesday by a COA panel that traveled to Angola. Laura Lane has the byline for that story ($$$) also. Some quotes:
ANGOLA — Three Indiana Court of Appeals judges listened to arguments surrounding a 2010 fatal boating crash on Lake Monroe Tuesday in Angola.

The hearing at Trine University Center was an installment of “Appeals on Wheels.” The Angola visit was in conjunction with Hoosier Boys State, and the hearing room was filled with high school-aged boys who listened to an hour’s arguments by defense attorney Stacy Uliana and Ian McLean from the Indiana Attorney General’s Office.

They debated legal and statutory points in the case of Winston Wood, convicted by a Monroe County jury of leaving the scene of a boating crash that resulted in the deaths of two people. Wood was convicted in July 2012 and sentenced to two years in jail, two years on home detention, two years on probation and a $1,000 fine. Wood, 22, has completed his time behind bars and is now serving home detention. He attended Tuesday’s hearing. * * *

The Monroe County trial spanned a week last June, with emotional testimony about the incident that killed a Lawrence County woman and her 8-year-old grandson. The collision involved Wood’s ski boat and a fishing boat carrying Rusty Collier, his wife Susan, and their triplet grandsons.

The state statute cited in the case was interpreted by McLean to require Wood to remain at the scene of the crash until help had been provided to those injured or he was in danger. Collier contends Wood refused to help him try to save his wife — who was partially decapitated in the crash — saying that Collier would have to save her himself, and then sped away.

Uliana said state law requiring a person to remain at the crash site until the authorities arrive does not properly take into account the chaotic nature of such a scene. “Anyone involved in such emotional situations can become a criminal,” she said.

After the attorneys provided the details of their cases, with questions and prompting by Judges John G. Baker, James S. Kirsch and Melissa S. May, the court was adjourned and the judges took questions from the youths in the audience.

[More] Jill Disis of the Indianapolis Star also had a long story on the Redington appeal, headed "Court hears complaint from man whose guns were seized in Lauren Spierer investigation".

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Indiana Courts

Courts - Another big decisions morning at the SCOTUS

Fourteen cases and three decision days scheduled, today, and next Monday and Thursday.

As always, watch SCOTUSblog for complete coverage, or here for the ILB's highpoints.

Posted by Marcia Oddi on Thursday, June 20, 2013
Posted to Courts in general

Wednesday, June 19, 2013

Ind. Gov't. - More on: Indiana Youth Group files in federal court in response to BMV Commissioner's action

Updating this ILB entry from earlier today (which includes a copy of the complaint), here is the most recent AP coverage of the story - from late this afternoon, in the Albany, NY Times-Union, as reported by Tom LoBianco. Some quotes:

INDIANAPOLIS (AP) — The American Civil Liberties Union of Indiana filed a federal lawsuit Wednesday against the Indiana Bureau of Motor Vehicles, seeking the reinstatement of specialty auto license plates for a group that counsels gay and lesbian youth.

The ACLU claims BMV Commissioner Scott Waddell violated due process by asserting himself as the final authority in an independent review that approved specialty plates for the Indiana Youth Group, according to a copy of the suit obtained by The Associated Press.

Administrative Law Judge Melissa Reynolds issued a ruling in May that directed the BMV to reinstate the plates, but Waddell stepped in last week, continuing the suspension while getting more answers on whether the Indiana Youth Group violated its contract with the state.

"The actions of the Commissioner of the Indiana Bureau of Motor Vehicles, in acting as the appellate and final authority over a decision that he, in effect, issued, violates the right to have an impartial decision maker in administrative adjudications and therefore violates due process," the ACLU wrote in its filing. * * *

"The BMV is acting as both prosecutor and judge," Mary Byrne, executive director of Indiana Youth Group, said in a statement. "They are the other party in the administrative hearing and now the Commissioner is acting as an appellate judge in asking the ALJ to reconsider a couple of arguments that they failed to bring up at the hearing. We are just trying to get a fair shake".

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Indiana Government

Ind. Courts - A new, easily searchable, appellate docket!

Remember the dread appellate online docket? Where you have to carefully type in a case number, filling one box at a time? Where if you get more than one case pulled up, there IS NO BACK KEY, you have to start over to access the doccket for each case?

There is hope! There is a new, beta Appellate Case Search. I just put it to the test and it passed. I pasted in the case number of yesterday's legislative fines decision, "49S00-1201-PL-53." No problem.

Then I pasted in the lower case number, from the Marion County court - 49D10-1106-PL-23491. Again no problem, and I pulled up three cases. I could easily look at one, then use the BACK KEY to look at the next - no need to start over!

Anyone else?

A reader: And what I like about it is that it now lists the most recent entry at the top, so I don't have to scroll all the way down to see if anything new has happened on any of my cases.

Another reader: The sort default is last updated, which is a bit odd and some of the entries for me are wrong. Within the first five or six are some cases that haven't been updated since the early 2000s.

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Indiana Courts

Ind. Courts - “Disingenuous” Appellate Lawyering in Indiana: A Worsening Trend or Unfair Accusation?

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

Since January of 2010, on thirty-three separate occasions the Indiana Court of Appeals has issued opinions labeling an appellate lawyer’s argument “disingenuous.”* Although this is less than one-half percent of the nearly 8,000 opinions issued over almost three and half years, thirty-three instances of disingenuousness by lawyers is nevertheless troubling — and appears to be worsening. Six occurred in the first five and a half months of 2013.

Calling a lawyer “disingenuous” is a serious charge. The primary definition in Webster’s is “lacking in candor,” which sounds a lot like a violation of Indiana Rule of Professional Conduct 3.3. That rule is entitled “Candor Toward the Tribunal” and prohibits lawyers from knowingly making “a false statement of fact or law,” or offering “evidence that the lawyer knows to be false.” The comments make clear that lawyers “must not allow the tribunal to be misled by false statements of law or fact,” although lawyers are “not required to present an impartial exposition of the law.”

In the view of some, disingenuous is a fancy, five-syllabus way of calling someone a liar.

A Few Examples

The complete list of the thirty-three instances of disingenuousness with links to the opinions is available here. Assessing the extent or degree of disingenuousness is sometimes challenging without reading the record or researching the applicable law. But at least a few of the alleged incidents of disingenuousness strike me not as arguments lacking in candor but merely ones lacking persuasive force.

1. Hull v. State: “Hull is disingenuous in claiming that the trial court abused its discretion in failing to give mitigating weight to his lack of an adult criminal record. Hull was only seventeen when he was arrested and prior to the instant offenses had never been waived into adult court.”

My thoughts: Juveniles as young as ten years old charged with murder can be waived to adult court as can other juveniles as young as fourteen charged with other offenses. Should a seventeen-year-old without an adult criminal record be proud of the accomplishment? Probably not, but I don’t think the argument lacks candor or is somehow dishonest.

2. Pond v. State: “Pond contends that his guilty plea saved the State both time and expense and spared Jacob’s family from the pain and anguish of going through a trial where gruesome autopsy photos would have been displayed. While the trial court afforded some mitigating weight to Pond’s guilty plea, we find his argument disingenuous in light of the substantial benefit Pond received for his guilty plea.”

My thoughts: The Indiana Supreme Court has repeatedly held that “[a] guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial.” Granted, sometimes the defendant may have charges dismissed or reduced for pleading guilty, but the State has still saved time and expense by avoiding a trial and victims are spared “pain and anguish” of a trial.

3. Williams v. State: “Williams argues that the trial court abused its discretion when it imposed the balance of his previously suspended sentence because he committed only ‘administrative rule violations.’ Williams’s attempt to minimize the severity of his conduct by categorizing his violations as ‘administrative’ is disingenuous, at the very least.”

My thoughts: Perhaps “administrative” is not the ideal word choice, but many defendants violate the conditions of their probation by conduct that is unquestionably serious and in no way administrative, such as commission of a new felony offense. If counsel is appointed to appeal a clear violation of less serious conditions, about the only argument available is minimizing the severity of the violations in arguing for a sentence less than the maximum. Here’s an example of a case where I fortunately was not labeled disingenuous for a similar argument.

Challenges for Appointed Counsel

The vast majority of criminal defense and defense of parents in termination of parental rights’ cases involve appointed counsel. Those cases comprise almost half of the thirty-three alleged incidents of disingenuousness. The Indiana Supreme Court held in Mosley v. State, 908 N.E.2d. 599 (Ind. 2009), that appointed counsel cannot file an Anders brief and withdraw in a case without meritorious legal claims but must instead file an advocative brief on behalf of the client. Moreover, Rule of Professional Conduct 3.1 makes clear that lawyers representing criminal defendants “may nevertheless so defend the proceeding as to require that every element of the case be established.” The Comments explain that lawyers’ obligations under the rule “are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.”

Although appointed counsel will often make arguments that lack legal merit, a lawyer should not be labeled “disingenuous” for bringing the least bad claim available.

Lawyers in General

If appellate lawyers are truly making dishonest arguments or other serious mistakes in an appeal, I’m a strong advocate for appellate judges pointing out the error in a clear and respectful way. If nothing is said, the lawyer may well keep making the same mistake. For example, it’s hard to believe that in 2013, more than ten years after Appellate Rule 7(B) was amended to change the “manifestly unreasonable” standard for revising a sentence on appeal to the considerably less deferential “inappropriate” standard, lawyers are still citing the old and unfavorable standard. They should be told when citing a wrong, decade-old standard.

Wide Variations Among Judges

Unlike the citation of a legal standard that everyone would agree is plainly wrong, finding arguments disingenuousness sometimes does not share the same universality. Indeed, the use of the term disingenuous varied widely among the sixteen judges (Judge Pyle replaced Judge Darden in 2012) on the Court of Appeals. Six of the judges never used the word. The remaining ten judges used the word at least once, although most did so rarely while three of the judges accounted for nearly two-thirds (21 of the 33) of the usage.

In contrast, Indiana Supreme Court opinions labeled lawyers disingenuous just twice. Both were in disciplinary opinions and interestingly involved pro se Respondents:

In re Powell (“We agree with the hearing officer's finding of the following facts in aggravation: . . . (3) he made disingenuous, contradictory, unsupported, and evasive assertions during the proceedings ...")

In re Williams (“Respondent's attempt (after his initial defense failed in the civil case and initial response to the grievance) to allege that the Commission is attacking his personal beliefs and the contents of his books is disingenuous to the extreme. They play no role the Court's conclusion that he should be disciplined for the professional misconduct described above.”)


Disingenuous may not be the worst thing some lawyers have been called in a publicly accessible court opinion. A subsequent post will consider other words and phrases, and I welcome your input. But disingenuous, with the suggestion of dishonesty, seems near the top of the list.

Finally, judges lead by example, and their use of the word may well embolden some attorneys to do the same. A quick search of the appellate briefs available on Westlaw suggests lawyers are already more likely than judges to level accusations of disingenuousness, a trend that hopefully does not continue.
*Searches of Indiana cases on both Westlaw and Lexis for the term "disingenuous!" yielded 51 hits. I excluded the Indiana Supreme Court opinions discussed in this entry as well as several other cases where the word was simply quoted from another source or otherwise not directed to the conduct of counsel. Three cases involving pro se litigants were also excluded.

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Schumm - Commentary

Ind. Decisions - "Supreme Court agrees Democrat lawmakers must pay fines for walkout"

Here are several news reports on yesterday's Supreme Court decision in Berry v. Crawford.

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Indiana Youth Group files in federal court in response to BMV Commissioner's action

Updating the recent ILB entries on this issue, the most recent of which was last evening, the ACLU has issued a press release this morning headed "Indiana Youth Group Fights Back: BMV's involvement in its own review 'violates due process and is unconstitutional.'" It reads:

Indianapolis -The American Civil Liberties Union of Indiana today on behalf of the Indiana Youth Group filed a lawsuit challenging the authority of the Indiana Bureau of Motor Vehicles to issue an Order of Remand on its Administrative Law Judge's order to restore IYG's specialty license plate. The ACLU of Indiana seeks to void the order and ensure that proceedings are performed by a "neutral and impartial" decision maker.

"The BMV commissioner acting as the appellate and final authority over a decision that he, in effect, issued, violates the right to have an impartial decision maker in administrative adjudications and therefore violates the fundamental principle of due process guaranteed by the Fourteenth Amendment," said Ken Falk, ACLU of Indiana Legal Director.

On Friday, June 14, BMV commissioner R. Scott Waddell issued an Order of Remand effectively reversing the decision of the Administrative Law Judge, who had ruled in May that the State violated the IYG's specialty license plate contract when it issued a suspension of the plate last year without giving the nonprofit the required notice and a chance to correct any issues. The ALJ also found that IYG's actions did not constitute a sale of low-digit specialty plates, as 20 Indiana State Senators had claimed in March of 2012. These state senators asked the BMV to terminate IYG's contract after they had been ineffective in passing legislation to that effect.

ACLU of Indiana Executive Director Jane Henegar said, "IYG does admirable work providing guidance to young people. IYG wants what has been denied at every turn in its quest to obtain a specialty license plate in support of its work: fair treatment by our government. The ACLU of Indiana hopes to help put an end to an unnecessarily lengthy and contentious process that has done nothing but stand in the way of real help for children in need."

Mary Byrne, IYG executive director, said she feels as though the BMV "is just being vindictive."

"There was nothing ambiguous in the administrative law judge's ruling," said Byrne. "The BMV had a chance to present its side at the administrative hearing, and they lost. The BMV simply does not want IYG to get its plate back, ever."

Indiana Youth Group, Inc. v. R. Scott Waddell, Case no. 1:13-cv-00981-JMS-MJD, was filed June 19 in the U.S. District Court Southern District of Indiana, Indianapolis Division.

The ILB will be posting a copy of the complaint shortly.

Here it is, the 7-page complaint filed this morning in federal court.

See also this ILB post from yesterday afternoon.

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)

For publication opinions today (3):

In Revas Spencer v. Tiffany Specer, a 4-page opinion, Judge May writes:

Revas Spencer (Husband) appeals the denial of the Agreed Order Dismissing Order of Protection he and Tiffany Spencer (Wife) submitted to the trial court. We reverse. * * *

As the word “shall” appears in the statute regarding the trial court’s actions when the petitioner files for the dismissal of an Order of Protection, the trial court did not have discretion to deny the parties’ request to dismiss the protective order.[1]
[1] In denying the parties’ request to dismiss the Order of Protection, the trial court stated it would not dismiss the Order because Husband had “gotten charged criminally with violating it[.]” (Tr. Vol. 2 at 5.) While we understand the reason for the trial court denial of the parties’ request to dismiss, it is unfortunately not afforded such discretion. Like the trial court, we are bound by the language of the statute and make our decision on appeal based on the rules of statutory interpretation.

In Floyd Weddle v. State of Indiana, a 15-page opinion, Judge Baker writes:
In this case, the appellant-defendant Floyd Weddle challenges the trial court’s admission of certain evidence after police officers conducted a protective sweep of his residence and subsequently searched the premises following the issuance of a search warrant. Weddle claims that the scope of the protective sweep violated both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution because the allegedly impermissible broad protective sweep of the residence led to the police officers’ discovery of drugs and paraphernalia.

We find that the scope of the protective sweep of the residence was reasonable because the officers heard additional movement in the house after taking Weddle into custody, indicating that another individual might be inside and thus presenting a risk of harm to them. The police officers did, in fact, locate other persons in the house. Therefore, the evidence that the police officers seized during the subsequent search of the residence was properly admitted at trial, and we affirm the judgment of the trial court.

ILB: This is the case where the oral argument led to this May 23rd post, headed "There’s Nothing Sinister About Home Security Cameras." Although today's opinion on p. 3 mentions the presence of "surveillance cameras on the front porch and near the garage," they are not further referenced.

In Josiah Williams v. State of Indiana, a 10-page opinion, Judge Brown writes:

Josiah Williams appeals his conviction for public intoxication as a class B misdemeanor. Williams raises one issue, which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm.
NFP civil opinions today (5):

In the Matter of: M.W., Minor Child, A Child in Need of Services, E.W., Father V. Indiana Department of Child Services (NFP)

Wellpoint, Inc. (f/k/a Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa; AIG Europe (U.K.) Limited, New Hampshire Ins. Co., et al. (NFP)

King of Clean Automotive, LLC, v. New Truck Alternative, LLC. (NFP)

In Re: The Marriage of: Caleb E. Campbell v. Anna P. Campbell (NFP)

In Re: The Marriage of: Bernard Lee, Jr. v. Jackie Smith (NFP)

NFP criminal opinions today (13):

Natalie Rouse v. State of Indiana (NFP)

Jason E. Morales v. State of Indiana (NFP)

Corey L. Mosley v. State of Indiana (NFP)

Jason Matlock v. State of Indiana (NFP)

Erica Battle v. State of Indiana (NFP)

Christopher Baxter v. State of Indiana (NFP)

Anthony Houston v. State of Indiana (NFP)

Bernard L. Strickland v. State of Indiana (NFP)

Daniel R. Fuquay, Sr. v. State of Indiana (NFP)

Christopher A. Fischer v. State of Indiana (NFP)

Wade R. Meisberger V. State of Indiana (NFP)

Tyris D. Lapsley v. State of Indiana (NFP)

James H. Suttle, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Ind. App.Ct. Decisions

Courts - There are 14 SCOTUS cases that are waiting decision, next announcement day is this Thursday

SCOTUSblog has the complete list, with details. Notice that the second "oldest" case, by virtue of when the oral argument occurred, is Vance v. Ball State University, re the “supervisor” liability rule.

Posted by Marcia Oddi on Wednesday, June 19, 2013
Posted to Courts in general

Tuesday, June 18, 2013

Ind. Courts - "Attention turns to Indiana Supreme Court justice in Rockport plant case"

Indianapolis Star business reporter Tony Cook posted this long story online this evening. Here are some quotes:

As the Indiana Supreme Court prepares to weigh a case that could determine the fate of a controversial $2.8 billion coal-gas plant in Rockport, attention has turned to one of the judges.

Justice Mark Massa is a longtime friend of Mark Lubbers, the plant developer’s top official in Indiana. Massa also was legal counsel for then-Gov. Mitch Daniels, who strongly advocated for the project.

Legal experts say those factors should prompt Massa to seriously consider stepping aside. They also say that if a judge is going to recuse himself, he should do so as soon as possible. Opponents of the project say Massa already should have.

So far, Massa has not. Whether he intends to remains unclear.

“He will need no encouragement to recuse himself if there is a reason to do so,” Lubbers said. “His ethical standards are well-honed and above reproach.”

Kathryn Dolan, a spokeswoman for the court, said Massa did not recuse himself when the Supreme Court decided to take up the case on June 6.

In the past, some justices — including Massa — have recused themselves at the time the court decides whether to take up a case.

Massa could not comment for this story because of a judicial rule that bars judges from speaking publicly about cases pending before them, Dolan said. * * *

At least three of the court’s five justices must vote to take up a case. But information about those votes is confidential, so it is unknown whether Massa played any role in the court’s decision to hear the Rockport case.

The relationship between Massa and Lubbers “represents a serious, legitimate concern,” said Charles Geyh, a law professor at Indiana University and one of the nation’s top experts on judicial disqualification.

“If Lubbers is widely understood as the alter ego of the company that is going to lose a serious financial opportunity if this decision is upheld, then you might think disqualification is in order,” he said.

Plant opponents are concerned.

With so much at stake, they question whether Massa can objectively rule on a matter that could effectively kill the project his friend has worked for years to make happen.

“To give the public confidence that this decision is based on the law and sound public policy, and not political cronyism, Justice Massa should recuse himself,” said Kerwin Olson, executive director of Citizens Action Coalition, which is a party to the case. * * *

Lubbers and Massa have a long history together.

In the mid-1980s, Massa was a reporter for an Evansville newspaper when Lubbers recruited him to become a speechwriter for Gov. Bob Orr. Both men would later work for Daniels, though at different times.

During Massa’s robing ceremony in May 2012, Lubbers introduced him and described their early days together. He praised Massa as “a gem of extraordinary quality.” [ILB: Video of the ceremony is archived on the Indiana Court website, Mr. Lubbers speaks at about 11:40 into the video]

When Massa stepped up to the microphone, he said Lubbers “was the first of many who inspired me to aim higher in the Daniels tradition.” * * *

Critics of the Rockport project say there is another reason Massa should consider stepping aside: his work for Daniels, a proponent of the plant.

Massa was general counsel to Daniels from 2006 to 2010. During that time, Daniels signed several pieces of legislation that helped enable the project, including a 2009 law that authorized the Indiana Finance Authority, a state agency, to negotiate a contract with Indiana Gasification.

Whether the contract is in keeping with what lawmakers authorized is part of what the Supreme Court is now considering.

David Pippen, who served as Daniels’ energy adviser and who replaced Massa as general counsel, said he didn’t think Massa had anything to do with contract negotiations. But he said Massa likely would have overseen the legal review of the 2009 authorizing legislation.

That could trigger another provision of Indiana’s judicial code, which requires judges to disqualify themselves if they have served as a lawyer or participated as a public official in the matter in controversy.

Experts agree that if a judge is going to recuse himself, he should do so as soon as possible.

“If a judge doesn’t get off a case as soon as he or she is made aware of a disqualification issue, that throws into question any ruling the judge participates in,” said Les Abramson, a law professor at the University of Louisville who has written about judicial disqualification.

Indiana Supreme Court justices have stepped aside when making the initial decision about whether to take up a case.

Massa did just that in December, when the court declined to take up a case involving Indianapolis police officer David Bisard.

ILB: The ILB posted legal background on the recusal issue on June 7th and on June 9th.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Indiana Courts

Ind. Gov't. - Still more on "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates"

Updating this ILB entry from earlier today (which includes a copy of Waddell's order), Tom LoBianco of the Associated Press now has an expanded version of his story. Some quotes:

BMV Commissioner Scott Waddell late Monday ordered Administrative Law Judge Melissa Reynolds to re-open the case and assess whether the Indiana Youth Group had been “selling” or “auctioning” low-number license plates. Reynolds ruled last month that the group had violated Indiana law and its state contract by receiving payments in exchange for low-numbered license plates, but found the actions didn’t constitute an auction or warrant the revocation of the plate. She also said the BMV failed to give 30 days’ notice before suspending the plates as required.

She recommended the group’s plates be reinstated, a move the youth group had hoped would occur by late this month.

Reynolds’ findings weren’t binding, however; the administrative law judge for the BMV reports to the commissioner.

Waddell noted in his order seeking the review that he is the “ultimate authority” by law. He said the plates will remain suspended until he makes a final determination.

“Until a final order is issued by me, as the ultimate authority for the BMV, (IYG’s) participation in the specialty group recognition program shall remain suspended,” Waddell wrote.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Indiana Government

Ind. Decisions - One today from Tax Court

In Vodafone Americas Inc. and Vodafone Holdings LLC v. Indiana Dept. of State Revenue, a 9-page opinion, Judge Fisher writes:

Vodafone Americas Inc. and Vodafone Holdings LLC (collectively, Vodafone) appeal the two final determinations of the Indiana Department of State Revenue denying their claims for refund of adjusted gross income tax paid during the taxable years ending March 31, 2005 through March 31, 2008 (the years at issue). The appeal is currently before the Court on Vodafone’s motion for summary judgment (Motion). In its Motion, Vodafone asks the Court to answer one question: whether the income it received as a partner of a general partnership that was doing business in Indiana was income derived from sources within Indiana. The Court answers that question in the affirmative. * * *

The income Vodafone received as a partner of Cellco had the character of operational income and was therefore not income in the form of “dividends from investments” under Indiana Code § 6-3-2-2.2(g). Accordingly, Vodafone’s motion for summary judgment is hereby DENIED.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - " Long-time attorney David Rees avoids prison time: Rees will serve 4 years on home detention"

From Jack Rinehart's story this evening on WRTV 6:

INDIANAPOLIS - A long-time Indianapolis attorney will not have to go to jail for stealing hundreds of thousands of dollars.

David Rees’ sentence was handed down Tuesday and it came as a big disappointment to many who were closely connected to the case.

Minutes before his sentencing, Rees, 73, huddled with clergy from his church. It wasn’t the spiritual intervention that spared him a jail sentence, but rather his poor health and medical expenses that the judge didn’t want to fall to the taxpayers. * * * [ILB: I'd guess he is on Medicare ...]

Rees violated his ethical and legal responsibility to manage the estate of the Roberts family. Over a period of 10 years, he stole more than $270,000 from the estate.

When he was caught, he tried to cover the theft up.

“It’s a tragedy. It’s a tragedy. But I will accept the responsibility of the judge,” said victim Sue Roberts-Gleason.

Prosecutors could only prove that Rees stole $270,000, but they believe the actual figure is much higher. * * *

The judge ordered Rees to make restitution to his victims, but Rees told the court that he was broke and has nothing to show for his thefts.

ILB: The story refers to "the judge" a number of times, but never identifies "the judge." As our Marion County judges are elected by the voters, it would be good if the press would identify them in their reports.

Here is the Jan. 28, 2013 Order of the Supreme Court, accepting Rees' resignation from the bar, and stating: "attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation."

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - More on: Supreme Court decision in Berry v. Crawford posted

Updating this ILB entry from earlier today, Lafayette attorney Doug Masson of Masson's Blog had a great post this afternoon giving his take on the Supreme Court decision today in Berry v. Crawford. It is headed "Ind. Supreme Court avoids question of whether House violated Wage Payment Statute." Check it out here.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates" [Updated]

Updating this ILB entry from last evening, Tom LoBianco of the AP has a brief story today that includes:

The BMV has asked an administrative law judge to review her order allowing the Indiana Youth Group to continue selling specialty license plates. * * *

An administrative judge ruled in May that the BMV erred in immediately suspending the plate program last year without giving the group 30 days' notice.

BMV Commissioner Scott Waddell directed the administrative judge to assess the difference between "selling" and "auctioning" low-number license plates.

[Updated at 2 PM] The ILB has now obtained a copy of the BMV Commissioner's "Order of Remand" that concludes:
The ALJ is instructed to issue a modified Non Final Order that reflects the ALJ's conclusions following consideration of the foregoing. Until a Final Order is issued by me, as the ultimate authority for the BMV, NG's participation in the specialty group recognition program shall remain suspended.
Note that the BMV is both a party and the "ultimate authority" in this dispute.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Indiana Government

Ind. Decisions - "Lawyers can only collect some legal fees for suing Jeffersonville, COA rules"

The June 12th NFP COA opinion in City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation (NFP) is the subject of a story today by Charlie White in the Louisville Courier-Journal. Some quotes:

Attorneys who successfully sued Jeffersonville on behalf of the Environmental Management Corp. can collect legal fees from the city for only some of their work on the case, the Indiana Court of Appeals has ruled.

The city must pay the lawyers for their work on a contempt claim they won against Jeffersonville after the company was dropped as the operator of the sewage plant, but not the money the lawyers sought for winning a breach-of-contract claim, the appeals court said in a ruling last week.

In September, Clark Circuit Judge Vickie Carmichael ordered the city to pay the lawyers $270,000 in legal fees, but the appeals court sent the case back to the lower court to determine how much the city owes the lawyers solely for their work on the contempt claim. * * *

“We are not persuaded that the trial court correctly concluded that the trial of the breach of contract claim was substantially a result of Mayor Galligan’s contemptuous conduct,” the appeals court wrote.

The COA opinion concluded:
Based on the foregoing, we conclude that the trial court’s award of attorney fees for the City’s contempt was unsupported by the evidence. We therefore remand to the trial court with instructions to calculate the amount of attorney fees incurred in the prosecution of EMC’s contempt complaint.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. App.Ct. Decisions

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

In ROBERT YEFTICH v. NAVISTAR, INC. (SD Ind., Barker), an 11-page opinion, Judge Sykes ("J. Tinder recused himself and did not participate in the decision of this appeal, which is being resolved by a quorum of the panel") writes:

We review here the dismissal of a complaint filed by a group of unionized workers at a Navistar engine plant in Indianapolis, Indiana. The plaintiffs alleged that they were laid off by Navistar and not rehired as work became available because the company had actually subcontracted their work to nonunion plants in contravention of the governing collective-bargaining agreement. The workers brought this action against Navistar under section 301 of the Labor Management Relations Act (“LMRA”) for breach of the collective-bargaining agreement.

A successful section 301 claim requires not only a breach of contract by the employer but also a breach by the plaintiffs’ union of its duty of fair representation. The latter is required because the union is responsible for representing its members’ interests and addressing their complaints pursuant to whatever grievance process is set up by the relevant collective-bargaining agreement. Only when the union fails to carry out that duty may union members pursue section 301 litigation against their employer. To satisfy this requirement, the plaintiffs alleged that they filed grievances challenging Navistar’s subcontracting of work but the union intentionally failed to process the grievances in breach of its duty of fair representation. The district court held that the complaint lacked enough factual content to plead a plausible claim for breach of the duty of fair representation and therefore dismissed the LMRA claim.

We affirm. The complaint identifies the elements of a duty-of-fair-representation claim and contains allegations that each element is satisfied. But we agree with the district court that because the allegations are almost all conclusory, the complaint lacks the necessary factual content to state a plausible claim under section 301 of the LMRA.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, Et Al., , an 8-page opinion, Cheif Judge Robb writes:

Nationstar Mortgage, LLC (“Nationstar”), appeals the trial court’s order modifying its mortgage agreement with Jeffery A. Curatolo. We find the following restated issue dispositive: whether the trial court had the authority to modify the mortgage agreement without consent of both parties. Concluding the trial court lacked the authority to do so, we reverse and remand.
In Bertram A. Graves v. Richard Kovacs, M.D., Edward Ross, M.D., and Indiana University Health f;/k/a Clarian Health Partners, Inc., an 11-page opinion, Judge Barnes writes:
The dispositive issue we address is whether the trial court erred in concluding that Dr. Graves’s complaint failed to state any actionable claim against Drs. Kovacs and Ross. * * *

The elements of a cause of action for tortious interference with a contract are: “(1) the existence of a valid and enforceable contract; (2) the defendant’s knowledge of the existence of the contract; (3) the defendant’s intentional inducement of the breach of contract; (4) the absence of justification; and (5) damages resulting from the defendant’s wrongful inducement of the breach.” Bragg v. City of Muncie, 930 N.E.2d 1144, 1147 (Ind. Ct. App. 2010). Here, we believe the second amended complaint sufficiently put Drs. Kovacs and Ross on notice that they were alleged to have acted wrongfully and intentionally in helping to bring about the termination of Dr. Graves’s contractual privileges at Clarian/IU Health. Thus, the facts alleged in the complaint adequately stated a claim for tortious interference with a contract—something that Drs. Kovacs and Ross do not refute.

