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Wednesday, July 31, 2013

Ind. Courts - "Wakarusa man found guilty of practicing law without license"

Brief, must-read story at WNDU.com.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

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

In SIKIRU ADEYEYE v. HEARTLAND SWEETENERS, LLC (SD Ind., Lawrence), a 23-page opinion, Judge Hamilton writes:

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of religion. Among other consequences, the law requires a covered employer to provide a reasonable accommodation for an employee’s request to participate in a religious observance or practice if an accommodation would not cause the employer undue hardship. Plaintiff Sikiru Adeyeye made such a request to his former employer, defendant Heartland Sweeteners, LLC, after his father’s death. Adeyeye is a native of Nigeria who moved to the United States in 2008. He requested several weeks of unpaid leave so he could travel to Nigeria to lead his father’s burial rites. He explained to Heartland that his participation in the funeral ceremonies was “compulsory” and that if he failed to lead the burial rites, he and his family members would suffer at least spiritual death. Heartland denied Adeyeye’s request, but he traveled to Nigeria for the ceremonies anyway. He was fired when he returned and reported to work.

Adeyeye filed this suit under Title VII for failure to accommodate his religion. The district court granted summary judgment for Heartland, finding that Adeyeye’s two written requests did not present evidence sufficient for a reasonable jury to find that he had provided Heartland notice of the religious character of his request for unpaid leave. We disagree. Whether or not Adeyeye’s letters might have justified holding as a matter of law that they provided sufficient notice of the religious nature of his request (a question we do not decide), they certainly are sufficient to present a genuine issue of material fact regarding whether Heartland had notice of the religious nature of the request. We also find that genuine issues of material fact prevent us from affirming summary judgment on any of the other grounds argued by Heartland. We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.

In UNITED STATES OF AMERICA v. TERRY L. SABO (ND Ind., Springmann), a 5-page opinion, Judge Darrow (of the United States District Court for the Central District of Illinois, sitting by designation) writes:
The only question presented in this appeal is whether Terry Sabo consented to a search of his residence. We find that his nonverbal actions manifested consent and affirm.
In NORMAN W. BERNSTEIN, et al. v. PATRICIA A. BANKERT, et al. (SD Ind., Young), a 75-page opinion on rehearing, Judge DeGuilio (of the Northern District of Indiana, sitting by designation) begins:
This appeal is the latest chapter in the story of the Environmental Chemical and Conservation Company (“Enviro-Chem”), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind. The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including EnviroChem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Indiana Environmental Legal Actions Statute (“ELA”), and more. The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court’s final judgment.
In BERNARD HAWKINS v. UNITED STATES OF AMERICA (ND Ind., Moody) the Court issues two documents, this 2-page denial of a petition to rehear the case en banc, AND this 22-page supplement by Judge Posner, which "explains why a majority of the panel does not believe that rehearing is warranted by the Supreme Court’s decision in Peugh v. United States, 133 S.Ct. 2707 (2013), rendered after the panel opinion."

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

Ind. Courts - More on "Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint" [Updated]

One expects it will be some time before the Supreme Court Disciplinary Commission hearing officer issues a ruling, but attorney Paul Ogden, who was the focus of the hearing, writes today in his blog, Ogden on Politics, that the hearing lasted eleven and one-half hours.

[Updated at 3:24 PM] See also this post today from Prof. Sheila Kennedy, headed "Trading the First Amendment for a Law License?"

BTW, the case she mentioned that went to the SCOTUS involved an Ice Miller Attorney, Michael A. Wilkins and concerned a footnote in a COA brief filed in 1999, several years before the ILB, but the ramifications continued. See this ILB post from July 27, 2003, and this one from April 5, 2004.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Michael E. Lyons, Ind; Denita L. Lyons, Ind.; Michael E. Lyons and Denita L. Lyons, as Co-personal Rep. of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp.Et Al. , a 2-page opinion, Judge Bradford writes:

Appellees/Defendants Richmond Community School Corporation and certain school administrators (“RCSC”) petition this court for rehearing. We grant RCSC’s petition, in part, for the limited purpose of concluding that, “[a]lthough there may be factual issues to be determined, whether there has been compliance with the [Indiana Tort Claims] Act’s notice requirement is a question of law for the court.” Gregor v. Szarmach, 706 N.E.2d 240, 241 (Ind. Ct. App. 1999); accord City of Indpls. v. Satz, 377 N.E.2d 623, 625 (1978). In our original opinion, we stated that the issue should be presented to the jury.

On remand, the trial court that should determine whether, in the exercise of ordinary diligence, Appellants/Plaintiffs Michael and Denita Lyons could have learned of RCSC’s alleged “tortious acts” prior to July 15, 2009. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992). July 15, 2009, was 180 days before the Lyonses filed notice of their claims on January 11, 2010. In all other respects, we reaffirm our original disposition.

In Don H. Dumont, M.D., v Penny Davis and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan, Deceased, a 28-page opinion, Judge Baker concludes:
In sum, we do not believe that either Dr. Fahey’s allegedly undisclosed opinion about atelectasis or Dr. Ehrie’s testimony in his capacity as a pathologist supported the trial court’s finding that Dr. Dumont’s counsel committed misconduct warranting a new trial. Moreover, we find that the Plaintiffs waived their objection to Dr. Fahey’s undisclosed opinions by failing to object to his testimony at trial. Finally, we conclude that because the Plaintiffs accepted a jury admonishment with regard to Dr. Ehrie’s testimony without also moving for a mistrial, and the Plaintiffs did not establish actual surprise resulting from his testimony, the trial court erred by granting the Plaintiffs a new trial. The judgment of the trial court is reversed.
In Bruce Ryan v. State of Indiana, a 23-page opinion, Judge Crone writes:
Bruce Ryan appeals his two convictions for class C felony sexual misconduct with a minor. He argues that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly urged the jury to convict him for reasons other than his guilt, and improperly commented on the truthfulness of the victim. Having failed to preserve his claims of error, he argues that the cumulative effect of the prosecutor’s misconduct resulted in fundamental error requiring reversal of his convictions and remand for a new trial. We conclude that the prosecutor committed misconduct by suggesting to the jury that Ryan was having a jury trial to try to get away with his crime, by telling the jury that defense counsel made an argument that allows guilty people to go free and was a trick, by urging the jury to convict him “to send the message that we’re not going to allow people to do this” and by telling the jury that the victim told the truth about what happened. We further conclude that the error resulting from this misconduct is fundamental, and therefore we reverse Ryan’s convictions and remand for a new trial. * * *

Reversed and remanded.
ROBB, C.J., and FRIEDLANDER, J., concur.
___________________
[6] Another panel of this Court recently issued a memorandum decision in which the defendant claimed that prosecutorial misconduct resulted in reversible error. Spiegel v. State, No. 49A02-1208-CR-687 (Ind. Ct. App. Apr. 18, 2013). The Spiegel court concluded that the prosecutor improperly expressed her personal opinion as to the credibility of a witness, improperly inflamed the passions or prejudices of the jury, improperly commented on the possible penal consequences of conviction, and improperly highlighted the disparate roles of the prosecution and defense. Nevertheless, the Spiegel court concluded that reversal was not warranted because as to the first instance of misconduct the evidence of guilt was abundant and therefore Spiegel was not subjected to grave peril, and as to the other three instances Spiegel waived his fundamental error claims. In his concurring opinion, Judge Friedlander observed that despite admonishment from this Court, “instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis.” Id., slip op at * 7. This case demonstrates the unfortunate result of the failure to heed our admonishments; namely, prosecutorial misconduct that requires reversal.
[ILB: Note, however, that Spiegel was NFP.]

In Seth A. Miller v. State of Indiana, a 6-page opinion, Sr. Judge Garrard concludes, in a case including a conviction for Corrupt Business Influence:
The evidence in this case simply fails to establish the necessary element of an enterprise within the meaning of the statute. Accordingly, we need not reach the additional issue of whether their episode of conduct qualifies as a pattern of racketeering activity.

The conviction for corrupt business influence is reversed and the sentence of eight years thereon is vacated. In all other respects the judgment is affirmed.

NFP civil opinions today (3):

In the Matter of the Paternity of C.B., A.B. v. R.B. (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of M.N., Minor Child and his Father, M.D.N. v. Indiana Department of Chiild Services (NFP)

Abdul G. Buridi v. RL BB Financial, LLC (NFP)

NFP criminal opinions today (3):

Daniel R. Clemans v. State of Indiana (NFP)

James W. Baker, Jr. v. State of Indiana (NFP)

Joshua A. Yenna v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: "State, Planned Parenthood reach agreement in funding dispute"

Updating this ILB entry from yesterday, which included the documents, Ken Kusmer of the AP has this story, headed "Two-year fight against Planned Parenthood is over; state loses." An interesting quote:

Indiana Attorney General Greg Zoeller issued a statement saying “it was important and necessary to defend the policy decision of the people’s elected representatives in the legislature that Medicaid dollars should not indirectly subsidize the payroll and overhead expenses of abortion providers.”

“If legal challenges to similar statutes in other states eventually reach the United States Supreme Court, then Indiana would have another opportunity through an amicus brief to assert this legal argument,” Zoeller said.

Tuesday’s ruling made permanent the judge’s June 2011 preliminary injunction. It came a day after the two sides filed an agreement with the court stipulating that the state cannot violate Medicaid’s “freedom of choice” provision.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

Courts - More on: Kentucky same-sex case could be landmark re spousal immunity

Updating this ILB entry from June 16th, that included this quote from Jason Riley's Louisville Courier Journal story:

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.
Today Riley reports in the LCJ in a long story:
A judge said Tuesday she wants to hear from the Attorney General’s office before deciding whether a state law exempting spouses from testifying against each other applies to two women in a civil union from Vermont.

“You are asking me to make this decision on a constitutional amendment,” Jefferson Circuit Court Judge Susan Schultz Gibson said, adding that the attorney general’s office should be given a chance to respond. “I don’t think there is anybody that would argue this isn’t an extremely important issue.”

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 Attorney General’s office was not given enough notice to attend the hearing on Tuesday but will be present on Aug. 16, Grieve said.

Also pending in Kentucky, as reported in this July 26th ILB entry, near the end of the entry ("Kentucky couple challenges state ban on same-sex marriage, seeks recognition of their marriage"), is a challenge to the state ban on recognition of marriages performed in another state.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Courts in general

Ind. Gov't. - "How the DOMA Ruling Could Affect State Social Services Programs"

Governing has this story today by Dylan Scott. It begins:

The U.S. Supreme Court’s overturning of the federal Defense of Marriage Act, which means same-sex marriages will now be recognized by the federal government, is also going to raise issues for states and the social services programs they administer.

The White House has instructed all federal agencies to examine how the ruling will affect their programs, and states have quietly begun doing the same. They aren’t talking much about it—sources at the American Public Human Services Association, the Council of State Governments and the National Conference of State Legislatures declined to comment—but private consultants say the legwork is underway.

The elephant in the room for these conversations is that many of the most well-known state social programs, such as Medicaid and food stamps, are administered by the states but mostly funded by the feds. So who is going to decide whether same-sex couples receive those benefits?

“This ruling puts the state agencies in the position of having to administer these programs while balancing a responsibility to the federal government, but also their responsibility to the states," says David Hansell, who advises state and local governments on social services programs for KPMG, a consulting firm. “Now they have to figure out how this changes the policy environment in which they work.”

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Government

Ind. Courts - "Indianapolis trucking school's collections practices draw judge's scrutiny"

On July 16, 2013 the ILB had a post headed "Changes In Store For Marion County Small Claims Courts?" that began:

This is not the first time ILB has used that heading. See this ILB entry from May 31, 2013. And this one from Sept. 5, 2012. But still, reports of abuses continue, as do promises for improvements.
A July 18, 2011 entry quotes a WSJ story, highlighting Marion County small claims courts as a favored forum for debt collection nationally. A Feb. 20th, 2012 entry reports on the upcoming Task Force review created by the Supreme Court. But from watching Sandra Chapman of WRTV-13's stories this summer, it seems that little has changed.

Perhaps confirming this, on July 26th the Indianapolis Business Journal had a long story headed "Attorney’s report alleges trucking school small-claims abuses." Some quotes:

An attorney’s report examining more than 7,700 lawsuits filed by an Indianapolis-based trucking school in just two Marion County township small-claims courts alleges systemic abuses that resulted in thousands of judgments against people who may never have stepped foot in the county or the state.

“I tried to get as much data as I could to establish there are real problems here,” said Jeffrey C. Boulden, who provided copies of his report this week to key judges, Supreme Court justices, the Indiana attorney general’s office and media outlets.

Boulden asserts Driver Solutions LLC filed 7,711 suits in Franklin and Warren township small-claims courts from 2008 through April 30, 2012. That total equals about 148 cases per month – or more than six cases per business day – predominantly against driver trainees nationwide. The company has campuses around the country. * * *

Indiana Court of Appeals Judge John Baker is among the judges who received a copy of Boulden’s examination of Driver Solutions LLC. “It’s pretty sad,” Baker said after his initial review of the unsolicited report titled, “The Poplicola Report on the Marion County Small Claims Court.”

Baker, along with Senior Judge Betty Barteau of the Court of Appeals, headed the Supreme Court Task Force that in May of 2012 issued its Report on the Marion County Small Claims Courts in response to criticism of widespread abuses including perceptions of “forum shopping.”

The township courts since have instituted some reforms, but Baker said lawmakers have failed to respond to the task force report’s recommendations, including a proposal that the township courts be incorporated into Marion Superior Courts. From that standpoint, he said, Boulden’s report isn’t surprising.

“This may well cover times before some significant changes were made, but I am frustrated that notwithstanding our efforts in getting the (task force) report out, there has been no reaction from the General Assembly,” Baker said.

“I’m appreciative of his efforts,” Baker said. Coupled with the task force report, past Indianapolis Bar Association reports of small-claims problems and widespread criticism of court practices, the report joins a body of evidence that “indicates we need some structural change.”

Today the Indianapolis Star has a lengthy story by Marisa Kwiatkowski and Alex Campbell. Some quotes:
An attorney for a local truck driving school submitted false information on sworn affidavits, possibly denying hundreds of defendants their day in court, a small claims judge alleged Tuesday.

Judge John Kitley Jr., who presides over the small claims court in Franklin Township, is filing a complaint with the Indiana Supreme Court Disciplinary Commission against attorney Brian Alsip. Kitley accuses Alsip of falsely claiming defendants had been properly notified they had been sued by the trucking company.

“I’m convinced they were false,” Kitley said. His conclusions come in the wake of a local attorney’s report, and in the midst of an Indianapolis Star investigation into the trucking company’s practices and the procedures in Marion County’s small claims courts.

Alsip represented Driver Solutions, an Indianapolis-based company with locations in four states. * * *

An Indianapolis-based attorney who recently reviewed about 1,650 of those judgments said he found hundreds that were ordered without evidence that the defendants knew they were being sued.

It was possible a defendant would not find out about a judgment until it appeared on a credit report or until wages were garnisheed. Copies of the attorney’s report were sent to the Indiana Supreme Court, small claims court judges, the Indiana attorney general’s office and The Star. * * *

After The Star inquired about several questionable cases, Warren Township Judge Garland Graves vacated one judgment and is considering vacating several others because the defendants weren’t properly notified. He pledged to review other Driver Solutions cases filed since he took the bench in 2011 to ensure proper notice was given.

A spokeswoman for the Indiana attorney general’s office said it is reviewing the attorney’s report and 17 past complaints filed against Driver Solutions to see if an investigation is warranted.

The volume of small claims cases filed by Driver Solutions also drew the attention of consumer advocates, who claim the company’s contract is a violation of federal law. * * *

Driver Solutions’ cases accounted for nearly 19 percent of the cases filed in the past three years in Franklin and Warren townships’ small claims courts, a Star review found.

The company has filed most of its small claims cases in Franklin and Warren townships. The number of small claims cases filed in Warren Township was so high that Judge Graves dedicated Mondays to hearing only the company’s cases. * * *

Boulden represented a few former Driver Solutions students and became concerned about the company’s collection practices.

After being let go from Indiana Legal Services, Boulden reviewed more than 1,800 Driver Solutions’ small claims cases — a fraction of the thousands of suits the company has filed in the past five years.

Boulden found $12.4 million in judgments, averaging more than $7,000 per judgment. The defendants had home addresses in 40 states, as well as the District of Columbia and Puerto Rico.

The report Boulden sent to the Supreme Court said more than 800 of the judgments were not legitimate.

The ILB has obtained a copy of the 61-page report prepared by Jeffrey C. Boulden, titled "The Poplicola Report on the Marion County Small Claims Courts."

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

Ind. Gov't. - "Sewage plant fight hits $250,000"

Some quotes from a story by Vivian Sade in the Fort Wayne Journal Gazette:

Huntertown has spent more than $250,000 objecting to the state’s denial of a permit for a wastewater treatment plant.

The Indiana Department of Environmental Management turned down Huntertown’s request for a permit to build its own $11.2 million sewage plant in October. Huntertown filed an appeal, which is currently before the Indiana Office of Environmental Adjudication.

According to figures provided by Huntertown’s deputy clerk-treasurer, Janine Rudolph, the town has spent $223,088 in legal and engineering fees in the appeal process.

In addition, town officials have four times extended an option – paying $1,000 to $10,000 each time – to buy a 26-acre site on Hathaway Road for $393,500 where they hope to build the new plant.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Government

Ind. Courts - Well, it just doesn't sound right to us Hoosiers!

Eugene Volokh (UCLA prof) has an amusing post today that starts:

When writing the Brewington amicus brief, which we filed before the Indiana Supreme Court, I used the term “Indianan” in my first draft. Yes, I’d heard of “Hoosier,” but I thought it was a jocular colloquialism, and “Indianan” was the Proper Dignified Lawyerly Way to say it.

Boy, was I wrong, as Michael Sutherlin, Dan Brewington’s lawyer (who has done an excellent job in the case, ably assisted by his associate Sam Adams), pointed out. Indeed, when I checked on Westlaw, I found only one case in the Indiana Cases database mentioning “Indianan” — and that was a typo. I found 192 cases mentioning “Hoosiers,” even limiting it to the plural so as to avoid various organizational names that contain “Hoosier”; the great bulk of these cases indeed referred to Indiana residents.

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

Ind. Courts - " Former Secretary of State Charlie White sues Carl Brizzi" Second former official also suing

That is the headline to this Indianapolis Star story by Tim Evans. If this sounds like old news, it kind of is. In this March 21st post, another story by Tim Evans is quoted, reporting on White's motion for post-conviction relief:

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

[Including that] he was denied effective counsel by his attorney, former Marion County Prosecutor Carl Brizzi.

From today's story:
White is seeking a new trial. He said Brizzi, a former friend and political associate, didn't provide an adequate defense at his 2012 trial. That request is pending in Hamilton Superior Court.

White also is pressing that point in the lawsuit filed last week in Marion Superior Court. In the 31-page complaint, White makes numerous complaints about Brizzi’s work as his defense attorney, alleging legal malpractice, breach of contract, negligent or reckless infliction of emotional distress, fraud and unjust enrichment.

More interesting to the ILB is the second part of the story:
White is the second former public official who turned to Brizzi for a criminal defense to sue the former prosecutor. Earlier this year, former Hancock County Coroner Tamara Vangundy filed a lawsuit alleging Brizzi provided incompetent legal counsel when representing her in 2012. * * *

Vangundy, the former Hancock County coroner, sued Brizzi in May.

That suit involves Brizzi’s work in a criminal case that followed her arrest in May 2012 on suspicion of drunken driving,

In the lawsuit, she said she had hoped the outcome of her criminal case would allow her to retain the right to keep her job as coroner and to run for re-election.

Describing her DUI arrest as a one-time mistake influenced by the effect of a prescription sleep aid, Vangundy said Hancock County voters might forgive her misstep if she remained eligible to serve.

Brizzi advised Vangundy to accept a plea agreement, the lawsuit states, in which she would plead guilty to a misdemeanor DUI charge and a felony official misconduct charge. In return, under the agreement, she would receive misdemeanor sentencing for both counts.

Under state law, a person cannot serve in elected office if convicted of a felony.

Brizzi wrongly believed, however, that Vangundy would remain eligible to hold elective office if sentenced entirely under misdemeanor guidelines, the lawsuit states.

Vangundy now is being represented by Indianapolis attorney Irwin Levin in her lawsuit against Brizzi, filed May 16 in Marion Superior Court.

Levin said in May: "Tamara Vangundy said, 'Look, the one thing that is important to me is that I be able to run for re-election, and then my constituency in Hancock County can decide whether they want me or not.’ Carl Brizzi charged her $10,000 and then advised her that she could plead to a felony, and because there was misdemeanor sentencing she would be OK."

After Brizzi was informed of his error, according to Levin, Brizzi told Vangundy, “Oh yeah, I guess I missed that.”

Levin said he tried to communicate directly with Brizzi, he said, over Vangundy's desire to collect damages.

"He would not respond to requests by us informally," Levin said.

Vangundy had to borrow money from her parents, who took out a second mortgage on their home, to enlist Brizzi's services, according to the lawsuit.

"After this unfortunate series of events," the lawsuit states, "Ms. Vangundy asked Carl Brizzi to return his $10,000 fee because his advice was wrong and caused Ms. Vangundy to lose her position as Hancock County coroner, but Carl Brizzi laughed and refused."

The ILB has two earlier posts on this matter, from August 23 and 24, 2012. Here is the first, when Vangundy expressed hopes for re-election in Novemeber. The second, from the following day, explained why "Vangundy will not be able to run for reelection for coroner after all."

Posted by Marcia Oddi on Wednesday, July 31, 2013
Posted to Indiana Courts

Tuesday, July 30, 2013

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

In UNITED STATES OF AMERICA v. MICHAEL L. BROCK (SD Ind., McKinney), a 15-page opinion, Judge Hamilton writes:

Defendant-appellant Michael Brock was convicted in a jury trial on three counts of possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). He was sentenced to a fifteen-year mandatory minimum term of imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). In this appeal, he challenges his convictions and his sentence. The challenge to the convictions is based on Mr. Brock’s wife’s testimony against him at trial. The district court found that the marital evidentiary privileges had been waived when she testified at his pretrial detention hearing. Over her objection, she was then ordered to testify against Mr. Brock at trial. We agree that the spousal communication privilege was waived, and we find that Mr. Brock lacks standing to challenge the finding that the separate spousal testimonial privilege was waived.

Mr. Brock’s challenge to his sentence depends on whether unlawful possession of a machinegun counts as a “violent felony” under ACCA. In United States v. Upton, 512 F.3d 394 (7th Cir. 2008), we held that unlawful possession of a sawed-off shotgun counted as a violent felony under ACCA. Applying Upton, the district court ruled that possessing a machinegun was also a violent felony and that Mr. Brock’s three separate convictions for possessing machineguns triggered ACCA. Although the district court properly applied controlling circuit law, we have recently overruled Upton on this point, holding now that unlawful possession of a sawed-off shotgun no longer counts as a violent felony. United States v. Miller, ___ F.3d ___ (7th Cir. 2013). The reasoning of Miller applies equally to unlawful possession of a machinegun, so we vacate Mr. Brock’s sentence and remand for sentencing.