In Duane Crocker v. State of Indiana, a 16-page opinion, Judge Bradford writes:
As Appellant-Defendant Duane Crocker drove Southbound on Interstate 65 in Tippecanoe County, Indiana State Police Trooper Joseph Winters pulled him over for speeding. Trooper Winters told Crocker to come sit in his car after he noticed, inter alia, that Crocker’s eyes were bloodshot and glassy, he was nervous, the rental car in which he was driving had been rented to another person, and his hand shook approximately two inches up and down when he produced his driver’s license. After Crocker gave inconsistent answers to Trooper Winters’s questions, Trooper Winters obtained Crocker’s consent to search his vehicle. The search uncovered ten bales of cellophane-wrapped marijuana in the trunk of Crocker’s rented vehicle. During a police interview, Crocker admitted that he had been paid to transport the marijuana from Chicago to Cincinnati.

Crocker contends that the trial court abused its discretion in admitting evidence obtained during his traffic stop, arguing that Trooper Winters violated his rights pursuant to the United States and Indiana Constitutions. We conclude that, under the circumstances of this case, Crocker was subjected to an illegal custodial interrogation without being advised of his rights beforehand and therefore hold that the incriminating statements made to police should have been suppressed. We also conclude, however, that this error is harmless, as Crocker’s consent to the search of his vehicle was valid and the physical evidence obtained therein was sufficient to sustain his convictions. We affirm.

NFP civil opinions today (4):

Term. of the Parent-Child Rel. of J.F. and D.F. and S.K. v. Indiana Department of Child Services (NFP)

Lake Shore Estates MHC, LLC. v. Michael H. Lane, Et Al. (NFP)

Term. of Parent-Child Rel. of C.M. and M.M.; R.M. and Indiana Department of Child Services, Annette Marion and Kenneth Marion (NFP)

Term. of the Parent-Child Rel. of J.C. and R.C. and S.C. and R.C. Sr., S.C. & R.C. Sr. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Dartanyan Porche v. State of Indiana (NFP)

Frank Tiller v. State of Indiana (NFP)

Thomas A. Dexter v. State of Indiana (NFP)

Charles C. Hitt v. State of Indiana (NFP)

David Lautenschlager v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decision in Berry v. Crawford posted

In Tim Berry, Auditor of State; M. Caroline Spotts, Principal Clerk of the House of Representatives; and The State of Indiana/ Brian C. Bosma, Speaker v. William Crawford, et al., a 25-page, 3-2 opinion, including a 9-page dissent from Justice Rucker and a 1-page "concurring in part and dissenting in part," Chief Justcie Rucker writes:

With this case we confront whether the judicial branch may, consistent with the Indiana Constitution, review actions of and intervene in the internal management of the legislative branch, specifically the decision of the House of Representatives to collect fines from House members who left the state to prevent the formation of a quorum. We hold that when, as here, the Indiana Constitution expressly assigns certain functions to the legislative branch without any contrary constitutional qualification or limitation, challenges to the exercise of such legislative powers are nonjusticiable and the doctrine of separation of powers precludes judicial considera-tion of the claims for relief, and the defendants' request for dismissal of the plaintiffs' claims should have been granted in full. * * *

Although courts in general have the power to determine disputes between citizens, even members of the Indiana General Assembly, we hold that where a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limi-tation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution. The case before us involves such nonjusticiable claims for relief on which the judicial branch must decline to pass judgment. The trial court erred in ruling on the merits of this dispute. Both the issuance and collection of fines as legislative discipline are functions con-stitutionally committed to the legislative branch without express limitation or qualification by our Constitution. We therefore reverse the judgment of the trial court, remand, and direct the trial court to grant the defendants' motion to dismiss for lack of justiciability.

David and Massa, JJ., concur
Rucker, J. dissents with separate opinion
Rush, J., concurs in part and dissents in part with both the majority and the dissent, with separate opinion.

[J. Rush] I write separately because I see the narrow justiciability test articulated by the majority as entirely consistent with Roeschlein v. Thomas, 258 Ind. 16, 280 N.E.2d 581 (1972). I do not share Justice Rucker’s concern that today’s test “finds no support in our long standing case authority,” is “one we have never adopted,” or “abandons this Court’s own authority on the question of when an issue is justiciable in favor of a test apparently endorsed in other jurisdictions.” * * *

But I join the dissenting opinion in all other respects. As Justice Rucker observes, this case is not about the House’s authority to impose these fines (which were a patently non-justiciable exercise of its Article 4, Section 14 power to discipline its members), but only whether it may collect the fines in this particular manner. On that point, I share his understanding of Article 4, Sec-tion 29 as an “express constitutional limitation” that makes this limited question justiciable. Ac-cordingly, I would also reach the Wage Payment issue on its merits and resolve it as Justice Rucker does.

In sum, I concur in part in the majority opinion because I understand it to state the same justiciability test we have always followed. For that same reason, I cannot join in the opening para-graph, or first sentence of Part II, of Justice Rucker’s dissent. But because I disagree with the ma-jority’s application of that test, I join the dissenting opinion in all other respects.

[J. Rucker begins] As I understand the majority’s position, this Court has the authority to decide the issue presented to us today, but for matters of “prudence” the Court declines to exercise that authority. And in determining whether prudence demands this Court should not intervene, the majority adopts a test that finds no support in our long standing case authority. That is, an “express constitutional limitation” on an otherwise constitutionally sanctioned legislative act. Slip op. at 10, 11 (emphasis added). In other words, according to the majority, so long as a particular constitutional provision permits the Legislature to take certain action, then the Court will not intervene unless another constitutional provision expressly limits the legislature from taking that action. We have never adopted such a test, which in my view would effectively preclude review of almost any legislative act. Instead this Court’s jurisprudence teaches that an issue is nonjusticiable only when “[o]n its face [the Legislature] was acting pursuant to specific constitutional authority and not contrary thereto . . . .” Roeschlein v. Thomas, 280 N.E.2d 581, 589 (Ind. 1972) (holding that the legislature’s recording of yeas and nays in its journal was within the exclusive province of the legislature and not subject to judicial examination); see also Ellingham v. Dye, 99 N.E. 1, 8 (Ind. 1912) (rejecting the argument that the general grant of legislative authority under Article 4 of the Indiana Constitution included the authority to draft an entirely new constitution in light of conflicting language in Article 16, which although it did not expressly limit the legislature’s power in this regard, it did outline specific procedures for amending the constitution). Here, in my view, the Legislature appears to have been acting contrary to specific constitutional authority. And thus the issue before us does not support the “prudence” the majority invokes. Therefore I respectfully dissent. * * *

The House’s constitutionally-granted Legislative discretion to punish its members does not include the discretion to reduce its members’ compensation. Defendants’ actions are in direct conflict with Article 4, Section 29 of the Indiana Constitution. Hence, I would hold Plaintiffs’ wage payment claims justiciable and I would affirm the trial court’s order to the extent it finds Defendants violated Indiana Code section 22-2-5-1.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Decision in Legislative Fines case

Here is what the Court will rule:


Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Face of Indiana changes: New census report shows population is diversifying nationwide"

Maureen Hayden, CNHI Statehouse Bureau, has the story today in the Pharos-Tribune. A few quotes:

Fueled by immigration and high rates of birth, particularly among Hispanic Americans, the nation’s racial and ethnic minorities are growing more rapidly in numbers than whites.

“This shows the changing face of Indiana and America,” said demographer Matt Kinghorn of the Indiana Business Research Center at Indiana University.

Indiana, where 81 percent of the population is white, remains less diverse than the rest of the nation, which is now 63 percent white.

But a closer look at the racial and ethnic make-up of different age groups signals the shift: While 91 percent of Hoosiers over 65 are white, just 70 percent of Hoosier children under 5 are white. And in that 65 and over group of Hoosiers, less than 2 percent are Hispanic; of Hoosiers that are 5 and under, 11.4 percent are Hispanic.

The contrast between the oldest and the youngest Hoosiers also shows up in race: Just shy of 6 percent of Hoosiers 65 and older are black; just over 11 percent of Hoosiers are 5 are black.

The shift also shows up in the median ages of demographic groups: The median age for whites in Indiana is 40.2 years; it’s 31.3 for blacks, 30.6 for Asians, and 24.5 for Hispanics. For Hoosiers identified as bi-racial or multi-racial, the median age is 15.6 years.

“Indiana is becoming more diverse from the ground up,” Kinghorn said.

That’s even more true in the rest of the nation: For the first time, America’s racial and ethnic minorities now make up about half of the under-5 age group. * * *

Indiana economist Michael Hicks, head of the Center for Business and Economic Research at Ball State University, said local communities should embrace the increasing diversity, especially that driven by immigration, as good for growth: Existing employers will need to fill the jobs vacated by retiring workers, while potential employers will also need workers.

“For communities all around Indiana, immigration acceptance is important.”

Asians are the fastest growing racial or ethnic group in the U.S., now comprising almost 19 million people. That’s true in Indiana as well. Of the state’s 6.5 million people, only 113,196 are Asian. But that number marks an almost 10 percent growth just from 2010.

In that same two-year period, from 2010 to 2012, the percent of blacks in Indiana rose by less than two percent; the percent of Hispanics rose just short of 6 percent; the number of people identified as more than one race rose by just over 7 percent.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Indiana Government

Ind. Decisions - Supreme Court decides legislative fines case

The Court's public information office has just announced the decision will be handed down "today."

For background, here is a Jan. 4th ILB post with the briefs and a link to the oral argument in the case, Berry v. Crawford.

ILB readers may remember that the oral argument with the Chief Justice's call for compromise. But see this Feb. 12th ILB entry, headed " Supreme Court declines to compel mediation in legislative fines case ."

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - Jockeying for cases before the SCOTUS

Joan Biskupic, reporting for Reuters, has a fascinating, long story today headed "For top U.S. lawyers, case in Guam is rare prize", that begins:

Steven Levin lives alone on a boat docked off the coast of the Pacific island of Guam, about as far away from the U.S. mainland as an American resident can get. He has no wife or kids, no job, no phone or Internet service.

But last year, the itinerant 64-year-old had something of great value to elite lawyers half a world away: a case that reached the U.S. Supreme Court. Within hours after the justices announced that they would hear it, attorneys at some of the nation's most prestigious law firms began pitching their services to Levin, offering to represent him for free.

The fact that Levin's case presented a procedural question stemming from a cataract operation - and not a momentous issue of constitutional law or social policy - did not deter the members of such firms as Akin Gump, Mayer Brown and Skadden Arps. They tracked Levin down using the only contact information they had, an email address he listed on his court petition, and touted their high-court credentials.

"I have argued 31 cases in the Supreme Court, and have briefed literally scores of cases there," Patricia Millett of Akin Gump wrote Levin on September 26, less than 24 hours after the court issued its one-sentence order agreeing to hear his case. Two days later, Paul Wolfson of Wilmer Hale wrote, "You may find it useful to have lawyers representing you who have been before the Court many times," noting, "I have personally argued there 20 times." Andrew Tulumello of Gibson Dunn boasted of his firm's record: "We have argued more than 15 cases in the last several years - more than any other law firm."

These emails, which Levin provided to Reuters, attest to a little-known phenomenon at the apex of the U.S. legal system. A small coterie of powerful lawyers at wealthy private firms dominates the lectern at the Supreme Court. They work hard to get cases, even if for some it means not charging for their services. Racking up appearances at the Supreme Court - which hears only about 70 cases a year - represents prestige and publicity and, in some cases, the potential to draw high-paying clients on other matters.

Posted by Marcia Oddi on Tuesday, June 18, 2013
Posted to Courts in general

Monday, June 17, 2013

Ind. Gov't. - "BMV seeks clarity on judge's ruling on Indiana Youth Group license plates"

Updating this ILB entry from May 31st, 2013, Michael Boren of the Indianapolis Star is reporting this evening:

The Indiana Bureau of Motor Vehicles has issued an order of remand on a judge’s ruling that the Indiana Youth Group, an organization that advocates for gay and lesbian youth, can start selling its specialty license plate again, The Indianapolis Star has learned.

That essentially means the BMV is requesting the judge provide more clarity on her decision, but not that the BMV is fully appealing it.

“This does not shut the door at all on IYG getting their plates back,” BMV spokesman Josh Gillespie said. “We’re just looking at some further clarity on some issues that we felt were a little ambiguous.”

Less than a month ago, an administrative judge in the BMV ruled that the group did not illegally sell or auction specialty license plates with low-digit numbers, as the BMV alleged, and that the BMV was wrong to terminate the group’s right to sell the plates last year just three months after it started selling them.

The Indiana Youth Group would have received the specialty plates 30 days after the hearing -- if neither side had appealed or issued an order of remand. Now it’s unclear when that may happen, or how long it will take the judge to review the order of remand.

ILB: Looking back at the "Recommended Order" linked in the May 31st ILB entry, here is the final paragraph:
VI. Appeal Rights

Either party may request a reconsideration of this recommended order by mailing a written request to the following address: Indiana Bureau of Motor Vehicles, Hearing Department, 100 North Senate Ave., Rm N404, Indianapolis, IN 46204. Requests for reconsideration must be received by the BMV within eighteen (18) days of the date this recommended order is signed. If no request for reconsideration is received by the BMV within eighteen (18) days, this
recommended order becomes the final order of the BMV on the nineteenth (19th) day.

DATED: May 28, 2013

Additionally, here is the language of IC 4-21.5-3-29(b), part of the Administrative Orders and Procedures Act (AOPA):
(b) After an administrative law judge issues an order under section 27 of this chapter, the ultimate authority or its designee shall issue a final order:
(1) affirming;
(2) modifying; or
(3) dissolving;
the administrative law judge's order. The ultimate authority [that would be BMV] or its designee may remand the matter, with or without instructions, to an administrative law judge for further proceedings.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Government

Courts - More on 2 of today's SCOTUS decisions, Salinas and Actavis

From Orin Kerr blogging at The Volokh Conspiracy, a long post titled "Do You Have A Right to Remain Silent? Thoughts on the 'Sleeper' Criminal Procedure Case of the Term, Salinas v. Texas," that begins:

This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean.
From Lyle Denniston, a post late this afternoon headed "Opinion recap: 'Pay to delay' in deep trouble" that begins:
Showing a strong suspicion that big drug companies with deep pockets may be using their money to shield shaky patent rights, the Supreme Court on Monday for the first time cleared the way for antitrust lawsuits to challenge payoffs between brand-name drugmakers to keep would-be competitors who make generic substitutes temporarily out of their market.

But winning such lawsuits will hardly be easy, because the Court refused to start with the premise that such payments are probably illegal. The five-to-three decision in Federal Trade Commission v. Actavis (docket 12-416) was based far more on antitrust than patent law, and was at least a warning that settling lawsuits — at least in the drug industry — is a practice not necessarily free from risk. (Justice Samuel A. Alito, Jr., took no part in the ruling.)

What was at stake in the case was a legal practice that has shown up most prominently in the drug industry: the so-called “pay to delay” practice under which a holder of a brand-name patent, after having its patent rights challenged, fends off the potential competition from a generic company with a big dollar payoff, running into tens of millions of dollars, in order to keep the patent monopoly intact.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Courts in general

Not Law - But LOL! On the Internet, the NSA Definitely Knows You’re a Dog

Access cartoons here. Via All Things D.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to General Law Related

Ind. Law - "Juvenile offenders given a second chance: Dual sentencing will start in Indiana in July" Also Paula Cooper released today, nearly 30 years after crime at age 15

Updating this ILB entry from June 14th, Maureen Hayden, CNHI Statehouse Bureau, has a second story (here in the New Albany News & Tribune) on the new dual sentencing law. Some quotes:

Monica Foster is a longtime public defender who’s been pushing uphill in the legal system for a long time, so when she says the General Assembly is making progress protecting the rights of the disenfranchised, it’s worth stopping to listen to her.

Foster has praise for a new law set to go into effect July 1 that changes the way the juvenile offenders tried in adult court are punished for their crimes.

Called “dual sentencing,” it allows state court judges to hand down two sentences: One to be served as a juvenile and the other to be served as adult.

Under the law, the second is conditional on the first: If a young offender responds well to the intensive supervision and treatment offered in a state prison’s juvenile unit, a judge can suspend the adult prison sentence when that offender turns 18 and send him or her home — or into community corrections or another alternative short of prison.

Likewise, if that young criminal proves bad to the bone, the judge can keep him or her locked up.

To borrow someone else’s analogy: the idea is to give a young offender just enough rope to pull himself out of a life of crime, or to hang himself and wind up in prison.

The new law is HEA 1108, Sentencing alternatives for youthful offenders.

More from the story:

It took some hue and cry from [Foster] and other veterans of Indiana’s juvenile justice system to get the law passed.

It was Foster who helped call national media attention to the lack of sentencing options for crime-committing children tried as adults when she took on the appeals case of Paul Henry Gingerich. At 12, he made history as the youngest person in Indiana to be sent to prison as an adult.

His crime was awful — he helped a friend shoot and kill the friend’s stepfather as part of a plan to run away from home. But Foster argued he should have been tried as a juvenile, not an adult. (The Court of Appeals has ordered a legal do-over, sending the case back to juvenile court.)

Foster knows the power of a good hue and cry. In 1987, she was part in an international campaign to save 15-year-old Paula Cooper from being executed by the State of Indiana for fatally stabbing an elderly woman in Gary.

The outpouring of protests against the girl’s death sentence — including a condemnation of it by Pope John Paul II — caused a rethinking of both the sentence and the law. In 1989, after the Indiana General Assembly raised the minimum age for the death penalty, from 10 years old to 16, Cooper’s sentence was commuted to 60 years in prison.

Indiana’s new dual-sentencing law might not work. There are fears it will be used to send more children into the adult criminal system, and fears, based on experience in some states, that black and Hispanic juveniles will be sent on to prison more frequently than their white counterparts.

But Foster sees the potential in giving judges more options to help juvenile offenders become law-abiding citizens. “The law,” said Foster, “is unquestionably right.”

Coincidentally, Paula Cooper, mentioned above, was released today (CBS News story):
... after serving a prison term that was shortened after the state Supreme Court intervened.

Cooper's death sentence at such a young age sparked international protests and a plea for clemency from Pope John Paul II. Now 43 years old, Cooper is being given a second chance at her life. * * *

The Indiana Supreme Court set Cooper's death sentence aside in 1988 and ordered her to serve 60 years in prison after state legislators passed a law raising Indiana's minimum age limit for execution from 10 to 16. The state's high court also cited a 1988 decision by the U.S. Supreme Court barring the execution of juveniles younger than 16 at the time of the crime.

Since then, the U.S. Supreme Court has found it unconstitutional to execute anyone younger than 18.

"People still know about this case," Indianapolis attorney Jack Crawford, who was the Lake County prosecutor during Cooper's murder trial, told The Indianapolis Star. "The name Paula Cooper still resonates, and she's going to attract some attention when she is released."

But, he said, Cooper has done her time and may yet contribute to society. Crawford said he has come to oppose the death penalty since Cooper's conviction.

Cooper's sister, Rhonda Labroi, said she hopes people will see Paula as more than a killer. After getting in trouble 23 times during her time in prison, Paula Cooper turned to education, earning a bachelor's degree in 2001.

Here is the July 13, 1989 Indiana Supreme Court opinion in Cooper v. State.

Here is Tim Evans' long Indianapolis Star story, published June 16th, headed "Paula Cooper, once a teen on Indiana's Death Row, to be released from prison on Monday." Some quotes from far into the story ("page" 4 of 5):

[Indianapolis attorney Jack Crawford, who was the Lake County prosecutor when Cooper was charged and convicted] remembers the shift in public reaction. You don’t forget, he explained, when an emissary from the Pope shows up at your office. Amnesty International also became involved ,and the case took on a life of its own in Europe, particularly in Italy.

Letters and petitions signed by death penalty opponents flooded the prosecutor’s office and, later, the Indiana Supreme Court. An Indiana Historical Society background sheet on items in its collection related to the case notes: “Appeals were made to the Indiana Supreme Court, which received two million signatures; to Governor Robert Orr, who received an appeal from the Pope in September 1987; and to the United Nations, which received a million signatures.”

The uproar came as the U.S. Supreme Court was wrestling with the issue of sentencing teens to death. In 1988, the high court ruled it was unconstitutional to execute anyone who was younger than 16 at the time they committed a crime. The following year, Indiana lawmakers upped the minimum age from 10 to 16.

Indiana raised its minimum age to 18 in 2002. In 2005, the U.S. Supreme Court ruled it unconstitutional to execute anyone younger than 18.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Law

Courts - SCOTUSblog has a sketch artist

SCOTUSblog has recently added a sketch artist, Art Lien, and he adds a lot to the blog. See, for example, the masthead, and this drawing today of J. Scalia announcing the opinion in Arizona v. InterTribal Council.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 14, 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, June 14, 2013. It is one page (and 2 cases) long.

The following transfers were granted last week:

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "ACLU of Indiana Files Suit Against FSSA: Changes to Medicaid Waiver program put Hoosiers 'at grave risk of immediate and irreparable harm.'"

From a news release:

Last Friday, the ACLU of Indiana filed a lawsuit against the Indiana Family and Social Services Administration challenging the way in which the agency operates two of its Medicaid waiver programs, the Community Integration and Habilitation Waiver (CIH) and the Aged and Disabled Waiver (A&D). The programs, which serve thousands of Hoosiers, offer services that enable people like Steimel to live in their communities even though their disabling conditions would otherwise require that they be institutionalized.

Regarding the class-action lawsuit, which may help thousands of Hoosiers, ACLU of Indiana Staff Attorney Gavin Rose said, "the Americans with Disabilities Act of 1990 requires that states provide services to individuals with disabilities in the least restrictive setting appropriate to their needs. Right now, Indiana is not living up to that mandate."

FSSA's CIH Waiver (formerly known as the Developmental Disabilities Waiver) historically has maintained a lengthy wait-list that often delayed services to needy individuals for 10 to 15 years. In the fall of 2012, FSSA eliminated the wait-list and began offering services only to people who meet certain restrictive "priority criteria." Many people who once would have been eligible to receive services through the program can never become eligible under the new rules.

Also, FSSA recently determined that people with developmental disabilities may no longer receive services through its A&D Waiver unless they also possess so-called "skilled medical needs"-- like suctioning, ventilation, or medication administration -- that require the assistance of a registered nurse. * * *

The lawsuit alleges that the agency's policies violate the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The suit seeks to reinstate the wait-list for placement on the CIH Waiver and eliminate the "priority criteria" requirement that would likely result in drastically reduced care for thousands of people. It also seeks to compel FSSA to provide notice and an opportunity for applicants to appeal the elimination of their place on the wait-list and to provide sufficient slots for the wait-list to move at a reasonable pace.

Karla Steimel, et al. v. Minott, et al., Case no. 1:13-cv-957-JMS-MJD, was filed June 14 in the U.S. District Court Southern District of Indiana, Indianapolis Division.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of: C.L.F., D.K.F., & C.S.F. (Minor Children) and M.F. (Father) & C.J.F. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Ind. App.Ct. Decisions

Courts - Opinions expected this morning from SCOTUS, beginning at 10 AM

Watch SCOTUSblog, or watch for some highlights here...

First case decided, Salinas v. Texas - 5th amendment and silence - case page. "Salinas, decided 5-4, holds that the government can comment on a witness's silence in not answering police questions." SCOTUSblog

Next, FTC v. Actavis, case page here. Generic drug settlements.

Third case, Alleyne v. United States. Case page. "Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling." Tom Goldstein

Maracich v. Spears, the Driver's Privacy Protection Act case. "Amy Howe: An attorney's solicitation of clients is not a permissible purpose covered by the DPPA's litigation exception. Justice Kennedy has the opinion. It is a 5-4 decision; Justice Ginsburg, joined by Scalia, Sotomayor, and Kagan." Case page. "Amy Howe: This was a case in which a group of lawyers had tried to file a class action against a group of car dealers in South Carolina on behalf of four people who had purchased cars recently. They got information from the DMV regarding other would-be plaintiffs."

Final decision today (decisions again Thurs.): Arizona v. Inter Tribal Council - "Amy Howe: This is the case involving Arizona's requirement that would-be voters provide proof of citizenship before being able to register to vote. Arizona's proof of citizenship requirement is preempted by the federal law requiring that states use the federal voter registration form." Case page.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Courts in general

Ind. Gov't. - "Ethics rules are good as their enforcement" [Updated]

That is the headline to Lesley Weidenbener's Sunday column in the Louisville Courier-Journal. Some quotes:

I’ve always been a little skeptical about whether so-called cooling off periods are an effective way to prevent public officials from using their government positions to help companies they might later go to work for.

Some may think I’m naïve. But actually, it may be that I’m too cynical. I’ve always thought that a one-year wait is just not much of a disincentive for a public employee or a private firm that is willing to be unethical.

But I’m confident of one thing: They certainly won’t work well when they’re not enforced.

A few years back — just after then-Gov. Mitch Daniels was elected — the state put a cooling off period in place. I’m simplifying, but it says that a state employee has to wait at least one year before going to work for a company if the employee had any say-so over contracts, regulatory issues or licensing that involved the firm. * * *

Daniels and others argued that the rule helps not only with an actual ethics problem but also with the perception of a problem and I certainly think that’s a worthwhile point. Lawmakers recently made the same point when the General Assembly put in place rules that require them to wait one year before going to work as a lobbyist.

But if that’s the case — if these rules are to be used to help the public feel more trusting of public officials — then they need to be enforced. Vigorously.

There’s no point in having a rule for which there are easy exceptions. And last week, Gov. Mike Pence made a big one when he waived the one year cooling off period for Indiana Department of Transportation Commissioner Michael Cline, who is going to work for Purdue University. * * *

As the head of INDOT, the commissioner is ultimately responsible for all the agency’s contracts and Purdue has a couple big ones. According to a story written by Niki Kelly, the Statehouse reporter for The Journal Gazette in Fort Wayne, the school has contracts to administer two programs that involve more than $27 million. So it seems fairly obvious that Cline should have to wait a year to go to work at Purdue.

But there’s a provision in the ethics rules that allows the governor (or in some cases an agency head) to waive the cooling off period when doing so would be “consistent with the public interest.” And in this case, that’s just what Pence did: He said that Cline going to work for Purdue was of enough importance for the public that he shouldn’t have to follow the rule. * * *

We’ve seen what can happen when the Indiana Ethics Commission isn’t strict. A few years ago, they OK’d Duke Energy’s hiring of a regulatory agency’s administrative law judge who had been working on one of their cases. Later, that exploded into a scandal that led both then-Gov. Daniels and Duke to fire several key officials.

I thought then that the state would get stricter about enforcing the rules. But Pence’s decision to waive the cooling off period for Cline is more evidence that the rules apply sometimes — and not others.

That’s no way to combat the public’s pessimistic perception of government.

Indiana Legislative Insight's current issue ($$$) also reports briefly on the Cline story:
After receiving a special “public interest” waiver from the Governor’s Office on certain post-employment ethics restrictions, Indiana Department of Transportation Commissioner Mike Cline is likely to be the latest state official to jump the ship of state to join former Gov. Mitch Daniels (R) at Purdue University. Cline will become Purdue’s vice president for physical facilities, but the job description will no longer require him to be “representing Purdue before the executive and legislative branches of state government.”
ILI also reports on another application, which the Ethics Commission denied:
James R. Jones, state archaeologist since 1991, must serve a one-year cooling-off period — as well as be subject to a lifetime ban from working on certain particular matters — following a 3-2 vote of the State Ethics Commission. Jones had been considering retirement and a possible private consulting assignment.
Really, a lifetime ban? Unfortunately, neither the minutes nor the rulings of the State Ethics Commission appear to be available online.

[Updated 6/18/13] The FWJG has an editorial today headed Erratic on ethics, here is a portion:

The thing about ethics policies, however, is that they must be consistently enforced to work. The waiver Gov. Mike Pence granted to Indiana Department of Transportation Commissioner Michael Cline before his hearing with the state ethics commission, clearing Cline to accept a vice president’s position at Purdue University, suggests the rules aren’t absolute.

As Niki Kelly reported, a waiver letter written by Pence’s chief of staff claimed that Cline would not lobby for Purdue, even though lobbying was specified as a job responsibility in the INDOT commissioner’s initial offer letter.

Purdue’s ties with INDOT are tight, as Kelly noted. The Joint Transportation Research Program involves a collaboration between the university and the state on planning, design, construction, operation, maintenance and efficiency of roads and bridges. A pending contract would pay up to $26 million.

State law prohibits state officials from accepting a job from an employer if they were engaged in the negotiation or administration of contracts with the employer on behalf of the state, and were in a position to make decisions affecting the outcome of the negotiations and administration.

The waiver claims Cline had only limited involvement with the Purdue contracts, but it’s a stretch to believe the administrator was far removed.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Government

Ind. Gov't. - Dispute in Elkhart over public records access

The long story today in the Elkhart Truth, reported by Dan Spalding, begins:

ELKHART — A new complaint against the city of Elkhart has been filed with Indiana’s Public Access Counselor — this one over the availability of public records.

The paperwork was filed by Melvin Bontrager on behalf of business owner David Schemenauer and a group of businesses who have become vocal critics of Elkhart’s compact fee policy and Mayor Dick Moore. They are seeking details from the city on an arrangement with Ontwa Township in Edwardsburg, Mich., where the township oversees sewer service that is treated by the city of Elkhart.

The complaint was filed last week and came at the same time the public access counselor offered an advisory opinion on a complaint filed by Elkhart city councilman Brian Dickerson. In the ruling, the state said Moore’s sewer task force did not violate the Open Door Law.

The business coalition has made several requests for information from the city related to city sewer service as they continue to question policies for both commercial and residential sewer customers. While chiefly concerned about the commercial compact policy, the group has aligned itself with Valley View residents, some of whom have declined to sign a new residential agreement with the city.

The complaint with the public access counselor came after the city declined to provide information about the existence of an annual credit Ontwa Township may or may not receive from the city of Elkhart for capital expenditures, according to Schemenauer.

The city declined to provide information because it “is currently in a contractual dispute with Ontwa Township,” according to a letter from city utility attorney Margaret Marnocha.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Government

Ind. Gov't. - "Indy seeks to reduce IMPD lawsuits: $4.1 million paid in last year, $28 million pending"

John Tuohy has this long story today in the Indianapolis Star. It begins:

Indianapolis officials will scrutinize all lawsuits filed against the Indianapolis Metropolitan Police Department in the last five years to determine how to reduce litigation against the department.

The city has paid $4.1 million in IMPD settlements in the last year alone (from May 2012 through May 2013), with another $28 million in claims pending, and officials want to know if the department and city lawyers are learning enough from those losses.

“We need a high-end analysis,” said City-County Council member Ben Hunter. “It’s something corporations have been doing for years. You constantly analyze to reduce your liability and exposure.”

The lawsuits against IMPD make up 75 percent of all lawsuits against the city, with the Department of Public Works a distant second.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Indiana Government

Courts - 19 SCOTUS opinions expected to issue by the end of June

SCOTUSblog has the list this morning. Note also its redesigned site, a great visual improvement!

The SCOTUS will announce some of these 19 opinions this morning beginning at 10:00 AM.

Posted by Marcia Oddi on Monday, June 17, 2013
Posted to Courts in general

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

From Sunday, June 16, 2013:

From Saturday, June 15, 2013:

And don't miss from Friday, June 14, 2013:

Posted by Marcia Oddi on Monday, June 17, 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 6/17/13):

Thursday, June 20th

Next week's oral arguments before the Supreme Court (week of 6/24/13):

Thursday, June 27th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 6/17/13):

Tuesday, June 18th

Next week's oral arguments before the Court of Appeals (week of 6/24/13):

Tuesday, June 25th

Wednesday, June 27th

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, June 17, 2013
Posted to Upcoming Oral Arguments

Sunday, June 16, 2013

Ind. Decisions - More on: UNITED STATES OF AMERICA v. $196,969.00 UNITED STATES CURRENCY

On June 11, the 7th Circuit reversed a ruling by Indiana federal district Judge Magnus-Stinson. Here is what the ILB posted at the time, quoting Judge Posner's introductory paragraph to the opinion, which included this statement:

In Indiana, where this case arose, the state constitution requires that “fines assessed for breaches of the penal laws of the State . . . [and] all forfeitures which may accrue” must be paid into the Common School fund, which finances education rather than law enforcement. Ind. Const. art. 8, §§ 2, 3. By inviting the federal government to conduct civil forfeiture relating to criminal cases in the Indiana state courts, local and state law enforcement can receive a substantial share of the forfeited criminal proceeds and avoid (or at least try to avoid) having to pay any of it into the Common School fund.
After looking at the Posner opinion again, and going back and looking at Judge Magnus-Stinson's Nov. 14, 2012 ruling, it seems evident that the introductory statement is simply "background" or dicta, there is no other discussion of the Indiana Constitutional provision or the Common School Fund in the Posner opinion, in the companion case to which he refers in the introduction, or in the district court ruling.

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Indiana Decisions

Courts - Kentucky same-sex case could be landmark re spousal immunity

The Louisville Courier-Journal's Jason Riley has a long story today on a case pending in Kentucky's Jefferson Circuit Court. Some quotes:

Prosecutors say Geneva Case heard her spouse admit to killing a man two years ago and saw her clean blood out of the man’s van and abandon it in Southern Indiana.

Now, they argue, Case must testify about those facts, even though Kentucky law exempts spouses from being compelled to testify against each other.

The reason, they say, is that Case and the defendant, Bobbie Joe Clary, entered into a same-sex civil union in Vermont in 2004 — and Kentucky doesn’t recognize same-sex civil unions or marriages.

“That ceremony is not a ‘marriage’ that is valid and recognized under Kentucky law,” prosecutors said in a court motion, noting that marriage between members of the same sex is prohibited in Kentucky. “Geneva Case and the defendant cannot prove the existence of a marriage under Kentucky law.”

But attorneys for Clary say they are legally married and denying them the same marital rights others have would be a violation of the Constitution.

The case has become the first legal test in the state over forcing same-sex partners to testify against each other — raising the broader issue of whether the state recognizes marriages or civil unions that are legal elsewhere. The case could have ramifications for issues such as divorces and division of property after death.

“It is going to have a huge impact,” Angela Elleman, an attorney for Clary, said in an interview, noting that couples are leaving the state to marry and coming back with legal issues that are going to have to be resolved.

“It’s going to come up again and again and again,” she said.

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Courts in general

Ind. Courts - "Judgment time in ballot case: 4 to be sentenced Monday"

Madeline Buckley's story today in the South Bend Tribune begins:

SOUTH BEND -- Once a prominent force in local politics, with his stout figure and bespectacled face a given at events like Dyngus Day, former chairman of the county's Democratic Party Owen "Butch" Morgan will be sentenced Monday for his role in a ballot fraud case that ended his more than 16-year career in scandal.

It is the end of a tale of the rise and fall of a man powerful in the local political scene, the role of a newspaper and the three government workers who did what he asked.

An investigative report by the South Bend Tribune and Howey Politics revealed in 2011 that hundreds of signatures were forged onto petitions that qualified Democratic presidential candidates for the 2008 Indiana primary.

Soon after, Morgan resigned his post and the St. Joseph County prosecutor's office filed felony charges against him and three former employees in the county's Voter Registration Office: Dustin Blythe, Bev Shelton and Pam Brunette.

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Indiana Courts

Ind. Courts - Attorney claims Logansport officials falsified documents

A story today by Mitchell Kirk of the Pharos-Tribune begins:

The attorney representing a woman who filed a lawsuit against Logansport Mayor Ted Franklin and city council regarding the city’s ongoing power plant project states city officials have falsified two pieces of legislation, according to court records, a claim the city’s attorneys say is based on conjecture and improperly timed.

In March, Logansport attorney Jim Brugh filed the suit on behalf of Julie Kitchell, a Logansport resident. The suit claims the city engaged in the process of developing a public-private agreement with Pyrolyzer LLC to develop a new power plant before adopting an ordinance authorizing it to do so.

Cass County Superior Court II dismissed the case in April. Brugh has since filed an appeal in the Indiana Court of Appeals and attorneys representing the city have countered with a filing in the state supreme court.

A recent affidavit filed by Brugh in Cass Superior Court II states the ordinance and resolution authorizing the city to engage in negotiations for the development of the power plant were falsified by Franklin and Logansport Clerk-Treasurer Carol Sue Hayworth.

In the affidavit, Brugh writes he visited Hayworth’s office March 13 to acquire copies of the ordinance and resolution. The copies of the documents attached to the affidavit indicate Logansport City Council President Joe Buck had signed the resolution, but not the ordinance, and that Franklin had yet to sign either of them. Brugh goes on to state he requested copies of the documents after they had all been signed.

Brugh continues by citing a provision in Indiana Code that states a mayor must sign an ordinance within 10 days or else it is considered vetoed. The ordinance and resolution in question were passed March 4, meaning March 14 would have been the 10th day.

Brugh then writes he received a letter from Hayworth dated March 18 attached with copies of the ordinance and resolution, both signed by Buck and Franklin. The dates on their signatures read March 4. Brugh called into question how that could be possible if on March 13 the only documents available to Brugh were those that had yet to be properly signed.

“The documents were not signed on March 4; the Clerk and the Mayor have backdated the documents,” Brugh writes, adding that the ordinance and resolution should be considered void under Indiana Code because Franklin failed to sign them within 10 days.

“I sign hundreds of documents a week,” Franklin said in an interview responding to the claims. “I don’t have a photographic memory. The record reflects it was signed on March fourth so I have to assume I signed it on March fourth.”

There is much more in the story.

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Indiana Courts

Ind. Law - "Will jobs be there for law school grads?" Dean of new Ind.Tech law school questioned

Rebecca S. Green has a long story in Sunday's Fort Wayne Journal Gazette headed "Will jobs be there for law school grads? Dean defends Indiana Tech’s plans to open." Some quotes:

Peter Alexander is tired of explaining it.

But the question keeps coming up: Why does Indiana need another law school?

Alexander is the dean of the newly created law school at Indiana Tech. And after a new set of statistics came out this month, showing again that there are, perhaps, more lawyers than needed, Alexander was again asked about it.

He is adamant: It’s not about the number of job openings versus the number of law school graduates. It’s about the quality of the law school graduate.

And Indiana Tech’s new law school will turn out high-quality graduates, making them necessities in any market, he said.

“If we do our jobs, then our students will be the ones law firms want to hire,” Alexander said. * * *

The Hoosier State has four law schools already – two public and two private. Indiana Tech’s is slated to open this summer. * * *

Over the past few years, universities noticed the potential profit available in developing a law school, which requires, as [Kendallville attorney Mike Yoder] put it, very little to operate other than a few open classrooms, the Internet and local attorneys willing to teach part time.

Again, he said, he is not speaking specifically of Indiana Tech, but “this is what happens in some cases.” * * *

Indiana’s law schools cost between $23,500 and $48,730 a year.

Indiana Tech will be at the low end of the scale for cost, Alexander said.

The school will charge tuition of $29,500 a year, plus $800 in fees.

The least expensive school in the state is the Robert H. McKinney School of Law at Indiana University in Indianapolis and the priciest is the University of Notre Dame.

Alexander said Indiana Tech’s new law school will stand out in how it prepares students to be lawyers.

Similar to a medical school approach to education, Indiana Tech students will do classroom work but spend time on practicums and externships.

Seventy-five Allen County judges and lawyers have already signed up to be mentors for the program, Alexander said.

“I think even the bench and the bar recognize we’re doing something different or they wouldn’t put their support behind it,” he said.

And the faculty brings years of experience from private practice, ready to share them with students in the classrooms and present them with real-world problems to solve, he said.

During the third year of law school at Indiana Tech, the students can work up to 40 hours a week for credit in nonprofit or governmental law, what Alexander calls a “semester in practice.”

“The whole orientation,” he said, “is different than the traditional law school model.”

The practical approach to legal education is something law firms have been clamoring for over the years, he said.

It is difficult, though, to determine how Tech’s approach differs from the offerings at other law schools within the state.

Valparaiso University’s Law School touts its extensive externship program – offering 90 positions in 176 offices for students. National Jurist named the school tops in the nation for externship opportunities.

IU’s Maurer School of Law also offers externships and other areas for experience, such as a pro-bono immigration project and the Inmate Legal Assistance Project, according to its website.

Indiana Tech will not have the opportunity for provisional accreditation until it has been in operation for a year.

It is being established using the American Bar Association’s Standards for the Approval of Law Schools, officials said.

After being in operation for one year, the law school can petition for provisional approval by the American Bar Association. The provisional status lasts for up to three years before the American Bar Association considers full approval, according to officials. * * *

To become a lawyer in Indiana, to take and pass the bar examination, one must have graduated from an accredited law school, and state bar officials did not differentiate between full or provisional accreditation. * * *

Indiana Tech is still taking applications for the law school, and a few students have been admitted already. The school is scheduled to open in August.

Accompanying the story are two tables, one showing "States with the worst ratio of the number of law school graduates to the average number of job openings from 2010 to 2020, from worst to best," and one showing "Tuition costs for law schools in Indiana and those close to northeast Indiana."

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Indiana Law

Courts - Chart: "How the Court Could Rule on Same-Sex Marriage"

Chart from the NY Times showing the alternative outcomes possible in the two marriage equality cases the SCOTUS will decide this month. The chart also illustrates which states will be impacted, depending on the outcome.

[More] See this story today from Richard Wolf at USA TODAY, headed "Supreme Court gay-marriage rulings: Anything but simple." It begins:

WASHINGTON — If the range of possible Supreme Court rulings on gay marriage this month requires a scorecard, the potential confusion arising from those decisions may demand a manual.

It's not as simple as whether gays and lesbians can marry or not, and whether they become eligible for federal benefits. The two decisions are likely to create new questions for couples in civil unions and those who move between states, as well as for employers.

Posted by Marcia Oddi on Sunday, June 16, 2013
Posted to Courts in general

Saturday, June 15, 2013

Courts: "The SCOTUS Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders"

The SCOTUS decision June 10th reversing the 7th Circuit in Peugh v. United States is criticized as making it more difficult to incarcerate sex offenders in this new article in Verdict by law professor Marci A. Hamilton. The article begins:

The national drive to identify and punish child predators took a step backward this week. While on its surface, the Supreme Court’s decision this week in Peugh v. United States does not deal with sex offenders, its impact will surely be felt in the sex-offender cases. As with the Court’s decision ten years ago in Stogner v. California, the Ex Post Facto Clause has once again been interpreted to make it more difficult to incarcerate criminals, and particularly sex offenders, as I will explain below.

Posted by Marcia Oddi on Saturday, June 15, 2013
Posted to Courts in general

Ind. Gov't. - Marion County redistricting dispute in court Monday

Updating this ILB entry from May 1st, Jon Murray reports today in a story today in the Indianapolis Star - here is the start:

A redistricting battle that has pitted Indianapolis Mayor Greg Ballard against City-County Council Democrats for more than a year will get its day in court Monday.

That’s when a panel of five judges from Marion Superior Court will hear arguments from Republican and Democratic attorneys representing each side.

Appropriately enough, the hearing will be in the council’s chambers on the second floor of the City-County Building. That’s to accommodate the unusual number of judges, which Indiana law requires for the redistricting dispute.

For the last two months, attorneys representing the Republican mayor and the council Democrats — President Maggie Lewis, Vice President John Barth and Majority Leader Vernon Brown — have filed dueling, barb-filled court briefs.

Essentially, the case boils down to whether the division of the council’s 25 district boundaries was “made” last year — as required by law following the 2010 census — or in 2011, which would require a new map.

The lame-duck Republican council majority passed a redistricting plan in December 2011. But Ballard signed it into law on Jan. 1, 2012. Hence, Republicans argue that the mayor’s signing of the law on the first day of 2012 qualified as enacting the new district boundaries last year, as required.

Democrats argue the boundaries were actually drawn when the council passed the ordinance, late the prior year, and it doesn’t matter when Ballard signed the ordinance.

Regardless of whether Democrats are right, Republican attorney David Brooks wrote in a recent filing, the GOP maps still should be legal because another part of state law allows for redistricting anytime except during the year leading up to an election. The outgoing Republican council passed the disputed redistricting plan more than a month after the 2011 election.

Democrats took over the majority in January 2012. And late last year, they passed a competing redistricting plan on a party-line vote. Ballard vetoed it, calling it unnecessary.

Posted by Marcia Oddi on Saturday, June 15, 2013
Posted to Indiana Government

Friday, June 14, 2013

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

In JASON FINDLAY v. JONATHAN LENDERMON (ND Ind., Springmann), an 11-page opinion, Judge Flaum writes:

In September 2009, Deputy Sheriff Jonathan Lendermon found himself in the middle of a long-running family squabble between Jason Findlay and Findlay’s uncle, Clark Howey. Neighbors as well as family, the two lived next door to each other. Howey suspected Findlay of trespass and vandalism, giving rise to the bickering that ensnared Deputy Lendermon. When Findlay found a surveillance camera set up at the property line, he called the Sheriff’s Office to file an abandoned property report, and Lendermon responded to the call. With video running, Findlay ultimately made comments suggesting he had, in fact, trespassed, and Lendermon decided to confiscate as evidence the memory chip containing these statements. At some point, the memory chip separated from the camera and fell to the floor. Findlay says Lendermon tackled him as he reached to pick up the chip. Lendermon says he simply grabbed Findlay’s arm to prevent him from picking up the chip before Lendermon could seize it. A lawsuit followed, in which Findlay alleged the excessive use of force. The district court denied Lendermon’s motion for summary judgment on the excessive force claim. We reverse. Because Findlay has not carried his burden of showing the violation of a clearly established right, Lendermon is entitled to qualified immunity. * * *

[ILB: The incident takes place in Lafayette, the facts are set out in detail at pp. 2-4]

Because Findlay has not identified any sufficiently analogous case clearly establishing the constitutional right he accuses Lendermon of violating, and because Findlay offers no adequate explanation for how Lendermon used force “so plainly excessive” that it proved clearly established notwithstanding the absence of such a case, we REVERSE the district court’s denial of Lendermon’s motion for summary judgment on qualified immunity grounds.

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "3 charged in sophisticated bid to change Purdue grades" [Updated]

Sophia Voravong reports today in a long story in the Lafayette Journal-Courier. Some quotes:

On paper, Roy Chaoran Sun was a remarkable student who earned straight A’s in at least 10 engineering courses at Purdue University — eventually graduating with a bachelor’s degree in electrical engineering in May 2010.

So, too, was his friend, Mitsutoshi Shirasaki, an aeronautics and astronautics major from Japan. Among 24 courses during Purdue’s spring 2010 to fall 2012 semesters, the lowest grades Shirasaki received were a handful of B’s. The rest were A’s and A pluses.

But, investigators say, their high marks weren’t due to hard work and studying. Instead, the duo hacked into their professors’ university accounts and gave their report cards a significant boost, court documents allege.

In April, the Tippecanoe County prosecutor’s office charged 24-year-old Sun, 24-year-old Shirasaki and a third acquaintance, 24-year-old Sujay Sharma, with multiple felonies and misdemeanors — among them, conspiracy to commit computer tampering, conspiracy to commit burglary and conspiracy to commit computer trespass.

The charges, filed in Tippecanoe Superior Court 2, were unsealed and made public Thursday afternoon.

“This was no outside attack. This was … students who were very smart, who decided to take their knowledge and their wisdom and used it for things they shouldn’t have used it for,” Purdue Police Chief John Cox said.

“Obviously, there will be consequences for that.”

Cox said he and Capt. Steve Dietrich, a Purdue detective who has been with the department for 30 years, believe that the alleged grade-changing scheme — and the extent of the alleged computer tampering — is a first for the university. * * *

The investigation began last November, when an engineering professor contacted the university’s information technology security services department because his password had been changed by an unknown party. Someone changed his password again in December.

Through that, Information Technology at Purdue officials learned that the professor’s account was accessed to change a student’s grade. ITaP contacted Purdue police on Jan. 3.

Shirasaki was identified as the suspect because he was logged into Purdue’s wireless network under his own account when he allegedly hacked into the professor’s account, changing his grade from C to B. Further investigation uncovered prior grade changes. * * *

According to the affidavit, Shirasaki claimed that he learned how to access professors’ accounts through Sun. It involved physically breaking into professors’ offices and switching their computer keyboards with identical ones.

The suspects allegedly installed key logging devices to the original keyboards, then broke into professors’ offices again to replace the original keyboards. The key logging devices allowed the suspects to figure out their professors’ account passwords. * * *

In mid-February, Shirasaki took investigators to an area near West Point where keystroke loggers, lockpicking devices, hard drives and other items were tossed after the suspects learned that police knew about the grade changes.

[Updated on 6/15] Sophia Voravong has a follow-up story today, reporting that one of the three, Roy C. Sun, had been arrested in 2009 by Purdue authorities:
Purdue Police Chief John Cox confirmed that he’s the same person investigators arrested in November 2009 on suspicion of terroristic mischief after a closed box was left in the Visitor Information Center, prompting an evacuation of the building on Northwestern Avenue.

The box’s contents were a parking ticket issued to Sun, then a senior studying electrical engineering, $20 and a wheel lock that had been placed on Sun’s vehicle because it displayed a university-issued parking pass that belonged to someone else.

A group of students protested on the West Lafayette campus because they believed police overreacted.

The Tippecanoe County prosecutor’s office ultimately declined to file criminal charges, but Prosecutor Pat Harrington had told the Journal & Courier that he believed Purdue authorities responded appropriately given how some terroristic attacks have been carried out since 9/11.

From a 2009 story about the arrest from a Boston NBC station:
Due to the fact that police thought the box could have been a weapon of mass destruction, Sun could face serious charges, such as terroristic mischief. Police say terroristic mischief is when an individual leaves something that a reasonable person may think is a weapon of mass destruction.

Many Purdue students are saying that the charges against Sun should be dropped. When students heard Sun’s story, some started a Facebook page in an attempt to free him.

“He left money and his name and all of his information in the box. Nobody knows how in the world someone who is trying to pay a parking ticket could get charged and arrested...People are saying this is showing how this country has gone completely insane,” said a Purdue student.

The South Bend Tribune today relates the 2009 arrest in a story with the inaccurate headline: "Suspected grade-changer has criminal past."

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Indiana Courts

Ind. Law - "Prison sentence of 12-year-old prompts new juvenile sentencing law"

Maureen Hayden, CNHI Statehouse Bureau, has this story today in several state papers, including the Mt. Vernon Register-News. Some quotes:

INDIANAPOLIS — Three years ago, when 12-year-old Paul Henry Gingerich became the youngest person in Indiana ever sent to prison as an adult, his story gained international attention and sparked questions about whether children belong behind bars with grown-up offenders. * * *

In late April, Indiana Gov. Mike Pence signed into law a provision that gives judges new sentencing options for children under 18 in the state’s criminal courts. It goes into effect July 1.

Among other things, it gives judges more discretion to keep those young offenders out of the adult prison system and to put them instead into juvenile detention facilities where they can be rehabilitated while serving their sentence.

Advocates for the new law included state prison officials who feared for Paul Gingerich’s safety when he was first sent to them in 2010 as an 80-pound, sixth-grader who’d never been in trouble.

“No good comes from putting a 12-year-old in an adult prison,” said Mike Dempsey, head of youth services for the Indiana Department of Correction.

In Indiana, children as young as 10 can tried as adults. Gingerich was 12 when he was arrested in the shooting death of 49-year-old Phillip Danner of Cromwell, along with Danner’s 15-year-old stepson. The defense argued Gingerich had been bullied into the crime by the older teen.

A psychiatrist who evaluated Gingerich said the boy wasn’t competent to stand trial as an adult. But a juvenile court judge rejected that opinion and declared both boys were fit to stand trial as adults. An appeals court has since thrown out that ruling.

For years, judges in Indiana have had few options for dealing with juveniles who’ve committed heinous crimes. They could keep them in the juvenile court system and order them locked up until they turn 18. Or they could send them into the criminal courts, where the juvenile would be tried and sentenced as an adult.

The new law creates another option called “dual sentencing,” that essentially allows a young criminal to be sentenced as both a juvenile and an adult.

It allows a judge to send a juvenile convicted as an adult into a state-run juvenile detention center for intensive supervision and treatment until the offender turns 18. Then, at 18, that offender’s adult prison sentence is re-assessed by a judge who has several options: Send the offender on to prison to serve the criminal sentence, send the offender into a community-based corrections program to transition back into society, or send the offender back home free.

Andrew Cullen, legislative liaison for the Indiana Public Defender Council, said the law gives judges a new level of discretion in juvenile matters.

“The criminal justice system should never, ever treat a child like it treats an adult,” Cullen said. “This law recognizes that.”

Until the new law was passed, Indiana was only one of four states that didn’t have some version of dual sentencing, also called blended sentencing, for juveniles convicted of serious crimes.

Republican state Rep. Wendy McNamara, an Evansville school administrator who carried the legislation in the Indiana House, said the new law still provides punishment but recognizes that juveniles need to be treated differently than adult offenders.

“We’re not letting these kids off the hook,” McNamara said. “But the law also says we’re not going to lock them up and throw away the key.”

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Indiana Law

Ind. Courts - Are pre-transfer oral arguments becoming the new norm for the Supreme Court?

Of the twenty cases set for oral argument yesterday by the Supreme Court for the upcoming for September to December period, six are cases in which transfer has not yet been granted. In several recent posts, Prof. Joel Schumm has commented on the Court's growing trend of scheduling oral arguments to decide whether to grant transfer, rather than the Court vacating the Court of Appeals opinion and then holding oral argument.

Earlier this week the ILB received at note from a reader who wrote:

The Chief Justice devoted a part of his plenary talk at last week’s Solo & Small Firm Conference on “the New Indiana Supreme Court” to the change in procedure on allowing and vacating grants of transfer from the Court’s previous practices.

I do not have notes of the comments, but I recall him saying that the Supreme Court is intentionally moving away from granting transfer and then entering “improvident granted orders” with reinstatement of the Ct of Appeals opinion, to a system, like days of old, when the court would approve review on the Petition to Transfer, without granting the transfer and vacating the Ct of Appeals opinion, and order briefing and oral argument if appropriate. Then after briefing or hearing the counsel’s arguments, the Court would first decide in conference if transfer should be granted. If it should, it will then decide the case under its standards, on the merits.

The ILB also received a tweet from another attendee, who wrote:
At the ISBA SSFC, C.J. Dickson indicated pre-transfer arguments may be the new norm as it used to be when he took the bench.
Fortunately the ILB was able to ask the Chief Justice directly:
I'm told you said the Court would move to a system such as you have been using somewhat more often recently, where you hold argument on whether or not to grant transfer without first vacating the COA opinion. I'd like to report (accurately) on what you presented to the Conference.
Chief Justice Dickson responded:
Hi Marcia – I didn’t intend to convey the impression that the Court was intentionally adopting any change in procedure. Rather, I was reflecting on aspects in which the “new” court (BD, RDR, SD, MM, and LR) seemed to be differing slightly from the “old” court (RTS, BD, FS, TRB, and RDR).

One of these was the apparent increasing frequency in times where the Court seems to be scheduling oral argument without first granting transfer. Your blog has reported on this already.

This is not an intentional change in practice, however. It was just an example of how the “new” and “old” courts may seem to vary.

My remarks to the Solo & Small Firm Conference were not in the form of a written speech, but rather a partial speech outline that guided my often extemporaneous remarks. Following is the relevant excerpt from my personal notes which guided my remarks.

  • More frequently granting OA without first granting transfer
    This was the standard when I came to the court. We never granted transfer until after OA, and then only when opinion issued.

  • Under the "Old Court," we adopted the default practice of granting transfer before holding OA.

  • With the "New Court," we have begun more frequently to schedule OA without first granting transfer
    -- perhaps out of reluctance to deny transfer unless we were fully informed
    -- perhaps to avoid "improvidently granted" rulings where we realized, after OA, that transfer is not warranted
    -- and also to more fairly inform counsel if we were in doubt whether to grant transfer

ILB: In other words, although some attendees may have perceived a major change, CJ Dickson was merely summarizing the minor shift of the past year. The Court will continue to grant transfer at conference in many cases. But in borderline cases, they will set for argument rather than grant transfer upfront. And even in some cases that would have been denials under the "old" Court, the "new" Court has already and will continue to set argument, to avoid denying transfer without being fully informed.

A concern. As noted at the beginning of this entry, of the twenty cases yesterday set for oral argument for September to December, six (30%) are cases in which transfer has not yet been granted. That means they do not show up on the weekly transfer list, issued a few days after the Court's weekly conference.

As I've written before, it would be a useful change from the public's point of view for the Court to announce in advance what petitions it will consider in its upcoming weekly conference (as does the Supreme Court of the United States), and then promptly post the resultant transfer list that afternoon or the following morning.

As it stands, the list posted every Monday (or Tuesday if Monday is a holiday) reflects grant/deny decisions made at least a few days earlier and omits any mention of decisions to set cases for argument. Presumably the decision to hold argument in cases like Brewington and the other cases that appeared on the Court’s oral argument calendar yesterday were made weeks earlier.

If the Court posted a pre-conference list, the public and press would receive more timely and complete information about the important decisions being considered and made by the justices. And, beyond the granted/denied rulings, the companion post-conference list could also include decisions to set a case for conference or holdover for a future conference.

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one opinion today

In Robert Bowen v. State of Indiana, a 2-page, 5-0, per curiam opinion, the Court writes:

Precedent requires that a trial court “include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence,” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), including the reasons for imposing consecutive sentences, see, e.g., Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002); Smith v. State, 474 N.E.2d 71, 73 (Ind. 1985); see also Ind. Code § 35-50-1-2. We choose to remand to the trial court for clarification of its sentencing decision and preparation of a new sentencing order. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh’g denied.

Accordingly, we grant transfer and remand this case to the trial court with instructions to issue an amended sentencing order that complies with the law, without a hearing. See Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010). The decision of the Court of Appeals is summarily affirmed in all other respects. See App. R. 58(A). Subject only to the rules governing rehearing, this opinion concludes this appeal of the convictions and the original sentencing order.

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D. (NFP), a 14-page opinion, Judge Barnes concludes:

The trial court properly found that the Estate’s medical malpractice claim against Dr. Kleckner was barred by the statute of limitations. Further, the trial court properly found that the doctrine of fraudulent concealment does not bar Dr. Kleckner from asserting the statute of limitations defense. The trial court properly granted Dr. Kleckner’s motion for summary judgment.
NFP criminal opinions today (4):

Serafin Sanchez v. State of Indiana (NFP) - This is a 2-1 opinion re whether the jury instructions constitute fundamental error.

Reggie T. Johnson v. State of Indiana (NFP)

Jimmy D. Jones v. State of Indiana (NFP)

Nathan Warren v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Analysis: Top court's gay marriage ruling won't be last word"

That's the word from Joan Biskupic's long June 13th Reuters story. Some quotes:

(Reuters) - Whatever the U.S. Supreme Court decides this month, gay marriage appears destined to face several more years of legal debate and at least one more round of argument at the high court.

That's because a majority of the court's nine justices, based on their record and comments during March's oral arguments, are unlikely to proclaim a national right to same-sex marriage in the pending cases, and momentum for it in the states may soon slow as the battleground moves beyond the Northeast. Any right to gay marriage will come only if the Supreme Court declares it, probably years from now if it should happen. * * *

By and large, the justices typically keep an eye on the states as they take up major social-policy dilemmas. They may not want to get too far out in front of social changes, aware of the backlash generated 40 years ago when the court established a constitutional right to abortion. The 1973 Roe v. Wade decision, issued just as states were considering related legislation, remains one of the court's most controversial modern rulings.

Twelve of the 50 states and the District of Columbia permit gay men and lesbians to marry. Three of the dozen - Delaware, Minnesota and Rhode Island - legalized such unions this year, and the laws take effect this summer, according to the National Conference of State Legislatures.

Close observers of state legislatures say that action in Democrat-dominated states may soon run its course and that about half the states are likely to remain entrenched against gay marriage because of their conservative cast.

Interviewed this week, Theodore Olson, who argued in the Supreme Court against the California ban on gay marriage, said advocates believe they eventually will need a ruling rooted in the U.S. Constitution to make gay marriage legal nationwide.

"We have to win at some point on a national level because not all the states are going to legalize it," Olson said. He would not discount the possibility that the justices would rule broadly this month for gay men and lesbians but said advocates were thinking of the next phase anyway.

From a long story by Michael D. Shear in the NY Times today:
WASHINGTON — A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

The decisions could affect Social Security checks, immigration laws and military benefits for same-sex couples, among other issues, with the outcomes based on whether the couples live in a state that allows them to marry.

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations. Many legal analysts say there is a substantial chance that the Supreme Court will strike down the 1996 law, which in defining marriage as a union between a man and a woman denies federal benefits to same-sex couples.