ILB: Here is the June 27, 2013 opinion in U.S. v. Miller.

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

Ind. Courts - More on: "State, Planned Parenthood reach agreement in funding dispute"

Updating this entry from this morning, here are the Stipulation to Enter Into Agreed Judgment, signed by the Indiana ACLU and the Attorney General, and the Final Judgment signed by Judge Pratt. The Final Judgment concludes:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that application of Indiana Code § 5-22-17-5.5(b)-(d) to deny Planned Parenthood of Indiana, Inc. Medicaid funding and reimbursement is unlawful as violating 42 U.S.C. § 1396a(a)(23) by denying Planned Parenthood of Indiana, Inc.’s Medicaid patients a free choice of medical provider and, accordingly, defendants are PERMANENTLY ENJOINED from enforcing the statute to deny Medicaid funding and reimbursement to Planned Parenthood of Indiana, Inc.

IT IS FURTHER ORDERED that the time within which plaintiffs must submit their petition for attorneys’ fees and costs is extended to thirty days after this date.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O. and Partners in Health, a 5-0, 6-page opinion, Justice Massa writes:

In this case, the parties have spent five years disputing an issue which boils down to a seven-dollar fee paid three days late. The trial court found this delinquency fatal to the plaintiffs’ claim. We reverse.

On April 3, 2006, two weeks after her obstetrician, Dr. Glenn Dobbs, performed a cesarean section and tubal ligation on her, Ann Miller suffered a massive stroke that left her with permanent injuries. Nearly two years later, on March 18, 2008, the Millers’ attorney sent a proposed medical malpractice complaint to the Indiana Department of Insurance by certified mail. The $7.00 in statutory filing and processing fees were omitted from this mailing, but the proposed complaint was nevertheless file-stamped March 18. On March 31, 2008, the Millers filed their complaint against Dr. Dobbs and his medical group in the Dearborn Superior Court.

The DOI discovered the fee omission and sent the Millers’ attorney a letter on March 31 stating that the mandatory fees needed to be sent within 30 days and that the complaint would “not be considered filed with the Department until the filing fees . . . [were] received.” * * * The Millers’ attorney received the letter on Friday, April 4, 20082 and sent a check to the Department by first-class mail that same day. On Monday, April 7, the Department received the check and re-file-stamped the proposed complaint April 7. * * *

The defendants subsequently raised an affirmative defense of the statute of limitations and moved for summary judgment on that basis. In May 2011, the Millers moved to strike that motion, arguing the defendants waived it by failing to raise it before the Medical Review Panel issued its opinion. The trial court granted the defendants’ motion for summary judgment and denied the Millers’ motion to strike. On appeal, a divided panel of the Court of Appeals reversed [ILB - with 3 separate opinions], finding the Millers’ proposed complaint was timely filed. Miller v. Dobbs, 976 N.E.2d 91, 99 (Ind. Ct. App. 2012). We granted transfer. * * *

The defendants contend the Millers’ proposed complaint was untimely because, although the Department received the complaint itself before the end of the statutory period, it did not receive the requisite filing and processing fees until April 7, three days after the statutory period ended. Our reading of the relevant statute, however, leads us to the opposite conclusion.

According to the “Statute of Limitations” chapter of our Medical Malpractice Act, “a proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Ind. Code § 34-18-7-3(b). The Millers’ proposed complaint was mailed by certified mail on March 18, 2008. According to the statute, it is considered filed on that date. The statutory period did not expire until April 4, 2008. Thus, the Millers’ proposed complaint was timely filed with the Department.

Both the overall structure of the MMA and public policy considerations support our conclusion today. * * *

Ultimately, as we read the statute, it does not mandate that the Millers’ claim is lost for want of this seven-dollar horse-shoe nail. We therefore reverse the trial court’s grant of summary judgment and remand this case for further proceedings consistent with our opinion.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - COA "upholds the enforcement of a five-year non-compete agreement"

Elizabeth Mayne v. O'Bannon Publishing Company, Inc., d/b/a Corydon Instant Print (NFP), a July 17th opinion designated by the panel as not-for-publication, caught the ILB's eye at the time because of the five-year restriction on competition. Mark D. Scudder of Barnes & Thornburg has a brief write-up of the opinion at Lexology.com. Some quotes:

When Indiana employers draft non-compete agreements, they must weigh whether the Indiana courts will find their agreements’ restrictions to be reasonable, and therefore enforceable. The Indiana Court of Appeal recently issued a decision which illustrates how restrictive these agreements can be. In Mayne v. O’Bannon Publishing Co. d/b/a Corydon Instant Press, the court upheld the enforcement of a five-year non-compete agreement covering a two-county area. * * *

This case illustrates that there are no hard and fast rules for non-compete agreements—the agreement will be enforced if “reasonable.” These agreements can have longer durations—here five years—if the geographic scope of the agreement is limited. The employee’s position is another key factor, with the court permitting greater restrictions where the employee has more significant dealing with customers. The key takeaway from this is that in Indiana, as in most states, non-compete agreements need to be narrowly tailored for the business and the individual position. Businesses should retain competent legal counsel for assistance in drafting these agreements if they hope to enforce them.

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

Ind. Gov't. - State chamber plans to remain neutral on the marriage amendment

Dan Carden has the story in the NWI Times. Some quotes:

The state's most powerful business organization is planning to sit out the expected 2014 battle over whether to add Indiana's existing ban on gay marriage and civil unions to the state Constitution.

Kevin Brinegar, president of the Indiana Chamber of Commerce, told The Times Monday that barring exceptional action later this year by the group's board of directors, the chamber will remain neutral on the marriage amendment.

"We have members on both sides of the issue, so we have not adopted a position either in favor or opposed to the proposed constitutional amendment," Brinegar said. "I don't see that changing."

Several major Indiana employers, including Columbus-based engine manufacturer Cummins Inc., and Eli Lilly and Co., the Indianapolis drug maker, strongly oppose the pending amendment, because they believe it will be harder to attract workers if Indiana is perceived as unwelcoming.

Republican leaders supporting the amendment, including Gov. Mike Pence; House Speaker Brian Bosma, R-Indianapolis; and Senate President David Long, R-Fort Wayne, argue that many of the fastest-growing states for businesses ban gay marriage in their constitutions and haven't been hurt by it.

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

Courts - "With Supreme Court Case Against DOMA Done, Edith Windsor Will Soon Get Her Taxes Back"

A story today by Chris Geidner of BuzzFeed Politics begins:

WASHINGTON — The Supreme Court has formally ended Edith Windsor’s case against the Defense of Marriage Act, opening the door for the 84-year-old widow to get back the taxes she was forced to pay upon the death of her wife, Thea Spyer, in 2009.

Windsor’s lawyer on Monday morning received a copy of the court’s judgment in the case, which resulted from the court’s June 26 decision that section 3 of DOMA, the federal definition of marriage that excluded gay couples from recognition, was unconstitutional.

“[W]e are obviously delighted that the final chapter of Edie Windsor versus the United States can now be written since Edie will soon receive a check from the IRS for the tax she had to pay solely because she was married to a woman,” Roberta Kaplan, Windsor’s lawyer, told BuzzFeed.

The Second Circuit Court of Appeals, which had heard the earlier appeal of Windsor’s case, was mailed the Supreme Court’s judgment on Monday after the required 25-day period during which a motion for rehearing can be filed by the losing party had passed.

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

Ind. Courts - " State, Planned Parenthood reach agreement in funding dispute"

Tim Evans reports late this morning in IndyStar that the State and Planned Parenthood have signed an agreement, filed in federal court, that the State of Indiana is “permanently enjoined from enforcing the statute to deny Medicaid funding and reimbursement to Planned Parenthood of Indiana.” More from the story:

The resolution came two months after the U.S. Supreme Court declined to take up the state’s challenge to a federal court ruling that struck down the law.

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

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

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

Last October, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld that injunction. The Indiana attorney general's office petitioned the Supreme Court in February.

Earlier in the story:
Under the law, Medicaid patients would have been barred from obtaining preventive health-care services at Planned Parenthood health centers, and health-care providers who perform abortions would have been penalized, despite not using federal money for those services.
For background, start with this ILB entry from June 1st.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Indiana Courts

Ind. Courts - "Police union acknowledges paying $250,000 to defend David Bisard"

Reporting on yesterday's David Bisard hearing in Fort Wayne, John Tuohy writes for the Indianapolis Star:

The hearing was mostly about what evidence will be admitted at trial, and almost all of it has been entered in written form.

It did produce a bit of unexpected news, however, when Owensby testified that the FOP had paid $250,000 in legal bills to defend Bisard.

The FOP was paying Bisard’s bill until his arrest on drunken-driving charges in Lawrence in April. The rank-and-file voted afterward to end its support.

The cost of Bisard’s defense had not been previously disclosed.

Bisard retains the same lawyer, Kautzman, but it is unclear who is paying him.

Kautzman said the fees were paid over three years, and he stressed the importance of the case.

“In your 32 years with the FOP, have you ever been involved in a case of this magnitude?” Kautzman asked.

“No,” Owensby replied.

The hearing was scheduled to last two days but was cut short when Surbeck delayed arguments about blood evidence to another date, at Kautzman’s request.

Rebecca S. Green of the FWJG has this story on yesterday's hearing.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

In Darla M. Brenton, as Personal Representative of the Estate of Evelyn Norfleet, Deceased v. Leslie D. Lutz , a 9-page opinion, Judge Najam writes:

Darla Brenton appeals the trial court’s order removing her as Special Administrator of the Estate of Evelyn Norfleet (“the Estate”). Brenton presents a single dispositive issue for our review, namely, whether the trial court abused its discretion when it removed her as Special Administrator of the Estate. We affirm.
In In Re the Adoption of: P.A.H., f/k/a P..V., Minor Child, B.D. and L.H.C., v. J.H., a 3-page opinion, Judge May writes:
B.D. and L.H.C., adoptive parents of P.H., appeal the grant of post-adoption visitation to P.H.’s biological uncle, J.H. They present four issues, which we consolidate and restate as whether the trial court erred when it granted J.H. visitation. We reverse. * * *

An order is void ab initio if the trial court lacks the authority to provide the relief ordered under any set of circumstances. M.S. v. C.S., 938 N.E.2d 284 (Ind. Ct. App. 2010). The trial court lacked authority to grant post-adoption visitation rights to J.H., as he is not within any statutory category of persons entitled to visitation rights. See Ind. Code § 31-19-16-2 (birth parents of adopted children); Ind. Code § 31-19-16.5-1 (siblings); Ind. Code § 31-17-5-9 (grandparents); and see In re Guardianship of J.E.M., 870 N.E.2d 517, 519 (Ind. Ct. App. 2007) (noting one who has had a “custodial and parental relationship” with a child may later seek visitation with the child but our Supreme Court has expressed the opinion that the “custodial and parental relationship” right to visitation should extend only to stepparents). “A visitation award without a cognizable right to visitation constitutes an abuse of discretion.” Tinsley v. Plummer, 519 N.E.2d 752, 754-755 (Ind. Ct. App. 1988) (great-aunt with limited pre-judicial intervention contact with minor did not met threshold requirement for award of visitation).

In In Re: The Paternity of Jo.J., J.W.J., v. D.C. , a 28-page opinion, Judge Baker writes:
Father challenges numerous aspects of the trial court’s order, including: (1) whether the trial court could hold a hearing or issue an order on Mother’s request for a temporary support modification while her appeal was still pending; (2) whether the trial court accurately calculated his gross income, Mother’s gross income, and the final child support obligation; and (3) whether the trial court could order him incarcerated for contempt when he was current on his child support obligation at the time the order was made or issue a bond for future support. Father also requests appellate attorney fees.

We conclude that although the trial court may have erred in considering Mother’s request for “temporary support” prematurely, it did not err in modifying Father’s child support obligation because the matter had been recertified to the trial court by the time the final order was made. Likewise, the figures that the trial court used in arriving at the amount of Father’s new child support obligation were within its discretion based on the evidence presented. We also conclude that the trial court did not err in jailing Father for contempt when Father had been warned multiple times at various hearings that this could occur if Father failed to strictly comply with his child support obligation and that trial courts are statutorily authorized to require a child support obligor to post a bond guaranteeing future payments of support. Finally, we decline Father’s request for appellate attorney fees. Accordingly, we affirm the judgment of the trial court.

In Adam Miller v. State of Indiana, a 22-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Adam Miller (Miller), appeals the trial court’s denial of his motion to suppress. We reverse. * * *

BROWN, J. concurs
BRADFORD, J. dissents with separate opinion [which begins on p. 13 of 22] While I agree with the majority that Officer Hasler’s search of Miller’s backpack was not justified by officer safety concerns or as part of an inventory search of the impounded car, I believe that it was supported by probable cause that contraband might be found within. Also, in addressing arguments not reached by the majority, I would conclude that Officer Hasler’s search did not violate the Indiana Constitution and that the trial court did not abuse its discretion in reopening the evidence at Miller’s suppression hearing.

NFP civil opinions today (5):

Anonymous Hospital, Inc., v. Jane Doe, Et Al., and Indiana Department of Insurance (NFP)

Joseph Dowell and Angie L. Grove and Cody Rowe v. American Modern Home Insurance Company (NFP)

Margaret Smith v. Kristopher Schaler (NFP)

Victor Fointno v. Clair Barnes, Et Al., (NFP)

In the Matter of the Term. of Parent-Child Rel. of M.G. & A.G. (Minor Children), and S.S.(Mother) & S.G.(Father), v. Child Advocates Inc. and Indiana Departments of Child Services (NFP)

NFP criminal opinions today (12):

Kevin Buckley v. State of Indiana (NFP)

Robert Marks v. State of Indiana (NFP)

Gary Wayne Shortt v. State of Indiana (NFP)

Floyd D. Stewart v. State of Indiana (NFP)

Kendal R. Pitts v. State of Indiana (NFP)

Dominique Devon Hayes v. State of Indiana (NFP)

James A. Groff v. State of Indiana (NFP)

Truong Vu v. State of Indiana (NFP)

Jose F. Medina v. State of Indiana (NFP)

Adam Sullender v. State of Indiana (NFP)

Martez Brown v. State of Indiana (NFP)

Billy Ray Mead v. State of Indiana (NFP)

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

Ind. Courts - "Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint"

Updating this ILB entry from yesterday, Tim Evans has a long story today in the Indianapolis Star that begins:

All he had to do was apologize.

But Paul Ogden wouldn’t — and now the Indianapolis attorney may lose his license to practice law for privately criticizing a judge.

Today, Ogden will attempt to acquit himself at a public hearing conducted by the Indiana Supreme Court Disciplinary Commission.

He’s hanging his defense on the First Amendment’s guarantee of free speech. But the ability to exercise that basic right gets murky when it comes to working lawyers, who relinquish some of their speech protections.

Ogden is expecting the worst but said he’d rather face a suspension or lose his law license than hold his tongue.

“I’m not going to give up my free speech rights,” he insisted.

That response comes as little surprise to those who know Ogden or read his blog at OgdenonPolitics.com, where he often unleashes caustic attacks on politicians and bureaucrats, the legal community and media. Among his targets: the disciplinary commission that now holds his fate.

More from the long story:
While Ogden appears to face an uphill battle in the fight for his legal future, the First Amendment protects his speech, said Margaret Tarkington, an associate professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Indiana Courts

Courts - "9th Circuit to Decide if Lawyers Can Block Gays From Juries"

From Adam Liptak's "Sidebar" column in the NY Times:

May gays be excluded from juries on account of their sexual orientation? The federal appeals court in California will soon decide the issue, which turns out to be surprisingly knotty.

It arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.

An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”

That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”

In legal terms, the lawyer had just tried to raise a Batson challenge, named after a 1986 Supreme Court decision, Batson v. Kentucky. That decision recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.

Eight years later, the court said that gender cannot be the reason, either. But it has never addressed sexual orientation.

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

Ind. Courts - "Juvenile delinquency appeals should be added to expedited appeals listed in Appellate Rule 21"

So proposes the Indiana Juvenile Justice Blog this morning, continuing:

Currently, every type of case involving children — child custody, child support, visitation, adoption, paternity, CHINS, and termination of parental rights — is entitled to expedited consideration by the Indiana Court of Appeals, except juvenile delinquency cases.

The current procedure results in many, many cases where the child’s disposition (sentence) has been completed before the Court of Appeals rules on the appellate issue.

Posted by Marcia Oddi on Tuesday, July 30, 2013
Posted to Indiana Courts

Monday, July 29, 2013

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

In SAMUEL LARGE v. MOBILE TOOL INTERNATIONAL, INC. (ND Ind., Lee), a 13-page opinion, District Judge Stadmueller (Eastern District of Wisconsin, sitting by designation) writes:

On June 19, 2000, Samuel Large was injured while operating a bucket truck, which his employer, Davis H. Elliot Company (Elliot) had leased from TECO, Inc. (TECO), the manufacturer of the truck. Mr. Large thereafter sued TECO; TECO’s successor-in-interest, appellee Mobile Tool, Inc. (Mobile); and several other related parties. Mobile then filed a third-party complaint against Elliot, seeking defense and indemnification against Mr. Large’s complaint, pursuant to the lease contract between Elliot and TECO, which Mobile had assumed by purchasing TECO and its assets. Eventually, after the district court denied Mobile’s first request for summary judgment on the defense and indemnification issue, Mobile settled with Mr. Large without Elliot’s participation. That settlement left Mobile’s third-party complaint against Elliot as the only outstanding issue. However, after a change in controlling law, Mobile filed a second request for summary judgment, which the district court granted, holding Elliot responsible to defend and indemnify Mobile against Mr. Large’s claims. Elliot timely appealed the district court’s summary judgment ruling. * * *

For these reasons, we conclude that the district court was correct in determining that Elliot was required to defend and indemnify Mobile against Mr. Large’s claims, and accordingly we AFFIRM that decision.

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

Ind. Courts - Two positions for attorneys open in Division of State Court Administration

Here is the post:

The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for a staff attorney to manage programs to improve delivery of court services in the areas of adult guardianship and another staff attorney to improve services in the courts for parties who are not represented by counsel, who do not speak English, and/or have other special needs or problems.

Ideal candidates will have litigation experience and job histories that reflect an interest in public service. Essential skills for the position include experience in and ability to speak publicly, train and present, create and manipulate spreadsheets, database programs, and work with numbers and financial calculations.

Applicants must be members in good standing of the Indiana Bar and have excellent communication skills. If you apply, please designate which position you seek (adult guardianship attorney or special needs attorney.)

The salary will range from $57,921.76 to $63,941.80, depending on experience. State benefits apply.

Please send resume, cover letter and writing sample no later than August 30, 2013, to:

Brenda F. Rodeheffer
Director of Office & Employment Law
Division of State Court Administration
30 S. Meridian St., Suite 500
Indianapolis, IN 46204

or by email to brenda.rodeheffer@courts.IN.gov.

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to Indiana Courts

Ind. Gov't. - " AP Exclusive: GOP donor's school grade changed"

Amazing just-released AP exclusive from Tom LoBianco begins:

INDIANAPOLIS — Former Indiana school Superintendent Tony Bennett built his national star by promising to hold "failing" schools accountable. But when it appeared an Indianapolis charter school run by a prominent Republican donor might receive a poor grade, Bennett's education team frantically overhauled his signature "A-F" school grading system to improve the school's marks.

Emails obtained by The Associated Press show Bennett and his staff scrambled last fall to ensure influential donor Christel DeHaan's school received an "A," despite poor test scores in algebra that initially earned it a "C."

"They need to understand that anything less than an A for Christel House compromises all of our accountability work," Bennett wrote in a Sept. 12 email to then-chief of staff Heather Neal, who is now Gov. Mike Pence's chief lobbyist.

The emails themselves are also online, per this LoBiano tweet:
Tom LoBianco ‏@tomlobianco the A-F emails: http://apne.ws/1aT2Tr1, http://apne.ws/14u6wh2, http://apne.ws/19t1GZw, http://apne.ws/12Y6X3U, http://apne.ws/13smwzQ
[More] The Indianapolis Star has now also posted the AP story.

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

Law - "Treadmill desks help Taft law firm get fit, cut costs"

See the long story in the Cincinnati Enquirer. (h/t ABAblog)

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to General Law Related

Ind. Courts - "Tomorrow I will have my attorney disciplinary hearing beginning at 10 am in the Indiana Supreme Court conference room. It is open to the public."

Thus begins a long post today by Indiana attorney and blogger Paul Ogden, headed "Attorney Free Speech and My Hope for Reform of the Disciplinary Process." A few quotes:

I have spoken out publicly about this case because of the extraordinary impact it could have on attorney free speech in Indiana. In the case the Disciplinary Commission is seeking, for the first time, to use Rule 8.2 to target an attorney not for public criticism of a judge, but private criticism. Mine was a response email sent to people involved in the case in which I declared quite bluntly that an elected Hendricks County judge improperly handled an estate case and the matter should be investigated by the judicial disciplinary commission. The Commission complains my criticism was unfair and was at some points inaccurate. * * *

As the United States Supreme Court has stated attorneys have free speech like every other member of the public and disciplinary rules cannot be used to proscribe that speech unless they are making comments about a pending case that potentially undermine the administration of justice. An example would be the Indiana Supreme Court disciplining the former Marion County Prosecutor Carl Brizzi's for public statements he made about the pending Mendenhall and Turner/Stewart murder criminal prosecutions.

No one should forget that these county judges are elected by the public. Who best in the community to attest to the job an elected judge is doing than members of the bar? Yet we attorneys are told that if we dare publicly criticize those elected judges, our criticism, even if it only the expression of an opinion, we better be prepared to prove that criticism to be true or face sanctions under Rule 8.2. (The Commission's position on Rule 8.2 is that it needs only prove the statements or opinions were made then it becomes the attorney's responsibility to prove the statements or opinions are true.) The chilling effect on political free speech is enormous.

My case goes even beyond that. I am not aware of any case in the country where a state disciplinary body attempted to punish an attorney for criticizing a judge in an email. Almost every Rule 8.2 case across the country involves public statements about judges in the media, on blogs or in court proceedings.

[Updated] Here is the docket.

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

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

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

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

Ind. Law - "Enrollment lower than first anticipated for Indiana Tech Law School"

The ILB first began posting on the proposed Indiana Tech Law School in Feb. of 2011. Here is a long list of posts. Notable is this post from Feb. 26, 2011, which is based on a search for the term "cash cow." One of the links is to this June 4, 2008 post quoting a National Law Journal story, citing the scholarship of legal job market authority William Henderson, of Indiana University School of Law - Bloomington. The post ends with this from the ILB:

For past talk of a new law school of Indiana, see this Dec. 28, 2005 ILB entry headed "Idea that landed with biggest thud of the year", this one from Jan. 4, 2007, headed "University of Saint Francis has begun exploring the possibility of opening a law school," and this one from Jan. 5, 2007, adding additional material. Plus we have the "Ave Maria Law School moving to Fort Wayne?" speculation: Feb. 5, 2007, Feb. 20, 2007, and May 1, 2007.
Supplementing this ILB post from Friday, WANE.com in Fort Wayne reported this weekend:
FORT WAYNE, Ind. (WANE) - University officials at Indiana Tech are not worried about lower enrollment numbers at the new law school when it opens next month for the fall semester.