“We’re going to fight to ensure that legally married gay couples have access to all federal benefits and protections, irrespective of state borders,” said Fred Sainz, a spokesman for the Human Rights Campaign, a gay rights organization in Washington. “When it comes to federal benefits, it shouldn’t matter what side of a state border you live on.”

The court is expected to rule in the next two weeks. Based on the justices’ questions at oral arguments, legal analysts predict that the justices will overturn the [federal DOMA] on the grounds that marriage is a matter for the states.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government.

Maureen Groppe and Richard Wolf, of the Indianapolis Star Washington bureau, reported yesterday in a lengthy story -- here is a quote from near the end:
In a brief filed before the Supreme Court's oral argument on DOMA, Indiana Attorney General Greg Zoeller argued that state bans on gay marriage would be jeopardized if the court strikes down [federal] DOMA.

"It requires no great leap of logic to conclude that a judicial rejection of DOMA would erode constitutional support for similar state laws," Zoeller wrote in the brief that was supported by 16 other attorneys general.

If the court throws out the federal law, [Rick Sutton, executieve director of Indiana Equality] said that would be great ammunition to use in asking state legislators why they want to change the constitution in a way that could draw an expansive legal challenge.

But Sutton expects legislative leaders to move forward unless the court rejects states' gay marriage bans outright.

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Courts in general

Ind. Gov't. - Indy Mayor's office releases Report on Internal Investigation into DMD Land Bank

From a news release just issued:INDIANAPOLIS – Today the Office of Indianapolis Mayor Greg Ballard released a report on the internal investigation into the Department of Metropolitan Development (DMD) Land Bank. Mayor Ballard directed Chief of Staff Ryan Vaughn and senior officials at DMD to undertake their review of the land bank process following the indictment of two DMD employees. A copy of the 110-page report can be found here.

Posted by Marcia Oddi on Friday, June 14, 2013
Posted to Indiana Government

Thursday, June 13, 2013

Courts - Commentary on Myriad Genetics decision today

SCOTUSblog's Lyle Denniston's analysis is here. It begins:

Pronouncing what may seem like a patent truism, the Supreme Court ruled unanimously on Thursday that biotech researchers have to create something to get monopoly protection to study and apply the phenomenon. Because Myriad Genetics, Inc., “did not create anything,” the Court struck down its patent on isolating human genes from the bloodstream, unchanged from their natural form. Because Myriad did create a synthetic form of the genes, however, that could be eligible for a patent, the Court concluded.

The decision was a major blow to a company that believed it had a right to be the sole user and analyst of two human genes, mutations in which show a high risk, for women found to have them in their blood, of breast and ovarian cancer. But the ruling will give medical and scientific researchers, and family doctors, greater opportunity to help women patients discover their potential vulnerability to those types of cancer.

In a way. the ruling was a silent tribute to screen actress Angelina Jolie, who recently gained huge notoriety not for her acting but for voluntarily having her breasts surgically removed after discovering that she had the threatening mutations in her body. She, of course, was able to pay the high cost of that test; now, women of less means will be able to afford it, and that was a key motivation for challenging Myriad’s patent rights.

ILB: I have followed this case closely. On a personal note, over five years ago I elected to forego the $3,000 test, although my family history had led my doctors to recommend it. Medicare at the time would not cover my test; they decided on a numerical basis, saying I needed one additional close relative who had been diagnosed with ovarian or breast cancer, in addition to my mother and aunt. After reviewing the research, I made my decision on an age basis, the rare, hereditary BRCA1 and BRCA2 genes generally evidence themselves by a woman's 30s or 40s, and I was 65. Since then, however, it has irked me no end that a great number of women in that age category who may have the requisite family history simply cannot pay the $3,000 to find out whether they carry the gene.

[More] Today's opinion is criticized by Harvard Prof. Noah Feldman in a Bloomberg article headed "The Supreme Court’s Bad Science on Gene Patents."

"Patently Unfair: The Supreme Court won’t let the biotech industry own nature—which is good for you and me." That is the title of Emily Bazelon's just posted article in Slate. A quote:

Myriad charged thousands of dollars for its own tests. The company told me most women are covered by insurance, and they have done 5,000 free tests to low-income women without insurance. But that is just 0.4 percent of total cases, according to Duke University researcher Robert Cook-Deegan. When I asked readers about the cost of Myriad’s test, one wrote to me that her insurance wouldn’t cover it, and she couldn’t afford the cost of up to $4,000. “It is a horrifying feeling to be told you have a deadly disease and yet, a helpful and informative test will not be covered by your insurance company,” she writes. “I had to make a major health decision solely on financial reasons. Not a good feeling.” Another reader wrote of his epic saga trying to get testing for his wife before she died of breast cancer in 2009. “On the patient level, Myriad has monopoly pricing, and they refuse to license it to any other lab,” he said. “Besides the outrageous price, it is an insurance nightmare for patients.” All of this has enraged women’s health groups.
[Even More] This is recommended background from SCOTUSblog, "Myriad Genetics and the history of intellectual property in the United States." And here are earlier ILB posts.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Courts in general

Courts - Federal judge Edith Jones under review

The ABA Journal has the story, with a number of good links. Jones' name has been mentioned for years as a potential Republican nominee to the SCOTUS whenever a vacancy arose.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Courts in general

Ind. Gov't. - "Bonaventura, Pence officials win clearance from ethics panel "

Tom LoBianco of the AP reports this afternoon:

The Indiana State Ethics Commission found that Department of Child Services Director Mary Beth Bonaventura faced no conflict from her sister-in-law’s work running a company licensed by DCS.

But the panel approved a “screen” at Bonaventura’s request Thursday that would keep her from any involvement with the company.

The panel also cleared a pair of Pence administration officials to take new jobs at Purdue University and an Indianapolis law firm.

The panel voted unanimously in favor of Pence policy director Marilee Springer’s return to Ice Miller and transportation commissioner Michael Cline’s departure to Purdue.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Indiana Government

Ind. Courts - Oral Arguments at the Indiana Supreme Court

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

Just today twenty cases were added to the Indiana Supreme Court's online oral argument calendar, two on nearly every Thursday between September 5 and December 5. Last Friday the Indiana Supreme Court fax machine was busy sending notices to lawyers of scheduled oral argument dates. Lawyers are given an opportunity to request a different date by sending a detailed explanation of “special circumstances.” Otherwise, an order setting argument is issued, and several of those were issued yesterday.

What remains to be seen is how full the argument calendar will be. For now it appears most arguments will again be on Thursdays at 9:00 and 9:45 a.m., although some days in the past year the Court heard a third argument at 10:30. If the Court continues to hear an increased number of arguments in which transfer has not been granted, it will presumably hear more arguments in the coming year than in the past. Or perhaps it will become more selective and issue opinions in fewer cases.

This fiscal year (July 2012-June 2013), the Court heard or will hear 72 arguments, which is a bit lower than in recent years.

Indiana Supreme Court Oral Arguments

2011-12: 81

2010-11: 77

2009-10: 75

Source: Supreme Court Annual Reports

Unlike recent years, however, the Court ultimately denied transfer in more than fifteen cases in which it heard argument. As explained in this post, the Court vacated its grant of transfer after hearing argument in nine cases and added a tenth (Wells Fargo v. Summers) on June 5. It has set argument in more than a dozen other cases before granting transfer, most of which were also denied. Although several opinions are expected in June, the number of opinions issued after hearing oral argument will likely be lower than usual this year.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Schumm - Commentary

Ind. Decisions - Ind. Gas v. Ind. Regulatory Commission (Rockport)

Here, supplementing this post from June 10th, is the June 11. 2013 Supreme Court order setting the oral argument for Thursday, Sept. 5, 2013 at 9 AM.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Re: the Name Change of Jane Doe, Petitioner, Mary Doe, a Minor, and Baby Doe, a Minor, a 9-page opinion, Judge Baker writes:

Mother filed a petition to have her name and the names of her children anonymously changed because she is terrified that Father will find them. Indiana Code section 34-28-2-3 requires that all petitions for a name change be published in a nearby newspaper, which Mother does not want so that she can maintain anonymity and safety. During a hearing on the petition, the trial court suggested utilizing Indiana Administrative Rule 9 to admit important evidence into the record while still protecting the identities of Mother and her children. Nevertheless, Rule 9 was not used, and the petition was denied.

We conclude that given these facts and the current state of the law, Mother’s best option would have been to utilize Rule 9, specifically Rules 9(G) and (H) to try to admit essential evidence into the record and perhaps effectuate the name changes anonymously. Although we sympathize with Mother’s difficult situation, because Mother did not employ this strategy, and we do not know what its outcome would have been, we affirm the decision of the trial court. * * *

The Appellants argue that the trial court abused its discretion by refusing to grant their petition to change their names because they failed to give notice of their name change by publication. More particularly, the Appellants contend that the publication requirement should be waived when the preponderance of the evidence indicates the presence of domestic violence, and the purpose of the name change is protection from the perpetrator. * * *

Because the Appellants did not utilize the procedures outlined in Rule 9, the outcome of such proceedings is conjecture. Nevertheless, it is fairly likely that some, if not much of their evidence concerning the protective orders, domestic violence, and DCS proceedings, would have been protected from public access under Rule 9. And while Mother’s desire to change her and her children’s name would have indeed proved more difficult in the absence of publication, Rule 9(H) may have provided the relief and protection that Mother so desperately seeks. To be sure, the Commentary to Rule 9(A) speaks volumes: “there are times when access to information may lead to, or increase the risk of, harm to individuals.” However, that said, in light of the record with which we are presented and the current state of the law, we are compelled to uphold the trial court’s denial of the Appellants’ petition for name change. The judgment of the trial court is affirmed.

In Anthony J. Iemma, et al. v. JP Morgan Chase Bank, N.A. Successor by Merger with Bank One, N.A., a 20-page opinion, Judge Pyle concludes:
We reverse and remand with instructions that Elkhart Circuit Court vacate its order setting aside the tax deeds in Cause No. 41 and its grant of summary judgment and decree of foreclosure in Cause No. 188.
NFP civil opinions today (2):

A.P. v. Review Board of the Indiana Dept. of Workforce Development and UGN, Inc. (NFP)

Deborah K. Wagner as Guardian of the Person and Estate of Harry L. Tillman v. Jeffrey L. Finney as Guardian of the Person and Estate of R. Virginia Tillman (NFP)

NFP criminal opinions today (4):

Richard Young v. State of Indiana (NFP)

Juan A. Gonzales v. State of Indiana (NFP)

Brandan Bellamy v. State of Indiana (NFP)

Stephen L. Gilmore v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Ind. App.Ct. Decisions

Courts - Opinions expected this morning from SCOTUS, beginning at 10 AM

Check back here, or watch SCOTUS.blog for all the details.

[Update] So far, no bigees as far as wide national interest is concerned, American Trucking, and a decision on an interpretation of the Red River Compact.

[Update] U.S. v. Davila: judicial participation in plea bargain negotiations doesn't automatically invalidate the plea.

[Update] Court decides gene patenting case, holding natural isolated DNA is not patentable. Synthetic DNA is patentable. The decision is unanimous. Myriad. This is big, although Tom Goldstein writes: "This is a significant patent ruling for the biotechnology industry. The Court's decision strikes a middle ground that likely will not be particularly disruptive." J. Thomas wrote the opinion.

That was the last decision until Monday.

[More] Here is a little more on Myriad Genetics from Tom Goldstein.

Anything further will have a new post.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Courts in general

Environment - Man keeps eagle in cage in his apartment

From the Greencastle JournalReview's brief story today:

GREENCASTLE — Jeffrey Henry, 49, Greencastle, was issued a summons to appear in Putnam County Court after Indiana Conservation Officers seized a live bald eagle from his residence.

On Sunday, Indiana Conservation Officers received an anonymous tip that Henry was in possession of a bald eagle. Once officers arrived, the bald eagle was found in Henry’s apartment. The investigation revealed that Henry captured the juvenile bald eagle near his residence days prior.

The bald eagle was seized and transported to a licensed wildlife rehabilitator.

The unlawful taking or possession of non-game migratory birds is punishable up to 60 days of jail and fines of $500.

Posted by Marcia Oddi on Thursday, June 13, 2013
Posted to Environment

Wednesday, June 12, 2013

Ind. Law - "Texting-while-driving law rarely enforced, records show"

Sophia Voravong and Justin L. Mack report in a long Lafayette Journal-Courier story that begins:

Sgt. Art Choate of the West Lafayette Police Department already had watched the vehicle commit a minor traffic violation when, while stopped next to it at a traffic light, he got the confirmation he was looking for:

The driver, just as Choate suspected, was on his cellphone and typing a text message.

“It was plain as day to me. … He was on an iPhone. I could see the texting screen. I could see the keyboard,” Choate recalled Monday. “I happened to be in the right place at the right time.”

The scenario, he acknowledged, is a rarity given the restraints for law enforcement in Indiana’s texting-while-driving law. The ticket, issued Oct. 1, 2012, was the first and only one ever issued by Choate’s department.

The legislation, which took effect July 1, 2011, prohibits drivers from typing, sending or reading text messages and emails unless using a hands-free device or voice-operated technology. But the law does not prohibit use of the Internet while driving, including posting messages on Facebook or typing directions into a mapping app.

And, officers cannot confiscate a driver’s phone to confirm whether a message or email was being written, sent or received.

“It’s a difficult law to enforce,” said Matt Devine of the Lafayette Police Department’s traffic division. He’s written one ticket, issued on April 28. “If they claim to be doing something other than texting, that’s difficult to prove. We have to rely on admission and what’s learned during the stop.”

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Law

Ind. Courts - Muncie City Court judge Dianna Bennington featured

Although the story today by Larry Rley in the Muncie StarPress seems unduly focused on the judge's family life, IMHO, what is also reported in the story is that Judge Bennington has changed the busy city court judgeship into a full-time position:

When she campaigned for the position, she said she’d be a full-time judge, something city court hasn’t seen for awhile. Indiana city court justices are allowed to keep private legal practices, and Bennington’s predecessor did.

“That’s what I ran on,” the judge reminded me [the writer of the story] after the close of court. * * *

She ran as a dissident Democrat, outside the Headquarters organization of her party, which ran a candidate of its own in the May 2011 primary. Other dissidents ran in at least five other races in the city primary that year, but only Bennington and Linda Gregory won.

That fall, Gregory led all voters and Bennington was second in amassing votes. * * *

While filing is a long way off, Bennington also made clear she intends to run for re-election in 2015, and hopes the competency she shows on the bench and the administration of justice she presides over are the primary factors voters look at.

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney, Deceased v. Anonymous M.D. 4, Anonymous M.D. 5, and Anonymous Hospital, a 24-page opinion, Judge Najam writes:

John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney, Deceased (“Mooney”), appeals the trial court’s order dismissing his proposed complaint for damages, with prejudice, with respect to defendants Anonymous Hospital, Anonymous M.D. 4, and Anonymous M.D. 5 (collectively “the family care physicians”) in this medical malpractice action. Mooney presents two issues for our review:
1. Whether the trial court abused its discretion when it dismissed Mooney’s proposed complaint for damages pursuant to Indiana Code Section 34-18-10-14.
2. Whether the trial court had jurisdiction to dismiss Mooney’s proposed complaint for damages pursuant to Trial Rule 41(E).
We reverse. * * *

Accordingly, in the absence of a submission schedule and with the chairman’s and the parties’ understanding that the 180-day deadline would be extended until discovery could be completed, Mooney did not violate the Act. The trial court abused its discretion when it dismissed Mooney’s proposed complaint for damages under Indiana Code Section 34-18-10-14. Further, the trial court did not have jurisdiction to dismiss Mooney’s proposed complaint for damages under Trial Rule 41(E). Thus, we reverse and reinstate Mooney’s proposed complaint for damages against the family care physicians.

ILB Question: I've seen this before and don't know why the hospitals and doctors are identified only as "Anonymous." Is there a statutory provision so requiring?

[Updated at 2:29 PM] Here is a reader's helpful response:

When an individual is pursuing a med mal action, s/he must submit a proposed complaint to the medical review panel (IC 34-18-8-4). However, s/he is also allowed to file the case in court at the same time, and in some instances may be required to do so (for instance, if s/he is up against a statute of limitations). If and when that happens, the “complaint filed in court may not contain any information that would allow a third party to identify the defendant” until the medical review panel renders its opinion. (IC 34-18-8-7).
NFP civil opinions today (3):

Allen Stewart v. Jennifer Miller (NFP)

City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation (NFP)

Term. of Parent-Child Rel. of Q.R., J.B., and J.R. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (11):

E.W. v. State of Indiana (NFP)

Stanley B. Crumble a/k/a Melvin Coleman v. State of Indiana (NFP)

Robert O. Morris v. State of Indiana (NFP)

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

Mark Kevin Liston v. State of Indiana (NFP)

Shaun Wilkinson v. State of Indiana (NFP)

Tyrone Walker v. State of Indiana (NFP)

Jawyan James Townes v. State of Indiana (NFP)

Sherard Taylor v. State of Indiana (NFP)

Edward T. Bronaugh v. State of Indiana (NFP)

Tarrence Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: First Regular Technical Session of the 118th General Assembly (2013) [Updated Twice]

The House calendar for today now has one entry. The Senate still has no calendar. Looks like there will be no technical amendment bill.

Niki Kelly of the FWJG has just tweeted:

Niki Kelly ‏@nkellyatJG 14m
House Republican staff points to 1991 precedent that doesn't allow debate on veto votes. Interesting.
That is interesting! I've already searched the House Rules, the Joint Rules, the Constitution, and the law and find no procedural requirements for handling overrides. So if there is a 1991 precedent, one wonders what was its basis. Apparently there is nothing in the Journals either. One wonders if there will even be an explanation of the bill before a vote is called for. I'm told some members may even be unaware that only a majority vote of each house is required for an override.

[Updated at 1:23 PM] The ILB has now obtained a copy of the 1991 "precedent", pp. 649-650 of the House Journal. Start at the last section of the first page, then continue on to p. 2, which states:

The Speaker announced that the House would continue to follow the precedents known to the Speaker from personal experience of the past twenty years and in place since time immemorial which have consistently held that debate is not allowed on these questions.
The House Speaker in 1991 was Mike Phillips.

[Updated at 3:40 PM]
Despite the pre-convening controversy, which may have involved only staff, both houses allowed discussion on HEA 1546 before the override votes. In the House, the author and Rep. Bauer both spoke. In the Senate, a number of speakers spoke and spoke. In the end, the veto was overridden 68-23 in the House and 34-12 in Senate, easily meeting the majority vote requirement in each house necessary for override. Each house adjourned immediately after the vote; no technical corrections bills were considered during the one-day "technical session".

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Government

Ind. Gov't. - More on: First Regular Technical Session of the 118th General Assembly (2013)

Niki Kelly of the Fort Wayne Journal Gazette has posted a story here. A quote:

Pence vetoed several other bills [other than HEA 1546] but leaders said those will be handled when lawmakers return for the 2014 session in January.

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Government

Courts - New online repository of federal court opinions

@AppellateDaily this morning links to this news release from the 9th Circuit:

SAN FRANCISCO – The United States Court of Appeals for the Ninth Circuit recently joined other federal courts and government agencies in a new system that provides free access to official documents from all three branches of the U.S. government.

The Government Printing Office's Federal Digital System, or FDsys, is an Internet-based repository of information from Congress, the executive branch and the judiciary. So far, FDsys has collected 695,000 federal court decisions, including more than 2,750 published opinions recently contributed by the Ninth Circuit Court of Appeals. Court decisions are available here.

The Ninth Circuit is one of eight appellate courts now enrolled in the FDsys. Nineteen district courts and 24 bankruptcy courts are currently participating with five more courts scheduled to come online later this month after FDsys completes a system upgrade.

Besides being free, FDsys offers advanced search capabilities not available from other federal court online resources. Most notably, users can conduct searches across multiple courts, rather than having to search records from one court at a time. Complex searches can be conducted using metadata attached to the files. Once an opinion is located, associated opinions and published orders also can be quickly obtained. Digital signatures embedded in the files assure that the documents users download are authentic.

The FDsys collection of court records dates back to April 2004, though searchable electronic files for some courts may be incomplete for earlier years. The Ninth Circuit opinions date back to January 2008, shortly before the court migrated to a fully electronic case management and filing system.

ILB: Here is the link to the new repository. All Circuits have joined, except for the 1st Circuit. A number of federal district courts are participating, but the ILB sees none of the federal courts from Indiana listed.

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Courts in general

Ind. Gov't. - "Winamac Council Waits on Chicken Ordinance"

Adding to the ILB's trove of "urban chicken" stories, Mary Perren of K99.3 FM, the "voice of the Kankakee Valley," reported yesterday:

The Winamac Town Council wants more information before allowing homeowners to raise chickens within the town limits. They deferred action on a request to allow residents to keep up to 10 hens in their yards. Arwen Fair spoke on behalf of Winamac CLUCK: Citizens for Legalizing Urban Chicken Keeping. She says Winamac is a 4-H community, and several residents are in favor of raising a sustainable food supply. She says supporters aren’t looking for large, commercial coops, just merely for enough to sustain their families and perhaps share eggs with neighbors. Council members questioned the number 10, which Fair says will adequately provide for a family. Members want to review similar ordinances from other municipalities before making any decisions. Council President John Plowman promised to keep members of Winamac CLUCK posted.

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court vacates transfer grant in Billingsley

Updating this ILB entry from May 31st, Dan Carden reports today in the NWI Times:

INDIANAPOLIS | The Indiana Supreme Court will not decide a case it heard last month at Merrillville High School.

More than 400 students from nearly a dozen region high schools attended oral arguments in the case looking at whether a telephone tip gave Fort Wayne police enough evidence of criminal activity to initiate an investigatory stop of a man sitting in parked vehicle at a Veterans of Foreign Wars hall.

When police ordered Phillip Billingsley from his vehicle they found 229.7 grams of marijuana in the front seat.

Billingsley argued the telephone tip was not specific enough to constitute reasonable suspicion for police to stop him and search his car.

The state's high court, in an order dated May 29, rescinded its decision to consider Billingsley v. State. That restores the 2-1 ruling of the Indiana Court of Appeals permitting the marijuana to be used as evidence against Billingsley.

Chief Justice Brent Dickson, a Hobart native, said the Supreme Court determined after reviewing the court record, hearing attorney arguments and discussing the case among the five justices that the appeals court ruling should be the final decision.

Justice Robert Rucker, a Gary native, dissented from the high court's order and said he believed Billingsley's conviction should be overturned.

The story adds:
This is the ninth case since July where the Supreme Court, after hearing oral arguments, opted to let the appeals court decision stand rather than issue its ruling. There were eight such cases during the 2012 budget year.
ILB: The ILB had a June 3rd post on this trend by the Court, authored by Prof. Schumm.

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - First Regular Technical Session of the 118th General Assembly (2013)

"The Senate and House will convene on June 12, 2013 at 1:30 p.m. for the First Regular Technical Session of the 118th General Assembly (2013)."

That is the only information the ILB is currentlyfinding on the special General Assembly page. There are calendars links but no info is posted. Although presumably one or more technical correction bills will be considered, they currently are not available for review.

Governor Pence vetoed three bills in 2013. One of them, HEA 1546, is the reason the technical session was scheduled. The others are SEA 273 (Anesthesiologist assistant licensure) and HEA 1242 (Licensing of diabetes educators).

A veto override begins in the house of origin. So HEA 1546 would be considered first in the House. Only a majority vote is needed to override. Then it moves to the Senate for a second override vote.

Note: IC 1-1-3.1-1 through IC 1-1-3.1-5 govern the effectiveness of acts passed over the governor's veto. IC 1-1-3.1-4(d) provides that if a provision of the act takes effect on a specified date and approval of the act occurs after the specified date the provision takes effect on July 1 next following approval of the act.

The Fort Wayne Journal Gazette has an editorial today on the "unprecedented one-day session."

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Government

Ind. Courts - Fixing the Vigo County courthouse dome

Jon Swaner of WTHITV 10 reports:

Preventing water damage: that's the goal of a request recently made by the Vigo County Council.

The Commissioners are asking the County Council to approve an estimated $100,000 appropriation to fix the roof of the courthouse dome.

From the outside, the Vigo County Courthouse looks picturesque. But the copper of its dome hides a problem that will ultimately cost taxpayers.

"We did have some leaks,” said Vigo County Commissioner, Brad Anderson. “We’ve got some holes in there. We've also got some splitting of the copper, so we need to try to get that soldered and sealed."

Randall Reedy, of the County Maintenance Department, took News 10 up the 139 steps that lead to the top of the dome to see the damage. It's a long way to the top, but you don't have to get there to begin seeing signs of damage.

As more time passes and more rain falls, the damage at the courthouse is becoming more extensive.

Once in the dome, you can see the holes in the roof. Last month, the commissioners brought some members of the council up here to see the damage for themselves.

"We wanted to make sure that they understood how important it is to get this fixed," said Anderson.

Reedy says he spends a lot of time up here mopping and dumping buckets of water. It may sounds like a lot of work, but for Reedy, he says it's worth it because he knows his work is not in vain.

"We just spent quite a bit of money through the past few years renovating that,” Anderson explained. “We don't want to take any chances on that being ruined." * * *

"We just spent I wanna say $15 million on renovations to the courthouse," Council President Bill Thomas said. "so we wanna protect those investments along with all the records that are irreplaceable. "

The story includes a video of a trip to the top of the dome, showing not only holes in the skin of the dome, but a lot of water damage. It is unclear from the story whether the $110,000 is just for repairs to the copper dome, or also includes replacement of all the rotten wood ...

Posted by Marcia Oddi on Wednesday, June 12, 2013
Posted to Indiana Courts

Tuesday, June 11, 2013

Ind. Decisions - 7th Circuit decides three Indiana cases today, all are reversed and remanded

In JENNIFER HITCHCOCK v. ANGEL CORPS, INC. (ND Ind., Cosbey, Mag.J.), a 20-page opinion, Judge Williams writes:

Plaintiff Jennifer Hitchcock alleges that Angel Corps, a home care agency, fired her because she was pregnant, in violation of the Pregnancy Discrimination Act. Angel Corps proffered multiple explanations for why Hitchcock was fired, all revolving around a bizarre incident involving the death of a 100-year-old potential client. After both parties consented to adjudication of the matter before the magistrate, he granted Angel Corps’s motion for summary judgment. We find that this was error. Hitchcock submitted evidence that the supervisor who fired her expressed animus towards pregnant women and treated Hitchcock differently after learning she was pregnant, only a few weeks before she was fired. Angel Corps’s many explanations for Hitchcock’s termination were shifting, inconsistent, facially implausible, or all of the above. Therefore, a reasonable jury could conclude that Angel Corps’s explanations were lies, and that Hitchcock was fired because she was pregnant. So we reverse and remand.
In UNITED STATES OF AMERICA v. $196,969.00 UNITED STATES CURRENCY (SD Ind., Magnus-Stinson), an 8-page opinion, Judge Posner writes:
This is a companion case to United States v. Funds in the Amount of $574,840, No. 12- 3568, also decided today, also involving civil forfeiture of property connected to criminal activity. In the present case Indiana police recovered a large amount of cash in a search of the home of a suspected drug dealer named Rodney Johnson. The state turned over the money to the federal government for forfeiture proceedings—a common practice, resulting in a division of the spoils between state and federal government when the proceedings are successful. See 21 U.S.C. § 881(e); David Pimentel, “Forfeitures Revisited: Bringing Principle to Practice in Federal Court,” 13 Nev. L.J. 1, 14 n. 75 (2012); Eric Moores, Note, “Reforming the Civil Asset Forfeiture Reform Act,” 51 Ariz. L. Rev. 777, 794-95 (2009). In Indiana, where this case arose, the state constitution requires that “fines assessed for breaches of the penal laws of the State . . . [and] all forfeitures which may accrue” must be paid into the Common School fund, which finances education rather than law enforcement. Ind. Const. art. 8, §§ 2, 3. By inviting the federal government to conduct civil forfeiture relating to criminal cases in the Indiana state courts, local and state law enforcement can receive a substantial share of the forfeited criminal proceeds and avoid (or at least try to avoid) having to pay any of it into the Common School fund. * * *

But because the ground for dismissal given by the judge and the alternative ground 8 No. 12-3414 argued by the government in this court are unsound, the judgment is REVERSED AND REMANDED.

In JUDSON ATKINSON CANDIES, INCORPORATED, v. KENRAY ASSOCIATES, INCORPORATED, CHARLES A. MCGEE AND KENNETH J. MCGEE (SD Ind., Hussmann, Jr., Mag.J), an 18-page decision, Judge Lee (of the ND Illinois, sitting by designation) writes:
In settling two lawsuits, Judson Atkinson Candies, Inc., and Kenray Associates, Inc., entered into an agreement, which required Kenray to pursue its insurer for coverage of Atkinson’s claims. But when Kenray’s attempts failed, Atkinson sought to invalidate the agreement, alleging that it had been fraudulently induced to enter into it. Because the agreement contained an integration clause, the district court, applying Indiana law, established a bright-line rule, requiring Atkinson to demonstrate that it had been induced by fraud to enter into the integration clause itself, as opposed to the agreement as a whole, in order to circumvent the parol evidence rule. Because Indiana law does not impose such a bright-line rule, we reverse. * * *

Because, in the absence of a factual inquiry, the mere presence of an integration clause does not preclude Atkinson from introducing parol evidence that it was fraudulently induced to enter into the Covenant agreement as a whole, the district court’s opinion and order is REVERSED and REMANDED for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Small victory in nasty meth war"

The May 30th Court of Appeals opinion in Jeffrey Embrey v. State of Indiana is the focus of Maureen Hayden's story today in Howey Politics that begins:

INDIANAPOLIS -- Police and prosecutors fighting the meth epidemic won a small victory recently, when the Indiana Court of Appeals upheld the use of an electronic registry that tracks the legal sale of pseudoephedrine, the key ingredient in methamphetamine.

The appeals court ruled that information in the registry, the National Precursor Log Exchange, could be used as evidence under the “business record exception” to the hearsay rule, which otherwise excludes testimony or documents that quote people not in court.

It was a victory because of the critical role the registry plays in Indiana’s efforts to curb meth: Investigators use it to find “smurfers” – people who get paid by meth makers to go from one pharmacy to the next to buy pseudoephedrine-containing cold medicine.

In that case that went to the appeals court, information in the registry was used to build a drug-dealing case against a 24-year-old southern Indiana man who was part of family meth-making operation, cooking up the chemically volatile, highly addictive drug in their home.

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In Re The Paternity of R.M., a minor; B.M. v. A.T. (NFP) - a 9-page, 2-1 opinion.

NFP criminal opinions today (1):

Deshaun Richards v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS bars retroactive application of sentencing guidelines"

That is the headline of this story today by Robert Barnes of the Washington Post, writing about the SCOTUS decision yesterday reversing the 7th Circuit in Peugh v. United States. The story begins:

A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant.

The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.

Even though the federal sentence guidelines are advisory, not binding, Justice Sonia Sotomayor wrote for the majority, the analysis is the same. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”

In the case at hand, Marvin Peugh was accused of bank fraud and other financial crimes involving an Illinois farming business he owned with his cousin. The scheme took place in 1999 and 2000.

But Peugh was not convicted and sentenced until much later. The guidelines in place at the time of his crimes called for a sentencing range of 30 to 37 months. But when Peugh was sentenced in May 2010, the range had been toughened to 70 to 87 months.

Peugh argued that he should not be sentenced under the new regime. But a judge rejected the claim and sentenced him to 70 months. His conviction and sentence were upheld by the U.S. Court of Appeals for the 7th Circuit.

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Courts in general

Ind. Gov't. - "Duke Energy's controversial $3.5B Edwardsport plant powers up"

Culminating this long list of ILB posts, Tony Cook of the Indianapolis Star has this story that begins:

After years of ethics controversies and cost overruns, Duke Energy’s new $3.5 billion coal-gasification power plant in Edwardsport is up and running.

Officials with the Charlotte, N.C.-based energy company announced Monday that the high-tech 618-megawatt plant, located near Vincennes, has officially started commercial operations.

The plant is billed as one of the largest, cleanest coal-fired power generating facilities in the world. It uses advanced technology to gasify coal, strip out pollutants, and then burn the cleaner gas to produce electricity.

The company said the new plant will produce 10 times as much power as a former plant at Edwardsport, but emit about 70 percent less sulfur dioxide, nitrogen oxide and particulates combined.

“Coal has powered Indiana for more than a century,” said Duke Energy Indiana President Doug Esamann. “But today’s air quality standards require us to use that fuel in a cleaner, more efficient way. Edwardsport turns coal into a cleaner-burning fuel and enables us to continue using an abundant local resource.”

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Environment | Indiana Government

Courts - "Merits cases remaining for SCOTUS October Term 2012"

Wonder what's remaining on the list of cases heard but yet to be decided by the SCOTUS this term? Here is a SCOTUSblog post by Kedar Bhatia detailing each of the 23 cases. He adds: "[W]e expect the Court to issue all of these remaining decisions between this Thursday, June 13, 2013, and the end of June, when the Court traditionally breaks for its summer recess."

Posted by Marcia Oddi on Tuesday, June 11, 2013
Posted to Courts in general

Monday, June 10, 2013

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

Updating this ILB entry from earlier today, which linked to Gov. Pence's statement on which his veto of HEA 1546 should be sustained, here are the statements of the House and Senate leaders on which the veto should be overruled:

Statement from Senate President David Long:

“I appreciate the Governor’s thoughtful input on HEA 1546, but respectfully disagree with his proposed course of action. After consulting with residents and elected officials in the two affected counties, the Senate leadership team believes HEA 1546 provides a proper solution that has local support. When you also factor in the other positive elements of the bill, including help for Hoosier veterans and their surviving spouses, we believe HEA 1546 should stand as passed. Either way, the General Assembly will determine on Wednesday the ultimate course of action the state will take on this issue.”

Statement from Speaker Bosma:

“We appreciate Governor Pence’s thoughts on the proposed veto override of HEA 1546. Over the past few weeks, we have been in close consultation with the Governor and with local officials in Jackson and Pulaski County and have determined that the best and most cost-effective course of action for Hoosier taxpayers is to enact the provisions of HEA 1546 notwithstanding the Governor’s veto.

“Residents and elected officials in Jackson and Pulaski Counties have asked for the legislature’s assistance to address the issues affecting thousands of Hoosiers in those counties, and to continue the allocation of pledged funds toward their designated obligations. It is also important to note that the bill addresses a number of other important tax issues, including making it easier for an out-of-state business to help with disaster emergency relief here in Indiana and benefits for the surviving spouse of a deceased veteran.

“I appreciate his thoughtful comments and look forward to continued conversation with the Governor; however, at this point, we should move forward with the solution that best serves the interests of Hoosier taxpayers.”

Here also is a brief summary of HEA 1546’s provisions, from the General Assembly leaders.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Government

Courts - Today's SCOTUS opinion in the raisin case, re government regulation of farming

Lyle Denniston of SCOTUSblog has an analysis of today's SCOTUS opinion in Horne v. Department of Agriculture, the "raisin" case. The analysis begins:

Giving industries that are regulated by the federal government a potentially broad opportunity to blunt enforcement orders, the Supreme Court ruled unanimously on Monday that farmers are allowed to claim in regular federal courts that they have been wrongly fined for violating an order on the marketing of their crops. The ruling, while coming in the context of government regulation of farming, may have a considerably broader impact.

In essence, the Court’s ruling in a raisin growers’ case — Horne v. Department of Agriculture (docket 12-123) — appeared to mean that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause).

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Courts in general

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

The General Assembly is set to meet Wednesday to vote on overriding Gov. Pence's veto of HEA 1546 and, along the way, to enact some technical corrections to bills that passed in 2013.

In this long post from May 28th, the ILB discussed the 65-page HEA 1546, which does a good deal more than "the retroactive approval of a higher income tax rate in Jackson and Pulaski counties" which occasioned the Gov.'s veto.

Here today is an open letter from Gov. Pence seeting out at length his objections to Jackson and Pulaski County provisions in the bill. He notes: "While HEA 1546-2013 contained many provisions that I support, I could not support the public policy of retroactive approval of local income taxes."

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Government

Ind. Decisions - Briefs in Rockport/Leucadia case

See this June 6, 2013 ILB post for links to the Oct 30, 2012 opinion of Court of Appeals and other documents.

Below is a list of documents the ILB has identified via the COA docket. Those linked are the ones the ILB has so far obtained.














Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Courts

Ind. Courts - “Extensive [judicial] plagiarism” is Not a Problem in Canada--What About Indiana?

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

A recent Vancouver Sun article by Ian Mulgrew begins:

Extensive plagiarism by a judge in a judgment is not sufficient reason to overturn it, the Supreme Court of Canada says.

In a remarkable unanimous ruling, the country's highest court says wholesale copying by judges is not prohibited and is not a concern unless other evidence exists to impugn their integrity and impartiality.

"The incorporation of large portions of the plaintiffs' submissions in the reasons in this case does not justify overturning the trial judge's decision," Chief Justice Beverley McLachlin wrote on behalf of the bench.

"To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge's task and the time-honoured traditions of judgment-writing."


“Plagiarism” is a strong and loaded term, which arguably means something different in an academic setting than it does in practice. A plagiarism brochure from the Legal Writing Institution offers the following definition:

Taking the literary property of another, passing it off as one’s own without appropriate attribution, and reaping from its use any benefit from an academic institution.
The same brochure makes a distinction for the practice setting:
The frame of reference and expectations shift outside the academic environment. In practice, legal writers liberally borrow language from other sources; frequently, they collaborate on a project. Some lawyers write under the name of their supervising partner, judge, or government official. Occasionally, lawyers may write law review articles or publish CLE materials; then they adjust to outside expectations, which may require careful source attribution. Nevertheless, like law school writers, lawyers continue to depend on legal citations to provide authority.
Indiana Practice

Whether termed plagiarism, borrowing, or simply an inevitable part of the judicial process, the extensive use of lawyer submissions by judges is permitted in Indiana much as it is in Canada. The issue has arisen regularly in post-conviction appeals in capital cases where trial courts relied heavily on the detailed findings of fact and conclusions of law submitted by the State. An example from the 2009 Pruitt v. State opinion:

As to item (2), that Pruitt was prejudiced by Judge Humphrey allegedly adopting all of the State's proposed findings of fact and conclusions of law in his post-conviction order, we note that this Court has not prohibited this practice. We have commented in our past decisions that
It is not uncommon for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. The trial courts of this state are faced with an enormous volume of cases and few have the law clerks and other resources that would be available in a more perfect world to help craft more elegant trial court findings and legal reasoning. We recognize that the need to keep the docket moving is properly a high priority for our trial bench. For this reason, we do not prohibit the practice of adopting a party's proposed findings.
Saylor v. State, 765 N.E.2d 535, 565 (Ind. 2002) (quoting Prowell, 741 N.E.2d at 708-09).

Therefore, although "we do not encourage post-conviction court judges to adopt wholesale the findings and conclusions of either party, we decline to find bias solely on that basis." Saylor, 765 N.E.2d at 565. "The critical inquiry is whether the findings adopted by the court are clearly erroneous." Id. (citing Woods v. State, 701 N.E.2d 1208, 1210 (Ind. 1998) (accepting findings of fact unless they are clearly erroneous, although we give conclusions of law no deference)). Here, even though the PC court substantially adopted the State's proposed findings and conclusions, our thorough review of its order throughout this opinion shows that it is supported by the record. The PC court's findings and conclusions are therefore not clearly erroneous and Pruitt has shown no bias or prejudice in this respect.

The concerns about heavy caseloads, limited time, and a lack of law clerk assistance in Indiana trial courts are certainly valid and likely will persist. A bill that would have created a staff attorney pilot project to provide assistance to trial courts in complex cases died in the General Assembly this session.

A Perception Problem

Even if permissible, the wholesale adoption of all or nearly all of one party's submission may create a perception problem, especially in complex cases with very detailed orders. Some lawyers and litigants will wonder how carefully the judge(s) considered the case, and the practice may well undermine their confidence in the judiciary. Consider Rule 1.2 of the Indiana Code of Judicial Conduct:

RULE 1.2: Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.


[1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.

[2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.

[3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms.
Note: The asterisks in the Rule refer to terms defined in the terminology section of the Code of Judicial Conduct.

Notably, the rule addresses "the appearance of impropriety"-- not actual impropriety A litigant or lawyer on the losing side of a complex case often does not know how carefully a judge has considered a case; they usually see only the final written order. If the trial judge or appellate court has adopted many pages of one party’s submission, some may inevitably believe their case was not given independent and impartial consideration.

What to do with NFPs?

Finally, the prohibition on citing not-for-publication opinions in Appellate Rule 65(D) can create challenges and possible allegations of plagiarism. If a lawyer finds a very helpful Indiana NFP opinion and wants to use its reasoning in a brief, what is the lawyer to cite? Rule 65 prohibits the citation of that opinion, unless it is used “by the parties to the case to establish res judicata, collateral estoppels, or law of the case.” Similarly, if a panel of the Court of Appeals wants to use the reasoning of an Indiana NFP opinion, presumably it is precluded from citing the opinion as well. Rule 65(D) states NFP decisions "shall not be cited to any court ...," and the prevailing practice, with rare exception, is that they not be cited by any court either. [But see the last portion of this ILB post from Oct. 27, 2008.]

Of course the Indiana rule does not prohibit citation of NFP opinions from other jurisdictions, and lawyers should certainly cite to those opinions. One of the most egregious failures in this realm was Appellant’s counsel in a 2007 Court of Appeals opinion that includes the following:

Unfortunately, we must call attention to the fact that the appellate attorney for Keeney has filled her brief with uncited material. Specifically, the brief’s entire “Argument” section is a near-verbatim replication of a recent Memorandum and Order from the United States District Court for the District of Massachusetts. Compare Appellant’s Brief at 2-29 with United States v. Stewart, 468 F. Supp. 2d 261, 263-82 (D. Mass. 2007). Each contention in an appellate brief “must be supported by citations to the authorities . . . relied on.” App. R. 46(A)(8)(a). But Keeney’s attorney has not cited Stewart, nor has she otherwise indicated to this court that she is relying on that case. * * *

The importance of proper attribution cannot be understated. While lawyers and judges regularly borrow reasoning from others, both ethics and the appellate rules require that the source be given credit. Nonetheless, Keeney’s appellate attorney merely transplanted the District Court’s order into her brief as if it were her own work.

Note: The British Columbia Court of Appeals’ opinion reversed by the Supreme Court of Canada was discussed in this April 15, 2011 post.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Schumm - Commentary

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Flaherty & Collins, Inc. v. BBR-Vision I, L.P., and New Castle Realty, LLC, a 23-page opinion, Sr. Judge Darden concludes:

The trial court erred as a matter of law in determining that Section 12(a) of the management agreement permits BBR and NCR to recover attorney fees. The trial court further erred in effectively granting summary judgment to BBR and NCR on their Crime Victims Statute claim and on the issue of whether F&C committed deception. As a matter of law, the trial court properly denied F&C’s summary judgment claim that NCR is not a party to this action.
In In the Matter of the Adoption of J.T.A.; R.S.P. v. S.S., a 12-page opinion, Chief Judge Robb writes:
R.S.P. (“Fiancée”) appeals from the trial court’s denial of her petition to adopt J.T.A. (the “Child”). Fiancée raises two restated issues on appeal: 1) whether the trial court erred in concluding that the parental rights of the Child’s biological father, J.M.A. (“Father”), would have been terminated if the petition had been granted; and 2) whether there was sufficient evidence to support the trial court’s denial of the petition. Concluding that the trial court was mistaken regarding termination of Father’s rights, but that there was nonetheless sufficient evidence to support the denial of the petition, we affirm.
In Maurice Frazier v. State of Indiana, a 12-page opinion, Judge Vaidik writes:
Former corrections officer Maurice Frazier appeals the sufficiency of evidence for his convictions of two counts of sexual battery committed while he was on duty at the Marion County Jail. A sexual-battery conviction requires the State to prove that a defendant, with intent to arouse or satisfy his sexual desires or the sexual desires of the victim, touched the victim when she was compelled to submit to the touching by force or the imminent threat of force. Here, Frazier grabbed the victim’s hand and placed it on his crotch, and we find that to be sufficient evidence to affirm one of the two sexual-battery convictions. But we find that the State failed to prove compulsion by force or imminent threat of force on the other sexual-battery conviction, and we therefore remand that count with instructions to enter a judgment of conviction for Class A misdemeanor battery.

Frazier also contends that his convictions violate double-jeopardy principles. A conviction for official misconduct requires proof that a public servant knowingly or intentionally committed an offense in the performance of his official duties. Frazier argues that the underlying offense used for his official-misconduct conviction was his sexual-battery conviction; therefore, he claims the same evidence was used to find him guilty of both crimes. We conclude that there is no double-jeopardy violation, despite the same evidence being used for both offenses, because each crime has a different victim—a female sheriff’s deputy was the victim of sexual battery and the public was the victim of Frazier’s official misconduct. We also conclude that there is no double-jeopardy violation with respect to Frazier’s other convictions. We reverse in part, affirm in part, and remand.

NFP civil opinions today (4):

Vassil Marinov v. Bergen Car Company, Inc. (NFP)

Clifton Timothy Massey v. Reana Beard (NFP)

Term. of the Parent-Child Rel. of A.M.K. and A.O.K., minor children, and T.D., biological father; T.D. v. Indiana Dept. of Child Services (NFP)

In Re The Paternity of: H.N.L.; C.L. v. B.A. (NFP)

NFP criminal opinions today (3):

Carol Miller v. State of Indiana (NFP)

James Brock Rodgers v. State of Indiana (NFP)

Marco Antonio Martinez v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. App.Ct. Decisions

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

In UNITED STATES OF AMERICA v. JAVIER MUNOZ (SD Ind., McKinney), a 10-page opinion, Judge Hamilton writes:

Pursuant to a plea agreement, defendant Javier Munoz pled guilty in 2007 to distributing and possessing cocaine with intent to distribute, but he fled to Mexico before his sentencing. It took the government five years to track him down and extradite him. When he finally faced sentencing in 2012, the district court imposed a sentence of 181 months in prison, which was below the advisory sentencing guide line range. Munoz has appealed, arguing that at the time of sentencing, the government breached the plea agreement by (1) advocating a base offense level higher than the parties had agreed in the plea agreement, and (2) recommending a sentence in the middle of the guideline range rather than at the bottom. As we view the case, however, it was Munoz, not the government, who materially breached the conditions of his release and an implied term of the plea agreement by fleeing the country rather than showing up for sentencing. Munoz’s breach permitted the government to treat the plea agreement as having been rescinded. We affirm.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending June 7, 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, June 7, 2013. It is two pages (and 14 cases) long.

Two transfers were granted last week:

The earlier transfer grant is vacated in the case of Wells Fargo Bank, N.A. v. Neal A. Summers, et al. See this June 7th ILB post for details.

Brewington is not on the list of transfers granted because transfer has not been granted. Instead, it has been set for oral argument on the question of transfer.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Transfer Lists

Ind. Courts - More on "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

Updating this ILB entry from June 7th, EAGLECOUNTRY 99.3FM has a story today - a few quotes:

(Lawrenceburg, Ind.) - A jailed blogger who targeted a Dearborn County judge with his internet writings will have his appeal heard by the Indiana Supreme Court.

Dan Brewington’s story has made national headlines and caught the attention of First Amendment advocates across the country. Eagle 99.3 has been covering the story since Brewington was indicted for Intimidation of a Judge and other charges in 2010. * * *

The justices’ decision would likely come weeks or months later, which might have little impact on Brewington’s stay behind bars. According to the Indiana Department of Corrections, his earliest possible release from prison is September 15.

See this March 13th ILB post and its links to access all the briefs in the appeal.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - SCOTUS decides 7th Circuit case today [Updated]

The case is Peugh v. United States. Here is the SCOTUSblog case page. From SCOTUSblog:

Amy Howe: The decision of the SEventh Circuit is reversed, the case is remanded. The Court is splintered. Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act. * * *

Tom: The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they arent. The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases. It is also a strong reaffirmation of the Ex Post Facto Clause.

Here is the opinion.

[Updated at 2:16 PM]
Here are write-ups on the opinion from SCOTUSblog's Amy Howe, and Sentencing Law blog.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Re Court of Appeals list of opinions today [Updated]

Just looked at today's opinions list. Some of the case names are in all-caps, with last name first, different than the usual format. Also, some NFPs are not identified as such, another break from tradition.

Updated at 10:38 - I'm told the Clerk's Office will have the problem corrected shortly.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - How effective are protective orders?

Updating this June 6th ILB entry, headed "St. Joe Deputy prosecutor resigns over decision on slain girl's father," quoting a story in the South Bend Tribune, today Madeline Buckley and Christian Sheckler have a lengthy SBT story headed "Protective order just part of safety plan: Experts look for comprehensive approach to prevent tragedy." Some quotes:

Though domestic violence victims cannot rely on protective orders to keep them safe from all danger, experts said, an order puts the force of law behind a victim's need for protection.

Linda Baechle, CEO of the YWCA of North Central Indiana, said she sees protective orders as a valuable first step for domestic violence victims because the order not only documents the fact violence has occurred, but also gives police and prosecutors a tool to bring criminal charges against violators.

"We absolutely encourage victims to get a protective order," Baechle said. "If there's a protective order and a violation, police can make an arrest. It also creates a paper trail of what's going on with a domestic violence situation."

Judges can use protective orders to levy a wide range of penalties and restrictions that increase in severity depending on the case, Butiste-Jones said.

In addition to ordering basic restrictions, depending on the case, a judge can evict a perpetrator from the victim's home and allow the victim to collect a vehicle and other necessary personal items from the perpetrator, perhaps with temporary stand-by protection from police to ensure a safe transfer of the items.

For the most serious cases, Butiste-Jones said, a judge can order the perpetrator to immediately hand over all firearms, ammunition and other deadly weapons to law enforcement.

The judge can also place restrictions on the perpetrator's parenting rights -- including supervised visits with children or a total suspension of parenting time, Butiste-Jones said.

Butiste-Jones said a protective order is more than just a piece of paper -- it sends a message that continued violence won't be tolerated.

"In an ideal situation, that is a very clear order of the court -- a message that the batterer or respondent, that they need to stay away," she said. "It's a very clear message."

The simple issuance of a protective order, however, cannot always guarantee safety, experts said. In many cases, a request for a protective order corresponds with the most dangerous period of time for domestic violence victims, they said.

Retired U.S. Marshal Mike Carrington, who also taught criminal justice and served as director of security for Indiana University South Bend, said a protective order can mark the breaking point for a batterer, who may increasingly feel they have nothing to lose.

"In some cases, I think they might precipitate violence," said Carrington, who also is a citizen member of The Tribune's editorial board. "They can be the straw that breaks the camel's back. Sometimes that's like the catalyst."

Butiste-Jones also acknowledged that a request for a protective order can put a domestic violence victim at risk because it threatens the perpetrator's sense of control over the victim.

"People need to understand that when someone goes to get an order for protection, they are at increased and heightened risk because they're trying to break the control cycle," she said. "When the survivor sends that message, it heightens that risk and the likelihood of danger to them."

Baechle also said it's unclear if protective orders help prevent violence in extreme situations where the batterer shows signs of potentially deadly behavior. In general, she said, court orders tend to work against batterers who have steady jobs and fear a violation would become public knowledge.

And Carrington added that, because a first-time protective order violation is a misdemeanor, even batterers who are arrested and prosecuted won't go to jail long enough to keep a victim safe for long.

"The kind of bang you get for your buck with the protective order -- it's a misdemeanor, and it's not long before they get out," he said. "You're not gonna send him to prison for seven years."

But Butiste-Jones pointed out protective order violations can trigger other penalties, and prosecutors can levy additional charges, depending on the case.

For example, she said, if a batterer violates a protective order while on probation, his probation would automatically be revoked. In other cases, she has seen prosecutors add charges of criminal confinement or even witness tampering, depending on the circumstances of the protective order violation.

"This is all on a fact-sensitive, case-by-case basis," she said.

And ultimately, Butiste-Jones said, police cannot respond to a protective order violation unless someone reports it. To that end, she suggested victims keep multiple copies of their orders and inform friends, family members, schools and employers of the existence of the order. That way, someone else can call police if the victim cannot make the call, she said.

Ultimately, experts said, victims should remember that a court order is just that -- a court order.

"That piece of paper is not gonna stop a bullet or a knife or a fist," Carrington said.

This is just a small part of the long story.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Courts

Ind. Gov't. - More on "West Lafayette officials say the banana constitutes a sign"

Updating this ILB entry from May 22nd, Ron Wilkins has a report today, with photo, in the Lafayette Journal-Courier. Some quotes:

Houses are not intended to be used as billboards, or at least that is the purpose of a countywide sign ordinance.

Yet Granite Management, an apartment management firm that uses a banana as a logo, is testing the limits of the sign ordinance and the patience of city officials with a giant banana it has emblazoned on two sides a West Lafayette rental house. * * *

“The intention was to get creative with how they painted the house,” [Granite Management office manager Joel Brovont] said, noting that the house needed a face lift.

“We hired a professional painter,” he said, “so obviously we are going to use it to promote brand awareness.”

The countywide ordinance allows for some signs, such as the placards on the sides of buildings with contact information for rental agencies.

“A for-rent sign or a contractor’s sign — doing roofing work, working on a house, painting a house — they’re allowed to have an incidental sign,” [West Lafayette City Engineer Dave Buck] said. “Granite has several of those (incidental signs) on all of their buildings as well. … Those are allowed.

“But this has a commercial message on it.”

According to Sallie Fahey, executive director of the Tippecanoe County Area Plan Commission, “If the banana is a logo, then I would say it’s probably a sign, just like if somebody painted the golden arches on a building. Everybody would know that’s a McDonald’s sign. It wouldn’t have to say McDonald’s. It would be a sign. Or any other business that has branded itself with a logo.”

But Brovont said, “It doesn’t seem like a cut-and-dry issue.”

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Indiana Government

Ind. Decisions - "Confession can't be used at murder trial: Brian 'Scott' Hartman faces a September trial for his parents' deaths"

Re the Supreme Court's May 31st decision in Brian Scott Hartman v. State, ruling "We reverse the trial court's denial of the defendant's motion to suppress and remand for further proceedings consistent with this opinion," Douglas Walker of the Muncie Star-Press has this story today. The story begins:

WINCHESTER — When Brian “Scott” Hartman stands trial in September on charges he fatally shot his father — and helped his seriously ill mother commit suicide — jurors will not hear about a confession he allegedly provided to Randolph County sheriff’s investigators.

Hartman, now 36, is charged with murder and assisting a suicide in his parents’ February 2010 deaths.

The frequently delayed case took another turn in recent days when the Indiana Supreme Court ruled incriminating statements Hartman allegedly made to police about his parents’ deaths can not be used as evidence.

“I’m still very confident that we have a good case,” Randolph County Prosecutor David Daly said Friday. “It just makes it less easy when you have an alleged confession suppressed, but we’ll be ready to go to trial.”

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Ind. Sup.Ct. Decisions

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

From Sunday, June 10, 2013:

From Saturday, June 9, 2013:

From Friday afternoon, June 8, 2013:

Posted by Marcia Oddi on Monday, June 10, 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 (6/10/13):

Next week's oral arguments before the Supreme Court (week of 6/17/13):

Thursday, June 20th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 6/10/13):

Wednesday, June 12th

Next week's oral arguments before the Court of Appeals (week of 6/17/13):

Tuesday, June 18th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, June 10, 2013
Posted to Upcoming Oral Arguments

Sunday, June 09, 2013

Ind. Courts - More on: If a justice is going to recuse him/her self, should that be announced when review is granted? [Updated at 6:30 PM]

Updating this ILB post from June 7th, that explored the question of recusal and when it should be publicly announced, here are several more recent examples (taken from the transfer sheets) where a justice announced, at the time review was granted, that he was not participating in the case:

[ILB update, 8/17/13]: Note that in Best v. Best, transfer was granted with opinion.]

[More added at 6:30 PM, 6/9/13]

Are there examples where a justice has decided to recuse after hearing the oral argument? Yes, here are two:

From a reader: "Probably the best known example of a justice recusing late in the process is the Wilkins opinion."

ILB: Unfortunately, Wilkins partially took place before the start of the ILB, which only goes back to March 16, 2003. However, a July 27, 2003 ILB post (you would have to scroll down the July 2003 entries until you reached it) includes this:

On rehearing, as the NY Times reported Feb. 5, 2003, "The Supreme Court replaced its earlier 30-day suspension of the lawyer, Michael A. Wilkins, with a reprimand. A justice in the majority in the earlier ruling, Robert D. Rucker, did not participate in decision. The justice had served on the appeals court panel that Mr. Wilkins criticized."

Here is a link to the initial Supreme Court October 29, 2002 ruling, a link to the January 3, 2003 response by J. Rucker on the motion for recusal (see particularly the final paragraph), and a link to the Feb. 4, 2003 opinion on rehearing, "RUCKER, J., not participating".

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Indiana Courts

Environment - National Park Service to continue with Cowles Bog restoration

Upating earlier ILB entries, Teresa Auch Schultz reported June 7th in the Gary Post-Tribune:

The Indiana Dunes National Lakeshore is moving forward with work to return Cowles Bog to a wetland but will not cut down more trees for now, according to a notice filed in U.S. District Court in Hammond.

The National Park Service has been battling with a group of local residents, the Coalition to Protect Cowles Bog Area, over the wetlands restoration plan, which involves cutting down about 24 acres of trees near Mineral Spring Road. The coalition sued the federal government in December to stop the tree-cutting, arguing that the trees improve the local environment and that their loss would be an eyesore for local citizens.

The government and local environmental groups argue, however, that the trees are not native to the area and must come down in order to restore the bog and encourage other native species to repopulate the area.

Both sides agreed to a truce earlier this year in which the park agreed to not cut a small portion of the trees right by the road. The truce will last until either September or when U.S. District Judge Philip Simon rules on the case.

The park’s notice, filed Thursday, says restoration work will start June 20 and could involve more than 12 workers. No trees will be cut down, but workers will clear away logs and non-native species, plant native species and general restoration work. If permits come in from the Indiana Department of Environmental Management, the park will also move forward with fixing a collapsed culvert and improving the groundwater replenishment zone.

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Environment

Ind. Gov't. - How much should it cost a county to respond to a citizen complaint filed with the Public Access Counselor?

Today the Kokomo Tribune's "Public eye" column reports:

It cost Tipton County taxpayers $4,667 for an Indianapolis law firm to represent the county in a complaint alleging the county council violated the state’s Open Door Law last December.

The complaint with the Indiana Public Access Counselor’s Office was filed by Jeff Hoover, a member of the Tipton County Citizens for Responsible Development. In the complaint, Hoover alleged the council violated the Open Door Law by moving a scheduled meeting on the Prairie Breeze Wind Farm from the Tipton County Foundation to Tri-Central High School. The meeting was to consider an economic revitalization area and to approve a 10-year tax abatement for juwi Wind.

The complaints were filed in an attempt by opponents of the Prairie Breeze Wind Farm to halt the process and begin the legal process for approval anew.

The Public Access Counselor denied the complaint.

Attorney Rick Hall, responding for the county, labeled it legally unfounded and impractical to conduct a meeting to change the location of a future session.

Hall said Hoover lacked legal standing because he was not denied the right to address the council during the Dec. 18 meeting.

Hall also wrote the council had someone at the Tipton County Foundation building on the night of the meeting to inform people the location was changed. He stated the council also didn’t consider the tax abatement request until other business was considered, to give the public a chance to get to the meeting location.

Hall, a member of the Barnes & Thornburg law firm, submitted a bill to the county for $4,667 for work done on the complaint. Payment was approved in May by the Tipton County commissioners.

In the itemized bill, Hall and two associates worked on the complaint over parts of 10 days, from Jan. 9 through Jan. 31.

[More] Here is Informal Opinion 13-INF-06, dated Feb. 4, 2013.

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Indiana Government

Ind. Courts - A new state judicial building being talked about by some

Niki Kelly of the Fort Wayne Journal Gazette has a long story today on the possibility of a new state judicial building. Some quotes, but read it in full:

[There wasn't enough state office space to house the judiciary in the late 1970s] Fast forward more than three decades and the state judiciary is still leasing space out of at least four downtown Indianapolis office buildings, costing about $2 million in rent annually.

Meanwhile, plans for a state office building to consolidate judicial functions on a lot north of the Statehouse are in limbo.

“The courts keep expanding. It was a problem then, constantly going back and forth for conferences or to the law library. It was hectic,” said [State Senator Sue] Glick, R-LaGrange. “It’s all a fight for space.”

At one point in 2000, the project actually passed the legislature, and plans were even drawn up for a building with an underground parking garage and tunnel to Statehouse.