When the university announced it would add a law school, which cost around $15 million, the plan was to have 100 students enrolled in the inaugural class.

As of Friday night, 24 students had enrolled.

"The hundred number, I think, was more aspirational," Jessica Lynn Anderson, an assistant dean of admissions at Indiana Tech, said. "It wasn't set in consultation with any of us here now. It was set before we got here and before the big downturn nationally." * * *

"I really do think 30 is a more reasonable number and I think we are going to hit 30," she said.

According to Anderson, the law school will employee about 25 people. Eleven of those employees are professors, which makes for a near 3-to-1 professor to student ratio this fall.

"I think that's more beneficial to the students," David Felts, an incoming law student at the university, said. "I'm sure as the time goes by, more students will come."

Felts and Anderson agreed that the lower than initially expected enrollment should not worry any future potential law students at the university.

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

Environment - "Working to cut the carp: Wabash trip reinforces need for containment"

Attorney General Greg Zoeller has this long article in the July 29th Fort Wayne Journal Gazette. Some quotes:

Boating down the Wabash River near Lafayette on July 16, I witnessed firsthand the broad, winding river’s scenic beauty but also got a lesson in the environmental challenges the river faces when two Asian carp hurled themselves out of the water and landed in our boat.

The Wabash is Indiana’s iconic river and inspiration for our state song, yet in recent years two species of invasive Asian carp have infested portions of it. These voracious non-native fish consume nutrients in the water, disrupting the food chain and threatening the native fish enjoyed by Hoosier anglers and sportsmen. At the sound of outboard motors, groups of Asian carp jump out of the water and can injure boaters. The invasion of Asian carp into U.S. waterways and the risk they pose to the Great Lakes sportfishing industry has provoked consternation and litigation among our neighboring states; and as Indiana’s attorney general, I want to make sure the Wabash will be protected from further spread of this aquatic nuisance.

Fortunately we have allies in this effort. First is John Goss, director of the federal government’s Asian carp control efforts. Goss is a native Hoosier and former director of the Department of Natural Resources, and he accompanied me in a friend’s Zodiac inflatable boat during part of our river tour and inspection down the Wabash. Goss educated me and people we met in river communities along the way about new approaches being explored to curb the carp population. * * *

Slicing through the river along the Indiana-Illinois border on my friend John Hughes’ boat, I spotted five bald eagles and 40 or more blue herons, a testament to the wooded natural ecosystem on the banks of the Wabash. A spectacular view of the river awaited us atop the bluff at Merom, in Sullivan County, where we had lunch at the Downtown Diner with local folks who exuded Hoosier hospitality. Longtime residents told me that in some areas, the river has never looked cleaner, but in others, they worry about agricultural runoff into the waterway. * * *

After observing by boat most of a 334-mile stretch of the Wabash before its confluence with the Ohio River, I came away with a new appreciation for maintaining the river’s ecosystem, water quality and heritage; a deeper admiration for those volunteers whose stewardship helps keep the river free of litter and pollution; and a determination to do what I can to help our state control Asian carp.

We in Indiana truly are blessed that such a scenic natural waterway flows through our state, and I encourage all Hoosiers to visit the Wabash by boat, canoe or from the riverbank so they can appreciate why we must protect and preserve it.

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to Environment

Ind. Gov't. - Still more on: Are General Assembly emails subject to the Public Records Law?

Re the ILB posts last Friday afternoon and evening headed "Are General Assembly emails subject to the Public Records Law?," the ILB received this tweet:

Adam VanOsdol ‏@AdamVanOsdol 26 Jul
Wait. I assumed legi branch was exempt RT @indianalawblog Are General Assembly emails subject to Public Records Law?

ILB: The General Assembly apparently didn't believe they were exempt in 2001 when they passed HEA 1083, designed to limit the Public Records Law applicability to the General Assembly. According to the as-passed bill digest, the bill would:

Amends the access to public records law to do the following: (1) Revise the section of the law stating the public policy behind the law. (2) Specify that the legislative branch is subject to the law to the extent provided in law or in its rules. (3) Make corresponding changes by removing from the list of discretionary exclusions the work products of the legislative services agency and members of the General Assembly and their partisan staffs.
Notice item 3, "make corresponding changes" to the list of discretionary exclusions. These two exclusions from the application of the public records law no longer would have been needed, had HEA 1083 become law. But instead it was vetoed by Governor O'Bannon. With no veto override, the exclusions continued and remain in the Public Records Law today -- see IC 5-14-3-4(b)(13) and (14):
(b) Except as otherwise provided by subsection (a), the following public records shall be excepted from section 3 of this chapter at the discretion of a public agency: * * *
(13) The work product of the legislative services agency under personnel rules approved by the legislative council.
(14) The work product of individual members and the partisan staffs of the general assembly.
This logical conclusion is, of course, that the general assembly is covered by the Public Records Law, with the exceptions noted. (What is considered "work product" is another matter.)

However, as Gov. O'Bannon pointed out in his 2001 veto message (detailed in the 2nd half of this ILB post this past Friday), our Supreme Court had already ruled in 1993 that it did not have the constitutional authority to require the General Assembly to make public even its voting records on legislation.

The claim in Masariu was "The complaint asserts that the voting records of the House of Representatives are public records available for inspection and copying pursuant to Ind.Code § 5-14-3-2 [of the Public Records Act]," and the 3-2 decision by the Court effectively was that the Court could not compel the General Assembly to abide by its own law, the Public Records Law.

Moreover, the Supreme Court 20 years later came to a similar conclusion re another of the General Assembly's laws, the Wage Payment act, in Berry v. Crawford, the legislative fines case, also a 3-2 opinion, which as I noted earlier, heavily cited Masariu.

So one answer to the question "Are General Assembly emails subject to the Public Records Law?" would be "yes," according to the Public Records Act, BUT it is very unlikely that the current Supreme Court would compel its application.

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

Ind. Decisions - Transfer list for week ending July 26, 2013

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

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

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

From Sunday, July 28, 2013:

From Saturday, July 27, 2013:

From late Friday, July 26, 2013:

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/29/13):

Next week's oral arguments before the Supreme Court (week of 8/5/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/29/13):

Next week's oral arguments before the Court of Appeals (week of 8/5/13):

Tuesday, August 6th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, July 29, 2013
Posted to Upcoming Oral Arguments

Sunday, July 28, 2013

Environment - "Power companies say solar panel systems are draining away their customers and profits" [Updated]

From a story July 26th in the NY Times, reported by Diane Cardwell:

For years, power companies have watched warily as solar panels have sprouted across the nation’s rooftops. Now, in almost panicked tones, they are fighting hard to slow the spread.

Alarmed by what they say has become an existential threat to their business, utility companies are moving to roll back government incentives aimed at promoting solar energy and other renewable sources of power. At stake, the companies say, is nothing less than the future of the American electricity industry.

[Updated] A somewhat parallel story today in the Louisville Courier Journal, headed "Conservation driving up water rates in Louisville: Environmental concerns challenge bottom line at Louisville Water Co." The long story by James Bruggers begins:
Louisville Water Co. officials never talk about conservation — not that it has mattered. Water use has declined on its own.

While that may sound like a good, green development for a city seeking a more sustainable future, there’s a downside to the declining consumption: It’s helping to drive up customers’ rates — raising them more than 80 percent since 1999.

As Louisville’s economy has shifted from a water-needy industrial base to a service-based one, and as water efficiency increasingly has become a national priority, the declining consumption has helped raise rates even faster than the rate of inflation.

And that’s an issue, since the water company still must maintain its basic infrastructure, including treatment plants and distribution system, even as increasingly stringent water-quality standards require upgrades, said James Brammell, the new water company president.

Posted by Marcia Oddi on Sunday, July 28, 2013
Posted to Environment

Ind. Law - "Students without citizenship face struggles in Indiana"

From a long, July 21st story by Jessie Hellmann in the Kokomo Tribune:

“I wasn’t born here, but I was raised here,” [Angel Ramos, 20] said. “I went to American schools, went on field trips, had American friends, watched American movies, and I stood up every morning at school and said the Pledge of Allegiance.”

For students like Ramos, HB 1402 [passed in 2011] made college two to three times more expensive and much harder to pay for, especially since such students also are ineligible for state or federal financial aid.

When the bill went into effect July 1, 2011, students had two options: pay out-of state tuition or drop out and wait for Congress to pass immigration reform or apply for Obama’s Deferred Action for Childhood Arrivals work permit policy.

The story reports that: "Before the bill, tuition at Indiana University Kokomo was manageable at $198 per credit hour. [After it went into effect] Angel would have to pay IU Kokomo’s out-of state rate of $563 per credit hour if he wanted to attend school."

The lengthy story continues: "SB 207 passed this year, allow[ed] the students who were enrolled on or before July 1, 2011, to return to school and pay in-state tuition rates." More:

Sen. Leising said she authored the bill because HB 1402 didn’t grandfather in students who were already enrolled in school.

“I think that, truthfully, they should have figured out how those kids could have been exempt,” Leising said. “A lot of times when legislation passes, it doesn’t impact people that are in a process. They’re grandfathered. I think that’s one of the reasons I was able to get the bill passed. It wasn’t fair to those who invested years of their lives already and wouldn’t be able to finish.”

She said she doesn’t think the Indiana Legislature will support a bill that gives in-state tuition to all undocumented students because of the “brokenness” of the federal government’s immigration laws.

“Right now, I don’t think that the Legislature would collectively support a bill that would take care of all undocumented college students,” Leising said. “I don’t think they are willing to make that commitment without the federal government changing policy, because right now, I don’t think the Legislature has any confidence that the border has been secured and that would potentially be a problem.”

She said some legislators wanted to amend her bill to expand in-state tuition to all students, but it wouldn’t have had enough support to pass.

“It just seems to me that if we have a young person who had done well in school, graduated from a public high school and wanted to continue their education so they can be productive members of society, we should let them finish their education,” she said.

She estimated the law will only help about 300 students.

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

Environment - "Pressure to produce meat is breeding unrest about concentrated animal operations"

Some quotes from a very lengthy Sunday story in the Lafayette Journal Courier, written by Chris Morisse Vizza:

The pigs are coming. That much is almost certain. | More than 9,000 of them, packed together in a huge warehouse in White County, pumping out as much bodily waste each year as the entire human population of Greater Lafayette. | What no one yet knows is just how bad they will smell, how much runoff they may produce and how neighboring property owners will be affected. | If the best hopes of John Erickson, the farmer who is building the facility, and state and local regulators and pork industry officials are realized, the impacts will be minimal, and worth the benefits to society at large in terms of lower pork prices at the supermarket.

But if the worst fears of some environmentalists and industry experts come to pass, neighbors such as Camp Tecumseh, David Krause and Janet Rose could see their enjoyment of their properties overwhelmed by the stink and the mess.

Krause and his wife purchased 67 acres just southeast of the proposed hog operation years ago for their retirement. An architect has drawn plans for their dream home at White County Road 1025 South and Springboro Road.

But now Krause doubts that dream will ever materialize.

“If Erickson could keep his dust and his smell and his water on his property, no one would care,” said Krause, “but he cannot guarantee that.”

Janet Rose and her husband, Louis, own a house in Walnut Ridge subdivision in White County, a neighborhood just west of the Tippecanoe River and north of Indiana 18.

Rose’s house is less than a mile from where Erickson wants to build the concentrated animal feeding operation, or CAFO, capable of housing up to 9,240 hogs. The size of the operation and nearness to her neighborhood, and to Camp Tecumseh just east of Walnut Ridge, worry her.

“I like the Ericksons, and they’re good people,” said Rose, who has lived in Walnut Ridge since 2005. “My worries are about the land and the air and the pollution and the road … bringing all the trucks through here.”

Tecumseh, a 600-acre YMCA camp has been host to outdoor activities for 5,000 campers during warm summer months for 90 years. Another 25,000 adults, including church groups and corporations, use facilities at the natural setting each year.

Ever since the White County Board of Commissioners voted July 1 to rezone 7 acres of Erickson’s land from general agriculture to agricultural industry, Camp Tecumseh’s board members have been weighing their options, which include legal action.

The conflict brewing in this corner of southeast White County is not unique. Battles over expanding hog operations have been fought all across Indiana and the Midwest.

The White County case is just the latest and highest profile example of market forces in the meat industry that are pressuring farmers to reduce costs by concentrating more pigs under one roof, even if it means going against longtime neighbors.

Can consumers and CAFO’s coexist? It depends on who’s doing the talking.

Great writing! And this is from just "page 1" of 9.

Posted by Marcia Oddi on Sunday, July 28, 2013
Posted to Environment

Ind. Decisions - "7th Circuit orders review of ’02 murder conviction"

The 7th Circuit opinion in Shaw v. Wilson, issued last Wednesday and reversing the district court, is the subject of a story this weekend by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:

Though the state’s appeals court and a U.S. District Court upheld the 2002 murder conviction of Troy Shaw, the U.S. 7th Circuit Court of Appeals said the case deserves another look.

In an opinion filed this week overturning a ruling by the U.S. District Court in the Southern District of Indiana, the 7th Circuit found that the public defender in charge of Shaw’s appeal fell below the minimal constitutional requirement for legal effectiveness.

Because Gregory Miller failed to raise the issue of whether Allen County prosecutors should have been allowed to charge Shaw for the murder in the June 2000 death of Brett King when they did, the judges on the 7th Circuit ruled that the case needs to be reconsidered by either the federal court in Indianapolis or the state’s court of appeals.

At issue is how courts interpreted rules governing when prosecutors could change the charges against a defendant. Shaw is arguing that prosecutors waited too long to file the murder charge against him – in December 2001, six months after he was charged with aggravated battery.

But when Miller handled Shaw’s appeal, he argued there was not sufficient evidence to support a murder conviction.

Such an argument is “dead on arrival,” according to the federal appeals court. * * *

In December 2002, Miller filed an appeal on behalf of Shaw, arguing that the state did not have enough evidence to support the murder charge. The appellate court rejected that argument and upheld Shaw’s conviction in June 2003.

Shaw unsuccessfully sought to have Allen Superior Court Judge John Surbeck review his case in 2004 and change the outcome, and four years later that request was also denied.

Shaw appealed that decision, as well.

When the case stalled at the appellate court, Shaw filed a petition for a writ of habeas corpus in federal court, asking a federal judge to determine whether the Indiana courts violated his constitutional rights. U.S. District Judge Jane E. Magnus-Stinson denied his request. Federal courts cannot make a determination about the laws in a particular state, but they can rule on whether constitutional rights were violated.

Shaw then appealed again, this time to the 7th Circuit Court of Appeals.

In a ruling issued Wednesday, the higher court ordered the federal court to review Shaw’s case, unless the Indiana Court of Appeals grants his request for another hearing on his case.

The 7th Circuit ruled that Miller’s failure to argue about the timeliness of the additional, and much more serious, charge of murder did prejudice Shaw. Had Miller not argued about the evidence, and instead about the time frame, Shaw’s appeal could have stood a “reasonable chance of success,” Appeals Court Judge Diane Wood wrote.

Wood wrote that “a competent lawyer in Indiana would have recognized that there was a state statute under which relief for his client was possible and would have pursued that theory on appeal.”

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

Law - "Kentucky jailing far fewer juveniles for non-criminal acts, but officials say more needs to be done"

Some quotes from Jason Riley's long story in the Sunday Louisville Courier Journal:

Kentucky judges have more than halved the number of children they’re sending to jail for skipping school, running away from home and other noncriminal offenses amid a concerted effort by state officials to find alternatives to incarcerating children.

And one state representative predicts a “very strong push” when the General Assembly meets in January to prohibit jailing juveniles altogether for such non-criminal offenses that don’t apply to adults.

Kentucky ranked fourth in the country for the number of so-called “status offenders” it sent to jail in the past year, using contempt-of-court violations to sidestep federal and state laws and ignoring the near-unanimous agreement of experts and advocates that it harms children.

It used to be that judges believed “jail would be a wake-up call for children,” Daviess District Court Judge Lisa Payne Jones said in an interview. “I think the more we educate ourselves, we find that is certainly not true.”

As state and local officials in recent years have come to agree that dealing with such children should be done outside of jail, the number of juveniles jailed has steadily fallen to 1,090 last year from 2,270 in 2007, according to recently released data from Kentucky Youth Advocates, a nonprofit advocacy organization. Just since 2010, the number of jailed status offenders has fallen by nearly one-third.

Posted by Marcia Oddi on Sunday, July 28, 2013
Posted to General Law Related

Ind. Gov't. - "People in need of Internet access turn to libraries "

This story by Matt Mikus in the Gary Post-Tribune is one of a number the ILB has posted on this topic. Some quotes:

As our lives become more connected to the Internet, libraries are providing a service invaluable for those who don’t have a connection at home.

Library computers often are used for signing up to services like unemployment benefits or filing taxes. And with the Affordable Care Act, those who plan to buy insurance through online health care exchanges may fined a visit to the library the most convenient way to accomplish that.

About 27.6 percent of households in the country do not have high-speed internet access as of Oct. 2012, according to the National Telecommunications and Information Administration. * * *

To help keep librarians informed, IMLS and the Centers for Medicaid and Medicare Services will partner to provide seminars for librarians, and offer fact sheets and links to more information at their website.

“It’s just like with taxes, they come in and either get their forms or file their taxes. We can’t offer tax advice or guidance. This would be the same thing, patrons can come in and sign up for health insurance, but there’s no way we can know what their specific questions.”

Associate Director of the Porter County Public Library Phyllis Nelson said that currently the library has not heard much about implementing the health care law, but as they receive more information, they’ll make sure to help keep their patrons informed.

Posted by Marcia Oddi on Sunday, July 28, 2013
Posted to Indiana Government

Ind. Law - Reducing 1000-foot sex-offender housing rule "never going to happen"

From the weekly column by Douglas Walker and Keith Roysdon in the Muncie Star-Press:

Mayor Dennis Tyler injected a strong dose of political reality last week into a community meeting on sex offenders living in Muncie’s Old West End.

State parole officials, responding to concerns about a cluster of paroled offenders living in that neighborhood, suggested Old West End residents lobby their legislators to adjust Indiana’s 1,000-foot rule, which forbids those convicted of sex crimes against children, or found to be sexually violent predators, from living within that distance of schools, parks and day care facilities.

Some law enforcement officials have joined their parole counterparts in questioning the value and logic behind the rule, noting the difficulty it poses in finding housing for the offenders, while perhaps doing little to truly increase safety. It also results in an abundance of the felons living in areas like the Old West End, which has no schools and parks.

“That’s never going to happen,” Tyler, a state representative for six years before becoming mayor in 2012, said when a parole agent suggested the 1,000-foot standard be reduced, perhaps to 500 feet. “You apparently have never had a political attack ad.” * * *

During his years at the Statehouse, Tyler said the only proposals he heard regarding the residency limitation were to increase, not reduce, the distance that offenders must live from child-oriented facilities.

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

Friday, July 26, 2013

Ind. Gov't. - More on: Are General Assembly emails subject to the Public Records Law?

After I posted this entry on HEA 1083-2001 this afternoon, Mary Beth Schneider of the Indianapolis Star tweeted:

It was an @indystar request that led to full-blown panic by #INLegis that - gasp! - we might see their emails.
That rang a bell and this evening I had the chance to go back at look at early ILB entries. This one, from Nov. 14, 2003, headed "Indiana Law - Public access v. email privacy for state employees and officials," had what I was looking for. Quoting the second half of the 2003 post:
Some of you may recall much press on the email privacy issue in 2001 when the General Assembly enacted HEA 1083 (pp. 3-4), which would have exempted the General Assembly, and the legislative services agency, from the public records law, except to the extent expressly set out in law or in the rules of the house, senate, or legislative council. The bill was vetoed by Governor O'Bannon on May 10, 2001. A copy of the veto message may be found here. Some quotes:
Regrettably, it appears that House Enrolled Act 1083 was passed, at least in part, as a reaction to a media request for all e-mails (regardless of content or relevance) sent or received by certain legislators over a two-week period. It is not surprising that some legislators viewed this request as needlessly invasive. These are not ideal conditions for making sound public policy. * * *

I believe an open government is essential to a free society. That is why I, as a state senator, along with Senator Ed Pease, sponsored the public records act in 1983. The legislature’s records should be open to the public, with a few carefully crafted exceptions. Although the legislature, as a separate branch of government, clearly has the power to exempt itself from the public records act and address these issues in its rules, this is not a step that should be taken hastily or without careful deliberation and meaningful opportunity for public comment. It is easier to change or suspend legislative rules than to amend or repeal a statute.

The debate over this legislation has raised many legitimate and difficult questions. Should a personal letter or e-mail from an individual constituent be treated differently than a letter or e-mail from a lobbyist or corporation? Should there be an exception for those records where disclosure would constitute a clearly unwarranted invasion of personal privacy? Should there be an exception in the public records act for records declared confidential by legislative rule, as there is with the judicial branch? Although there is a constitutional right to petition the legislature, does it follow that there is a right to do so in secret under all circumstances? How should the public records act be updated to take account of today’s technology? These and other issues need to be considered in greater depth.

In 1993, the Indiana Supreme Court held, based on separation of powers, that the courts could not compel the legislature to produce documents if it would interfere with the legislature’s internal operations. House Enrolled Act 1083 may therefore be unnecessary to the extent that the legislature cannot, under current law, be compelled to produce documents.

The main issue presented by House Enrolled Act 1083 is whether the General Assembly should expressly exempt itself from the public records act that it has successfully operated under for the last 18 years. Symbolically, and perhaps substantively, this would be a step backwards. I do not believe this is a step that should be taken without careful reflection and opportunity for public participation.

The case referred to by Governor O'Bannon is State ex rel. Masariu v. Marion County Superior Court (10/12/93). The case involved an effort by Indianapolis Newspapers to obtain access to voting records of the House of Representatives from the Clerk of the House via the Indiana public records law. "The Relator seeks a writ of prohibition barring Respondent court and judge from proceeding further with an action brought against her, styled Indianapolis Newspapers, Inc., William Theobald, and Nancy Winkley v. Betty Masariu in her official capacity as Principal Clerk of the Indiana House of Representatives, under Cause No. 49D01--9304--CP--416." Our Supreme Court ruled:
The complaint asserts that the voting records of the House of Representatives are public records available for inspection and copying pursuant to Ind.Code § 5--14--3--2. We find, however, that to the extent such enactments empower the judicial branch to inquire into and interfere with the internal operations of the Indiana House of Representatives, said application transgresses the above separation of powers clause of our state constitution. Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation. See Roeschlein v. Thomas (1972), 258 Ind. 16, 280 N.E.2d 581. If the legislature wishes to authorize sanctions against itself upon a claim by press or public alleging improper legislative secrecy, such sanctions would have to be determined and imposed solely by the legislative branch itself, without recourse to the courts.
Justice Givan wrote the opinion, Justices DeBruler and Dickson concurred. Chief Justice Shepard dissented with separate opinion in which Justice Krahulik concurred.
This case presents several issues of considerable importance about the operation of Indiana government, such as whether legislators' votes should be recorded on amendments to the state's multi-billion-dollar budget, how citizens can learn whether their own legislators voted yes or no on those amendments, and whether the distribution of powers article in the Indiana Constitution prevents the judiciary from taking notice of such matters. I cannot agree that all these issues are so simple that they should be resolved in a few paragraphs through the supervisory procedure of a writ of prohibition. I would permit the trial court to complete the litigation so that we could hear the matter through the regular appellate process. [emphasis added by ILB]
ILB: All in all, Masariu is quite astonishing. It involved a dispute between the General Assembly and the Indianapolis Star over access to voting records on bills. It is very short (2 pages) and worth reviewing in full. Also astonishing, after review, is that our Supreme Court heavily relied on this decision in its June 18, 2013 3-2 opinion in Berry v. Crawford, the legislative fines case.