But Gov. Frank O’Bannon vetoed the bill because of concerns over long-term costs for debt service, operation and maintenance.

Now the state is sitting on a healthy reserve with a coveted AAA credit rating, is cutting taxes and last year the administration burned the mortgages for 10 state facilities – including two office buildings – after paying down the final $125 million in debt.

The just-passed state biennial budget also calls for using $128 million to pay off outstanding bonds on the Indiana State Museum and a forensics and health sciences lab.

The timing couldn’t be better, and that’s why Sen. Jim Buck, R-Kokomo, thought the issue should be re-evaluated. He offered a Senate resolution to have legislators study a new judicial building this summer. But legislative leaders didn’t assign the topic, saying there were too many other subjects up for discussion already.

“The longer we wait the cost keeps rising. The Statehouse is over 100 years old and has served us well. But a prudent person would see we really need to do this,” Buck said. “We’re not wanting to build a Taj Mahal.”

Indiana Supreme Court Chief Justice Brent Dickson said the judicial branch is trying to stay neutral on the topic.

“I’m torn,” he conceded. “The Court of Appeals definitely needs to be in one place in my view. And there are fiscal advantages to stop paying rent and building now when the interest rates are low.”

He also acknowledged increased efficiencies.

Nineof the Court of Appeals judges have offices in the Statehouse along with the five Indiana Supreme Court justices and staff. Six other Court of Appeals judges have offices across the street from where the courtroom is.

Other judicial branch agencies are scattered about, including the disciplinary commission, board of law examiners, tax court, state public defender and division of state court administration.

It’s not uncommon to see clerks dragging carts full of documentation from one building to another – rain, snow or shine.

But Dickson said the Supreme Court justices also like having a traditional presence in the Statehouse representing the third branch.

“It’s healthy to have casual contact with members of the other branches, developing friendships in the elevator and the parking lot,” he said.

Some states with separate judicial buildings have experienced polarization, according to Dickson. * * *

Under any proposal, Dickson said he would push for the Supreme Courtroom to stay in use at the Statehouse. It is the longest-serving Supreme Courtroom in the nation. * * *

The legislature would likely get first dibs on any free Statehouse space. Dickson said it’s their cramped quarters that have propelled the idea of a judicial building over the years.

The 150 part-time lawmakers have small cubicles, often with no windows and sharing space with four or five others at a time. The senators are at least all arranged around the Senate chamber on sub-floors.

But the House members are spread all around the building, from the first floor to the fourth.

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Indiana Courts

Courts - "Exhibit A for a Major Shift: SCOTUS Justices’ Gay Clerks"

A long, fascinating Adam Liptak story today on the front-page of the Sunday NY Times begins:

WASHINGTON — As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.

In truth, one of his four law clerks that term was gay.

But as Liptak recounts later in the story:
Former clerks and court historians agree that Justice Powell made the remark about having never met a homosexual during a private conference with his fellow justices as they considered the case. [Bowers v. Hardwick, the 5-to-4 decision in which Justice Powell’s vote was crucial. The decision upheld a Georgia law that made sodomy a crime.] According to many accounts, he made a similar statement in front of a clerk.

Pamela S. Karlan, now a law professor at Stanford, heard about the comment from her boss that term, Justice Harry A. Blackmun. In a recent interview, she also recalled Justice Blackmun’s response: “Look around your chambers.”

C. Cabell Chinnis, a gay lawyer who practices law in Palo Alto, Calif., was one of Justice Powell’s clerks as the justice was struggling with how to vote in the Hardwick case. In an interview, Mr. Chinnis said his boss must have known about his sexual orientation. “He had met my boyfriend,” Mr. Chinnis said.

Indeed, the justice sought him out for advice precisely because he wanted to learn about the mechanics of gay sex, Mr. Chinnis said, recalling an uncomfortable exchange on the subject. “This 78-year-old man is asking me about erections at the Supreme Court,” he said.

The conversation was unusual, as Mr. Chinnis was not the clerk who had been assigned to work on that case. But the two kept talking as the justice wrestled with the issues in the case.

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Courts in general

Ind. Courts - Tipton County court transcript lost in the mail

The ILB has had a number of entries on unfinished, lost, and even taken, court transcripts.

Today the Kokomo Tribune's "Public eye" column reports:

When Tipton County Clerk Debbie Tragesser recently sent a court transcript to the Indiana State Court of Appeals, she didn’t expect it to get lost between Tipton and Indianapolis.

Tragesser sent a transcript in the post-conviction relief appeal of Jason Roudebush on April 24 by certified mail, with a return receipt requested.

She learned April 29 the United States Postal Service was unable to locate the transcript. Tragesser said the certified mail left Tipton, but never made it to the Indianapolis USPS sorting facility.

The USPS offered to reimburse Tipton County the $10 it cost to mail the transcript.

“We may need to have another transcript made,” Tragesser said. “I’m waiting to hear from the Court of Appeals.”

Tragesser said the cost of creating another transcript is not known.

It could be worse, the ILB's list includes cases where a videotape machine malfunctioned, or audio tapes were lost, and there was no backup, so there was no means to create another transcript.

Posted by Marcia Oddi on Sunday, June 09, 2013
Posted to Indiana Courts

Saturday, June 08, 2013

Ind. Decisions - "7th Circuit ruling affirms $5.2 billion plan for Midwest power lines"

Thomas Content of the Milwaukee Journal Sentinel has the story about yesterday's 7th Circuit opinion. The long story begins:

Utility customer groups and utilities in the state of Michigan were delivered a setback Friday when an appeals court ruled on a case involving who should pay for $5.2 billion of new power lines proposed to criss-cross the Midwest.

A federal appeals court ruling in Chicago sided for the most part with the Federal Energy Regulatory Commission and the Indiana-based operator and planner of the Midwest power grid.

At issue is a cost-sharing plan that was approved by FERC to pay for an array of new power lines. The Midwest transmission operator in 2011 authorized construction of 17 big power lines, including some in Wisconsin, at a cost of $5.2 billion.

Many of the power lines are being proposed to facilitate the flow of renewable energy from the windiest regions of the Great Plains to population centers in the eastern part of the Midwest.

The cost-sharing plan calls for utility customers to pay for those projects based on the percentage of that state’s entire share of the Midwest power grid. For Wisconsin, which represents roughly 15% of the electricity used in the Midwest, that means a price tag of $800 million for new power lines – whether those projects are built here or elsewhere in the Midwest.

Here is the 26-page opinion, ILLINOIS COMMERCE COMMISSION, et al. v. FEDERAL ENERGY REGULATORY COMMISSION, written by Judge Posner. A quote from the illustrated opinion:
“The dirty secret of clean energy is that while generating it is getting easier, moving it to market is not . . . . Achieving [a 20% renewable energy quota] would require moving large amounts of power over long distances, from the windy, lightly populated plains in the middle of the country to the coasts where many people live. . . The grid’s limitations are putting a damper on such projects already.” Matthew L. Wald, “Wind Energy Bumps into Power Grid’s Limits,” New York Times, Aug. 27, 2008, p. A1. MISO aims to overcome these limitations.

Posted by Marcia Oddi on Saturday, June 08, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Thomas Stefaniak to become new Lake Juvenile Court judge" And what about Allen County?

Updating this ILB entry from June 1st, now that Lake Criminal Court Judge Thomas Stefaniak is moving into the vacant Lake Juvenile Court seat, who will fill the resulting criminal court vacancy?

Susan Brown of the NWI Times reports today:

CROWN POINT | No eligible Lake Superior Court judge has elected to transfer to the Criminal Court bench held by Judge Thomas Stefaniak Jr., who will move to the Juvenile Court bench.

Stefaniak last week announced he will replace former Juvenile Court Judge Mary Beth Bonaventura, whom Gov. Mike Pence named director of the Indiana Department of Child Services in March.

The Juvenile Court seat had been mired in controversy until the Indiana Supreme Court barred in May the transfer of Judge Nicholas Schiralli, who had not gone through merit selection.

The high court's decision also in effect barred the eligibility of Judges Julie Cantrell and Jesse Villalpando, leaving the field open to the 11 remaining Lake Superior Court judges.

One civil division judge took himself out of the running early in the weeklong period set by Judge John Pera, chief judge of Lake Superior Court, for judges to express their interest to transfer. The deadline was 4 p.m. Friday.

"I love being in the Harbor," East Chicago Judge Calvin Hawkins said.

Hawkins said he never envisioned himself in anything but the civil arena, where his interests and abilities lay.

"I have no desire to be anything else," he said.

Pera said the selection will now go to the Lake County Judicial Nominating Commission, a bipartisan group of lawyers and lay people.

Chaired by Indiana Supreme Court Justice Robert Rucker, a Gary native, the commission will interview applicants and name three nominees, one of whom the governor will appoint to fill the vacancy.

Pera said Stefaniak will take over the Juvenile Court bench after the new Criminal Court judge is selected, currently anticipated sometime later this year.

Senior Judge Thomas Webber will continue to serve as interim Juvenile Court judge until that time, Pera said. Webber frequently has served as senior judge in Lake County.

ILB: This story raises a question in my mind? What has happened with filling the Allen County vacancy? When last we reported, on April 28th, three finalists had been selected -- see Rebecca S. Green's long April 28th story in the Fort Wayne Journal Gazette, including:
Those three people – two magistrates and a local attorney in private practice – now await the decision by Gov. Mike Pence to determine who will replace Allen Superior Court Judge Dan Heath.
According to IC 33-33-2-43, the governor has 60 days to act. The three were selected April 26th, again per Ms. Green:
FORT WAYNE – The Allen County judicial nominating commission picked three names Friday to send off to Indianapolis for the vacant Allen Superior Court judicial seat.

Those three include two currently-serving Allen County magistrates and a partner at a local law firm.

Allen Circuit Magistrate Craig Bobay, Allen Superior Court Magistrate Jennifer DeGroote and Michael Michmerhuizen, a partner at Barrett & McNagny, have been nominated to fill the seat of Allen Superior Judge Dan Heath.

What about the Governor's judicial appointments page? It continues to say: "There Are No Current Vacancies."

Posted by Marcia Oddi on Saturday, June 08, 2013
Posted to Indiana Courts

Friday, June 07, 2013

Ind. Courts - "Indiana Supreme Court Agrees to Hear Oral Arguments in Brewington"

The ILB was holding off on this, as nothing has yet been officially entered on the docket. But meanwhile, Prof. Volokh at The Volokh Conspiracy has posted the word that the Indiana Supreme Court "will hear oral argument — likely on Sept. 12 — on the matter."

[More] Here is a long list of earlier ILB posts on Brewington v. State, the jailed blogger, free speech case.

Posted by Marcia Oddi on Friday, June 07, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - If a justice is going to recuse him/her self, should that be announced when review is granted?

The Supreme Court voted yesterday to grant transfer in the Rockport coal gasification case. No break-down of how the justices voted on the question was provided.

Already questions have been raised regarding whether Justice Massa has/will participate in the case, citing that he was Governor Daniel's general counsel while the Indiana Finance Authority was negotiating the Rockport deal.

A grant of transfer takes at least three votes. Normally, as was the case yesterday, the details of the vote are not given when a transfer petition is granted, but they are when a transfer is denied. See, for example, a quote from this Dec. 10, 2012 post, headed "Indiana Supreme Court won't hear challenge to ruling allowing use of David Bisard blood test results":

That was a denial of transfer. Normally a grant of transfer states nothing about the vote.

But here is a case, Gaudin v. Austin, where the announcement of recusal was made at the time of transfer grant. From the Oct. 21, 2010 docket entry:


The following month, oral argument was held in Gaudin, the "Brown County fire district case." A day later an order was issued indicating that the remaining four justices were split, meaning that the Court of Appeals opinion would be reinstated. (See this Nov. 17, 2010 ILB post.)

In Davis v. Simon, transfer was granted on Aug. 30, 2012, with no indication on the record that all the justices had not participated in the vote. However, on May 21, 2013, as with the Brown County case, after oral argument the justices announced they were split 2-2, with Justice Massa not participating. (A look at the video reveals J. Massa did not participate in the oral argument, in fact only three justices heard the oral argument, as J. Rush had not yet been seated.)

What is the test for recusal? In 1993 Chief Justice Shepard had participated in the Mike Tyson case: "during an earlier stage of the proceedings [and] fully expected to participate in whatever proceedings might eventually come before this Court. On October 3, 1992, an event occurred which caused me to consider whether I should disqualify." That is from Shepard's Oct. 15, 1993 recusal opinion in Tyson v. State. Some quotes:

SHEPARD, Chief Justice.

Appellant Tyson has filed an application by his counsel Alan M. Dershowitz asking me to vacate my earlier disqualification and cast a vote now on the petition to transfer denied by this Court on September 22, 1993. * * *

The test under Canon 3(C)(1) is whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality. Cf. Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991). The question is not whether the judge's impartiality is impaired in fact, but whether there exists a reasonable basis for questioning a judge's impartiality. In re Beard, 811 F.2d 818 (4th Cir.1987). Concerns about public confidence in the judicial system underly Canon 3. See United States v. Hollister, 746 F.2d 420 (8th Cir.1984). A judge has a duty to promote public confidence in the impartiality of the judiciary. Ind.Judicial Conduct Canon 2.

Later in his recusal opinion Shepard wrote:
Having reached that decision, I confronted the question of when to do so. The custom in this Court is to disqualify when a case is fully submitted.
Presumably, based on Shepard's actions in both Gaudin and Tyson, early-on is also when the recusal decision is to be announced to the public.

Posted by Marcia Oddi on Friday, June 07, 2013
Posted to Indiana Courts

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

For publication opinions today (2):

In In the Matter of the Supervised Admin. of the Estate of Cora E. Young, deceased; Terry Douthitt, Kelly Douthitt, and Kevin Douthitt v. Theodore R. Young, an 8-page opinion, Judge Vaidik writes:

Terry Douthitt, Kelly Douthitt, and Kevin Douthitt (collectively “the grandchildren”), appeal the trial court’s denial of their motion to reconsider. They contend that based on the language of Cora Young’s will, the trial court erred in finding that the proceeds of a sale of her property should be distributed to her second husband at her death. We hold that since the property was a specific bequest under Cora’s will and was sold before Cora’s death, it was adeemed by extinction and therefore the proceeds pass to the residuary beneficiary under her will. Finding that the residuary beneficiary is her second husband, we affirm the trial court.
In Gayle Fischer v. Michael and Noel Heymann, a 25-page, 2-1 opinion, Judge Najam writes:
Gayle Fischer brings this interlocutory appeal from the trial court’s judgment against Michael and Noel Heymann for $93,972.18 in damages on her breach-of-contract claim. Fischer requests that we vacate the trial court’s findings and conclusions on her failure to mitigate and remand with instructions to award actual and consequential damages in the amount of $286,409.43. On cross-appeal, the Heymanns assert that the trial court’s specific findings required the court to enter a damage award of $117 for Fischer. We consolidate the parties’ arguments and consider the following two issues:

1. Whether the trial court’s findings that Fischer would not have been damaged had she agreed to make the repairs identified in the inspection report on or before February 18, 2006, means that Fischer failed in her duty to mitigate her damages; and

2. Whether the trial court abused its discretion when it limited Fischer’s award for attorney’s fees and court costs in accordance with her failure to mitigate her damages.

We hold that the Heymanns committed an anticipatory breach of the purchase agreement on February 10, 2006; that, given the evidence and the trial court’s findings, Fischer’s duty to mitigate arose on February 11, 2006, when she learned of the Heymanns’ breach; and that Fischer failed to act with reasonable diligence to mitigate her damages at her first opportunity, which was no later than February 18, 2006. We also hold that the trial court acted within its discretion when it limited Fischer’s award for attorney’s fees and costs. Based on the undisputed evidence and the trial court’s finding that Fischer would have incurred virtually no damages had she taken reasonable steps to mitigate on or before February 18, 2006, we reverse the trial court’s judgment on damages and remand with instructions that the trial court amend Fischer’s damage award to $117, reasonable attorney’s fees commensurate with that award, and court costs. * * *

Reversed and remanded with instructions.
FRIEDLANDER, J., concurs.
BRADFORD, J., dissents with separate opinion. [which begins, on p. 20 of 25] Because I do not believe the majority opinion is an appropriate application of the mitigation of damages doctrine, I respectfully dissent. I would reject the Heymanns’ argument that Fischer failed to mitigate her damage on February 18, 2006, by not responding to the Heymanns’ inspection response, affirm the trial court’s holding that Fischer failed to mitigate her damages on February 16, 2007, by not accepting Johnson’s offer to purchase the home for $240,000.00, and affirm the court’s judgment for Fischer in the amount of $93,972.18.

NFP civil opinions today (1):

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

NFP criminal opinions today (4):

Jerome K. Jackson, Jr. v. State of Indiana (NFP)

Cody Matthew Fritz v. State of Indiana (NFP)

James D. Brooks v. State of Indiana (NFP)

Larry C. Perry, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 07, 2013
Posted to Ind. App.Ct. Decisions

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

Well, maybe not!

Updating this ILB post from May 31st with that heading, in an order filed June 5th and now posted, the Court writes:

After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this third appeal in this case. The Court notes that the appellant did not seek transfer in the second appeal in this case, Money Store Investment Corp. v. Summers, 909 N.E.2d 450 (Ind. Ct. App. 2009), and the Court cannot conclude that the Court of Appeals in the current appeal abused its discretion in applying the doctrine of law of the case. Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The Court of Appeals opinion published at Wells Fargo Bank, N.A. v. Summers, 974 N.E.2d 488 (Ind. Ct. App. 2012), is hereby REINSTATED as Court of Appeals authority. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Posted by Marcia Oddi on Friday, June 07, 2013
Posted to Ind. Sup.Ct. Decisions

Thursday, June 06, 2013

Ind. Decisions - Here is the COA opinion plus earlier documents in Rockport coal gasification case [Updated]

From Oct. 30, 2012, an ILB post that begins:

Here is today's COA opinion in Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority (IF) and Indiana Gasification, LLC (IG).
From this June 11, 2012 ILB post, the briefs for the COA case plus a link to the 106-page order of the IURC, approved Nov. 22, 2011. Interestingly, this June 2012 post ends:
ILB Observation: If, after a Court of Appeals opinion in this case, the Supreme Court grants transfer, recusal issues may well arise.
[Updated] The ILB currently does not have the petitions to transfer and responses in this appeal to the Supreme Court, but would definitely like to post them ...

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: The Supreme Court has granted transfer in Rockport case

Eric Bradner, the Evansville Courier & Press reporter who has covered this issue most closely, has just posted online this story providing context to the dispute and the transfer grant.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Special prosecutor sought in Lebo, Gilliland case"

Matt Fritz reports in the LaPorte Herald-Argus:

La PORTE — La Porte County officials are calling for a special prosecutor to handle the case of Ed Gilliland and Marybeth Lebo.

And so is the defense.

On Tuesday, La Porte County Prosecuting Attorney Bob Szilagyi filed the motion in Superior Court 3 to have a different official oversee the case, which has been going on for about two years.

This follows a similar motion by the defense earlier this year.

Lebo and Gilliland, both employees at La Porte Community Schools, are charged for allegedly failing to report suspicions of child abuse or neglect in the case of former volleyball coach Robert Ashcraft, who had sexual relations with an underage player in the district. * * *

Both Lebo and Gilliland had their appeals denied in 2012 by the Indiana Court of Appeals.

According to court documents, Lebo, the former girls varsity volleyball coach, felt uncomfortable with Ashcraft's physical overtures toward a girl during the 2007-08 season, but allegedly instructed her student players not to tell anyone what was going on. Lebo was charged in 2011 with failing to inform police or child protective services.

Lebo claimed the charges did not prove she was aware of the relationship. She also said they were not filed within the two-year statute of limitations.

Gilliland, the district's athletic director, allegedly documented Aschraft's activities of rubbing lotion on the backs of female players and rubbing their feet, describing it as "inappropriate behavior" in the coach's personnel file, then denied knowing of any "alleged misconduct" when asked by police in November of 2008 about Ashcraft.

Gilliland argued that prosecutors were barred from charging him based on a two-year statute of limitations, and that he had not engaged in concealment and that the state had failed to exercise due diligence.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Indiana Courts

Ind. Decisions - The Supreme Court has granted transfer in Rockport case

Today the Supreme Court has granted transfer in INDIANA GAS COMPANY, ET. AL. V. IND. REGULATORY COMMISSION.

Here is the new case number: 93 S 02 - 1306 - EX - 00407

Docket Inquiry

(ORDER REC'D. 6/6/13 AT 2:30 PM) ENTERED 6/6/13 KM
6/06/13 ****** ABOVE ENTRY MAILED ******
(ORDER REC'D. 6/6/13 AT 2:30 PM) ENTERED 6/6/13 KM
6/06/13 ****** ABOVE ENTRY MAILED ******
(ORDER REC'D. 6/6/13 AT 1:45 PM) ENTERED 6/6/13 KM
6/06/13 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - "“The 70-year-old that existed in the 1890s is not the 70-year-old of today"

Those words from Assemblywoman Helene E. Weinstein, Democrat of Brooklyn, who is sponsoring a bill "a bill that would amend the State Constitution, if approved by voters, to extend the retirement age to 80 for hundreds of judges statewide." More from the lengthy June 4th story in the NY Times, reported by Jesse McKinley:

More than 30 states and the District of Columbia have an age limit on jurists, according to the National Center for State Courts: 70 is the limit in many states; in Vermont, it is an optimistic 90.

In New York, judges have to retire at either 70 or 76, depending on their courts. But this year, a reprieve seems possible. * * *

Some in the state’s judicial ranks have questioned Ms. Weinstein’s bill, saying it unfairly favors the high-level judges on the State Supreme Court and the Court of Appeals. Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups.

Then there is the United States Supreme Court, which has no retirement rule at all. When Justice John Paul Stevens stepped down in 2010, he was 90.

If the legislative conflicts in Albany can be worked out, the bill would still face voters, since it would change the State Constitution. But the record of such votes is decidedly against elderly judges. Recent efforts to raise judges’ retirement ages were soundly defeated in Arizona and Ohio; New York voters said no in 1983.

All of which makes judges — of an age — uneasy.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Courts in general

Ind. Courts - St. Joe "Deputy prosecutor resigns over decision on slain girl's father"

Christian Sheckler reported late evening for the South Bend Tribune:

St. Joseph County Prosecutor Michael Dvorak said today a deputy prosecutor has resigned after failing to prosecute a man who was arrested but released without being charged three days before he killed his 6-year-old daughter.

Dvorak said Edward Mwaura, 33, should have been prosecuted May 30 after his estranged wife, 32-year-old Lucy Mundia, called police to complain that he had come to her apartment at 4252 Irish Hills Drive in violation of a protective order.

"This is my office, and these are my deputy prosecutors, and we should have filed a charge of violation of a protective order," Dvorak said. "We would have if we would have done more than a cursory review of the evidence."

Mwaura was arrested and booked into the county jail about 7:30 a.m. May 30, but he was released six hours later without being charged because the deputy prosecutor did not find the correct file in a protective order registry, Dvorak said.

Less than three days later, police responding to a violent domestic dispute forced their way into the same apartment, where an officer shot and killed Mwaura as he stabbed to death the estranged couple's daughter, 6-year-old Shirley Mundia, investigators said.

After Mwaura's arrest May 30, the deputy prosecutor, who has not been identified, reviewed a protective order registry using Mwaura's last name and found only a petition by Lucy Mundia that had been dismissed by a judge, the statement said. According to court records, Mundia filed for an order on Sept. 14, but a judge dismissed the petition Oct. 1 when neither Mundia nor Mwaura appeared at a scheduled hearing.

However, a separate request for a protective order was granted in December and was still active at the time of Mwaura's arrest. The deputy prosecutor did not find the valid order because of a misspelling of Mwaura's name, Dvorak said. But a search of Mundia's name would have located the valid order -- which was to remain active until June 1 -- he said.

Without a valid protective order, prosecutors could not charge Mwaura with the violation, Dvorak said.

"This DPA failed to exercise the thoroughness expected, particularly in crimes with women and children as victims of domestic abuse," Dvorak said. * * *

Because the deputy prosecutor resigned, the prosecutor's office was treating the person's departure as a confidential personnel matter and would not release any more details about the person, said Lora Bentley, a spokeswoman for the office.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Indiana Courts

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

For publication opinions today (1):

In Scott Speers v. State of Indiana , a 12-page opinion, Judge Friedlander writes:

Scott Speers appeals his conviction for Burglary, as a class C felony, and Theft, as a class D felony. He presents the following restated issues on appeal:
1. Was Speers entitled to discharge under Indiana Criminal Rule 4(C)?
2. Did the trial court err in admitting DNA evidence in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution?
3. Did an evidentiary harpoon occur during the State’s direct examination of the lead detective?
We affirm. * * *

Speers contends that the trial court erroneously admitted results of DNA testing in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. Despite the fact that the DNA analyst (Lori James) testified at trial regarding the DNA analysis and results, Speers contends that his confrontation rights were violated because the lab technician (Nichole Stickle), who transferred the suspected blood from the glass to white cloths for testing by James, did not testify. * * *

In the case at hand, analyst James’s testimony was not based on a certified declaration of fact from another analyst or lab. In fact, no outside lab was involved in this case, and the DNA profile and Certificate of Analysis at issue were produced by James, who testified at trial and was subject to cross-examination. Accordingly, we find Williams inapposite and Pendergrass controlling.

Finally, Speers contends that during direct examination of the lead detective the State “presented evidence in such a way as to create an evidentiary harpoon.” * * *

“An evidentiary harpoon is the placing of inadmissible evidence before the jury with the deliberate purpose of prejudicing the jurors against the defendant.” Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002), trans. denied. * * *

We agree with the State that Speers has mischaracterized this situation as an evidentiary harpoon. The brief question and answer set out above did not inject any inadmissible evidence into the trial and was used by the State as a simple transition from testimony regarding the initial suspect to the detective’s subsequent investigation of Speers. In fact, it is clear that the State deliberately sought to avoid introducing any evidence regarding the CODIS match. While the jury may have been left to speculate as to how Speers became a suspect, this would have been true regardless of whether the above exchange occurred. Under the circumstances, we find neither the insertion of an evidentiary harpoon nor a situation of grave peril.

NFP civil opinions today (1):

Heather McWhorter v. Bill McWhorter (NFP)

NFP criminal opinions today (2):

Robert C. Brown v. State of Indiana (NFP)

Richard Lee Haworth, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Obama nominates Muncie native to Court of Appeals"

Ivy Farguheson reports today in a long story in the Muncie Star-Press that Muncie native Robert Wilkins was named yesterday by President Obama as:

... a nominee for U.S. circuit judge on the U.S. District Court of Appeals for the District of Colombia [DC Cir. COA], often considered the second most powerful court in the nation because of the cases it handles. * * *

Robert Wilkins is currently a federal judge for the U.S. District Court for the District of Columbia, another position Obama nominated him for in 2010.

A graduate of Muncie Northside High School and Rose-Hulman Institute of Technology, Wilkins proudly calls Muncie home. * * *

After graduating from Harvard Law School, Wilkins served as clerk for a federal judge in California, as a public defender in Washington, D.C. and as a partner at Venerable LLP, a law firm in the nation’s capital.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Courts in general

Ind. Courts - "Supreme Court to review child exploitation charges"

In David Delagrange v. State, a Jan. 25, 2013 2-1 Court of Appeals opinion, the majority wrote:

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement. * * *

After Delagrange committed these acts, the legislature amended Ind. Code § 35-45-4-5 to include a new crime, “public voyeurism.” P.L. 75-2011, Sec. 1. That section provides: “A person who: (1) without the consent of the individual; and (2) with intent to peep at the private area of an individual; peeps at the private area of an individual and records an image by means of camera commits public voyeurism, a Class A misdemeanor.” Ind. Code § 35-45-4-5(d) (2011).

[ILB: See the 2011 amendment and what it changed here, at PL 75-2011 (SEA 19), which took effect July 1, 2011]

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute.

The Supreme Court granted transfer on April 18, 2013.

Today Sophia Voravong reports in the Lafayette Journal Courier:

An Indiana Supreme Court ruling in a voyeurism case out of Marion County could determine what criminal charges a former Lafayette pastor will face for allegations that he hid cameras in bathroom stalls at his church.

Robert A. Lyzenga, 56, is charged in Tippecanoe Superior Court 1 with five counts of child exploitation, a Class C felony, and five counts of voyeurism by means of a camera, a Class D felony. * * *

On April 29, Lyzenga’s attorney, Kent Moore, filed a motion to dismiss the child exploitation charges on grounds that it did not amount to a crime. That was based on a recent Indiana Court of Appeals ruling for David Delagrange, which determined that the phrasing of Indiana’s child exploitation statute “demands that the child be performing the sexual conduct.”

But the Indiana Supreme Court has agreed to hear Delagrange’s case — making the Court of Appeals opinion moot, Tippecanoe County deputy prosecutor Emily Orsinger argued in her response to Moore’s motion.

Orsinger and Moore are asking Superior Court 1 Judge Randy Williams to decide.

Williams’ ruling likely will depend on how the Indiana Supreme Court proceeds for Delagrange, a Fort Wayne man caught using a shoe-mounted camera to take upskirt videos of females at Castleton Square Mall in Indianapolis.

A jury found him guilty of four counts of attempted child exploitation and one count of resisting law enforcement for the February 2010 incident, but those convictions were overturned by the appellate court.

The state of Indiana appealed, and the Supreme Court will hear it at a later date.

The charges against Lyzenga stemmed from an investigation that began April 22, 2012, when a church member called the sheriff’s office to report that a suspicious device was found in the women’s restroom.

Detectives were able to download data from the cameras’ memory cards, which showed that two women and a minor female had been video recorded using the restroom on separate dates in February 2011 and April 2012.

Posted by Marcia Oddi on Thursday, June 06, 2013
Posted to Ind. App.Ct. Decisions

Wednesday, June 05, 2013

Courts - "New federal judge in Iowa accused of acting as "prosecutor-in-chief" at sentencing"

Remarkable story from Des Moines Register quoted in this Sentencing Law Blog post today.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Courts in general

Ind. Courts - More errors corrected in the 29-page suspension order posted May 31st

Updating this ILB post from yesterday (June 4th), the Supreme Court has now issued a second order, filed June 4th, amending its May 30th suspension order to remove the names of Hamilton L. Carmouche and Joyce McCray Pearson, who were included "in error."