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

Ind. Gov't. - Are General Assembly emails subject to the Public Records Law? [Updated]

Some quotes from a fascinating story today by Brian Howey in Howey Politics Indiana on how close the General Assembly came in 2001 to protecting legislative emails from public view.

In the long Indiana General Assembly session of 2001, House Bill 1083 would have prevented press access to the electronic mails of government officials. Beyond personal meetings, phone calls, letters and facsimiles, the email was becoming a key way to communicate and the rules developed around it not unlike what we’re currently witnessing with Facebook, Twitter and Instagram.
 


HB 1083 passed both chambers and ended up on the desk of Gov. Frank O’Bannon, who by vocation was publisher of the Corydon Democrat. O’Bannon vetoed the bill.



Had he signed HB 1083, it would have dramatically changed Indiana journalism by keeping what has become a huge swath of information out of the public arena. We wouldn’t have learned, for instance, about the cozy relationship between Duke Energy and the Indiana Utility Regulatory Commission and the Edwardsport plant overruns.


The volume of emails between government officials, their employees, counterparts, constituents and even the press has been huge and expansive. Having the potential access to these emails hasn’t been abused, in my opinion, but it adds a 21st Century check and balance for the Fourth Estate and its watchdog role over government. Most government officials know that you don’t put anything in an email that you wouldn’t be comfortable with showing up in a court hearing or on the f
front page.
 


As Robin Winston, former O’Bannon aide and Indiana Democratic chairman, liked to say, “A letter can die on the shredder, but an email lasts forever.”



ILB: The rationale stated in SECTION 2 of HB 1083 to justify the secrecy of their emails was "right of citizens to privacy in their communications with members of the general assembly."

SECTION 3 of the vetoed bill read:

IC 5-14-3-1.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1.5. (a) The general assembly finds that the citizens of the state of Indiana have constitutional rights that shall not be impaired, either directly or indirectly. Among those rights is the freedom to speak and write freely, in the course of which citizens may instruct their elected representatives as well as seek a redress of grievances. Those citizens who are elected to serve in the general assembly have a corresponding right to receive information, whether it be oral, written, or in electronic form, and to consider and discuss freely that information among themselves, with a view towards enacting legislation that is the product of thoughtful, uninhibited debate and discussion.

(b) In accordance with Article 3, Section 1 and Article 4, Section 10 of the Constitution of the State of Indiana, this chapter applies to the legislative branch of state government as follows:
(1) To the house of representatives only to the extent expressly set out in law or in the Rules for the Government of the House that are adopted during, and applicable to, a term of the general assembly (as defined in IC 2-2.1-1-1(2)).
(2) To the senate only to the extent expressly set out in law or in the Standing Rules and Orders of the Senate that are adopted during, and applicable to, a term of the general assembly (as defined in IC 2-1.1-1-1(2)).
(3) To the legislative services agency to the extent expressly set out in personnel rules adopted by the legislative council.

ILB: My reading of HB 1083, however, does not reveal that it would have exempted executive branch agencies, but only the General Assembly from the public records requirements.

It does raise a question: have emails of members of the General Assembly ever been successfully FOIAed? I don't remember ever reading any press stories based on information gleaned from electronic or written correspondence of members of our general Assembly accessed under the public records law ...

[Updated at 3:15 PM] A former government employee writes: "I don’t recall any attempts to get to legislative e-mail, but I can tell you from many conversations, legislators believe they are exempt from disclosure."

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

Courts - 3rd Circuit: "For-Profit Companies Don’t Have Religious Rights"

Joe Palazzolo of the WSJ Law Blog ($$$) had the story late this morning. Some quotes:

On Friday, the Philadelphia-based U.S. Court of Appeals for the Third Circuit ruled that “for-profit, secular corporations cannot engage in religious exercise,” departing from a decision in June by the U.S. Court of Appeals for the 10th Circuit, which held that in some circumstances for-profit companies do enjoy religious rights. [ILB: Hobby Lobby]

“We respectfully disagree with that Court‘s analysis,” wrote Judge Robert E. Cowen of the Third Circuit.

The Third Circuit ruling came in a challenge to regulations under the 2010 healthcare overhaul that require employee health insurance plans to include free contraceptive coverage.

Conestoga Wood Specialties Corp., a manufacturer of wood cabinets based in East Earl, Pa., and its owners, who are Mennonite Christians, say the requirement violates the Free Exercise Clause of the First Amendment as well as the Religious Freedom Restoration Act, which guards against laws that substantially burden that right.

While dozens of other challenges to the contraceptive mandate are pending, the break between the 10th Circuit and the Third Circuit makes it even more likely that the Supreme Court will take up the issue next term.

ILB: Two cases are pending before the 7th Circuit.

Posted by Marcia Oddi on Friday, July 26, 2013
Posted to Courts in general

Courts - Kentucky challenge to state ban on same sex marriage follows successful challenge in Ohio

"Ohio must recognize gay couple's marriage, judge rules" is the heading to one of a number of stories earlier this week -- this one by Kevin Rector in the LA Times on July 23rd, began:

BALTIMORE — A federal judge in Ohio has ordered state officials there to recognize the Maryland marriage of a terminally ill gay Cincinnati man on his state death certificate.

The man and his husband, who were wed in Maryland, where gay marriage is legal, expect he will die soon.

The decision by U.S. District Judge Timothy S. Black to grant John Arthur and his husband, Jim Obergefell, a temporary restraining order against the 2004 Ohio law banning recognition of gay marriage came despite a warning from the state's attorney general that it could contribute to a broad rewriting of Ohio law in favor of such unions. * * *

In his decision Monday, Black wrote that his order restraining the state from enforcing its laws applied to Arthur and Obergefell only, through Aug. 5 or as extended by the court. It will not affect Ohio or its other citizens, the order said.

But Black also took aim at the state's current law, saying Arthur and Obergefell were "not currently accorded the same dignity and recognition as similarly situated opposite-sex couples" in Ohio.

Black referred to the recent U.S. Supreme Court decision overturning the federal law banning federal recognition of same-sex marriages performed in states where they are legal, and he challenged the notion that Ohio could pick and choose which out-of-state marriages to recognize — even among those that would be illegal in Ohio.

Black found that Ohio recognized opposite-sex marriages between first cousins and minors that are legally performed in other states, though they are otherwise illegal in Ohio.

Today Brett Barrouquere of the AP has a story headed "Kentucky couple challenges state ban on same-sex marriage, seeks recognition of their marriage." Some quotes:
LOUISVILLE, Kentucky — A Louisville couple on Friday challenged Kentucky's ban on same-sex marriages, saying the state isn't treating them and other same-sex couples on equal footing with other married couples.

Gregory Bourke and Michael Deleon, both 55, are asking a federal judge in Louisville to require the state to recognize valid unions from other states and countries.

The men are seeking an injunction to stop state and local officials from enforcing the ban written into the Kentucky constitution in 2004. The suit is the first such challenge in Kentucky since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act, which blocked married same-sex couples from receiving the same benefits as heterosexual spouses.

The high court's majority said provisions in the federal law defining marriage as between one man and one woman interfered with the equal dignity of same-sex marriages in states that allowed them. * * *

Challenges to same-sex marriage bans have been filed in recent weeks in Pennsylvania, Arkansas and New Mexico. The American Civil Liberties Union has said challenges are also expected in Virginia, Nevada, Hawaii and Michigan.

Kentucky changed its state constitution in 2004 to include the prohibition on same-sex marriage. The amendment reads: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky" and "A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky."

ILB: The Ohio case is Obergefell et al v. Kasich et al (1:2013cv00501). Here is the complaint, here is the order.

Posted by Marcia Oddi on Friday, July 26, 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 (1):

Parkway Developers Construction, LLC v. Lang, Feeney & Associates, Inc., and Terance D. Lang (NFP)

NFP criminal opinions today (3):

Jermaine Marcel Nash v. State of Indiana (NFP)

State of Indiana v. Adrian Lotaki (NFP)

Shane E. Maxwell v. State of Indiana (NFP)

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

Ind. Courts - More on: Current process for dealing with corrected appellate opinions poses perils

Updating this ILB post from July 12th, here is how they do it at the 7th Circuit:

Order correcting opinion in case# 12-2511; Derek Redmond v. Mary Redmond (cv case) {PERCURIAM}
[uploaded: 07/25/2013]

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

Ind. Law - "Jury’s out on law school"

Updating a long list of earlier ILB entries on the new, opening this fall, Indiana Tech law school in Fort Wayne, the subscription-only Fort Wayne Business Weekly has what looks like an interesting story today, by Rick Farrant. The teaser reads:

Just 22 students have enrolled in Indiana Tech’s new degree program

If nothing changes in the next month, the new Indiana Tech Law School will have more faculty and staff than students when the inaugural freshman class begins studies Aug. 26.

School officials had hoped to start with a 100-member class. As of July 23, just 22 students had paid deposits. The $16-million, 70,000-square-foot school, meanwhile, will have 25 faculty and staff when its doors open.

For a longer, harsher story, see this Above the Law post from yesterday.

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

Ind. Courts - Still more on "Some Brown County Residents Protest Courthouse Remodel Bonds"

Updating this ILB entry from May 10, along with this one, Indiana Public Media reports today:

The Brown County League of Women Voters hosted a public forum Thursday night to give residents a chance to ask questions of city leaders familiar with the project. League President Julie Winn says phase one of the remonstrance was completed when more than 200 taxpayer signatures were gathered to put a temporary hold on the project. The next phase begins Aug. 9.

“There will be two documents,” says Winn. “People can sign a petition, which now means they’re in favor of the project going ahead now, as is, or a remonstrance, which means they’re opposed to it.”

Nashville resident Rita Simon says she is concerned that there was no bidding process for the architect of the renovation.

“I think there was not adequate opportunity for the public to ask questions and get answers about the various issues in adding on to the courthouse,” says Simon.

But County Commisioner Joe Wray thinks those concerns are unfounded. He says residents have had ample time to learn about the renovation and he balks at the idea of putting capital spending projects to a public referendum.

“Yes, we want as much public input as we can get, but eventually somebody’s got to make a decision,” says Wray.

All registered voters and property owners will have a chance to weigh in next month. If residents opt for remonstrance, the county commission would not be able to proceed and the courthouse project would be put on hold for at least a year.

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

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

Updating this ILB entry from June 27th, Tim Evans of the Indianapolis Star reports today in a story headed "Defendants file to have Lauren Spierer negligence suit dismissed" that begins:Attorneys for three men who spent time with Indiana University student Lauren Spierer in the hours before she went missing in 2011 are asking a federal judge to throw out a negligence lawsuit filed last month by her parents.

The motions filed Thursday by attorneys for Michael Beth and Corey Rossman seeking dismissal of the lawsuit, which is pending in U.S. District Court for the Southern District of Indiana, stress two legal points:

• The men — Beth, Rossman and Jason Rosenbaum — had no legal duty to supervise Spierer or ensure her safety.

• There is no proof that Spierer’s disappearance was the result of an injury or her death — or even that she is dead.

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

Thursday, July 25, 2013

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

In UNITED STATES OF AMERICA v. JAMA MIRE and HASSAN RAFLE (SD Ind. Lawrence), a 33-page opinion, Judge Bauer writes:

This case introduces a new drug culture to the Seventh Circuit: the underground world of “khat.”

Jama Mire and Hassan Rafle became involved in a conspiracy to distribute khat in the Indianapolis area. Mire’s business, the Somali House of Coffee, served as a place where people could get the “stuff” and enjoy it in comfort. Government agents received a tip from a concerned Somali man about this khat-distribution conspiracy and launched an investigation into it. Mire and Rafle were each indicted on one count of conspiracy to possess with intent to distribute cathinone, in violation of 21 U.S.C. §§ 841(a) and 846. Mire was indicted on two additional counts: (1) knowingly using or maintaining a place for the purpose of distributing and using cathinone, in violation of 21 U.S.C. § 856(a)(1); and (2) possession with intent to distribute a mixture or substance containing cathinone, in violation of 21 U.S.C. § 841(a). And after a bench trial, Mire and Rafle were found guilty on all counts.

The Defendants appeal their convictions; the sentences they received are not at issue. Mire and Rafle contend, first, that their due process rights were violated because they were not given fair warning that the possession of khat may be illegal; and second, that the district court erred under Daubert in admitting government expert witness testimony regarding khat plants that were seized at the coffee house and tested for cathinone, a controlled substance. Mire also contends that his conviction for conspiracy to distribute khat and his conviction for maintaining a place for the distribution or use of khat violate the Double Jeopardy Clause; and anyway, that the evidence at trial was not sufficient to support any of his convictions.

Finding each of the arguments without merit, we affirm. * * *

This is the first case involving khat to appear before this Court, so we take the opportunity to explain it. Khat, pronounced “kY+t”—the common name for the plant Catha Edulis—grows in parts of East Africa and the Arabian Peninsula. It is known as the drug-of-choice among Somali men who chew the leaves or mix them in with tea for the stimulant effects. It is not smoked or eaten in any fashion. The use of khat in Somalia is legal and an accepted pastime, and the plant is readily sold in the marketplace and stores. Estimates put its use among Somali men as being equivalent to caffeine or tobacco use among the American population.

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

Ind. Courts - Bringing Indiana's Highest Courts into the 21st Century

The ILB has located the Supreme Court's operating budget request for the 2013-2015 biennium (which began July 1, 2013), as presented to the State Budget Committee on Nov. 27, 2012. Most interesting, and encouraging, is the portion of the 30-page Supreme Court Transmittal Letter quoted below [headings inserted by ILB], which can be found at pp. 19-22 of the document.

Bringing Indiana's Highest Courts into the 21st Century

A. Request for Funding of a New Appellate Case Management System (CMS)

The Court has undertaken many efforts to make the legal system in Indiana more just, more efficient, and more reflective of, and available to, the state's diverse citizenry, not the least of which has been the development and deployment of Odyssey to Indiana's trial courts. It has likewise become clear that modem technology must be employed for appellate case management and electronic filing as well. We requested funding for a new appellate case management system in the biennial budget request submitted in October 2010. Our request was rejected due to the extreme fiscal difficulties the state then faced. Our need for this new technology has grown over the last two years, a fact made known to us not only from our own experience but also by the many attorneys who practice before our three appellate courts. Accordingly, we make our request again.

Since their inceptions, the Supreme Court, the Court of Appeals, the Tax Court, and the Appellate Courts' Clerk's Office (collectively "Appellate Courts") have been paper based, as indeed were all American appellate courts until recent times. Technological advances over the last two decades have made electronic case management systems a far-superior alternative to antiquated paper-based systems. These new systems, which most state and federal appellate courts around the country have either already implemented or are in the process of procuring, maintain court documents in digital format throughout the entire process; allow internet-based submission of court filings and remote access to court records on a variable permission basis by judges, court and clerk office staff, attorneys, parties, and the public; automate many of the functions currently done by human effort, thereby dramatically increasing efficiency, reducing the time necessary at each step in the process, and eliminating human error; and drastically reduce the amount of data entry duplication required when information is reduced to paper and then must be reentered by the recipients of the paper into other, disconnected information systems.

Indiana's Appellate Courts have reached the point where the current technology used to manage the cases and court processes and to provide access to attorneys, parties, and media is no longer adequate. Each day, case-related filings, representing thousands of pieces of paper, come into the Courts' Clerk's Office through the mail or in person. The receipt of these filings must be manually noted on the Appellate Courts' electronic docket system, a "green screen" AS400 database system that the Appellate Courts have been using since the mid-1980s. The paper filings must then be file stamped, stored, and, eventually, physically transported to the appropriate court's administration office. The court's administration staff must then manually enter the receipt of the filings on their own internal tracking systems, which often are either in the form of a paper log or a rudimentary electronic database, and then transport the paper filings to the appropriate judges/justices and chambers staff. Each judge or justice's chambers staff must then record that chamber's receipt of the paper filings in hislher chamber's own internal chambers-based tracking system, which is also either a paper log or a rudimentary database. When the judge or justice makes hislher decision regarding the filing, additional documents must be created to reflect those decisions (i.e., orders and opinions) which must then be printed out, signed, copied, and physically transported to the Clerk's Office after, again, having been manually noted on the chamber's and court administration office's internal document tracking systems. If the document is either an opinion or an order that will be posted on the web, a separate "e-version" of the document must also be created and sent electronically to the Clerk's Office. The Clerk's Office must then engage in additional data entry to record the receipt and filing of the court's order or opinion, affix a file stamp to the paper version of the order or opinion, and send the order or opinion via email to the parties represented by attorneys and by regular mail to any parties proceeding without a lawyer.

The entire paper-based process, from the inception of the appeal through the issuance of a court's opinion, needs to be dramatically streamlined through the adoption of modem, readily available appellate case management technology that would allow documents to be filed by the parties digitally over the Internet and rarely reduced to paper, leading to reduced costs and errors, greater efficiency, and swifter justice provided to Indiana's citizens and businesses.

Additionally, events of the last decade have shown the vulnerability of paperbased governmental offices, especially courts, to natural and man-made disasters. Floods and fires have wreaked havoc in many courthouses, including some in Indiana, destroying irreplaceable court records and shutting down court operations for weeks and sometimes months. Earthquakes, hurricanes, pandemics, and terrorist attacks have displaced judges and court personnel, hindering court operations and access to justice for weeks or months on end because paper-based systems require centrally located court operations. Indiana's Appellate Courts, due to their current dependence on paper records and an antiquated electronic docketing system, are extremely vulnerable to such natural and man-made disasters.

Modem disaster preparedness and continuity of operations planning call for remote access to digital records and redundant servers in multiple locations to back up those digital records. With such redundancy and remote access, court records are never destroyed, and court operations shut down in one location can be set up in another in a matter of hours, or even within minutes if staff and judges can access the system from their own homes and have a protocol in place for doing so in the event of a disaster or pandemic. With readily available technology that would eliminate the "disaster vulnerability" currently facing Indiana's highest courts, it would be irresponsible for Indiana not to take the steps necessary to eliminate that vulnerability.

The Court believes that a new appellate CMS, by eliminating the logistical issues inherent in paper-based systems and automating several functions currently being done by staff, would eliminate the need for three full-time positions and three part-time positions in the Clerk's Office starting in fiscal year 2016, saving taxpayers $189,754 per year in salary and benefits, and two additional full-time positions in the Clerk's Office starting in fiscal year 2021, saving taxpayers an additional $92,558 per year in salary and benefits (based on current salary and benefit figures).

Finally, it should be noted that Hoosiers are coming to expect the ability to interact with their state government through modem, web-based means, such as the appellate CMS proposed, due to the fact that they are already doing so in many areas. Our citizens renew license plates and engage in other important transactions online with the BMV; file state tax returns online with the Department of Revenue; make state park campground and lodge reservations and purchase hunting and fishing licenses online with the Department of Natural Resources; register to vote and register new business entities online with the Secretary of State; and renew licenses issued by the Indiana Professional Licensing Agency online. These are but a few examples of the hundreds of ways Hoosiers regularly receive services from their state government through the speed and convenience of the Internet. This biennium, the Appellate Courts again ask for the tools necessary to interact with the users of their services in the same way that much of the rest of state government now does with the users of their services.

For all of these reasons, the Indiana Supreme Court requests a total of $2,993,378 in the new biennium to procure and implement a new appellate CMS to benefit the Supreme Court, the Court of Appeals, and the Tax Court-$1,858,203 in fiscal year 2014 and $1,135,175 in fiscal year 2015.

B. Request for Funding to Improve Public Access to Appellate Court Records (PACER-like?)

The Court also seeks additional funding to expand, enhance, and automate public access to Appellate Court records. Currently, unrepresented parties, members of the media, and other interested persons must visit the Court's website each day to look at case dockets and other web pages to determine whether orders and opinions have been issued in cases in which they have an interest. The Court seeks funding that will allow such persons to be informed automatically via email when an order or opinion is handed down in a case in which they have an interest and then allow them, at the click of a mouse, to view the document about which they just received notice. This effort would, in effect, bring to completion a project started in 2010 that enabled the Clerk's Office to begin emailing appellate court orders and opinions to represented parties in appellate matters instead of creating and mailing paper copies, thereby saving approximately $40,000 annually in paper, printing, and postage. The Court seeks additional funds to automate this process (thereby allowing the Court to realize significant administrative savings in staff time and effort) and expand its availability to the parties, the media, and any other citizens who desire such notification about cases in which they have an interest, rather than just the attorneys involved in the cases. This will make the work of all three of Indiana's appellate courts instantly and more efficiently available to the parties and public in a way never before seen in Indiana history.

The Court also seeks additional funds for consulting services and the engagement of an independent contractor to develop and implement additional web-based technologies and databases and to assist in updating and expanding the Court's existing web-based services. This additional expertise is needed for the Court to bring its technology-related projects to fruition.

To pay for this expansion, enhancement, and automation of public access to the Appellate Courts' records and the human resource services needed to make the Court's technology initiatives a reality, the Court seeks an additional $305,000 in fiscal year 2014 and $285,000 in fiscal year 2015.

ILB: These requests are separate from the ongoing JTAC trial courts project. How much did the General Assembly actually appropriate? It is a little hard to determine.

Here is the 11/26/2012 account summary of the requests submitted by the Supreme Court. The "Automated Information Management System" request (which seems to be the PACER-type system, not the appellate CMS) is item #1,019 on p. 3. I'm not finding the New Appellate Case Management System on the table. I do see the JTAC request, it is item #1,011 on p. 2.

Here is the as-passed budget data from the Budget Agency site. The Automated Information Management System is #46610-022 on p. 3, the JTAC appropriation is #48050-022 on the same page. Both requests appear to have been funded. But what of the "appellate CMS"?