No mention, however, of removing the name of Frederick F. Eichhorn Jr.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Indiana Courts

Ind. Decisions - Ownership of dog is the issue in a dispute among relatives

One of the NFPs issued today by the Court of Appeals turns out to be a case involving a dispute about the ownership of a dog. The opinion is Richard Brock and Gail Brock v. Pamela Gilbert (NFP); it is 5-page-long and authored by Sr. Judge Shepard. No attorneys were involved:

Richard and Gail Brock sued Pamela Gilbert when Gilbert refused to return their dog. After hearing all the evidence, the trial court concluded that Gilbert was correct in saying that the Brocks had gifted the dog. The court therefore found in favor of Gilbert. We affirm. * * *

Judge Blankenship [Dearborn Superior Court] went out of her way to assist both parties as they worked their way through a bench trial without lawyers, and she doubtless would have entertained such a request [the right to cross-examine the witnesses who wrote the letters] with the same good will she demonstrated throughout.

Tim Evans of the Indianapolis Star has a brief story today on the opinion.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Ind. App.Ct. Decisions

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

Updating these ILB entries from this spring and last fall, the ABA Journal has a longish article today by Erwin Chemerinsky that begins:

Several different constitutional provisions and principles prevent states from discriminating against out-of-state residents. In light of this, it was surprising and troubling that the U.S. Supreme Court ruled unanimously in McBurney v. Young that it is constitutional for a state to allow only its own citizens to use its freedom of information act.

McBurney, issued April 29, involved a challenge to Virginia's Freedom of Information Act (FOIA), which provides that "all public records shall be open to inspection and copying by any citizens of the Commonwealth." But the Virginia law grants no such right to information to those who are not citizens of Virginia. Several other states have similar laws, limiting access to information under public records laws to in-state residents, including Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee.

McBurney had filed a freedom of information request to Virginia's Division of Child Support Enforcement for documents concerning its processing of a matter in which he had been involved and where there had been a nine-month delay. Also part of the case before the Supreme Court was a freedom of information request by an individual who sought real estate tax records for properties located in Virginia. Both of these requests were denied because the requesters were not citizens of Virginia.

The Supreme Court upheld the Virginia law, concluding that it violated neither the Privileges and Immunities Clause of Article IV nor the dormant commerce clause. Justice Samuel A. Alito Jr. wrote the opinion for a unanimous court, with a short concurring opinion by Justice Clarence Thomas.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Term. of the Parent-Child Rel. of: K.T.K., K.C., and K.R.K. (Minor Children), and R.C. (Mother) v. Indiana Dept. of Child Services, Dearborn County Office, a 14-page, 5-0 opinion, Justice Rucker writes:

Indiana Department of Child Services successfully petitioned to terminate Mother and Father’s parental rights regarding their three children, K.T.K., K.R.K., and K.C. The trial court concluded that the Department of Child Services provided clear and convincing evidence that the conditions resulting in the children’s continued placement outside of the home would not be remedied and that termination of parental rights was in the best interests of the children. Concluding that the record supports the trial court’s findings, we affirm the judgment of the trial court. * * *

On November 4, 2011, Mother filed a timely appeal of the trial court’s Order. On February 13, 2012, Father filed an appeal of the Amended Order but Mother did not. In a memorandum decision the Court of Appeals affirmed the trial court’s order terminating Father’s parental rights. See In re K.T.K., No. 15A01-1201-JT-14 (Ind. Ct. App. Aug. 8. 2012). Due to some procedural missteps by Mother, a divided motions panel dismissed Mother’s appeal with prejudice. In re K.T.K., No. 15A01-1201-JT-14, Order Granting Motion to Dismiss (Ind. Ct. App. May 11, 2012). Both Mother and Father petitioned for transfer. We grant Mother’s petition and thereby set aside the Court of Appeals order dismissing Mother’s appeal. See Ind. Appellate Rule 58(A). In a separate order issued today, we deny Father’s petition to transfer. Additional facts are set forth below as necessary. * * *

We conclude that the evidence supports the trial court’s finding that Mother was not able to provide for her Children and termination of Mother’s parental rights was in the Children’s best interests. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Jesus S. Gil v. State of Indiana , an 11-page opinion, Judge Mathias writes:

Jesus S. Gil (“Gil”) pleaded guilty to Class B felony burglary and was sentenced to twelve years in the Indiana Department of Correction with two years suspended to probation. Gil now appeals and raises four issues, which we restate as:
I. Whether the trial court abused its discretion by failing to specify written probation terms, by imposing a fine and restitution on Gil, or by making restitution joint and several; and
II. Whether the sentence was inappropriate in light of the nature of the offense and character of the offender.
We affirm in part, reverse in part, and remand. * * *

We reverse and remand with instructions for the trial court to enter a written order regarding probation conditions and terms and for the trial court to hold a new restitution hearing. We also conclude that the trial court’s sentence was not inappropriate in light of the nature of the offense and Gil’s character.

NFP civil opinions today (1):

Richard Brock and Gail Brock v. Pamela Gilbert (NFP)

NFP criminal opinions today (2):

Bennie Gavin v. State of Indiana (NFP)

Joshua Schulkers v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Warrick County fills new magistrate post"

Rich Miller of Warrick 14News had this item yesterday:

The Warrick County courts have appointed Jacob Zach Winsett to fill the newly created magistrate position. The position was created by the Indiana General Assembly during the 2013 legislative session as the result of a Bill authored by State Rep. Ron Bacon, co-authored by State Rep. Suzanne Crouch and sponsored in the Senate by Vanetta Becker. The position is funded by the State, and the magistrate serves at the discretion of the three Warrick County judges.

Winsett is a partner in the firm of Scales & Winsett in Boonville. He was selected from a panel of 27 applicants. * * *

A magistrate is an appointed judicial officer who exercises substantially the same powers and authority as an elected judge.

Winsett will be initially assigned to hear misdemeanor, small claims, protective order, paternity and reciprocal child support cases. He will assume his responsibilities on August 5.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Indiana Courts

Ind. Courts - "Court funds spark debate at Jeffersonville council meeting"

From a story by Braden Lammers in the Jeffersonville News & Tribune:

Minor changes to the city of Jeffersonville’s salary ordinance led to an extended debate about city courts funds Monday night.

The ordinance — 2013-OR-12 — was passed on its second reading, but not before the funding of a part-time clerical position was questioned.

City Council Attorney Scott Lewis said the position — which was being funded out of the city’s alcohol and drug program fees — was not allowable according to the State Board of Accounts and an Indiana Supreme Court ruling. A similar situation became an issue following a State Board of Accounts report in Clark County. Then Clark County Superior Court No. 3 was cited as improperly using its drug and alcohol funds to pay for staff and court services.

Former Clark County Superior Court No. 3 Judge Steve Fleece said at the time part of his rationale for the expenditures was related to a lack of funds in other county offices. Current Clark County Circuit Court No. 3 Judge Joseph Weber said issues about improper usage were first brought to his attention in late-2009. The issues have since been resolved.

“There were various expenses that were being paid from that fund ... that the county has to use out of the general fund and not nonreverting funds” Lewis said, who also serves as the Clark County Council attorney. “And when you read it, the statute, which creates a county alcohol education program is the same statute that creates a city alcohol program. The audit applies the same way to the city.”

Jeffersonville City Court Judge Ken Pierce said he was upset that he was not notified that the issue of changing the source of funds for the part-time position was in the salary ordinance. The part-time clerk paid out of the alcohol fund is filled as needed, generally with high school or college students. There is no one hired for the position at present.

Lewis also questioned the funding of the city court manager/reporter.

“You can’t use probation user fees to pay your court reporter’s salary,” he said.

But part of the concern for Pierce is that the change may cost him future staff.

“Now I’m especially low on staff, because — I think we’ve had this discussion before. I thought I was going to retain two staff employees and that was changed without my knowledge,” Pierce said. “Now I just have one court employee.”

Pierce was referencing a change earlier in the year that moved city court employees under control of the clerk’s office, which resulted in a lawsuit between the two entities. He added that during the past four years, no city attorneys have questioned the use of his probation user funds, nor has city council, and he has not been cited by the state board of accounts for improper use of the funds.

“I am going to find out [what is right] before I pass anything,” said Councilwoman Lisa Gill. “It has nothing to do with trying to take a position away. It’s just trying to make sure things are paid out of the funds legally and appropriately.”

The council agreed to move the court recorder’s salary into the general fund and allow Pierce time to investigate the appropriate usage for the clerical nonreverting alcohol program funds.

Other changes to the ordinance before its passage included clarification of language about the rates of pay for the chiefs of the city’s police and fire departments, the change in a city stipend from $500 to $50 per month and a change to longevity pay for the police and fire departments being subject to union contracts.

The second reading passed 8-0, with Councilman Zach Payne absent from the meeting. A final reading is still required before the salary ordinance is approved.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Indiana Courts

Ind. Courts - "Summaries of select bills or portions of bills of interest to the judiciary that were signed into law in the 2013 legislative session"

The Indiana Judicial Center's Legislative Update for the 2013 legislative session has a final installment.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Indiana Courts

Law - Minneapolis "Barnes and Thornburgh partner is killed; authorities suspect shooter was boyfriend, who also died"

Debra Cassens Weiss of the ABA Journal Blog has collected the Minnesota newspaper stories here. A quote:

[Nancy Sullivan, 57] had expertise in ERISA and employee benefits, and served as pro bono coordinator for Barnes & Thornburgh’s Minneapolis office, according to her law firm profile.

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to General Law Related

Ind. Law - Switchblades okay on and after July 1

Maureen Hayden of CNHI reports today in the Kokomo Tribune:

Indianapolis — For more than a half-century, the only legal access most Hoosiers had to switchblades was viewing them in the hands of youthful hoodlums in movies such as West Side Story and Rebel Without a Cause.

That will end soon.

Come July 1, Indiana will join a growing number of states rolling back their decades-old prohibitions on automatic spring-loaded knives, better known as switchblades.

A small provision tucked into a larger hunting and fishing bill does away with a 1957 law that made it a misdemeanor crime to manufacture, possess, display, offer, sell, lend, give away, or purchase switchblades in Indiana.

“It was an obsolete law,” said state Sen. Jim Tomes, a Republican from Posey County who supported the change.

His argument: There is very little difference between the illegal spring-loaded switchblade of the past and the one-handed, spring-assisted handheld knives that are legally on the market and widely sold today. * * *

[Although Tomes bill didn't get a hearing in a House committee] a legislative conference committee put the switchblade language into House Bill 1563, a wildlife and fishing bill that makes it legal for hunters in Indiana to use lawfully possessed suppressors, also known as silencers, on firearms while hunting. That House bill, signed into law in May by Indiana Gov. Mike Pence, goes into effect July 1.

ILB: This is also the bill that repeals IC 14-22-6-11, the general provision in IC 4-22-6 that prohibits silencers (see SECTION 5 of HEA 1563), replacing it with more specific provisions (see SECTIONS 17 and 18).

Posted by Marcia Oddi on Wednesday, June 05, 2013
Posted to Indiana Law

Tuesday, June 04, 2013

Courts - "Teacher Wins Case Against Archdiocese"

Sounds familiar? The ILB just yesterday posted another entry re Emily Herx's lawsuit against the Diocese of Fort Wayne-South Bend.

But this case is out of the 6th Circuit, not the 7th. Steven Harmeyer writes today for WRBI Radio:

A teacher who sued the Catholic Archdiocese of Cincinnati for firing her after she became pregnant through artificial insemination won her anti-discrimination lawsuit Monday.

Christa Dias, a former computer teacher, was fired in October 2010 after informing the schools of her pregnancy. The archdiocese said Dias was fired for violating her contract.

Steven Goodin, the attorney for the archdiocese and the schools, argued Dias was fired for violating her contract. The church considers artificial insemination immoral and a violation of church doctrine, and the contract required her to comply with the philosophies and teachings of the Catholic Church.

A jury awarded her more than $170,000.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Courts in general

Ind. Decisions - More on: Transfer list for week ending May 31, 2013

Yesterday's ILB transfer list posting has now been updated with case details.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "Gingerich Waiver Hearing On Hold"

Updating a long list of earlier ILB posts, Deb Patterson reports today for Stacy Page Online, out of Kosciusko County, in a long story that begins:

The wavier hearing for Paul H. Gingerich, 15, which was set for 9 a.m. this morning, has been vacated with no new date set. A pre-trial conference via telephone will be held at another date with the two attorneys and a special judge.

Indiana Court of Appeals remanded the case of Gingerich’s conviction for conspiracy to commit murder back to Kosciusko County Juvenile Court to rehear the juvenile waiver hearing. The Indiana Supreme Court denied a petition to hear the case.

Gingerich, now 15, is serving a 30-year sentence, five years suspended after pleading guilty in 2010 to an adult charge of conspiracy to commit murder in the April 2010 shooting death of Philip Danner. Gingerich is serving his sentence at Pendleton Juvenile Correctional Facility.

Special Judge James Heuer from Whitley County Juvenile Court has taken under advisement two motions filed, one by the Kosciusko County Prosecutor, the other by Gingerich’s legal counsel, Monica Foster.

On May 6, Kosciusko County Prosecutor Dan Hampton filed a motion for a mental evaluation and transport orders. This request was based on comments by the state’s appeal court justices in ordering the case back to juvenile court.

Hampton has requested the court allow the state the opportunity for a mental evaluation of Gingerich and to have him transported to that facility. Hampton noted in his request that, through the course of the appellate process, the juvenile argued insufficient time established for having mental evaluations by the defense. It was addressed whether it would be in the best interest of the child and for the safety and welfare of the community for the child to remain within the juvenile justice system.

In his filing Hampton noted, “… the State of Indiana believes that the juvenile intends to offer mental evaluation reports of him to this court and, in an interest of justice, the State of Indiana should have the same opportunity.”

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Indiana Courts

Law - "State Legalization of Recreational Marijuana"

Here is a 32-page, April 5, 2013 report by the Congressional Research Service on "selected legal issues." The summary begins:

May a state authorize the use of marijuana for recreational purposes even if such use is forbidden by federal law? This novel and unresolved legal question has vexed judges, politicians, and legal scholars, and it has also generated considerable public debate among supporters and opponents of “legalizing” the recreational use of marijuana.

Under the federal Controlled Substances Act (CSA), the cultivation, distribution, and possession of marijuana are prohibited for any reason other than to engage in federally approved research. Yet 18 states and the District of Columbia currently exempt qualified users of medicinal marijuana from penalties imposed under state law. In addition, Colorado and Washington recently became the first states to legalize, regulate, and tax small amounts of marijuana for nonmedicinal (so-called “recreational”) use by individuals over the age of 21. Thus, the current legal status of marijuana appears to be both contradictory and in a state of flux: as a matter of federal law, activities related to marijuana are generally prohibited and punishable by criminal penalties, whereas at the state level, certain marijuana usage is increasingly being permitted. Individuals and businesses engaging in marijuana-related activities that are authorized by state law nonetheless remain subject to federal criminal prosecution or other consequences under federal law.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to General Law Related

Ind. Courts - A half-dozen new disciplinary orders posted

The Court has now posted six new disciplinary orders, all filed May 30th.

Also posted is an order amending the 29-page suspension order posted May 31st (see earlier ILB entry here), to remove the name of Douglas Peters.

The ILB notes that also erroneously named, on p. 14 of the list, is Frederick F. Eichhorn Jr., a former president of the Indiana University Board of Trustees, who passed away October 3, 2012.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In City of Indianapolis v. Rachael Buschman, a 6-page, 5-0 opinion, Justice Massa writes:

This case presents a single question: when a claimant includes information in her tort claim notice beyond that required by the Indiana Tort Claims Act, may that information operate to restrict the scope of her claim? As the statute imposes no such sanction and we are bound to construe it narrowly, we answer that question in the negative. * * *

The City argues Buschman’s notice was inadequate to inform it that Buschman intended to bring a personal injury claim because the notice stated “No injuries.” We disagree. * * *

The purpose of the ITCA is “to advise the city of the accident so that it may promptly investigate the surrounding circumstances.” * * *

Like any statute in derogation of the common law, the ITCA “must be strictly construed against limitations on the claimant’s right to bring suit.” * * *

We note that a previous version of this statute did require “written notice,” including “a brief general description of . . . the nature and extent of the injury to person . . . .” Ind. Code § 48-8001 (Burns 1963). The current statute does not include the words “the nature and extent of the injury to person.” We find this persuasive evidence that the legislature, when it amended the statute, intended to remove any pre-existing requirement of specificity in regards to personal injuries. See Miller v. Walker, 655 N.E.2d 47, 49 (Ind. 1995) (Sullivan, J., dissenting) (“An amendment changing a prior statute indicates a legislative intention that the meaning of the prior statute has been changed.”). * * *

We affirm the trial court’s grant of summary judgment in Buschman’s favor as to the adequacy of her tort claim notice and remand this case for further proceedings consistent with our opinion.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Major Repairs Needed At LaGrange Courthouse"

From WLKI in NE Indiana, this report today:

(LAGRANGE) - LaGrange County faces some major repairs to the courthouse in LaGrange. County Commissioner Larry Miller reported on Monday on his trip to the top of the historic structure.

"The four cupolas up there on each corner are in dire need of help. We're getting leaks and stuff downstairs in the courtrooms down below and the offices down below. There's no need of even fixing those until the roof is fixed. The last time the dome was painted was 1992."

Miller said along with the roof many windows are in need of attention. "The sills beneath the windows on the lower part, the bottom windows are the worst. The sills under all the windows are deteriorating. The stone down below goes up about five feet. They're not field stone but it's a stone part of the footer foundation part, those need to be cleaned out. The grout lines need to be re-mudded in. The footer part of it is deteriorating."

The county is currently seeking quotes from three contractors to estimate the cost of the repairs. County Attorney Kurt Bachman told the commissioners if the estimates are between $50,000 and $150,000 then the county can make a decision based on the quotes. If the project estimate exceeds $150,000 then they will have to seek competitive bids. They hope to have the quotes in time for the next commission meeting on June 20th.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Indiana Courts

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

For publication opinions today (1):

In Cesar Chavez v. State of Indiana , an 8-page opinion, Judge Najam writes:

Cesar Chavez appeals his five convictions for child molesting, each as a Class C felony. Chavez raises two issues for our review, which we reorder and state as follows: (1.) Whether the State’s five counts against Chavez were in violation of the continuing crime doctrine. (2.) Whether the State’s charging information, which stated five identically worded counts against Chavez, denied Chavez due process. We affirm in part, reverse in part, and remand with instructions. * * *

In sum, we hold that the State’s five counts for child molesting were in violation of the continuing crime doctrine. Applying that doctrine to the facts in this case, we hold that Chavez committed two chargeable crimes, not five. We also hold that Chavez did not preserve his objection to the charging information, and, on appeal, he has not demonstrated fundamental error in the information. Accordingly, we affirm in part, reverse in part, and remand with instructions that the trial court vacate Chavez’s convictions under Counts II, III, and V.

NFP civil opinions today (1):

Jason Ulysses Harmon v. United States Steel Corporation f/k/a USX Corporation (NFP)

NFP criminal opinions today (4):

Matthew J. Bulliner v. State of Indiana (NFP)

Stephen R. Hollingsworth v. State of Indiana (NFP)

Mark Bonds v. State of Indiana (NFP)

Charles D. Gilliam v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Ind. App.Ct. Decisions

Environment - "Great Lakes event seeks more data on Asian carp"

Justin Mack has the story today in the Lafayette Journal Courier. Some quotes:

The annual gathering features a variety of daily presentations on the Great Lakes and other large lakes. Among the topics discussed Monday was the impact of invasive species — namely Asian carp.

The topic came up at the conference just two days after Illinois Gov. Pat Quinn made headlines by calling a separation of the Great Lakes and Mississippi River systems the "ultimate solution" to keeping carp from overrunning the lakes.

Asian carp sessions held during day two focused on better understanding of the species and their impact on the Great Lakes. Presenters discussed everything from the effect Asian carp have on native aquatic species to the rate at which the carp shed DNA.

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Environment

Courts - More on: Maryland v. King: Justice Scalia filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan.

Updating this ILB entry from yesterday, Nini Totenberg of NPR has this nearly 5-minute report on the opinion yesterday. Some quotes:

The Court's ruling came in the case of Alonzo King, arrested in Maryland for menacing a crowd with a gun in 2009. Police took a DNA swab from his cheek and sent the DNA to a national database, where it showed a match to a rape six years earlier. King was subsequently tried for and convicted of the rape, but the conviction was thrown out on grounds that there was no warrant and no individualized suspicion that justified taking the DNA sample.

On Monday, the U.S. Supreme Court restored the conviction, comparing such DNA sampling to photographing and fingerprinting suspects when they are booked.

Writing for the five-justice majority, Justice Anthony Kennedy acknowledged that taking a DNA sample is a search, but the Fourth Amendment bars unreasonable searches, he observed, and a "gentle" swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.

Kennedy noted that Maryland's law provides for automatic DNA testing of arrestees only when they are accused of "serious" crimes, and that the law bars any collection or use of DNA to detect private genetic information. In such circumstances, the court said, DNA collection is a legitimate booking procedure.

Joining Kennedy in the majority were three of the court's conservative justices — Samuel Alito, Clarence Thomas and Chief Justice John Roberts — plus the more liberal justice Stephen Breyer.

A Fiery Dissent

But Scalia, a staunch conservative, in a rare oral dissent from the bench, excoriated the majority. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside "a bedrock rule of Fourth Amendment law." Scalia lacerated the court's assertion that the DNA sample was taken to identify King, saying that it "taxes the credulity of the credulous."

"Make no mistake about it," he warned. "Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

"But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection," he said.

Emily Bazelon of Slate has a long, interesting article headed "They’re Coming for Your DNA." Here is a sample:

Here are the background facts: All 50 states collect DNA from people who have been convicted of crimes, and that’s not what’s at issue here. Instead, we’re talking about whether the states can widen their databases of genetic material to include people who have been arrested and not yet found guilty. Kennedy presents this as merely a basic booking procedure. It’s like fingerprinting, he says, and “the legitimate government interest” is “the need for law enforcement officers in a safe and accurate way to process and identify the persons and posses­sions they must take into custody.” It’s a simple matter of allowing the police to make sure they know whom they’ve got, and alerting judges about whether the person who has been arrested has a record, so they can take that into account in deciding whether to release him on bail.

Kennedy is also unconcerned about the level of intrusion. Cheek swabs count as a search under the Fourth Amendment, which protects us all from unreasonable searches and seizures. But since swabbing is minimally intrusive, it’s no big deal. The majority also dismisses the privacy concerns that come with DNA collection: “The argument that the testing at issue in this case reveals any private medical information at all is open to dispute,” Kennedy says.

Has Kennedy never watched a TV crime show? That is basically Scalia’s opening question, in an opinion he felt strongly enough about to read from the bench—not the standard practice. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” he writes. Then he decimates Kennedy’s discussion of booking and bail with a few obvious and unchallenged facts: It took weeks to test the DNA of Alonzo King, the arrested man who challenged Maryland’s DNA collection law, and months for the samples to come back from testing. By then, booking, arraignment, and bail were long over. “Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. “The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.” Nor is Maryland particularly slow relative to the other states—in fact, it’s perhaps a bit faster.

Why did Kennedy write his opinion in a way that makes him sound like the last guy on Earth to discover Law & Order? Because the Supreme Court has never held that if the police have probable cause to make an arrest, they can also search a suspect for evidence of past or future crimes. Think about it for a second: Should getting arrested because you’re the suspect in one burglary mean the police can go search your house, without a warrant, on the theory that you might have stolen additional property? If the real purpose of taking DNA from someone who has been arrested is to match his profile against the national database of unsolved crimes, then the court would have to admit to making a big and unprecedented move—one that allows the government to ensnare more and more of us in a thickening web of our own data. Law enforcement over liberty, by a wide margin.

What about Indiana? Tim Evans has a story in today's Indianapolis Star headed "Indiana experts point out pros, cons of DNA ruling." Some quotes:
The ruling drew mostly positive reviews in Indiana, where DNA samples currently are collected only after a conviction for a felony offense against a person or for burglary. * * *

A bill that would have brought Indiana more in line with those other states died in a Senate committee earlier this year.

“I thought it was a good bill but some people had questions and we knew the Supreme Court was going to weigh in, so we decided to wait to see which way they ruled,” said Sen. Brent Steele, R-Bedford, who chairs the Senate Judiciary Committee.

Steele and State Rep. Greg Steuerwald, R-Danville, who chairs the House Judiciary Committee, said they are willing to give a similar bill consideration now that the constitutional question has been answered.

[More at 12:16 PM] See this from Sharon Hernandez of the Elkhart Truth: "How does it affect Indiana?"

Posted by Marcia Oddi on Tuesday, June 04, 2013
Posted to Courts in general

Monday, June 03, 2013

Ind. Decisions - Further updating "Teacher Fired After Receiving Fertility Treatments"

Updating a long list of ILB entries on Emily Herx's lawsuit against the Diocese of Fort Wayne-South Bend, Charles Wilson of the AP reports today:

INDIANAPOLIS — A federal judge has given a Catholic diocese in northern Indiana permission to keep some records under seal as lawyers prepare for a possible trial over a former teacher's claim that she was fired because she had in vitro fertilization.

Emily Herx's lawsuit against the Diocese of Fort Wayne-South Bend addresses the constitutional balance between reproductive rights and religious rights and could determine which one trumps the other.

Although both sides say the latest move is routine in cases involving employment, it seems to have particular significance in Herx's case because the key to the dispute is whether religious requirements are a condition of her employment as a parish school teacher.

The order filed May 17 in federal court in Fort Wayne applies to both sides. It covers personnel records, medical records and financial records. It also covers records involving parishioners and students. * * *

"It's pretty much standard operating procedure," Sean McBride [, a spokesman for the Diocese] said.

Herx's attorney, Kathleen Delaney of Indianapolis, agreed - to a point.

Delaney didn't oppose the confidentiality motion, which covers both sides and applies through the pretrial phase when both sides share the evidence they might present during trial. But, she noted, the whole case revolves around the very issues that the diocese wants to keep private.

"It will become more difficult to seal records as the case progresses because the courts are supposed to be open and public," Delaney said. Court rules for the 7th U.S. Circuit, which includes Indiana, bar judges from "rubber stamping" requests to close records.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Would-be robber shot dead: Resident fires on pair who attacked him on his porch"

Archie Ingersoll has a story today in the Fort Wayne Journal Gazette that begins:

A man outside his south-side home almost became a robbery victim Saturday night, but rather than surrender, he pulled out his handgun and fatally shot one of his attackers, Fort Wayne police said.

The man was on or near the front steps of 710 W. Packard Ave., the apartment house where he lives, when two men approached him. The pair tried to rob him, and he responded by shooting one of them several times, said Sgt. Mark Brooks, a police spokesman.

The other would-be robber was not shot, and he ran north through the neighborhood. On Sunday evening, he was still at large, Brooks said.

The man who opened fire immediately called police to report what had happened. Officers and medics arrived about 11 p.m. at the apartment house at West Packard and South Wayne avenues, and the man with gunshot wounds was declared dead. Near his body, investigators found a weapon, but Brooks declined to say what type of weapon.

The man who drew his gun received a minor gunshot wound to his foot during his encounter with the two assailants. He was treated at a hospital and released, police said.

Brooks said the shooting appears to have occurred the way the man and witnesses reported it to police. And while the Allen County Prosecutor’s Office will decide whether the shooting was in self-defense, the sergeant said it appears some of the criteria for such a classification were met.

“If someone tried to rob you on your front porch … you could be justified in using force to protect yourself, including deadly force,” he said.

ILB: And what statute may apply? IC 35-41-3-2(d):
(d) A person:
(1) is justified in using reasonable force, including deadly force, against any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
So what is "curtilage"? According to one online dictionary, it is:
The area, usually enclosed, encompassing the grounds and buildings immediately surrounding a home that is used in the daily activities of domestic life.
The term is most frequently seen in 4th Amendment cases. For instance, "curtilage" was used in at least one SCOTUS decision this term, the case of Florida v. Jardines. See the March 28, 2013 ILB post here, quoting from WIRED:
A divided Supreme Court on Tuesday gave notice to the nation’s law enforcement officials that they generally need search warrants to employ drug-sniffing dogs outside a home to detect whether drugs are inside.

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

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

On the other hand, in the Sept. 19, 2012 COA opinion in Michael Carpenter v. State of Indiana, trans.den., the panel concluded:
Carpenter raises one issue, which we restate as whether the trial court properly admitted evidence found when officers attempted to serve an arrest warrant at the residence where he was living. * * *

We conclude that the officers did not violate Carpenter’s Fourth Amendment rights when they entered the house’s curtilage pursuant to an arrest warrant and looked into the bathroom window. * * *

The officers here had reason to believe that Howard lived at the residence and was present, and thus, the degree of suspicion was moderate. The degree of intrusion into Carpenter’s residence was minimal, and the extent of the law enforcement needs was moderate. We conclude that the officers’ entry into the curtilage and looking into the bathroom window did not violate Article 1, Section 11 of the Indiana Constitution.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Courts

Courts - Maryland v. King: Justice Scalia filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan [Updated]

Here is SCOTUSblog's Lyle Dennison's "opinion recap/analysis" of today's opinion, headed "Solving 'cold cases' made easier." Some quotes from the start of the long post:

Treating the solution of unsolved crimes as a legitimate part of routine police station “booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “serious” new crime. What a suspect may have done in the past, the Court majority ruled, is a part of the profile that police may constitutionally begin to assemble at the time of arrest for a separate offense.

Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling in the case of Maryland v. King (docket 12-207) involved little more than what happens when police take a suspect’s fingerprints or mug shot. But Justice Antonin Scalia, writing for the dissenters, said the Court had validated the use of scientific evidence taken without a warrant not to make an identification but to gather evidence to solve cold cases — something he said the Court has never allowed before.

The Kennedy and Scalia opinions were almost totally at odds with each other, in tone and in substance. The majority. although writing at considerable length, sought to make it appear that the outcome was easily reached and involved no real alteration of existing constitutional norms. It also made no effort to respond to the dissenting opinion.

The dissenters argued that the Court was casting aside a long-standing rule that police may not take scientific samples involuntarily from an individual, if their only purpose is to solve a prior crime.

[Updated at 4:20 PM] "Analysis: With trademark vigor, Justice Scalia dissents in DNA case" is the headline to Joan Biskupic's Reuters' analysis.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Courts in general

Ind. Courts - A Big June at the Indiana Supreme Court?

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

For the past several years, the Indiana Supreme Court has issued about 25% of its opinions during the month of June—the last month of its fiscal year.* The Court is not on an official term like the U.S. Supreme Court, which issues opinions in all argued cases before its summer recess, but the justices have generally pushed fairly hard in June to issue opinions in cases that have been pending more than a few months.