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

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Farmers Mutual Insurance Company of Grant and Blackford Counties v. M Jewell, LLC, Auditor of Grant County, Indiana and Treasurer of Grant County, Indiana, an 11-page opinion, Judge Friedlander writes:

Farmers Mutual Insurance Company of Grant and Blackford Counties (Farmers Mutual) appeals from the trial court’s order denying its petition to set aside a tax deed issued to M Jewell, LLC (Jewell). Farmers Mutual raises the following restated issue on appeal: Did the county auditor’s failure to comply with the statutory provision governing notice of tax sales render the tax deed issued to Jewell void? We reverse and remand with instructions.
In Eddie G. Showley, Executor, Estate of Phillip J. Showley v. Tracey Kelsey, Individually and as Successor Personal Representative of the Estate of Sonya Sue Showley, a 14-page opinion including a 7-page dissent, Judge Riley writes:
Showley raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it distributed the wrongful death proceeds pursuant to the laws of the State of Rhode Island. * * *

Properly characterized, the issue before us is whether the trial court abused its discretion in applying Rhode Island law to the distribution of the wrongful death proceeds when the decedent and all heirs are residents of Indiana and the injury, giving rise to the wrongful death settlement, occurred in Indiana but suit was filed in Rhode Island. We analyzed a similar question in Matter of Estate of Bruck, 632 N.E.2d 745 (Ind. Ct. App. 1994), in which we approved the distribution of wrongful death proceeds in accordance with Ohio law. * * *

Based on the foregoing, we conclude that the trial court properly ordered the wrongful death proceeds to be distributed pursuant to the laws of the State of Rhode Island. Affirmed.

BRADFORD, J. concurs
BROWN, J. dissents with separate opinion [which begins, on p. 8 of 14] I respectfully dissent. In my view, the majority misreads and misapplies the test articulated in Bruck.

In Jason King v. State of Indiana, an 11-page opinion, Judge Bradford writes:
On appeal, King argues that the trial court clearly erred in finding that he asked, “Am I going to need an attorney?” during the interrogation. We disagree, concluding that the trial court’s finding is supported by the record. King also argues that the court abused its discretion in denying his motion to suppress his confession. Because King failed to contemporaneously object to the admission of testimony regarding his confession, we conclude that King has waived his abuse of discretion argument for appeal. Waiver notwithstanding, we conclude that the question, “Am I going to need an attorney?” is not an unambiguous and unequivocal request for counsel, and therefore, that the trial court did not abuse its discretion in denying King’s motion. King further argues that his forty-five year sentence is inappropriate in light of the nature of his offense and his character. We disagree and affirm the judgment of the trial court.
In Jason E. Morales v. State of Indiana, a 7-page opinion, Judge Baker writes:
After the trial court denied appellant-petitioner Jason E. Morales’s motion for placement into the Vanderburgh County Forensic Diversion Program (the Program)1 on the basis that the Program would not accept any sex offenders, Morales filed a petition for judicial review of the Program’s acceptance criteria. Morales argued that because Indiana Code section 11-12-3.7-12 already provides that persons convicted of certain offenses deemed violent are excluded from placement into post-conviction forensic diversion programs, and not all sex offenses are included in that list, the Program exceeded its statutory authority by establishing acceptance criteria that were more exclusive than those in the statute.

Morales now appeals from the trial court’s denial of his petition, raising the same challenge to the Program’s authority to exclude all sex offenders. We conclude that the trial court’s denial of Morales’s petition was not an abuse of discretion because there was no final administrative decision for the trial court to review and that, even if the Program had explicitly rejected Morales, its decision would not have been arbitrary or capricious because Morales was ineligible under the statute. Finally, even assuming solely for argument’s sake that Morales had been eligible under the statute, Indiana counties have the ability to determine the scope of their forensic diversion programs. Thus, we affirm the judgment of the trial court.

NFP civil opinions today (1):

Lorraine V. Kucki, Michael J. Kucki, Michael R. Bradash, Ziese & Sons Excavating, Inc.: Construction Services.; Biesen Excavating, Inc. and V & H Excavating, Inc. v. Jessica Archer (NFP)

NFP criminal opinions today (6):

Bradley T. Steidle v. State of Indiana (NFP)

Virgil Pyles v. State of Indiana (NFP)

Mark R. Hurst v. State of Indiana (NFP)

Na-Son D. Smith v. State of Indiana (NFP)

Donald R. Smitty v. State of Indiana (NFP)

Clarissa Brewer v. State of Indiana (NFP)

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

Courts - "Kentucky appeals ruling over questioning students"

From a story today in the Louisville Courier Journal, reported by Brett Barrouquere of the Associated Press:

The U.S. Supreme Court was asked Tuesday to step into the legal debate over whether students must be informed of their rights before being questioned during an on-campus investigation of school-related activities.

Kentucky Attorney General Jack Conway filed a petition with the high court. It seeks to overturn a Kentucky Supreme Court ruling granting students the right to be Mirandized before questioning by school officials if a resource officer is present.

In throwing out a student’s conviction for sharing prescription hydrocodone with a classmate at a Nelson County school, the state court concluded that the presence of a school resource officer and the prospect of criminal charges meant the student should have been informed of his rights. That step is commonly known as a Miranda warning.

“No reasonable student, even the vast majority of 17-year-olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting criminal responsibility under these circumstances,” Kentucky Supreme Court Justice Mary Noble wrote in April. “If he had been an adult under these same circumstances, there is no question that the statements would not have been admissible under Miranda.”

Conway urged the U.S. Supreme Court to take the case because state appellate courts are divided over this issue.

States that hold Miranda warnings are required include Georgia, North Carolina and now Kentucky. States that hold Miranda warnings are not required include South Carolina, Virginia, Florida, Texas, Tennessee, New York, New Mexico and Louisiana.

Conway also said the issue is important, as the use of law enforcement officers as a resource in the school setting has become widespread.

Posted by Marcia Oddi on Thursday, July 25, 2013
Posted to Courts in general

Ind. Courts - Courthouse renovations in Lawrence and Clinton County

"Lawrence County Officials Allocate Funds To Pay For Courthouse Renovations" is the headline to this WBIW story that begins:

(BEDFORD) - Lawrence County officials are now ready to move forward with the $2.2 million courthouse renovations.
From the Clinton County Daily News, two brief stories.

"Lady Justice Returns To Courthouse Perch", reporting:

John Reid, owner of Pioneer Restoration, said the statue had broken in two and half of it had fallen about 40 feet. He said it needed new arms, a new sword and scales which took three months to accomplish. Reid added a complete skeleton was constructed on the inside to hold it up there.
"Statue On East Side Of Courthouse Needs Replaced", reporting:
Now that Lady Justice is back up on the west side of the Clinton County Courthouse, county officials now have to deal with a problem with the Lady Liberty statue on the east side of the Courthouse. * * * Reid said the statue was damaged from a storm about 10 years ago and is currently being held in place with a post from a stop sign.

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

Ind. Courts - "Judge seeks Allen role in juvenile alternative program"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

With a stroke of his pen, Allen Superior Judge Dan Heath signed what he hopes will be a watershed change for Allen County’s juvenile justice system.

Heath, who has been the juvenile judge in Superior Court’s Family Relations Division for just a few months, signed a letter of interest to be included in the Juvenile Detention Alternatives Initiative. The community-based program moves low-risk youth from secure detention into alternative, evidence-based therapeutic programs.

Allen County already has a detention alternative program, which diverts about 45 percent of troubled juveniles away from the county’s detention center. But Heath believes more can, and should be done, to keep more kids out of lock-up.

“Declining budgets, along with new regulations from the federal government might require additional staff if the county can’t figure out how to lower its secure detention population,” Heath said in a written statement.

So he wants the county to be included in the national Juvenile Detention Alternatives Initiative, already in place in eight Indiana counties. * * *

Marion County has been implementing the Juvenile Detention Alternatives Initiative since 2006, according to state officials.

In 2010-11, the program expanded to Johnson, Porter, Lake and Tippecanoe counties. Last year, Elkhart, Howard and Clark counties joined, according to state officials.

This year, $6 million was added to the state’s budget to expand the program throughout the state, and the lead agencies involved in the program – the state’s Supreme Court, Department of Correction, and Criminal Justice Institute – have been trying to lay the foundation to expand it statewide, according to a newsletter about the program.

Heath wants Allen County to be included in the 2014 expansion of the program, and he is optimistic the county will make the cut.

The FWJG also has a lengthy editorial today lauding the decision.

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

Ind. Courts - "Judicial magistrates and veteran trial lawyers among 11 men and women hoping to be the next Lake Criminal Court judge"

Bill Dolan reports in the NWI Times - some quotes:

The Lake County Judicial Nominating Commission released the names of applicants seeking to replace Judge Thomas Stefaniak Jr., who will vacate Criminal Court Room 4 later this summer to become Lake Juvenile Court judge.

The applicants, all local attorneys, are Kathleen M. Belzeski, Samuel L. Cappas, Randy A. Godshalk, Kristina Kantar, Michael J. Lambert, Timothy J. Ormes, Michael N. Pagano, T. Edward Page, Bruce D. Parent, Michael J. Toth and David W. Urbanski.

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

The commission will interview the applicants Aug. 8.

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

Environment - "House panel wants deep cut in Great Lakes program"

John Flesher of the AP reports in a story that begins:

TRAVERSE CITY, Mich. | Federal programs designed to make headway on some of the Great Lakes' most longstanding ecological problems, from harbors caked with toxic sludge to the threat of an Asian carp attack, would lose about 80 percent of their funding under a spending plan approved Tuesday by a Republican-controlled U.S. House panel.

The measure would hammer the Great Lakes Restoration Initiative, which has enjoyed bipartisan support since President Barack Obama established it in 2009, based on a priority list endorsed four years earlier by President George W. Bush. Also targeted for a drastic reduction is a low-interest loan fund that helps local governments upgrade aging sewage treatment systems.

Posted by Marcia Oddi on Thursday, July 25, 2013
Posted to Environment

Wednesday, July 24, 2013

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

In TROY R. SHAW v. BILL WILSON (SD Ind., Magnus-Stinson), a 24-page opinion, Judge Woods writes:

Troy Shaw and two other men were arrested and charged by the State of Indiana in an information with aggravated battery after Brett King was beaten to death outside a motel in Fort Wayne. Shaw denied participating in King’s beating, but the other two men, in exchange for prison sentences of under three years, agreed to plead guilty to voluntary manslaughter and to testify against Shaw. The state then moved to amend the information to elevate the charge against Shaw from aggravated battery to murder. The trial court granted the state’s motion over Shaw’s objection that the murder charge was barred by an Indiana statue that limits the time for amending charging documents. Shaw was convicted after a jury trial and sentenced to 60 years in prison.

On direct appeal, Shaw’s new lawyer abandoned trial counsel’s contention that the information was amended too late and instead pressed a futile claim that the evidence against Shaw was insufficient to support his conviction. Not surprisingly, the appellate court was unpersuaded; appellate counsel dropped the case at that point and did not file a petition to transfer with the Supreme Court of Indiana. Shaw persisted with a petition for post-conviction relief in the Indiana courts, but that too failed all the way up the line to the state supreme court. Shaw then turned to the federal court with a petition under 28 U.S.C. § 2254. There he argued again that his appellate lawyer’s decision to forgo challenging the validity of the amended information in favor of a frivolous sufficiency challenge constituted ineffective assistance of counsel in violation of the Sixth Amendment. The district court denied relief, but we conclude—with full cognizance of the high bar that such a case must clear—that the Indiana appellate court’s decision to the contrary is an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and the elaboration on Strickland of Smith v. Robbins, 528 U.S. 259 (2000). We therefore vacate the judgment of the district court and remand with instructions to issue a writ of habeas corpus unless the State of Indiana grants Shaw a new direct appeal in which he will have the opportunity to advance the argument that his appellate counsel should have raised. * * *

Because Miller’s performance was deficient and Shaw suffered prejudice as a result, the decision of the district court is VACATED and the case is REMANDED with instructions to issue a writ of habeas corpus unless the State of Indiana grants Shaw a new appeal within 120 days after issuance of the mandate.

BTW: Note the in-text citation on p. 8 of the opinion:
After Fajardo was decided, the Indiana legislature repudiated the decision by amending the statute to allow substantive amendments to charging documents at any time before trial if not prejudicial. See I.C. § 35-34-1-5(b) (2007); Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 41 IND. L. REV. 955, 955-56 (2008).

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

Environment - Groups protest "a proposed surface coal mine that would destroy more than 18 miles of streams near the Patoka River National Wildlife Refuge"

From a news release that begins:

INDIANAPOLIS -- The Sierra Club, Hoosier Environmental Council, and the Bloomington-based Conservation Law Center filed written objections on Monday to a federal permit request for a proposed surface coal mine that would destroy more than 18 miles of streams near the Patoka River National Wildlife Refuge.

The project’s developer, Vigo Coal, has asked the U.S. Army Corps of Engineers to issue a Section 404 Clean Water Act permit, which would allow the company to dredge or fill 98,000 feet of streams, 28 acres of open waters, and 7 acres of wetlands in and around Pike County in order to mine coal at the proposed Vigo Sunna Mine.

In addition to the immediate threats to the Patoka River, the proposed surface coal mine project would be located less than two miles from the Patoka River National Wildlife Refuge, which was created to provide resting, feeding, and nesting habitat for migratory birds, protect a corridor of bottomland hardwood wetlands along the river, and improve the water quality of the Patoka River.

“From toxic water contamination to the loss of local headwater streams, this coal mine could threaten wildlife, harm waterways and damage other natural resources both locally and downstream,” said Jodi Perras, Indiana Campaign Representative for the Sierra Club’s Beyond Coal campaign. “It will be impossible to replace the natural streams, waterways, and wetlands that would be destroyed by this project.”

Posted by Marcia Oddi on Wednesday, July 24, 2013
Posted to Environment

Environment - More on "More than 400 sign petition objecting to gravel mine north of Americus" [Updated]

Updating this July 7th post, today the Lafayette Journal Courier has this long story by Justin L. Mack on last evening's public hearings - some quotes:

Tippecanoe County residents from Americus and beyond packed the Tippecanoe County Office Building tonight as state officials assessed a proposal to bring a stone quarry to a quiet stretch of Old Indiana 25.

It was standing room only at the hearing as more than 60 people lined up outside the doors of the Tippecanoe Room about a half hour before it started.

It was standing room only at the hearing as more than 60 people lined up outside the doors of the Tippecanoe Room about a half hour before it started.

Many of the residents in opposition were representing the Americus Area Community Coalition, a group formed in just few weeks in response to the Rogers Group Inc. application to establish the quarry in northeast Tippecanoe County.

Once the meeting room reached fire marshal capacity, other attendees had to listen from the hallway with the help of speakers placed in and around the main entrance.

Members of the Area Plan Commission of Tippecanoe County served as hosts for the event, but the meeting was strictly an Indiana Department of Natural Resources Hearing focused on the floodway and the project’s impact on it. The DNR doesn’t schedule a public hearing for every mining permit application, but a petition signed by more than 400 people prompted state officials to intervene.

“We’re here just to gather comments as they pertain to our jurisdiction,” said Larissa Muellner of the DNR’s Division of Water. “No decision on the application will be made tonight.”

Muellner started the meeting by providing a breakdown of the Rogers Group proposal to operate a stone quarry on 524 acres along the Wabash River just northeast of Americus at 8032 Old Indiana 25 North. * * *

During the meeting, DNR officials focused on four things: The efficiency and capacity of the floodway once the project is done; the safety of life and property in the area; the impact on fish, wildlife and botanical resources; and the cumulative effects of the project.

“I understand there are lot of local, federal and persona issues related to the project. However, we only have jurisdiction over the review criteria mentioned,” Muellner said. “We are trying to keep the comments focused on how we can review the project tonight.” * * *

Muellner [said?] state officials have requested more information about the project. Until that information is in hand, portions of the DNR review have been put on hold. As of Tuesday, it was unclear when a final decision will be made.

If a permit is granted by the state, Rogers Group will have to take the matter in front of the county BZA for another public hearing and vote. The matter was originally slated to be heard at tonight’s BZA meeting, but was continued in light of the DNR hearing.

[Updated 7/25/13] A new story today is headed "Stone quarry's request for county approval of Americus site delayed until January" and begins:
AMERICUS — Two pending requests from Rogers Group Inc. to establish a stone quarry in Americus have been continued to the January meeting of the Tippecanoe County Board of Zoning Appeals.

Originally scheduled to be heard during Wednesday’s BZA meeting, the requests would allow Rogers Group to operate a stone quarry on 524 acres along the Wabash River at 8032 Old Indiana 25 North. * * *

According to Tippecanoe County Area Plan Commission staff, Rogers Group representatives requested the continuance in light of information learned and questions raised at Tuesday’s DNR hearing.

Posted by Marcia Oddi on Wednesday, July 24, 2013
Posted to Environment

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

For publication opinions today (1):

In Cynthia Sugg v. State of Indiana, an 18-page opinion, Judge Kirsch concludes:

In sum, the police officers had compelling evidence that Sugg and her residence were involved in the manufacture of methamphetamine. They approached Sugg outside her residence and asked her questions about her recent pseudoephedrine purchase. The officers developed probable cause from Sugg’s untruthful and contradictory answers and the observation of two precursors in plain view on the back porch. At that time, the officers decided to obtain a search warrant and needed to secure the scene while they waited for the warrant. The fact that Detective Smith would not allow Sugg to enter the residence without an escort before the warrant could be obtained was not unreasonable. This conduct was a minimal intrusion upon Sugg’s ordinary activities in light of the risk of destruction of evidence or obtaining a weapon. Law enforcement officials had substantial need to protect themselves during their investigation and to prevent the destruction of evidence while they secured a search warrant. In short, the police officers’ conduct was reasonable throughout the investigation, and we conclude that the trial court properly admitted the evidence at trial. * * *

[Some facts from the beginning of the opinion] In 2012, Sugg and her husband, Gary Wynn (“Wynn”), lived in a rented farm house that was located in a rural area in Harrison County, Indiana. * * * On February 16, 2012, Sugg and Wynn each purchased a forty-eight count box of pseudoephedrine pills from the same Walgreen’s store in New Albany, Indiana within five minutes of each other. * * * On February 17, 2012, Indiana State Police Detective Katrina Smith (“Detective Smith”), with the methamphetamine suppression unit, obtained information from the National Pseudoephedrine Log Exchange (“NPLEx”) that Suggs and Wynn had made the pseudoephedrine purchases the previous day. When she saw these transactions, she remembered her participation in a prior investigation in June 2011, where Sugg and Wynn had been charged with manufacturing methamphetamine. Detective Smith and her supervisor, Sergeant Paul Andry (“Sergeant Andry”) decided to conduct a “knock and talk” at Sugg’s residence based on this information.

NFP civil opinions today (2):

In Re the Termination of the Parent-Child Relationship of K.C. (Minor Child) and J.P. (Father) v. Indiana Department of Child Services (NFP)

Hubbard Hill Estates, Inc., v. R. Wyatt Mick, Jr., individually and, as personal representative of the Estate of Harriet M. Seilon, Deceased (NFP)

NFP criminal opinions today (6):

Michael Simpson v. State of Indiana (NFP)

Zane Payton v. State of Indiana (NFP)

Christopher Battishill v. State of Indiana (NFP)

Robert P. Benavides v. State of Indiana (NFP)

Donte Carter v. State of Indiana (NFP)

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

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

Law - "State Government Contracts – A Research Guide"

From the Library of Congress blog, this post links to both a Beginner's Guide to contracting with the federal government, and a "look at the government contracting and procurement laws of the state of Maryland," which is a good start for looking at all states.

Posted by Marcia Oddi on Wednesday, July 24, 2013
Posted to General Law Related

Ind. Courts - "Pendleton prison inmate seeks group prayer rights"

Updating this July 21st ILB entry, headed "[Federal] Judge gives prison 30 days to allow Muslim prayer," Charles Wilson of the AP reports:

INDIANAPOLIS (AP) — An Indiana prison inmate who belongs to a religious organization whose members believe they are a lost tribe of Israel asked a federal judge Monday to force the prison to drop restrictions on his faith's group prayers.

African Hebrew Israelite Paul Veal filed a request for an injunction against the Indiana Department of Correction. The American Civil Liberties Union of Indiana is representing Veal in federal court in Indianapolis.

Veal settled a 2008 lawsuit against the agency when it agreed to allow group prayer in the Pendleton Correctional Facility northeast of Indianapolis, but the new complaint said since November, a prison chaplain suspended group worship and study. The prison then required group religious activities to be supervised by an outsider— which reduces the times available for group prayers.

The lawsuit said other religious groups in the prison are allowed to meet for self-led worship.

The lawsuit seeks relief under federal laws regarding religion and prisons. * * *

ACLU of Indiana legal director Ken Falk said Veal's legal action was not influenced by the success of a similar lawsuit that was recently won by American Taliban John Walker Lindh, who is being held at a federal prison in Terre Haute.

The case, Paul Veal v. Commissioner, Indiana Department of Correction, et al., was filed in the U.S. District Court for the Southern District, Indianapolis Division, on July 22, 2013 under case no. 1-13-cv-1167.

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

Tuesday, July 23, 2013

Courts - "When Scholarship Influences Courts"

Prof. Orin Kerr writes in The Volokh Conspiracy:

Judges tend to ignore scholarship that doesn’t appreciate the judge’s sense of the possible vs. the impossible. Judges are practical people, and most judges have a sense of the limitations of the judicial role. They operate in a world of precedent. There’s wiggle room where the doctrine is murky, to be sure. And at the Supreme Court level the Justices can overturn precedents. But for most judges, the wiggle room is relatively confined and best resolved within a broader set of principles already recognized in the law (at whatever level of generality). Further, judges tend to think downstream. If they are Supreme Court Justices, they worry about creating standards that lower courts can’t administer or rules that miss the mark of the problem that are trying to solve. If they are lower court judges, they worry about getting reversed. The result is what you might think of as a judicial mindset — a way of thinking about what ways can resolve open or difficult legal questions in light of the limitations imposed on each judge.

My sense is that a lot of legal scholarship fails to influence courts because it ignores that judicial mindset. When describing the problem, the scholarship isn’t particularly interested in existing doctrine. And when it recommends a solution, it tends to ignore that judicial sense of the possible. Instead, it assumes an ideal world with no limitations — a world in which no precedent gets in the way, no decisions can be reversed, and all vague standards will be administered perfectly in practice.

ILB: Prof. Kerr has been frequently cited in Circuit Court decisions - eg here, here, and here. And here, by the SCOTUS.

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

Ind. Law - This must be the "dog days" ...

Little news today for the ILB, but we remain vigilant.

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

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Kevin C. Stone v. Jennifer M. Stone, a 23-page opinion, Judge Barnes concludes:

The trial court did not err in refusing to approve the parties’ settlement agreement regarding child custody without receiving evidence regarding whether the agreement was in M.S.’s best interests, nor did it err in allowing Mother to present evidence and argue that it was not in M.S.’s best interests. We do conclude the trial court abused its discretion in denying Father’s third continuance motion and, therefore, we reverse and remand for a new hearing regarding custody of M.S. We also reverse that part of the dissolution decree ordering Father to pay $5,000 towards Mother’s attorney fees. The dissolution decree’s property division orders, as reflected in the settlement agreement, are affirmed. Affirmed in part, reversed in part, and remanded.
In Gared Holdings, LLC v. Best Bolt Products, Inc. , a 25-page opinion, including a separate concurrence), Judge Crone concludes:
We conclude that the trial court’s judgment on Gared’s claims of breach of contract and breach of the implied warranty of fitness for a particular purpose is supported by the evidence, and we affirm as to those issues. However, we conclude that the trial court erred in ruling that Best Bolt was not a merchant. We therefore remand for the trial court to determine whether Best Bolt breached the implied warranty of merchantability, and if so, whether that alters the result of Best Bolt’s counterclaim. Affirmed in part and remanded.

FRIEDLANDER, J., concurs.
ROBB, C.J., concurs with separate opinion. [which begins, at p. 24 of 25] I concur in the majority’s result with respect to Gared’s breach of contract and implied warranty of merchantability claims. I respectfully dissent, however, from the resolution of the implied warranty of fitness for a particular purpose claim.

NFP civil opinions today (3):

Dheeraj Gulati v. Twinkle Gujral (NFP)

In the Matter of the Adoption of C.A.H., minor; J.N.E. v. L.M.H. (NFP)

In The Paternity of J.P.: P.M. (Mother) v. J.P. (Father) (NFP)

NFP criminal opinions today (3):

Michael Walton v. State of Indiana (NFP)

Julio Joel Delgado v. State of Indiana (NFP)

Anthony Shockley v. State of Indiana (NFP)

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

Law - "Should Bosses Have Access to Workers' Genetic-Test Results?"

That question is the headline to $$ a long story by Melanie Trottman in today's WSJ. A quote:

[E]mployers increasingly are running up against a federal law that governs how genetic information can be used.

The Genetic Information Nondiscrimination Act bars companies from asking about family medical history or genetic testing—limiting the information that some employers have used to gauge the fitness of their workers and encourage healthier lifestyles.

Asking for the information—for example, during a mandatory physical or an exam that was part of a job offer—is enough to constitute a violation. GINA also prohibits companies from using such information to hire, fire or promote employees.

(h/t ABA Journal)

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

Monday, July 22, 2013

Ind. Courts - Professor Schumm: Additional thoughts on sentence revisions

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

I appreciate Mr. Creason’s thoughtful post and hope the discussion about appellate sentence revision continues and broadens. In that spirit, I have a few additional thoughts.

First, my search for recent Court of Appeals’ sentence revisions failed to include Kovats v. State, a February opinion in which the Court revised a twenty year sentence to fifteen, and the State did not seek transfer. Beyond that case, however, our data are essentially the same, although he begins counting cases earlier, including cases before Chief Justice Shepard’s retirement in late March of last year.

Although more data would always be nice, I stand by the earlier suggestion that sentence review has changed dramatically in both the Indiana Supreme Court and Court of Appeals over the past year. First, the Court of Appeals reduced sentences under Rule 7(B) in 26 cases (10/1/10 - 9/30/11) and 16 cases (10/1/11 - 9/30/12) in recent years but has reduced sentences in just 4 in the year that will end in a little over two months (10/1/12 - 9/30/13).

After no grants of transfer filed by the State in 7(B) claims for decades, the Court granted six petitions filed by the State (100%) between June 4, 2012, and July 2, 2013. There is no reason to be defensive about this success rate. The focus of my post was on the practices of the Court, which necessarily depends on cases in which parties seek transfer. My post did not fault the State for seeking transfer or suggest each petition was not supported by Rule 57(H) grounds for transfer but rather noted the significant change in Supreme Court opinions.

Each grant of transfer and opinion is significant, and several assume even greater significance. Chief Justice Dickson mentioned during the Lynch oral argument (beginning at the 21:25 mark) the “small 'p' political interaction in terms of how we judges persuade each other and reach a decision”, continuing:

You’re speaking of the Court of Appeals as if it is a known, fixed quantity, but in fact it was through some considerable act of leadership on the part of this Court that the Court of Appeals years ago was encouraged to start doing sentence revision at all, even though the appellate rule was on the books and the constitutional provision was on the books. But this Court had to, through its decisions granting transfer, granting sentence review, basically send a signal to the Court of Appeals: be more proactive in this area. And they’ve responded. And now we get a case and the question is, are they too proactive, it is time now to calm them down and say, down boy, down boy; don’t get carried away with this.
Moving Forward

I hope this important discussion continues and broadens beyond statistics or apparent trends. Mr. Creason’s post mentions that each petition to transfer filed by the State “presented a different concern and an opportunity to provide further guidance on different aspects of the proper application of the rule.” Unfortunately, the Court has not seized the opportunity to provide specific guidance on each of these different aspects in every opinion. It is true that Kimbrough explained that an appellate court cannot reduce a sentence under 7(B) when a different type of sentencing challenge is raised on appeal, but other recent 7(B) opinions have not provided the sort of detail and guidance typically found in cases in which the Supreme Court grants transfer. Although the other short per curiam opinions resolved the cases, they do not offer crucial guidance to lower courts and lawyers trying to sort through when sentences are or are not inappropriate.

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts | Schumm - Commentary

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Twin Lakes Regional Sewer District v. Robert W. Teumer and Paula K. Teumer , a 12-page opinion, Chief Judge Robb writes:

Twin Lakes Regional Sewer District appeals the trial court’s judgment regarding appropriation of easements on the property of Robert W. Teumer and Paula K. Teumer. Twin Lakes presents three condensed and restated issues on appeal: 1) whether the trial court improperly admitted the report of the court-appointed appraisers; 2) whether there was sufficient evidence to support the trial court’s damage award; and 3) whether the trial court properly directed the clerk to refund Twin Lakes’s overpayment of damages. Concluding that the court-appointed appraisal was improperly admitted and that there was insufficient evidence to support the trial court’s damage award, and that the trial court correctly directed the clerk to refund Twin Lakes’s overpayment, we reverse and remand.
In Thomas Dexter v. State of Indiana, an 8-page opinion, Judge Vaidik writes:
Following remand from the Indiana Supreme Court, Thomas Dexter had a second habitual-offender hearing. The jury again found Dexter to be a habitual offender, and the trial court again enhanced Dexter’s sentence by thirty years. Dexter now appeals arguing—for the second time—that the evidence is insufficient to support his thirty-year habitual-offender enhancement. Because we find that the certified transcript from Dexter’s guilty-plea and sentencing hearing is sufficient to prove one of his underlying felony convictions and that his habitual-offender retrial was not barred by res judicata, we affirm.
NFP civil opinions today (4):

Daniel J. Chupp v. Wyndham Vacation Ownership, Inc. (NFP)

In Re the Adoption of A.H. and N.H., minor children, D.H., v. A.C.H. (NFP)

Donna M. Brown v. Paul F. Buchmeier and Sally M. Buchmeier d/b/a Fashion Trends (NFP)

Co-Alliance, LLP v. Monticello Farm Service, Inc. (NFP)

NFP criminal opinions today (2):

Tony Mays v. State of Indiana (NFP)

William Joseph VanHorn v. State of Indiana (NFP)

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

Ind. Law - "Caught in the texting act? Police cite lack of proof as major problem in ban"

Julie Crothers of the Fort Wayne Journal Gazette had a long story Sunday on the unenforceability of the state law banning texting.

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to Indiana Law

Ind. Decisions - Lawyers with troubles: “Causing grief to clients” = slapdown by judge

Rochester attorney Ted Waggoner posts today in his blog, Lawyers with Troubles, under the heading "Fee Shifting is no Reason to Mishandle a Case", about a trial court's recent ruling in an environmental law case involving fees - the post begins:

There are a number of statutes that allow for fee shifting, and we hear calls daily for “tort reform” that pushes that idea. Here it caused all kinds of bad incentives, as pointed out in a 113 page trial court order on the Fee Petitions under USTA and/or ELA environmental laws. [My experience in front of Judge Goshorn in a few cases is that he is normally a judge who uses few words to make his points - this output is unlike his normal work.]

Judge Goshorn of Wells County was asked to approve fees for the plaintiffs’ lawyer in the amount of $676,986.11. He denied the request, mostly due to the conduct of the plaintiff’s counsel in the handling of the case. Award to counsel $0. actually less, due to several contempt of court orders.

See the post for much more, including a link the order itself.

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Courts - A Broader View of Recent Sentencing Revision Cases

Commentary by Stephen Creason, Chief Counsel of Appeals, Office of the Indiana Attorney General

Professor Joel Schumm’s July 3 Indiana Law Blog commentary, "Appellate Sentence Review in Indiana: Death by a Thousand Per Curiams?”, raised many thought-provoking and even controversial points about the status of appellate court review of criminal sentences that are worth some additional discussion. Sentencing revision isn’t an abstract matter of only marginal importance to the legal community or even the citizenry at large; it has substantial policy implications and potentially affects every criminal defendant and crime victim. Our Supreme Court has used this constitutionally-derived power to remove murderers from death row and cut child molesters' and abusersaggregate sentences by half or more. The Court of Appeals has used its authority in many other cases involving a wider-range of offenses. Criminal law practitioners frequently debate the wisdom of these decisions.

Obviously, defendants have keen interests in how long their sentences are, but their victims do also. The Attorney General’s Office and our colleagues in county prosecutors’ offices work with these victims daily, and the length of a defendant’s sentence is usually incredibly important to them. When a sentence reduction is ordered, victims are frequently afraid of the unintended consequences. Trial judges often express to me their own concern about the effects of appellate revision. While this power has some marginal impact on our prison population (and therefore state and local budgets), it more profoundly affects the continual, important debate over sentencing policy in a just society.

At some point, how our courts apply Appellate Rule 7(B) in the real world has consequences for everyone. Therefore, Prof. Schumm’s piece is an important contribution to the conversation about criminal sentencing. In this article, however, I offer more complete data on the last 18 months of sentencing revision decisions, and explain why it paints a picture quite different from my colleague’s view.

Professor Schumm made three points worth reconsideration:

  1. The retirement of Judge Shepard from the Supreme Court prompted the State to “routinely” file petitions to transfer in cases where the Court of Appeals revised a criminal sentence downward;
  2. The State has sought transfer in every such case that followed the Court of Appeals’ opinion in Hough v. State, decided on July 17, 2012; and
  3. In apparent response, only once in 2013 has the Court of Appeals used Appellate Rule 7(B) to reduce a sentence on appeal.
Some of the data that were cited to support these claims are incorrect and other data are too sparse. This can lead to inaccurate analysis of the trends in sentencing review under Rule 7(B). From more complete data emerges a different picture than the one drawn in that commentary.

The Actual Data

The Court of Appeals has revised fifteen sentences under Rule 7(B) in 2012 and 2013:

1. Tharp, decided January 19, 2012, transfer not sought;

2. Curry, decided January 25, 2012, State did not seek transfer but Curry’s petition was denied on June 4, 2012;

3. Punturi, decided February 1, 2012, transfer not sought;

4. Bushhorn, decided February 16, 2012, transfer granted June 4, 2012, decided on transfer July 26, 2012;

5. Certain, decided February 29, 2012, transfer not sought;

6. Griffin, decided March 21, 2012, transfer not sought;

7. Kimbrough, decided March 21, 2012, transfer granted and decided December 19, 2012;

8. Gleason, decided March 29, 2012, transfer not sought;

9. Kucholick, decided June 8, 2012, transfer granted and decided on November 7, 2012;

10. Inabnitt, decided on June 20, 2012, transfer not sought.

11. Hough, decided on July 17, 2012, transfer not sought;

12. Merida, decided October 23, 2012, transfer granted January 11, 2013, and decided on transfer May 17, 2013;

13. Lynch, decided November 2, 2012, transfer granted January 11, 2013, and decided on May 17, 2013

14. Kovats, decided February 7, 2013, transfer not sought; and

15. Chambers, decided February 27, 2013, transfer granted and decided July 2, 2013.

This list includes several cases overlooked in the prior commentary. Most notable is the Kovats case, the first of two sentence revisions made by the Court of Appeals thus far in 2013, and also a case in which the State did not seek transfer.

What Does it Mean?

It’s a mistake to look at this list and conclude that Judge Shepard’s retirement (or the service of any justice) has caused the State to “routinely” seek transfer. First, in January and February 2012, the Court of Appeals revised five sentences (Tharp, Certain, Curry, Punturi, and Bushhorn), and yet the State only chose to seek transfer in a single one: Bushhorn. One would presume that had the Chief’s retirement precipitated a major change in the State’s transfer practice, the Attorney General’s Office would have done so immediately in the wake of a very high period of revisions by the Court of Appeals.* It did not.

During all of 2012, the Court of Appeals revised thirteen sentences, and the State petitioned the Supreme Court for transfer in five—just thirty-eight percent of the relevant cases. From March 2012 to the present,** the Court of Appeals has revised ten sentences, but the State sought transfer in just half of those cases. So given just the raw data, it is a tenuous at best to suggest that Judge Shepard’s retirement is the decisive proximate cause for the State to seek transfer in sentence revision cases. Regardless, the State does not seek transfer “routinely.”

Instead, this data suggests what actually happens: the Attorney General’s Office carefully considers each adverse Court of Appeals opinion before deciding whether the State should seek transfer, and the Supreme Court considers for itself whether the case should be transferred and decided differently. Only if the case satisfies one or more of the Court’s criteria for granting transfer (see Appellate Rule 57(H)), and it is an appropriate vehicle to present the State’s concern to the Court, is it likely that the State will file a petition. The best illustrations of this are the six cases in which the State petitioned from over the past year and a half: each case presented a different concern and an opportunity to provide further guidance on different aspects of the proper application of the rule. Nine other cases didn’t meet those criteria.

Of course the views of the members of the Supreme Court help inform that calculation—what lawyer would casually and intentionally choose to work a disadvantage for her client by presenting a losing case to an unreceptive panel? That the current Court appears likely to view these issues similarly to the State and the sentencing trial judge doesn’t trump—or even drive—the State’s larger considerations.

What about the Court of Appeals’ trend?

None of this discussion answers the more interesting observation about the trend that the Court of Appeals has revised sentences less frequently than in the past few years. Frankly, this data doesn’t give us a reliable basis to speculate as to why this has occurred. It doesn’t seem to be related to the Supreme Court’s decisions, at least not initially. The trend had started by April 2012, well before the Supreme Court decided Bushhorn on July 26:

April 2012: zero revisions
May 2012: zero revisions
June 2012: two revisions (Kucholick, Inabnitt)
July 2012: one revision (Hough)
The next two Supreme Court decisions, Kucholick and Kimbrough, weren’t decided until November and December. Yet the trend of fewer revisions continued throughout the rest of the year:
August 2012: zero revisions
September 2012: zero revisions
October 2012: one revision (Merida)
November 2012: one revision (Lynch)
December 2012: zero revisions
January 2013: zero revisions
February 2013: two revisions (Kovats and Chambers).
March-June 2013: zero revisions
The data set is too small and the period of time too short to reliably identify any reason for why the Court of Appeals made fewer revisions over the past year than in the prior year. These cases are judged individually and based upon the particular facts and circumstances present. Sentencing is inherently subjective, as is the appellate review of those sentences. Analysis of these data doesn’t account for any of these variables, and the data is so thin that no conclusion can be statistically reliable.

I disagree with Prof. Schumm’s conclusion that this apparent trend must be simply because “the Court of Appeals appears to have noticed the trend” of the Supreme Court reviewing its sentence revisions. As the last portion of Prof. Schumm’s piece hints at without actually recognizing, it is simply more complicated than that. Until someone can read the collective mind of the Court of Appeals, we can’t account for what has precipitated this development. As lawyers practicing before these courts, we would be wise to avoid assuming any singular motivation or drawing broad conclusions from limited data. And while a discussion of trends within Indiana’s appellate courts is healthy, context is important, so I appreciate the opportunity to give a fuller picture of this issue in this valuable forum.
____________________
* It is highly unlikely that any of these cases could have been fully briefed (typically about a 60-day process if a brief in response is filed) and conferenced by the Supreme Court before Judge Shepard’s retirement on March 23, 2013. Case in point is Bushhorn, which was decided by the Court of Appeals on February 16, transmitted to the Court on April 27, and transferred on June 4.

** Any petition to transfer in cases during this period would have been filed after Judge Shepard’s retirement.

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts | Schumm - Commentary

Law - "Contracts 101 and 'Ethicist' Chuck Klosterman"

This post by Will Baude yesterday at The Volokh Conspiracy was entertaining and resulted in many comments.

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to General Law Related

Ind. Decisions - Transfer list for week ending July 19, 2013

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

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

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

From Sunday, July 21, 2013:

From Saturday, July 20, 2013:

Posted by Marcia Oddi on Monday, July 22, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/22/13):

Next week's oral arguments before the Supreme Court (week of 7/29/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/22/13):

Wednesday, July 24th

Next week's oral arguments before the Court of Appeals (week of 7/29/13):

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, July 22, 2013
Posted to Upcoming Oral Arguments

Sunday, July 21, 2013

Ind. Gov't. - Overview of aspects of the IndyStar IEDC stories last week [Updated]

Last Sunday the Indianapolis Star published a lengthy front-page story headed "Indiana Economic Development Corp. contractor steers Indiana investment funds to firms run by its chairman and his son." The IEDC is the quasi-public entity created to take over the role historically played by the Lieutenant Governor/Department of Commerce in this area. From last Sunday's story, a few quotes:

When IEDC officials decided two years ago to create a public-private partnership to fund entrepreneurs and create jobs, they went to Howard Bates. * * *

Bates founded Elevate Ventures in November 2010, incorporation documents show. In the spring of 2011, Elevate won a $1.5 million per year contract with the IEDC to manage the 21st Century Research and Technology Fund.

The 21 Fund, as it’s known, was created in 1999 to provide tax money to new businesses in the hopes of creating jobs. The General Assembly has put $284.75 million into it in the past decade.

In hiring a private nonprofit to do a task that the IEDC had handled in-house, officials promised flexibility. * * *

After the arrangement began, Elevate was given a new pot of money to look after. The federal government had awarded Indiana millions of dollars via its 2010 Jobs Act, and IEDC wanted some of that money to go to a new fund for startups.

So Elevate created the Indiana Angel Network Fund. With it, Elevate had an extra layer of freedom and control. The IEDC board had to approve every investment from the 21 Fund. But not the Angel Network Fund, which also allowed Elevate to take ownership stakes in its portfolio companies.

Notice that every step, beginning with the creation of the IEDC, has moved these functions involving state and federal money further away from any government supervision or safeguards. From from the story:
“There are no conflicts of interest,” David Clark, one of three venture partners at Elevate, wrote in an email to The Star. Because Elevate is a private entity, it is not subject to the same ethics laws as public employees, a fact that Clark cited in response to several Star questions: “Elevate is not a state agency.”

That, ethics experts say, is part of the problem.

The Star’s findings, they say, raise fundamental questions about the IEDC’s use of outside contractors. Only last year, The Star uncovered another IEDC contractor who was accused of international fraud.

“This is just one more story of outsourcing to a private company something that probably would have been better handled inside the government,” said Richard Painter, former chief ethics lawyer for President George W. Bush’s White House. “And what you get is people who are outside the government ethics rules.” * * *

Elevate officials say some potential conflicts are unavoidable in the small world that is Indiana venture capital. Venture capitalists are investors who take part-ownership in promising young companies with the hope of making big gains when they grow.

In such an environment, qualified board members and employees are likely to have interests in other companies. “If we had to eliminate everybody that had any of those kind of conflicts,” Clark said, “there’d be a very small group of people left.”

But Kathleen Clark, government ethics expert at Washington University in St. Louis, said government ethics laws are there for a reason. If outsourcing state work to a private firm leads to inevitable conflicts of interest, she said, “then that would suggest you shouldn’t outsource it.”

There have been several followup stories, plus the Star has linked to a number of documents. However, because there is no one source for all this information, the ILB has assembled the links here (h/t to Alex Campbell):Documents[Updated at 3:25 PM] Soon after I posted the above I ran across Lesley Weidenbener's good Sunday column in the Louisville Courier Journal, headed "Sun needs to shine on state's job creation efforts. It begins:
When state officials first began debating whether to create a semi-public agency to handle the state’s job creation efforts, the red flag went up among reporters and others that try to track what goes on in government.

It’s not that those of us who work in the Statehouse press corps know much — if anything — about economic development.

I didn’t know then and don’t know now whether the Indiana Economic Development Corporation — the entity that grew out of those discussions — is better for job creation than the former Department of Commerce.

I recall that Republicans generally argued that the IEDC would have more authority to raise and spend private funds and than a state agency and could therefore more easily plan trade trips or create programs that encouraged businesses to locate or expand in the state.

But what I remember worrying about then is whether the corporation would be subject to all the same public records rules as other agencies and whether — with more business types involved in the operations — they’d comply with those rules even if they were applicable.

Certainly, the semi-private corporation seemed unlikely to be terribly transparent.

I’m thinking of that now as The Indianapolis Star reveals that Elevate Ventures, a private company hired by the IEDC to manage the state’s investments in startup companies, sent some taxpayer money to the firm’s chairman and son.

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

Ind. Gov't. - Behind the curtain, a glimpse at then-Governor Daniels' exercise of executive and political power

The ILB has not posted Tom LoBiano's AP story on then-Governor Daniels' actions re historian Howard Zinn until now - here it is and here is another source for it. And here are the emails.

There have been many stories since then, the matter has gone national. But two of the best appear today.

Eric Bradner, the departing (for Politico) Statehouse reporter for the Evansville Courier & Press, writes his last column for that paper today, headed "Daniels still using 'sleight of hand tricks' to dominate Ind. politics." The column begins:

INDIANAPOLIS — Underneath that humble, Harley-riding cloak that Mitch Daniels donned as Indiana’s two-term governor was a master manipulator who used all the leverage the state’s highest office afforded him to achieve his political goals.

Relying on emails from Daniels’ time as governor, The Associated Press reported last week that the current Purdue University president learned in 2010 that liberal author Howard Zinn’s works were being used in college teacher preparation courses in the state and ordered an overhaul of teacher licensing programs at least in part because he’d discovered that.

Much has already been made of those emails, but what was also disheartening and, many of Daniels’ long-time political foes said, familiar, was how he and Purdue’s board of trustees reacted.

Their argument was that Daniels was only talking about keeping Zinn’s books out of K-12 education.

“What we see is a complete misrepresentation of President Daniels’ views and concerns. The exchange had nothing to do with academic freedom or censorship. Rather, it had to do with concerns over what is being taught in Indiana’s K-12 public schools,” the board of trustees said in a statement.

Unfortunately for Daniels and Purdue, the AP also published his emails in full. Those emails make plain that he wanted to be sure those who attended college teacher preparation courses in which a Zinn book was used didn’t get credit toward their teaching license requirements.

That Purdue’s board of trustees was so willing to misrepresent the content of Daniels’ emails -- an attempt to redirect the conversation -- gave fuel to critics who have said it was inappropriate for a board appointed mostly by Daniels to pick him as its president, anyway.

The tactic, though, was nothing new.

Another email chain, this one especially disappointing, that was reported by The Associated Press last week showed Daniels and the Indiana Department of Education chief of staff planning to discredit and defund a political opponent.

They were angry with Chuck Little, the head of the Indiana Urban Schools Association. His sin: He thought Republicans should better fund the state’s urban schools.