Cases to Watch

Opinions have not yet been issued in fifteen cases that were argued more than three months ago. Many of these are likely to be decided this month, although there is no requirement or even practice of deciding the oldest cases first. The Court’s annual reports do not include statistics on the length of time cases are pending. In contrast, the Court of Appeals’ annual report includes an “Average Age of Cases Pending” (an impressive 1.0 month in 2012, down from 1.2 months in 2011) and a table of cases pending by judge, which ranges from a low of 11 (Judge Brown) to a high of 22 (Judges Kirsch, May, and Pyle).

As shown on the tables below, the oldest pending cases include one argued in October, another in November, and four argued in December. The legislative fines case, which was argued January 3, is the seventh oldest case. One of the December cases includes a parenting time case, expedited under the Court's rules, discussed in this post.

Civil Cases
Date of OA Case Name Issue
11/21/12 Manley v. Sherer “continuing wrongs” effect on statute of limitations
12/7/12 Comm. Labor v. Int’l Union ... payment for accrued but unused vacation
12/13/12 Perkinson v. Perkinson parenting time
12/13/12 Wright v. Miller striking experts for violation of discovery deadline
1/3/13 Berry v. Crawford legislative fines
1/17/13 City of Indianapolis v. Buschman sufficiency of notice under Tort Claims Act
1/31/13 Schoettmer v. Wright compliance with notice provisions of Torts Claims Act
2/14/13 Johnson v. Wysocki fraudulent misrepresentation in home purchase
2/14/13 M&M Inv. v. Ahlemeyer Farms constitutionality of Indiana’s pre-tax-sale notice statute
2/14/13 Santelli v. Rahmatullah motel owner’s liability under “very duty doctrine”

Criminal Cases
Date of OA Case Name Issue
10/11/12 Fry v. State constitutionality of presumption against bail in murder cases
12/20/12 Garrett v. State PCR: double jeopardy claim for retrial after hung jury
1/3/13 McWhorter v. State PCR: jury instruction & double jeopardy claim
1/10/13 Passwater v. State PCR: insanity defense instruction
1/31/13 State v. Oney PCR: withdrawal of HTV guilty plea after underlying conviction

Note: Excluded from the list is Rice v. State, a case argued February 7 in which the Court then issued an order allowing the trial court to correct its sentencing order followed by additional briefing.

A Break from Unanimous Opinion?

Earlier posts recounted the remarkable unanimity among the justices since Justice Sullivan’s retirement last July. From August 2012 through March of 2013, the justices issued unanimous opinions in 92% (34/37) of criminal and civil cases. In March and April, seven of eight opinions were unanimous while one opinion, VanPatten, had a separate concurring opinion by Justice Massa joined by Justice Rush.

As this recent NYT column by Adam Liptak remarked about the U.S. Supreme Court: “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.”

I’m not suggesting anything approaching the heated disagreements we regularly see from SCOTUS, but I would be surprised if at least some of the long-pending cases listed above are not resolved by opinions that include separate concurring and/or dissenting opinions.

Of course the Court may opt not to issue opinions in some of these cases, instead deciding to vacate the grant of transfer if during the writing process a consensus cannot be reached or the justices otherwise conclude the case does not warrant a Supreme Court opinion. For example, the Davis v. Simon personal jurisdiction case was resolved by reinstating the Court of Appeals’ opinion (on a 2-2 vote) seven months after oral argument was heard. Eleven months after hearing oral argument the justices (by a 3-2 vote with a lengthy dissent) denied transfer in Wells v. State, which involved the joinder of criminal charges. The increasing common practice of vacating transfer is discussed in this post, from earlier today.

A denial of transfer seems nearly impossible for the legislative fines case, though, which is before the Court on an emergency petition to transfer under Appellate Rule 56(A). That rule allows parties to bypass the Court of Appeals “upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination.” Emergency transfer was granted on February 8, 2012 — nearly fifteen months ago. In contrast, Bonney v. Indiana Finance Authority, the Toll Road case, was briefed, argued, and decided on emergency transfer in a mere 15 days after the filing of a notice of appeal in June of 2006.


*One notable exception was last year, when the Court issued 30 opinions in March (Chief Justice Shepard’s last month on the Court) and 18 in July (Justice Sullivan’s final month) but only 12 in June. Between 2008 and 2011 the Court issued between 23 and 26 opinions during the month of June.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Schumm - Commentary

Ind. Courts - More on "Lesbian mom had tough fight for custody"

Updating this entry from earlier today, where the ILB wrote:

The ILB does not yet have the cites to the Indiana cases mentioned above.
A reader has helpfully pointed to this May 14, 2007 ILB entry, linking to a May 2007 Res Gestae article titled "Family law issues concerning gays, lesbians and their children under Indiana law."

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Courts

Ind. Decisions - "Transfer Granted then Vacated after Oral Argument"

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

This recent post discussed the growing trend of the Court scheduling oral argument in criminal cases to decide whether to grant transfer.

Another trend in recent months in both civil and criminal cases has been orders vacating a grant of transfer after hearing oral argument. As shown below, the Court has issued such orders in nine cases this fiscal year.

Indiana Supreme Court orders vacating a grant of transfer after hearing oral argument
Case Name OA date Transfer Vacated
Billingsley v. State May 6, 2013 May 30, 2013
Davis v. Simon October 24, 2012 May 24, 2013
Humphrey v. State March 7, 2013 March 28, 2013
Wade v. Terex-Telelect January 3, 2013 March 18, 2013
Wells v. State March 22, 2012 February 21, 2013
Lawrence v. State January 31, 2013 February 4, 2013
Ohio Farmers v. Indiana Drywall January 17, 2013 January 24, 2013
Whiskey Barrel Planters v. American GardenWorks October 24, 2012 October 29, 2012
St. Joseph Hospital v. Cain September 27, 2012 October 2, 2012

The increased frequency of transfer denials after oral argument may be attributable to the relatively young Court, which has seen three new justices appointed in a little over two years. Moreover, reinstating a clear Court of Appeals’ opinion is arguably preferable to issuing a fractured Supreme Court opinion, at least in some cases.

But the practice changes how lawyers should approach oral argument. If transfer hasn't been granted, lawyers focus some of their argument on why it should or should not be granted. If it has been granted, lawyers focus on why they should prevail in the case. Indeed, Chief Justice Dickson began the recent oral argument in Gulzar v. State, a case in which transfer had not been granted with the following comments: “Remember in this case transfer has not been granted yet, so the first thing we will take up after we retire to discuss the case is whether or not to grant transfer. If we grant transfer we will endeavor to decide this case.”

An effective oral argument strategy in some cases may be that transfer should be vacated. A grant of transfer requires three votes, and if two of the justices are opposed to a grant of transfer they need only convince one of their colleagues to change his or her vote in order to vacate the grant of transfer. The January 31 argument in Lawrence v. State provides a good example of how this could play out, as two of the justices repeatedly asked, “Why is this a Supreme Court case?” Days later, it wasn’t.

No Longer “Improvidently Granted”

Orders vacating transfer under Chief Justice Shepard recited language that transfer had been “improvidently granted.” An early order under Chief Justice Dickson used the same language. That language has been jettisoned since late June of 2012, and now the orders recite the following:

After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as [case name and citation] should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Schumm - Commentary

Ind. Courts - St. Joseph Superior Court Chief Judge Michael Scopelitis retires after 13 years on bench

This long story, with photo, \ by Madelline Buckley is available on the South Bend Tribune web site. Some quotes:

During his tenure as chief judge, Scopelitis, among other things, oversaw a project that is in progress to build four more county courtrooms, launched a bid to raise salaries for court employees and altered the way the county assembles a pool of potential jurors.

The salary problem was a particular pet project of Scopelitis's, as he said many employees of the court and clerk's office earn wages barely above the poverty line.

"There's something wrong with any system, especially a government entity, that pays its employees so little that it makes them eligible for government subsidies," Scopelitis said.

Noting that the employees here handle complicated and crucial legal issues and documents every day, he took the cause to county officials last year. The court employees did get a raise, although it was not what Scopelitis had hoped.

In researching the issue, Scopelitis said he compared the salaries of court workers here to those in the 17 most populous counties in Indiana.

The salaries of St. Joseph County employees fell at the bottom. After the raises, he said, the salaries are still near the bottom of that group.

In an open letter to county judges, attorneys and court staff regarding his retirement, Scopelitis urged them to continue fighting for a fair wage.

He also sought to address the issue of overcrowding in the current county courthouse.

Four new courtrooms are currently under construction in the County-City Building where the jail formerly was, estimated to be completed next April.

The four criminal Superior Court judges will move to those courtrooms, freeing up the courtrooms in the current courthouse for the four civil court judges, who share a space now.

The move will also create space for the county to potentially petition to hire additional traffic and misdemeanor magistrates. The current two are overburdened, Scopelitis said, but the county currently has no space for more magistrates. * * *

Upon Scopelitis's departure, St. Joseph Superior Court Judge Jenny Pitts Manier will be chief judge, a role that Scopelitis joked is like "chief maintenance officer," as even issues like courthouse plumbing will fall under her purview.

Private practice attorney Steven L. Hostetler will replace Scopelitis on the bench.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Courts

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

In UNITED STATES OF AMERICA v. JEFFREY WEAVER (SD Ind., Lawrence), a 13-page opinion, Judge Flaum writes:

Jeffrey Weaver sold methamphetamine on credit to two buyers, who paid off their debts by selling the drugs to their own customers. (In trade parlance, this is known as “fronting” the drugs.) Weaver pleaded guilty to conspiring with those buyers to possess and distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, and the district court sentenced him to 235 months’ imprisonment, the bottom of the guidelines range calculated by the court. On appeal Weaver argues that the court overstated that range by assessing a 3-level upward adjustment for his perceived leadership role as a manager or supervisor of the conspiracy. See U.S.S.G. § 3B1.1(b). But there is no evidence that Weaver managed or supervised his buyers or any other participant, and thus we vacate the sentence and remand for resentencing.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Bryant E. Wilson v. State of Indiana, a 9-page, 2-1 opinion with an appellant pro se, Judge Crone writes:

Bryant E. Wilson appeals the denial of his motion to correct erroneous sentence. Because his sentencing judgment is not erroneous on its face, we affirm. * * *

On appeal, Wilson renews his argument that “the trial court lacked statutory authority in holding a part of his executed sentence in abeyance.” We take this to mean that the trial court allegedly lacked statutory authority to impose partially consecutive sentences. Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible.[3] Compare Hull v. State, 799 N.E.2d 1178, 1182 and n.1 (Ind. Ct. App. 2003) (disapproving of partially consecutive sentences for two counts of murder), with Merida v. State, 977 N.E.2d 406, 409-10 (Ind. Ct. App. 2012) (disagreeing with Hull’s rationale and noting that Ind. Code § 35-50-1-2 “does not specifically prohibit partially consecutive sentences such as the one imposed in Hull.”) (Crone, J., dissenting), trans. granted (2013). We note that Hull was decided more than seven years after Wilson was sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved of partially consecutive sentences.4 Simply put, Wilson’s sentencing judgment is not erroneous on its face, and therefore the trial court did not err in denying his motion to correct erroneous sentence. Consequently, we affirm.

FRIEDLANDER, J., concurs.
ROBB, C.J., dissents with opinion. [that begins, at p. 6 of 9] Because I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute, I respectfully dissent.

I recognize that if this subject were more settled, we would not have the split within our court to which the majority refers regarding the availability of partially consecutive sentences. Nevertheless, I believe that sentencing is a creature of the legislature and that we are limited to sentences that have been expressly permitted by the legislature. * * *

[and concludes] Because the sentence in question was not explicitly permitted by statute, I believe it was therefore erroneous. For that reason, I would reverse the trial court’s denial of Wilson’s motion to correct erroneous sentence.
[3] The dissent says that “[t]he statute relevant to consecutive and concurrent sentences provides that the court shall determine whether terms of imprisonment shall be served concurrently or consecutively, but does not provide a path for implementing partially consecutive sentences.” Indiana Code Section 35-50-1-2 does not specifically require that consecutive sentences be served seriatim, or one after another, and thus it could be said to authorize partially consecutive sentences. The trial court in Hull apparently believed this to be the case, and we do not find this belief unreasonable. We hope that our supreme court will put the matter to rest in due course.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 31, 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 31, 2013. It is two pages (and 20 cases) long.

Three transfers were granted last week:

The transfer in Phillip T. Billingsley v. State of Indiana, granted March 7, 2013, was vacated. See May 31st ILB post here.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - Summer study committee to look at requiring I.D. for food stamps

Maureen Hayden, CNHI Statehouse Bureau, has the story here in the New Albany News & Tribune. Some quotes:

Here’s one thing that lawmakers looking at the idea of requiring photo IDs for food-stamp users will find out: It’s been tried in other places and, so far, gotten nowhere.

Republican legislators in at least a dozen states have, without success, pushed similar proposals: They want people enrolled the federal Supplemental Nutrition Assistance Program — as the modern-day food-stamp benefit is known — to prove who they are, with a photo ID, when they use their food-stamp card.

SNAP is a federally funded program, created so poor people wouldn’t go hungry (the federal income eligibility is 130 percent of the poverty level, and benefits average about $130 a month.)

But state legislators reason they have the right to add the photo I.D. requirement because the states administer SNAP and issue the electronic benefit cards — which look like bank debit cards — on which the food stamp benefits are disbursed.

So far, the U.S. Department of Agriculture, which oversees SNAP, has turned back those efforts by letting states know it won’t waive the federal rules that require stores treat food-stamp users no different than anyone else.

The rules are in place for some reasons beyond the fact that poor people don’t always have I.D. Here’s one: Since food-stamps benefits are assigned to families, not individuals, requiring a photo ID could curb the ability of children of food-stamp card recipients to buy needed groceries.

What’s driving Republican legislators to push for the photo IDs anyway? The rapid growth of the SNAP program plus some disturbing reports of people trafficking their food-stamp cards, exchanging them for cash, drugs and guns.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Government

Ind. Courts - "Lesbian mom had tough fight for custody"

Today's Indianapolis Star has a long story by Dana Hunsinger Benbow, headed "Mom recounts fight for custody after coming out as lesbian." The flagship Gannett paper, USA Today, also runs the same story, in a more convenient, "unpaged" format. Access it here.

From about 2/3 through the story:

"A person's sexual orientation is not itself relative to custody or visitation," [Camilla Taylor, senior staff attorney and National Marriage Project director with Lambda Legal] said.

Indiana had some court cases in the early days of these custody battles that put it ahead of the nation.

In 1981, the Indiana Court of Appeals ruled in a case that homosexuality alone does not make an unfit parent. In 1994, the same court struck down restrictions on the activity of a lesbian mother with her partner. And in 2002, the court overturned a restriction prohibiting an unrelated same-sex person from staying overnight in a custodial parent's home.

More from the story:
[Angela Eden, 43, Anderson] writes ... in her newly released, self-published book, “If You Were Me: The Memoir of a Mother Torn Between What’s Right and What’s Easy.”
The book is available on Amazon.

The ILB does not yet have the cites to the Indiana cases mentioned above.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Indiana Courts

Law - "Rash of Kentucky lawyer suicides concerns colleagues"

Andrew Wolfson of the Louisville Courier-Journal has this very long story today. A few quotes:

... They are among at least a dozen lawyers in Kentucky who have committed suicide since 2010, including three in Louisville and three in Northern Kentucky. Half died in the past 12 months. All were men, their average age 53, and most were trial lawyers.

Kentucky doesn’t track suicides by occupation. But citing his recollection from 38 years of practice — and amid studies that show lawyers are six times more likely to kill themselves than the general population — Kentucky Bar Association President Doug Myers said the number of suicides among the state’s 17,500 lawyers is “disproportionate” and “disconcerting.”

Myers, who was so concerned that he wrote about the issue in a recent edition of the bar association’s quarterly journal, said in an interview that he doesn’t remember any similar spate of suicides by lawyers earlier in his career.

In a recent post, legal blogger Shannon Ragland, publisher of the Kentucky Trial Court Review, called the suicides by “middle-aged trial lawyers” an “apparent epidemic” and said the issue deserves serious attention and study by the KBA and the Kentucky Justice Association, the state trial lawyer group.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to General Law Related

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

From Sunday, June 2, 2013:

From Saturday, June 1, 2013:

From late Friday afternoon, May 25, 2012:

Posted by Marcia Oddi on Monday, June 03, 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 6/3/13):

Thursday, June 6th

Next week's oral arguments before the Supreme Court (week of (6/10/13):

Webcasts of Supreme Court oral arguments are available here.

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

Tuesday, June 4th

Next week's oral arguments before the Court of Appeals (week of 6/10/13):

Wednesday, June 12th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, June 03, 2013
Posted to Upcoming Oral Arguments

Sunday, June 02, 2013

Ind. Law - " New law, effective July 1, creates the crime of intimidation for using Internet social media sites to post threats."

Some quotes from a long May 26th NWI Times story by Susan Brown:

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said the Indiana Legislature recently expanded the intimidation statute to incorporate social media into the framework.

Powell said what triggered the effort was the experience of state Sen. Michael Crider, R-Greenfield.

"The intimidation statute was expanded under his bill to give law enforcement the tools to deal with these issues," Powell said.

The new law, which will take effect July 1, creates the crime of intimidation for using Internet social media sites to post threats.

It makes the crime a D felony if the threat is lodged against an employee of a school, hospital or church.

The crime rises to a C felony if the target is a prosecutor, deputy prosecutor, judge or bailiff, or if the threat is designed to interfere with the occupancy of a public building, that is, a bomb threat.

Crider, a retired Indiana conservation officer in Hancock County, serves as security manager at Hancock Regional Hospital.

"We had an individual who posted a threat to come there and shoot up the place," Crider said. "As you might imagine, it caused quite an uproar."

Crider said he took his concerns to his local prosecutor who determined that, under current statute he had no case, as the threats were against the hospital as opposed to an individual or specific doctor or other employee.

Crider said he asked whether this was, in fact, a gap in the law, which led to his bill.

"I'm pretty pleased with the final outcome of the bill," Crider said.

ILB: Here is the new law, SEA 361.

Posted by Marcia Oddi on Sunday, June 02, 2013
Posted to Indiana Law

Environment - Iron nuggets (pellets) plant back in the news, nine years later

This ILB entry from May 13, 2004 began:

The "iron nuggets plant" issue - whether a plant to process iron ore into nuggets, which can be used in mini-mills, will be built in Indiana (where the mill is and where the environmental permit process is said to be quicker) or in Minnesota (where the ore is) - an ongoing story that has been covered in detail here in the Indiana Law Blog, but not, as far as I've seen, in any of the Indiana papers, is a classic example of a state trying to balance economic development and environmental issues.
In the end, Minnesota got the plant, no doubt due in part to the legislative action reported that day by the Duluth NewsTribune:
ST. PAUL - A bill passed by the Legislature on Wednesday keeps Minnesota in the running for the world's first full-scale iron-nugget-production facility, a top executive for Silver Bay-based Mesabi Nugget LLC said.

The bill, passed by wide margins in the House and Senate, would suspend some state environmental review requirements and allow Mesabi Nugget to modify and use existing air- and water-pollution permits for the closed LTV Mining Co. taconite facilities in Hoyt Lakes.

Ironically, as reported in this Jan. 25, 2007 post, the Minnesota project went bankrupt and "Indiana-based Steel Dynamics Inc. purchased the [Minnesota] plant site."

Now, from a Nov. 27, 2012 press release:

GRAND RAPIDS, MN, November 27, 2012 – Magnetation LLC (Magnetation) announced today that it has selected Reynolds, Indiana as the site to build its new iron ore pellet plant. The new facility will produce high-quality iron ore pellets, a critical raw material in the steelmaking process. Magnetation currently anticipates breaking ground during the first quarter of 2013. The plant is expected to become operational in late 2014 or early 2015 and employ approximately 100-120 people.

“With convenient access to major railways and highways, Reynolds is an outstanding location for the company’s new pellet plant,” said Larry Lehtinen, CEO of Magnetation. “We thank our local and state officials in Indiana for their ongoing support of our company, and we look forward to joining the Reynolds community in the very near future.”

Magnetation will transport iron ore concentrate from its mineral recovery operations in Northern Minnesota to its new plant in Reynolds. The concentrate will be converted into high-quality iron ore pellets for use by AK Steel Corporation. Magnetation expects that the pellet plant itself will require a capital investment of approximately $300-$350 million, with additional iron ore concentrate capacity to be constructed in Northern Minnesota requiring another estimated $120 million investment.

Magnetation LLC is a joint venture between Magnetation, Inc. (50.1% owner) and AK Steel Corporation (49.9% owner). Magnetation LLC reclaims high-quality iron ore concentrate from previously abandoned iron ore waste stockpiles and tailings basins. Currently, Magnetation LLC owns and operates two reclamation plants located in Keewatin, MN and Taconite, MN. Magnetation LLC expects to construct a three million metric tonne per year iron ore pellet plant in Reynolds, Indiana and two additional concentrate reclamation plants located northwest of Coleraine, MN and southeast of Calumet, MN.

A week ago (May 25, 2013), Hayleigh Colombo of the Lafayette Journal Courier had a long story, headed "Financing, hiring, digging - Magnetation gets busy in Reynolds." Some quotes:
A Minnesota company’s plans to reclaim the site of an abandoned ethanol plant project in White County and build an iron ore pellet plant are moving forward.

Magnetation LLC, based in Grand Rapids, Minn., announced last week that it has finished securing $375 million in financing for its expansion in Reynolds and another in Minnesota.

The capital investment in Reynolds is expected to be up to $350 million in order to build a plant that will, at the end of next year, begin to produce iron ore pellets, a key raw material in the production of steel.

Product from the plant will be shipped to Ohio-based manufacturer AK Steel, which has invested about $200 million into Magnetation LLC. * * *

Construction work to prepare the Reynolds site has already begun, including demolition of existing infrastructure and excavation.

The company expects to pour the first foundation in early June, Lehtinen said.

The plant is expected to become operational in the fourth quarter of 2014.

“We’re actually amazed by the enthusiasm and the work ethic of all the various stakeholders and contractors involved,” Lehtinen said. “(The community) has been very welcoming and (the process) relatively painless, if you will.”

The plant, being built on the site of the failed VeraSun Energy Corp. ethanol plant, is expected to bring 115 jobs by summer 2014. * * *

The VeraSun project stalled out in 2008 after the company filed for bankruptcy.

It was initially drawn to the site because of its proximity to Reynolds, which back in 2005 was dubbed BioTown USA by then-Indiana Gov. Mitch Daniels and advertised as a future hub of bioenergy.

Finally, here is a very long Fortune article from May 20, 2009, headed "The next iron rush." It gives details of the magnetation process used to convert iron tailings into nuggets, describing the prototype plant in Minnesota:
[M]ore than a century of mining has left Iron Country scraped and scarred, a landscape dominated by vast quarries and basins of stony waste from processed ore - tailings, which sprawl across the land like a mighty river delta. Now largely covered by scrub vegetation, these tailings are the remains of a struggle to wrest a living from the earth that began with the great Iron Rush of the 1880s. * * *

"[M]agnetation," that can extract valuable iron from the tailings. * * *

"Our process," says Rod Hunt, 83, who, along with mining veteran Al Fritz, 78, co-founded upstart Magnetation Inc., "is the equivalent of the fabled philosopher's stone of yore. We can't turn base metal into gold, but we can process the millions of tons of natural-ore tailings and extract the iron that got missed the first time around." * * *

"Our raw material is all around us," Lehtinen explains. "It's easy and cheap to extract, and it has already been crushed." Indeed, the main input is the water needed to convert the tailings into a mudlike slurry that can be fed through the magnetation process, where, as the name suggests, giant magnets separate the weakly magnetic hematite from the nonferrous elements of the tailings - mainly silica. And thanks to Shaughnessy's 150-acre tailings basin, getting started was relatively easy.

"I got a whole lot of grief from my wife for those tailings," recalls Shaughnessy, "but now they don't look so worthless." Far from it. Shaughnessy's tailings could yield as much as a million metric tons of concentrate, worth around $90 million at current prices. And Magnetation has lined up enough tailings to produce 104 million metric tons of concentrate, worth just under $10 billion. * * *

At the start of the process the tailings are screened to get rid of tree roots and other debris before being mixed with water from a nearby pond to create a porridge-like slurry. This goo then passes through various processes - thickening to concentrate the hematite and desliming to eliminate silica - before the magnets separate the hematite from the mush. Key equipment for the $10 million plant was salvaged from a mining-machinery graveyard in the town of Taconite - including the deslimer, which came with a large birch tree growing through it. * * *

As the concentrate emerges from the plant, it is trucked up the road to Magnetation's first customer, the soon-to-be-completed Mesabi Nugget plant at nearby Hoyt Lakes, where Lehtinen was a partner before joining Magnetation last year. A $270 million joint venture between Indiana-based Steel Dynamics (STLD, Fortune 500) and Japan's Kobe Steel, Mesabi aims to produce 500,000 metric tons of iron nuggets a year and is currently contracted to take 110,000 metric tons of concentrate - a processed, highly ferrous, and easy-to-ship form of ore - from Magnetation.

Nuggets fetch roughly five times more per metric ton than concentrate and can be fed directly into the electric arc furnaces of the mini-mills that dominate steelmaking. * * *

Mindful that the magnetation process produces its own tailings, the company plans to landscape and plant this waste to create wetlands.

Posted by Marcia Oddi on Sunday, June 02, 2013
Posted to Environment | Indiana economic development

Ind. Gov't. - "Critics: Kentucky has too many boards that license"

Updating a long list of earlier ILB entries on Indiana licensing boards, the Louisville Courier Journal ran this long story yesterday by Mike Wynn. Here is an interesting quote from the long story:

[B]arbering — and barber poles — are strictly regulated by one of 74 professional and occupational boards and commissions that Kentucky lawmakers have established over the years to advise industries and protect consumers.

According to a 2012 review by the Legislative Research Commission, Kentucky has the second-highest number of such agencies among 20 states that listed comparable information online, and 21 more boards than the median of those states. And that was after Kentucky’s number was reduced by 14 to control for website variations among states.

In comparison, Indiana ranked eighth with 42 entities.

Posted by Marcia Oddi on Sunday, June 02, 2013
Posted to Indiana Government

Saturday, June 01, 2013

Ind. Decisions - "Indiana Planned Parenthood Law Rejected By Federal Agency, Supreme Court "

Updating this ILB entry from Wed., May 29th, headed "Planned Parenthood prevails at court: Justices won’t hear state’s bid to defund group over abortion", about Tuesday's action by the SCOTUS, the AP reports today:

INDIANAPOLIS -- A federal agency has denied Indiana's appeal of an administrative ruling barring the state from denying Planned Parenthood Medicaid funds because it performs abortions, the state attorney general's office said Friday.

The agency announced the decision by the Centers for Medicare and Medicaid Services just a few days after the U.S. Supreme Court refused to take up a separate court case involving the same law.

Both decisions this week effectively nullified Indiana's ability to enforce a 2011 law targeting Planned Parenthood, saying it denied women the right to choose their own medical providers.

Attorney General Greg Zoeller has maintained the issue was an administrative one, not a legal one, but the state lost in both venues.

"Although the Supreme Court chose not to accept Indiana's case for its next term, we are monitoring other challenges to similar laws in other states that are working their way through other federal circuit appeals courts, so there may be another opportunity to assert our legal position through amicus briefs to the Supreme Court that Medicaid dollars should not indirectly subsidize the payroll and overhead expenses of abortion providers," Zoeller said in a statement.

Posted by Marcia Oddi on Saturday, June 01, 2013
Posted to Indiana Decisions

Ind. Courts - "Thomas Stefaniak to become new Lake Juvenile Court judge"

On May 17th the Supreme court ruled in the dispute over who was eligible to fill the Lake County Juvenile Court vacancy created when long-time Judge Bonaventura accepted an appointment by Gov. Pence to head the statewide Department of Child Services. As Marisa Kwiatkowski of the NWI Times reported at the time:

Lake Superior Court Judge Nicholas Schiralli cannot transfer into the Lake Juvenile Court, the Indiana Supreme Court ruled Friday.

Schiralli had planned to transfer into the vacated Lake Juvenile Court position 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.
* * *

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 County 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. * * *

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 is 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.

This morning Ms. Kwiatkowski reports:
CROWN POINT | Lake Criminal Court Judge Thomas Stefaniak said Friday afternoon he will be the new Lake Juvenile Court judge.

"I'm looking forward to working with the kids and the new challenges," Stefaniak said, adding that his first plan of action is to re-establish a juvenile court presence in Gary.

Former Juvenile Court Judge Mary Beth Bonaventura moved most court facilities to Crown Point 11 years ago and pulled the last of her staff out of Gary in February.

Stefaniak takes over a court with a $6 million budget and a staff of 169 that includes several judicial assistants and a juvenile detention center.

The court presides over 30,000 cases of juvenile delinquency, investigations of child abuse and neglect and litigation involving child paternity and financial support.

Stefaniak's announcement ends months of uncertainty and controversy over who would fill the position vacated by Bonaventura, who left in March to become director of the Indiana Department of Child Services. * * *

His transfer to Juvenile Court likely will create a vacancy in Lake Criminal Court. Other Superior Court judges have a week to declare their interest in transferring into Criminal Court Room Four, where Stefaniak presided, although it is widely expected none will. If so, the merit selection commission, a bipartisan group of lawyers and lay people, will fill it.

Ruth Ann Krause has this story in the Gary Post-Tribune. Some quotes:
Stefaniak said one of his first priorities will be to re-establish a juvenile court presence in Gary. The juvenile court now operates out of the Lake County Juvenile Justice Center on 93rd Avenue near the government center in Crown Point.

“I am looking forward to the challenge of working with children and would like to continue the successes of Judge Bonaventura and looking forward to creating new successes,” he said.

Lake County’s so-called “transfer rule,” in effect for more than a decade, allowed the juvenile judge position to be filled by seniority. Stefaniak, who was merit-selected, had the most seniority of the two applicants for the position. Lake Superior Court Judge Salvador Vasquez, who like Stefaniak presides in the felony division, also sought the juvenile division post.

A seasoned jurist who was first elected Hammond city judge in 1995, Stefaniak was appointed by the late Indiana Gov. Frank O’Bannon to the Lake Superior Court in 2001 to fill a vacancy in the felony division.

Posted by Marcia Oddi on Saturday, June 01, 2013
Posted to Indiana Courts