Tom LoBianco, the AP reporter who broke the original story, writes today under the heading "Emails give better view of master pol Daniels." Some quotes:
INDIANAPOLIS (AP) — It's ironic that a debate over the complete and accurate telling of history, and whether Howard Zinn fits in that picture, is what is ultimately bringing out a more complete picture of Purdue University President Mitch Daniels, who sought to keep the liberal historian's work out of Indiana K-12 classrooms while governor. * * *

But much like Zinn's book was used to present another side of history, internal notes Daniels sent to his education team between 2009 and 2012 show another side of the man presented on the national stage as one of the Republican Party's most reasonable offerings.

Publicly, Daniels had backed away from much of the rhetoric that had marked his early days as governor, when he charged that Democratic lawmakers "car-bombed" his first legislative agenda. But from the start of his second term, he played a sharp-elbowed role behind the scenes, ensuring his agenda was enacted. In an April 10, 2009, email, he requested an audit of Indiana University-Purdue University Indianapolis professor Charles Little, a sharp critic of his education plans. And when his staunchest opponent, the Indiana State Teachers Association, upped the amount it collected from members, Daniels saw an opening.

"Time to challenge them publicly on this?" Daniels wrote in a July 14, 2009, email.

When the Indiana Professional Standards Board, which used to set teacher licensing rules, demurred on his overhaul of teacher preparation, Daniels asked in a July 29, 2009, email, "What has happened about getting the members of these boards in for a thank-you and a spine-stiffening session?"

Shortly before he pushed the nation's broadest use of school vouchers, changes in teacher preparation, new teacher evaluations and raft of other ambitious education changes in 2011, Daniels and his team quietly lined up the votes in the General Assembly. Then-schools Superintendent Tony Bennett's then-chief of staff, Todd Huston, delivered a spreadsheet identifying where Republican legislators stood on his plan in an Oct. 14, 2010, email to Daniels, Bennett and Republican mega-donor Al Hubbard. Daniels advised Huston should be careful

"Tks. Will treat in total confidence. If it has headings, I'd delete them if I were you. We shd have for other key reform issues, too???" Daniels wrote.

The emails are a constant reminder that the man who presented himself as a master technocrat, more concerned with fiscal issues than social grenades, came up in Washington as an ace political operative.

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

Courts - "Concussion Suit Against N.C.A.A. Seeks Class-Action Status"

An AP story in the NY Times this weekend begins:

CHICAGO — Attorneys suing the NCAA over its handling of head injuries asked a federal judge Friday to let them expand the lawsuit nationwide to include thousands of plaintiffs in a case they contend could change college sports forever.

The motion seeking class-action status was filed in U.S. District Court in Chicago, where the original lawsuit was filed two years ago on behalf of several former athletes, including former Eastern Illinois football player Adrian Arrington. His attorney, Joseph Siprut, said he doesn't want to see the demise of college contact sports, including football, but safety is paramount.

"If changes aren't made, the sport is going to slowly die," he said. If they can't be reassured football is safe, parents will stop their kids from playing "and when the talent well dries up, that's how the sport dies."

Posted by Marcia Oddi on Sunday, July 21, 2013
Posted to Courts in general

Ind. Decisions - "Judge gives prison 30 days to allow Muslim prayer" [Updated with order]

Updating this ILB entry from June 28th, quoting from Charles Wilson's AP report on the hearing June 27th on the Indiana ACLU:

... motion in [John Walker] 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.
Wilson reported on Friday, July 19:
INDIANAPOLIS (AP) — A federal judge on Friday gave the government 30 days to start allowing American Taliban fighter John Walker Lindh and other Muslim inmates to hold group prayers outside their cells in a high-security prison in Indiana.

In a seven-page order, Judge Jane Magnus-Stinson said the Bureau of Prisons might have misconstrued her ruling seven months ago that granted Lindh's request to hold group prayers in the Terre Haute federal prison's Communications Management Unit, so she made her intent clear.

"The warden is to allow group prayer during every Muslim prayer time for which the inmates are not confined to their cells," she wrote in bold print.

"Put simply, just as inmates are free to assemble, socialize and engage in other group activities in common, recreational areas during times they are released from their cells, so too must they be allowed to engage in group prayer in common, out-of-cell areas," Magnus-Stinson said. * * *

"This is exactly what we asked for," ACLU of Indiana legal director Ken Falk said in an email Friday.

ILB: Oddly, the ILB can't find the 7-page order on PACER, using either the case # from the Jan. 11th ruling (2:09-cv-00215) or the name "John Walker Lindt."

[Updated 7/22/13]
Thanks to an interested reader, here now is a copy of Judge Magnus-Stinson's 7/19/13 order.

Posted by Marcia Oddi on Sunday, July 21, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Still more on "Judicial panel strikes down Indianapolis City-County Council redistricting plan"

Updating this earlier ILB post, which includes a copy of the July 17, 23-page, 3-2 opinion of the 5-judge panel in Lewis v. Sullivan, here is an Indianapolis Star Behind Closed Doors item on the ruling:

A matter of timing

A dispute over redistricting of the Indianapolis City-County Council’s seats has centered on when Indiana law required the council and the mayor to redraw district boundaries.

The council’s majority Democrats challenged a new set of boundaries approved by the outgoing Republican majority in late 2011 and signed into law by Mayor Greg Ballard, a Republican.

And the Republican-controlled General Assembly’s attempt to wade into the issue earlier this year may have helped the Democrats.

If you ask the local Democrats, the law — which said the council must divide Marion County during the second year after the last census, which was conducted in 2010 — required the council’s action to occur in 2012. But Ballard and his fellow Republicans contend that the law meant only that the mayor had to sign the council ordinance in 2012, allowing the council to vote in 2011.

Democrats won the first round of the legal battle last week in Marion Superior Court. A 3-2 ruling by a judicial panel — the judges, too, split along partisan lines — threw out the GOP maps. The court now plans to draw new boundaries.

The 17-page majority opinion referred to the legislature’s approval of a change to the redistricting law earlier this year. That change, which spelled out Ballard’s interpretation of the timing requirement more clearly, will apply to redistricting decisions only in the future.

“If the legislature changed the statute to now require the division (of Marion County) to be made before the second year after a year in which a federal decennial census is conducted, rules of statutory interpretation prescribe that this meaning is different from the meaning of the prior statute,” Judge James Osborn, a Democrat, wrote in the majority opinion.

Translation: If the Statehouse Republicans felt it was necessary to change the law, it must not have meant what Ballard and his fellow Republicans have said it did.

The Republicans’ attorney, David Brooks, had argued to the local judges last month that the legislature’s action should have no bearing on the case.

Last week‘s ruling was only the first round, however. It’s likely the final word will come later from the Indiana Supreme Court, which settled the last council redistricting dispute in 2003.

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

Ind. Law - "'Stand your ground' laws under fire"

From the NWI Times today, a story by Susan Brown. Some quotes:

CROWN POINT | Enacted since 2005 in at least 22 states, including Indiana, self-defense laws known as "stand your ground" have come under the microscope following the acquittal in Florida of George Zimmerman -- accused of shooting unarmed black teen Trayvon Martin.

A nationwide rallying cry to review the laws has its Hoosier supporters, boosted Friday by President Barack Obama making comments that Martin "could have been me 35 years ago."

Empathizing with many black Americans, Obama said the case conjured up a hard history of racial injustice "that doesn't go away." Indiana lawmakers have been reported calling for a review of state law at the next legislative session, which begins in January. * * *

While attorneys agree Indiana's expansive version is largely similar to that of Florida's, veteran Gary criminal defense attorney Darnail Lyles sees one glaring difference.

In Indiana, had his defense team invoked the law, Lyles said Zimmerman may have been required at the jury-instruction phase to testify to what caused him to fire at 17-year-old Martin.

"Our jury instructions require the defendant to take the stand, in that only he can say what was the imminent danger he was responding to," Lyles said. "If you allege self-defense, you have to tell the jury what scared you."

"What they did in Florida is a mystery to me," Lyles said.

Some attorneys and academics disagreed, calling the requirement unconstitutional, but law professor Joel Schumm appeared to support Lyles' stance.

"Jury instructions are given whenever supported by evidence at trial," said Schumm, a professor at Indiana University Maurer School of Law,

"Sometimes this may require the defendant to testify -- if none of the other evidence of trial supports the defense," he said.

In Indiana, Lyles said attorneys argue the defendant was in a place where he had a right to be and was confronted with a threat of serious bodily injury against which he protected himself.

Also today, the South Bend Tribune has an editorial titled "'Stand Your Ground' in Indiana." Some quotes:
It turned out that defense attorneys for George Zimmerman, the neighborhood watch volunteer who shot the 17-year-old, did not rely on Stand Your Ground as the basis for their case. They argued more broadly, citing self-defense, a justification for the deadly use of force that every state in the nation recognizes in one form or another.

Florida's Stand Your Ground law, however, from the beginning of this tragedy has gotten a lot of attention because it exempts those who feel threatened from first attempting to retreat from a confrontation. Who knows how this influenced Zimmerman's decisions? Certainly jurors who acquitted him were informed that if he followed the law, he had no duty to back away from a fight. * * *

At least one Indiana lawmaker, Democratic Sen. Jean Breaux of Indianapolis, is calling for a review of Indiana's self-defense laws, including Stand Your Ground provisions, in the next legislative session. Indiana law says, in part, that a person is justified in using deadly force if he or she "reasonably believes" that it is necessary to prevent serious bodily injury or the commission of a forcible felony.

With gun ownership and carrying permits increasing in the state, an informed and highly public discussion of what "reasonable" self-protection amounts to would make us all more secure. So would a requirement that gun owners get training on how and when to shoot.

But Indiana's General Assembly in recent years has trended toward relaxing gun restrictions, so opening a discussion on Stand Your Ground could prompt lawmakers toward loosening them further. That's not what's needed. Hoosiers give prosecutors tremendous discretion in deciding who gets charged and for what, and they should continue to expect and demand fair and intelligent application of existing laws in every self-defense case.

ILB: For background, begin with this ILB entry from April 8, 2012.

Posted by Marcia Oddi on Sunday, July 21, 2013
Posted to Indiana Law

Friday, July 19, 2013

Environment - "Couple files lawsuit against Realtor after baby poisoned by lead paint"

Tim Evans reported late this morning at IndyStar - a few quotes:

The lawsuit filed this week in Marion Superior Court by Mary Wood and Timothy Polk contends Indiana Realty Partners, which leased the home to the couple in 2012, were negligent and “should have known that based upon the condition of the property that the (family) were being exposed to lead ... and that there was a significant risk of lead poisoning to the (family).”

Indiana Realty Partners also failed, according to the suit, to provide the couple the required EPA lead hazard information disclosure.

Posted by Marcia Oddi on Friday, July 19, 2013
Posted to Environment

Ind. Decisions - COA panel "says parents of boy molested during a day camp outing can sue the YMCA"

Today's not-for-publication Court of Appeals decision in A.M.D., a Minor v. Young Men's Christian Assoc. of Greater Indianapolis (NFP) is the subject of a story this afternoon by Vic Ryckaert of the IndyStar that begins:

The Indiana Court of Appeals ruled today that the parents of a day camper who was sexually assaulted by a stranger in 2006 can sue the YMCA of Greater Indianapolis.

The eight-year-old boy was among about 20 children ages 6-12 in a YMCA Day Camp outing to Creekside Park in Zionsville when the child left the group for a bathroom break and was assaulted by a sexual predator.

“They (the parents) put their trust in the YMCA and this happened,” said Daniel Chamberlain, an attorney for the family. “It was 100 percent preventable.”

Marion Superior Court Judge Heather Welch in September threw out the parent’s lawsuit seeking damages against the YMCA.

The appellate court reversed Welch’s decision today in a 13-page order, clearing the way for the parents to renew their claim and put the facts before a jury.

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

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

Kenneth Scholz v. Lorraine Kirk (NFP)

Kathay Van Dyne v. IOM Health Systems LP, d/b/a Lutheran Hospital of Indiana (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: I.M.A. and I.R.A. (Minor Children), and M.M.H. (Mother) v. Indiana Department of Child Services (NFP)

A.M.D., a Minor by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, Individually v. Young Men's Christian Assoc. of Greater Indianapolis (NFP)

Lake County Trust Company, Trust 4210, Trust 5061, and Alex Emmanoilidis v. Aox, Inc., and Brian Piunti (NFP)

NFP criminal opinions today (6):

Sean Johnson v. State of Indiana (NFP)

Dennis Tiller v. State of Indiana (NFP)

David A. Wilson v. State of Indiana (NFP)

Jesus Mondragon v. State of Indiana (NFP)

Terrence Morris v. State of Indiana (NFP)

Louis Cole v. State of Indiana (NFP)

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

Courts - "The Supreme Writer on the Court: The Case for Kagan"

A companion to this ILB post on July 15th re CJ Roberts, Ross Guberman, guest-blogging at The Volokh Conspiracy, had this interesting post on Justice Kagan. Guberman offers three reasons; the first begins:

Razor-sharp clarity.

Kagan has emerged as one of the bench’s clearest writers of opening paragraphs. Take her first paragraph in Florida v. Harris, writing for a unanimous Court:

“In this case, we consider how a court should determine if the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s relia­bility. See 71 So. 3d 756, 775 (2011). We think that de­mand inconsistent with the ‘flexible, common-sense standard’ of probable cause. Illinois v. Gates, 462 U. S. 213, 239 (1983)” (Florida v. Harris).
This quick three-sentence opener gives lawyers, lower-court judges, and the public just what they need. And yet she also spins the state supreme court holding so it sounds unreasonable on its face, giving the opening paragraph the force of syllogism.

In that regard, she crafts openings to opinions the way the very best appellate lawyers craft their statements of the issues.

(Here are all of Guberman's Volokh guest posts so far. Many valuable tips and examples, see also his website.)

Janet Welsh of SBM Blog notes that "Linda Greenhouse says [the best writer is] Ruth Bader Ginsburg," pointing to Ginsburg's opening in United States v. Hayes.

The ILB also is a huge fan of the opening paragraph that encapsulates the holding.

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

Ind. Law - "Legislative panel studies criminal court bond practices"

Updating this ILB entry from July 15th, Dan Carden reports today in the NWI Times:

The bond procedures that counties follow to release those accused of crimes from jail before trial were scrutinized Thursday by a panel of state lawmakers and court system leaders.

They found many counties allow defendants to pay 10 percent of their bond in cash, others require a commercial surety bond be purchased from a bail bondsman, and some offer both options.

State Sen. Earline Rogers, D-Gary, requested the Indiana Commission on Courts review the topic because she wants money from forfeited bonds to remain with the county court system, instead of being split among the state, police pensions and local sheriffs.

However, the discussion uncovered simmering tensions between court officials and bail bondsmen, who believe the 10 percent cash option is intended to put them out of business because it matches the 10 percent premium they charge for a surety bond.

The ILB has had a number of on-point posts on bail bonds, but you will have to pick them out of this long list.

Posted by Marcia Oddi on Friday, July 19, 2013
Posted to Indiana Law

Ind. Decisions - Supreme Court Court lets Hammond keep voided gun limits

Updating this ILB entry from July 17th, here are some quotes from an AP story yesterday by Charles Wilson:

The mayor of a northwestern Indiana community says he's happy that the city's gun restrictions can remain on the books — even though they can't be enforced because of a 2011 state law that allows firearms on most public property.

"I just don't think it's right. Bringing a loaded gun to a park shouldn't be legal. We had an ordinance saying that, and the state law superseded it," Hammond Mayor Thomas McDermott Jr., told The Associated Press on Wednesday.

Two Hammond residents challenged the city ordinance in court in August 2011, contending that the local law barring guns from city buildings and meetings must be repealed due to the state law that largely prohibits local governments from regulating firearms except in courtrooms.

But the Indiana Court of Appeals ruled in March that state law rendered Hammond's restrictions moot, so they could remain on the books as long as officials didn't try to enforce them. The state Supreme Court refused Tuesday to take the case, leaving the appellate decision intact.

"I'm not putting my name on something that says you can take a gun in the Hammond Civic Center. That's crazy," McDermott told The Times. "Somebody's going to get killed one day with a gun in the Hammond Civic Center, and I'm going to blame all these idiots that voted for this law."

Posted by Marcia Oddi on Friday, July 19, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Thursday, July 18, 2013

Courts - "Kentucky prosecutor suspended for sending email to judge"

A long story filed this evening with the Louisville Courier Journal, written by Jason Riley, begins:

The email to Jefferson Family Court Judge Eleanore Garber arrived in March, warning her that a man involved in a divorce and custody battle before her had been charged with drunken driving five times and had recently failed a drug test.

And the emailer was someone who would know. Assistant Jefferson County Attorney Ben Wyman, who was prosecuting the man, Andrew Stich, on drunken driving and resisting arrest charges, contacted the judge in what he now acknowledges was a violation of court rules.

“As an officer of the court I am not advocating for resolution of the matter before you in any particular way, but I do strongly believe that if I sat where you sat, I would want to be aware of these pending matters as they may have an impact on whatever you are handling,” Wyman wrote.

The email set in motion a series of complaints against the county attorney’s office, including accusations of “forum shopping” — maneuvering to get the case in front of a particular judge — and being untruthful about that incident in court records.

The results have been an ongoing Kentucky Bar Association investigation into Wyman’s behavior, new Jefferson District Court rules for how judges are selected to serve on cases, and lingering questions in Stich’s criminal and civil cases.

Wyman, the judge and others involved agree the email violated state Supreme Court rules forbidding attorneys from one-sided contact with a judge to influence the outcome of a pending case.

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Courts in general

Law - "Torts? Pass the Sunscreen"

From the NYTimes, this long story by Alex Williams that begins:

For generations of law school graduates, summer has often been an illusory concept, one replaced by long days spent in airless study halls or makeshift classrooms practicing mind-numbing rote memorization in preparation for the high-stakes bar exam in late July, a time when most of their friends are enjoying backyard barbecues or lazy afternoons at the beach.

But a lost summer no longer has to mean a nonsummer, as many bar students are starting to discover. Many Type A lawyer hopefuls are finding ways to make the best of a stressful situation by holing up at beach houses, having bar review courses live-streamed to vacation spots like Paris or Thailand, or even, in one extreme example, absorbing lessons by headphones from a table at the World Series of Poker in Las Vegas.

Prof Rick Hasen (@rickhasen) just tweeted:
I had no idea one of my great @UCILaw students was also a professional poker player (studying for bar at tables)
Here is the Times description:
Sabyl Landrum, a professional poker player who recently graduated from law school at the University of California, Irvine, hated the idea that she would have to miss out on the festivities at the annual World Series of Poker, which for her always felt like a form of summer camp, because of her studies for the California bar. Instead, she simply cleared out the Pink tunes from her iPad and loaded it with legal lectures and outlines, which she could review from the card tables when others were playing their hands in Texas Hold ’Em.

“My opponents probably assumed I was like the other 80 percent at the table with headphones on, listening to my tunes,” Ms. Landrum said. “Not a bad thing, though, because this just means they assume I am extra-distracted and not paying attention. But nothing they do is slipping my eye.”

Here iss another quote from the lengthy story:
Preparing for the bar exam (passing is required to practice law in any particular jurisdiction) may be a more contained experience than the three-year slog of law school. But in its own way, it can be more intense, several recent graduates said.

“I’ve experienced anxiety over deadlines and exams before, but it is usually in short intervals right before the big day,” said Jeff Bradford, who graduated from the University of Michigan Law School in May. “This is two and a half months of sustained stress.”

This is because the bar exam, unlike law school, requires students to “learn all of the real law, also called ‘black letter’ law, that you never learned in law school, because your professors were too busy teaching you about abstract theories,” said David Lat, a Yale Law School graduate who now runs the popular legal Web site Above the Law. “There’s a ton of memorization involved: remembering three-part rules, and the four exceptions to those rules, and the five exceptions to the exceptions.”

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Auditor of Owen County and Treasurer of Owen County v. Asset Recovery, Inc., a 7-page opinion, Sr. Judge Barteau writes:

The auditor and the treasurer of Owen County (“Owen County”) appeal the trial court’s order granting Asset Recovery, Inc.’s “Verified Petition and Claim for Surplus After Tax Sale.” We reverse and remand. * * *

For the reasons stated, we conclude that the trial court abused its discretion by granting Asset Recovery’s petition for the release of the surplus funds.

In Christopher Halterman v. Adams County Board of Commissioners, Adams County Sheriff, Charles Padgett, Adams County Sheriff's Dept. and Adams County Jail, an 8-page opinion, Judge May writes:
Christopher Halterman appeals a summary judgment for Adams County Sheriff Charles Padgett. He presents two issues for our review: 1. Whether the trial court abused its discretion when it denied Halterman’s motion to strike Dr. Bev House’s affidavit; and 2. Whether the trial court erred when it granted summary judgment in favor of Sheriff Padgett. We affirm.* * *

The trial court did not abuse its discretion when it denied Halterman’s motion to strike the affidavit of Dr. House, and Sheriff Padgett was entitled to summary judgment because Halterman could not show any action or lack thereof by Sheriff Padgett caused Halterman’s injury.

In James Denning v. State of Indiana, an 8-page opinion, Judge May writes:
James Denning was convicted after a bench trial of Class A felony attempted robbery and being an habitual offender. He raises two issues on appeal: 1. Whether the victim’s testimony was incredibly dubious; and 2. Whether Denning should have been convicted of battery resulting in serious bodily injury as a Class C felony instead of attempted robbery as a Class A felony.

As a preliminary matter, the State argues we do not have jurisdiction to consider Denning’s appeal because he filed his notice of appeal before the trial court decided the issue of restitution. We have jurisdiction, and we affirm. * * *

Denning is appealing a final order, as he was not subject to a pending restitution order; his victim’s testimony was not incredibly dubious; and the trial court was not obliged to enter a conviction of a lesser-included offense. We therefore have jurisdiction over this appeal and affirm the trial court.

In Frederick Herron v. State of Indiana, a 10-page opinion, Judge May writes:
Frederick Herron appeals his convictions of two counts of Class A felony dealing in cocaine, one count of Class B felony dealing in cocaine, and a finding that he is an habitual substance offender. He asserts the court abused its discretion when it admitted evidence seized during and after a traffic stop. We affirm. * * *

Officers are permitted to stop a vehicle when they observe a traffic violation, Black v. State, 621 N.E.2d 368, 370 (Ind. Ct. App. 1993), even if the officer may have an ulterior motive of furthering an unrelated criminal investigation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). The officers could stop Herron’s car based on their belief the tint on his windows was illegal. Once stopped, we believe the totality of the circumstances known to police demonstrate the reasonableness of the police officers’ decision to arrest Herron for dealing crack cocaine. The two controlled purchases made by the confidential informant corroborated the anonymous tip, and an officer saw in plain view what appeared to be the buy money in Herron’s car. That evidence gave police reasonable belief Herron should be arrested for dealing cocaine, and it was reasonable under our State Constitution for police to search Herron incident to that arrest. See Winebrenner v. State, 790 N.E.2d 1037, 1041 (Ind. Ct. App. 2003) (search reasonable under Art. 1, Sect. 11 where incident to arrest supported by probable cause).

NFP civil opinions today (2):

Marco Puente v. Stark Leasing Company, Inc. (NFP)

In the Matter of the Paternity of: L.M.D. (Minor Child) D.H. v. A.D. (NFP)

NFP criminal opinions today (8):

Troy Thurman v. State of Indiana (NFP)

Clint Bradley a/k/a Sam Jones v. State of Indiana (NFP)

Jeremiah Walls v. State of Indiana (NFP)

Todd D. Kelly v. State of Indiana (NFP)

Bruce Johnson-El v. State of Indiana (NFP)

Kasiim Weaver v. State of Indiana (NFP)

John D. Rogers v. State of Indiana (NFP)

James F. Noel v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One from Supreme Court today, re grandparent visitation

In In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B., a 7-page, 5-0 opinion, Justice David writes:

The Grandparent Visitation Statute is very specific as to under what circumstances a trial court may order grandparent visitation. It does not provide a means by which the paternal grandmother may seek visitation when her son has murdered the mother of her two grandchildren. The order granting grandparent visitation was void, and the trial court correctly vacated its original order which mistakenly granted such visitation. * * *

The trial court held, “[s]ince [Grandmother], as a parent of someone other than the deceased parent, has no entitlement to visitation under the statute, it necessarily follows [that] the court had no authority to grant such visitation[,] and the order is void at law. The order being void, Guardians may raise the issue at any time[,] and the issue is not waived.”

The Court of Appeals reversed [March 27, 2013]. We grant transfer and affirm the trial court. * * *

We hold today that the trial court’s original order granting Grandmother grandparent visitation was void and thus without legal effect. Thus, we affirm the March 26, 2012 order of the trial court finding the original grandparent visitation order was void. Grandmother never had any standing to file a Grandparent Visitation action. She was not the grandparent of the deceased parent, nor was she the grandparent of a dissolved marriage. Grandmother did not have standing under the strict terms of the grandparent visitation statute as has been stated herein. This is a case where Grandmother had no legal right to pursue grandparent visitation under the statute. Remand cannot cure the defect. The only cure is to hold the original order was void ab initio.

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Allen Circuit Court names new magistrate"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

After a brief search, Allen County Circuit Court named a new magistrate Wednesday.

Andrea R. Trevino, an attorney at the law firm of Beckman Lawson, LLP, is slated to start as the circuit court magistrate Aug. 1.

Trevino takes the place of Craig Bobay, who was appointed by Gov. Mike Pence late last month to fill the Allen County Superior Court judge seat vacated by Dan Heath.

Heath moved to the Family Relations Division after the retirement of Judge Steve Sims.

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Indiana Courts

Ind. Courts - "Once high-powered attorney William Conour talks about his career, lavish lifestyle and time behind bars"

Tim Evans of the Indianapolis Star had a 90-minute interview with William Conour Tuesday in the Marion County Jail. From the long story:

Prisoners at the Marion County Jail have taken to calling him “Old School.”

What most don’t know is that the gray-bearded inmate once was one of Indiana’s best and most respected construction injury attorneys, a lawyer who collaborated with Supreme Court justices, won huge settlements for accident victims and gave generously to local charities. * * *

In an exclusive jailhouse interview Tuesday, Conour said he thinks he can make good on his debts, particularly if he can get out of jail to pursue an estimated $2 million he says he is owed for work on cases settled after he was charged in 2012. * * *

“I think if we are aggressive about it, I can make them whole, or certainly close to it,” Conour said of repaying clients. “I think it is possible, but time is not on our side.”

Really. More from the story:
Conour has been jailed since June 27. That was the day Young revoked his bond after finding that Conour violated terms of his release by disposing of more than $80,000 in assets without the required court approval.

His assets, including an extensive art collection valued last year at $500,000 in divorce records, were to be preserved to help make restitution to victims.

Instead, Conour sold some of his artworks and spent the money — part of it going to continue a lifestyle that burned through more than $7,000 in monthly living expenses, including $3,500 in monthly vehicle payments.

As part of his guilty plea this week, Conour agreed to turn over to the government the remaining artworks and antiques in his home. He estimated those items could bring in $150,000 for the victims’ fund if properly marketed, but he fears the government may sell them for pennies on the dollar.

Conour’s mansion, as well as another home in Carmel, are in foreclosure and will provide nothing for victims. A horse farm near Sheridan was sold at a sheriff’s sale in January.

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Indiana Courts

Ind. Courts - "Expunge law causes court headaches: Officials raise concerns over confusing statute"

Rebecca S. Green of the Fort Wayne Journal Gazette has an important story today:

FORT WAYNE – Since July 1, Hoosiers with certain felony convictions can petition the court to have the records of those convictions and the initial arrests expunged – but such petitions are available only to some by a court order.

And Allen County is starting to see a few requests trickle in.

But Superior Court Judge Fran Gull urges those who want to see their convictions disappear to consult a lawyer before they try to engage in the process.

And she worries about the confusion written into the new state law.

Under the terms of the new law, most sex or violent offenders, as well as those convicted of a charge related to homicide, are not eligible to have their records cleared.

Other crimes, however, such as battery and operating a motor vehicle while intoxicated causing death, are eligible, as are crimes such as theft and forgery. While the law doesn’t erase convictions, it does make the information unavailable to potential employers.

Courts around the state had just gotten a handle on a 2011 law that allowed certain convictions to be shielded from public view.

That was a straightforward statute, Gull said.

That law granted those who committed misdemeanors or Class D felonies that did not result in injury to request restricted access to their records, as long as they had remained felony-free for eight years and finished their sentences.

The new law, though, is neither well-written nor user-friendly, Gull said.

And those who want to use it have only one chance in their lifetimes, so if a petition goes nowhere or is done improperly, that’s it, she said.

The story continues:
Allen County Chief Deputy Prosecutor Michael McAlexander agreed. “They get one shot at this,” he said.

If people are 21 or 22 years old, they may want to rethink filing such a petition in case they get in trouble in the future, he said.

The complicated statute has separate sections for felonies reduced to misdemeanors, Class D felonies, more serious felonies that did not result in injuries, and other areas, McAlexander said.

“For every person you have, you will have to take a good look,” he said.

When a court grants a request that a record be expunged, it is the court’s responsibility to contact every legal entity the case touched.

This includes court files, the Bureau of Motor Vehicles, any organization or agency that provided treatment or services in connection with the case and the state police.

The law does nothing, however, to deal with information available in the media or elsewhere in the public domain.

So far, there have been requests made in each Allen County criminal division judges’ office and in the misdemeanor and traffic divisions, Gull said.

The Allen County Prosecutor’s Office will check each request to satisfy that the defendant has met all the requirements under the law, McAlexander said.

“We anticipate it will take, potentially, a lot more work,” he said.

If people who have had their records sealed commit a crime in the future, the information about the expunged crime will be available for use in sentencing, McAlexander said.

Although the requests are filed as a civil matter, they will ultimately be sent back to the original sentencing judge for review.

According to McAlexander, that causes its own headache in Allen County, where there are separate criminal and civil divisions. * * *

When the law was passed, legislators said they wanted to give those who have fulfilled their sentences and reformed their lives an opportunity for redemption.

Gull acknowledges the intent behind the law is noble.

But the way it is written, she said, it is going to be a beast to enforce without a framework in place to process the requests.

“My goodness, it sure isn’t going to be easy,” she added.

ILB: This story follows on several other recent posts about challenges posed by the new law:
Ind. Law - More on: New expungement law took effect yesterday ...

Updating this ILB post from earlier today, Amanda Gray writes for the South Bend Tribune:Also in effect are new laws regarding record expungement. These laws stipulate how early someone can file for expungement, according to the legislation digest. According to...

Posted in The Indiana Law Blog on July 2, 2013 05:02 PM

Ind. Law - New expungement law took effect yesterday ...

HEA 1482 took effect yesterday to what looks like mass confusion. For instance, Norman Cox reported on WRTV 6 last evening:The criminal record law means expunged convictions would no longer show up in public records. Some expungings will be automatic,...

Posted in The Indiana Law Blog on July 2, 2013 09:15 AM

Ind. Law - When laws collide?

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

Posted in The Indiana Law Blog on May 31, 2013 11:17 AM

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

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Anderson Herald-Bulletin:INDIANAPOLIS — Indiana court personnel are preparing for what may be an onslaught of requests from people eager to use a new state law to clear their old criminal records...

Posted in The Indiana Law Blog on May 30, 2013 11:49 AM

Posted by Marcia Oddi on Thursday, July 18, 2013
Posted to Indiana Courts

Wednesday, July 17, 2013

Ind. Decisions - More on: Transfer list for week ending July 12, 2013

Included, unremarked, on the transfer list for the week ending July 12, 2013 (on p. 2, 3rd from the bottom) was the case of Samuel G. Dykstra and Michelle L. Bahus v. The City of Hammond (NFP - initially, but then changed to "for publication"). Transfer was denied, leaving the Court of Appeals opinion standing.

The ILB has had several entries on this case, including this one from Dec. 2, 2012, quoting a story in the Evansville Courier & Press:

The outcome of another case before the Indiana Court of Appeals could be the deciding factor in a lawsuit that claims an Evansville ordinance that prohibited firearms in city parks violated a state law barring local gun regulation.

Benjamin Magenheimer filed the lawsuit after Evansville police officers responding to a call about a man openly wearing a gun removed him from Mesker Park Zoo & Botanic Garden on Sept. 10, 2011.

Both the city and Magenheimer's attorney, Guy Relford of Indianapolis, have filed motions asking Vanderburgh Circuit Court Judge Carl Heldt to rule in their favor, based on different grounds.

However, Heldt postponed a decision until after the Court of Appeals rules on a similar lawsuit against the city of Hammond, Ind. * * *

In court Thursday, Relford argued that even though the state law includes language saying that it voids local ordinances, Evansville and other cities should have acted to repeal such regulations and not simply leave them on the books even though they couldn't be enforced.

This March 17, 2013 ILB entry is headed: "Appeals court upholds ruling Hammond gun ordinances", and was followed by this one on March 19th.

The March 15th COA opinion in Dykstra v. City of Hammond concluded:

The Ordinances were in effect before July 1, 2011, indicating that the City of Hammond could not have adopted the Ordinances at a time in which they would be in violation of Indiana Code section 35-47-11.1-2. The Firearm Owners have also failed to designate any evidence that the City of Hammond made any attempt to enforce the void ordinances; on the contrary, the only evidence presented was that the mayor issued two executive orders prohibiting the enforcement of the void ordinances. Appellant’s App. p. 102-03. Therefore, the Firearm Owners have not shown that they have been “adversely affected by an ordinance . . . adopted or enforced” in violation of Indiana Code section 35-47-11.1-2, so they have failed to show that they have any valid claim under Indiana Code section 35-47-11.1-5.

We hold that the trial court did not err in denying the Firearm Owners’ motion for summary judgment and granting summary judgment in favor of the City of Hammond.

This evening Dan Carden reports on the July 11th transfer denial in the NWI Times, in a story headed "Indiana Supreme Court leaves invalid Hammond gun ordinances on books." The story begins:
INDIANAPOLIS | The Indiana Supreme Court has rejected an appeal that sought to have Hammond's voided gun regulations deleted from the list of city ordinances.

In March, the Indiana Court of Appeals ruled 3-0 that Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, were not harmed when Hammond Mayor Thomas McDermott Jr. directed that city ordinances banning guns in parks and public buildings remain on the books, even though a 2011 state law pre-empted all local gun regulations and invalidated Hammond's ordinances.

The appeals court said Hammond is under no obligation to delete its superseded ordinances, so long as the city does not try to enforce them.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today, a disbarment

In In the Matter of: Joseph Stork Smith, a 7-page, 5-0 per curiam opinion, the Court writes:

We find that Respondent, Joseph Stork Smith, engaged in attorney misconduct by, among other things, revealing confidential information relating to his representation of a former client by publishing the information in a book for personal gain. For this misconduct, we conclude that Respondent should be disbarred. * * *

In 2010, Respondent authored a book purporting to be a true autobiographical account of Respondent's relationship from roughly 1990 through 2010 with a former client ("FC"), who was active in politics and at one point held a high-level job in the federal government. A sexual relationship between FC and Respondent began around 1990 and continued until about 2001. After their sexual relationship began, Respondent represented FC on various legal matters during these years. They maintained a personal relationship for a time thereafter. Respondent's professed motivation for writing the book was at least in part to recoup legal fees FC owed him and money FC had obtained from him over the years. * * *

In the book, Respondent revealed personal and sensitive information about FC that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities. Respondent's selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for Respondent's misconduct.

The Court concludes that Respondent violated the Indiana Professional Conduct Rules by, among other things, revealing confidential, sensitive information relating to his representation of a former client by publishing it in a book for personal gain and by engaging in conduct involving dishonesty or misrepresentation.

For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective August 28, 2013.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Judicial panel strikes down Indianapolis City-County Council redistricting plan"

Here now is the July 17, 23-page, 3-2 opinion of the 5-judge panel in Lewis v. Sullivan. The majority concludes:

The Court hereby GRANTS Plaintiffs' Motion for Partial Summary Judgment and DENIES Intervening Defendant's Motion for Summary Judgment finding that General Ordinance 61 did not comply with the Redistricting Statute.

General Ordinance 61 was a permissive redistricting as it did not comply with the timing requirements for mandatory redistricting in the Redistricting Statute. Because no ordinance with a plan for mandatory redistricting was signed into law, this Court has jurisdiction to redraw the district boundaries in a nonpartisan manner pursuant to Ind. Code § 36-3-4-3(d).

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED by the Court that Plaintiffs' Motion for Partial Summary Judgment is hereby GRANTED and that Intervening Defendant's Motion for Summary Judgment is hereby DENIED. The Court will issue a subsequent order defining the steps to redraw the district boundaries using the factors set forth by the Indiana Supreme Court.

The dissent begins:
General Ordinance 61, 2011 was validly passed into law under Indiana Code 36-3-4-3 when Mayor Ballard signed it on 17 January 1,2012. Therefore, this Court lacks jurisdiction to consider and detennine this redistricting dispute.
Jon Murray's finalized story for the IndyStar is here.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Timothy S. Enders and Enders & Longway Builders, Inc. v. Debra Sue Enders as Personal Representative of the Estate of Randall Enders, a 13-page opinion, Judge Baker writes:

While the old adage “blood is thicker than water” may be true for many, unfortunately some people have their most bitter and enduring disputes with family members which may persist even beyond death. In this case, Randall and Timothy Enders inherited equal shares in Enders & Longway Builders, Inc. (the “Company”), the business that their father had started. Randall and Timothy signed a Buy-Sell Agreement, which strictly limited their ability to transfer their shares of the Company and provided that upon the death of one brother, his shares passed automatically to the surviving brother, unless, among other occurrences, the corporation was dissolved.

Because of a disability, Timothy stopped actively working for the Company, but still had some of his expenses, such as his utilities, paid by the Company. Randall continued running the business and sharing the profits with his brother, until Randall became terminally ill sometime around the spring or early summer of 2012. Randall approached Timothy about dissolving the corporation because it was no longer profitable, insofar as the profits were strictly generated from the Company’s assets rather than from any work projects. Timothy was unsympathetic, accusing his brother of simply needing to get out of bed.

Randall filed a petition for a judicial dissolution of the corporation, alleging that the directors and shareholders were deadlocked in the management of corporate affairs. The trial court granted the dissolution effective the date of the hearing; however, sometime during the weeks between the hearing and when the trial court issued its order dissolving the corporation, Randall passed away.

Timothy now appeals arguing that upon Randall’s passing, he became the sole owner of the Company’s shares under the Buy-Sell Agreement. We disagree. Randall was alive on the effective date of the trial court’s order dissolving the corporation; consequently, Timothy did not become the sole owner of the Company’s shares. Accordingly, we affirm.

In Natalie Medley v. Bruce Lemmon, Julie Stout, Pam Ferguson, Stacey Milner, Sherry White, L.A. Vannatta, Mike Pavese, Virginia McCullough, a 26-page opinion in a case with a pro se appellant, Judge Barnes concludes:
We affirm the dismissal of all of Medley’s claims related to alleged violations of the Indiana Code and the Indiana Constitution. We also affirm the dismissal of Medley’s Due Process and Equal Protection claims under the United States Constitution, as well as her claim that the “three strikes” policy infringes upon her First Amendment “right of association.” However, we reverse the dismissal of Medley’s First Amendment retaliation claims against Stout, Ferguson, Milner, McCullough, and White; the dismissal of those claims as to Lemmon, Pavese, and VanNatta is affirmed. We remand for further proceedings consistent with this opinion.
In Matthew Longest, Deceased, by Robert Longest, Adm. & Parent of Matthew Longest, & Robert Longest, Jr. Adm. of Maribel Longest, Deceased v. Lisa M. Sledge, minor & Roger Brown & Donna Sledge , a 22-page opinion, Judge Freidlander writes:
Robert Longest Sr. and Maribel Longest (collectively, the Longests) filed a wrongful death action following the death of their son, Matthew Longest, and named Lisa Sledge, Donna Sledge Brown, and Robert Brown as defendants. The Longests appeal from a final judgment following the trial court’s entry of partial summary judgment in favor of defendants on the Longests’ claims under the Child Wrongful Death Statute (CWDS) and the General Wrongful Death Statute (GWDS). The Longests raise the following issues for our review:
1. Did the trial court err in granting summary judgment for the defendants on the Longests’ CWDS claim based on its conclusion that Matthew was not a child for the purposes of the CWDS because he was not enrolled in a vocational school or program?
2. Did the trial court err in granting partial summary judgment for the defendants on the Longests’ GWDS claim based on its conclusion that the Longests were not Matthew’s dependents for the purposes of the GWDS?
3. Did the trial court abuse its discretion in limiting its award of attorney fees?
We affirm in part, reverse in part, and remand with instructions.
NFP civil opinions today (3):

In Elizabeth Mayne v. O'Bannon Publishing Company, Inc., d/b/a Corydon Instant Print (NFP), a 9-page opinion, Judge Friedlander writes:

Elizabeth Mayne appeals from the trial court’s grant of a preliminary injunction against her and in favor of O’Bannon Publishing Company, Inc., d/b/a Corydon Instant Print (O’Bannon). Mayne presents the following consolidated and restated issues for review: 1. Did O’Bannon present a prima facie case that the five-year restriction on competition contained in Mayne’s employment agreement was reasonable? 2. Was Mayne’s employment agreement, specifically the non-compete provision, voided by the subsequent issuance of an employee handbook and Mayne’s acknowledgment thereof? We affirm.
Michael Stratton, Personal Representative of the Estate of Ida C. Grow, Deceased v. Marjorie Ann Miller (NFP)

Danny E. Durham v. Heather R. Durham (NFP)

NFP criminal opinions today (1):

Demarco Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Supreme court to take lawsuit: Arguments scheduled for September in case between city of Logansport, Kitchell "

The Supreme Court transfer list reported on by the ILB here Monday included:

ILB: This is the Rule 56(A) transfer, one where the Court has determined that "the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination," thereby eliminating the need for COA review. For background on this case, see this June 16 ILB entry quoting a story from the Pharos-Tribune, headed "Attorney claims Logansport officials falsified documents".
Today Mitchell Kirt of the Pharos-Tribune has this story. Some quotes:
The Indiana Supreme Court has agreed to take on a lawsuit filed by a Logansport citizen against city officials over legislation regarding the city's power plant project. Arguments are scheduled for later this fall.

The suit was originally filed and subsequently dismissed in Cass County Superior Court II by Julie Kitchell, represented by attorney Jim Brugh, against Logansport Mayor Ted Franklin and City Council. The suit states the city engaged in a public-private agreement process to develop a new power plant before adopting legislation authorizing it to do so.

Following the case's dismissal, Kitchell appealed in the Indiana Court of Appeals and attorneys representing the city filed a motion with the state supreme court, hoping for a quicker and more absolute decision on the matter as negotiations with the plant's developer, Pyrolyzer LLC, continue. Opening arguments have been scheduled for 10:30 a.m. Sept. 5. * * *

Brugh argues public-private agreement statutes within the Indiana Code state a city must adopt legislation authorizing itself to engage in the public-private agreement process before doing so. The city adopted this legislation in March, about four months after it released a request for proposals regarding the plant.

Mark Crandley, representing Franklin in the case, and John Molitor, representing the council, argue the language does not dictate a specific sequence for matters like this for unconsolidated cities like Logansport.

Molitor said he doesn't think he and Crandley are interpreting this legislation incorrectly, but even if they are, the city cited a state statute allowing for the ratification of prior actions when it passed the legislation authorizing negotiations to begin with Pyrolyzer. * * *

Brugh filed an affidavit in Cass County Superior Court II in June alleging Franklin and Logansport Clerk-Treasurer Carol Sue Hayworth backdated the legislation in question, which he said should have been automatically vetoed after going without proper signatures for more than 10 days.

While the county court has already dismissed the case, that affidavit could give it reason to be reopened.

Crandley and Molitor argue those claims are conjecture and should have been mentioned in the original suit. And if they are enough to reopen the case, they say Brugh should be dismissed as Kitchell's counsel after having made himself a witness in the case.

Molitor said that allegation will not be heard at the Supreme Court this fall, as the only arguments the court will accept are those that have already been filed with the court itself and the court of appeals.

Franklin said the city will continue to pursue the reimbursement of its attorneys' fees from Kitchell, which he estimates to total around $75,000 after the case is decided.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Indiana Transfer Lists

Ind. Law - "Gibson County attorney William Wallace resigns from practice"

Mark Wilson's July 16th story in the Evansville Courier & Press begins:

A Gibson County attorney convicted of criminal charges submitted his resignation from practicing law Tuesday rather than face a disciplinary hearing.

William R. Wallace III, tendered his resignation in open court before hearing officer Knox County Superior Court Judge Timothy Crowley, said Michael Witte, executive director of the Indiana Supreme Court Disciplinary Commission.

Witte said the court must still approve Wallace’s request, which typically takes from 12 to 24 months. If it is rejected then he would still face a disciplinary hearing.

ILB: Here is a long list of earlier ILB entries re Mr. Wallace.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Indiana Law

Ind. Gov't. - "Judicial panel strikes down Indianapolis City-County Council redistricting plan"

Jon Murray has the preliminary IndyStar story here. More to follow in the Star.

Hopefully the Star will quickly post the opinion, or perhaps someone will send it to the ILB.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Indiana Government

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

In this June 26th post, the ILB reported on the appointments of Tammy Somers and Michael “Joe” Manning as Magistrates for the Hendricks County Superior Courts.

Yesterday a reader sent the ILB a link to this story in another publication reporting that "A duel robbing ceremony for both new appointees will be held at noon Aug. 2 in Superior Court 1 in the Hendricks County Courthouse ..."

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Indiana Courts

Environment - Groundwater "dries up in Benton County: Irrigator may be liable if town's residents have to dig deeper for water, state official says"

Mikel Livingston reports today in the Lafayette Journal Courier, dateline Templeton:

The trouble started Saturday, shortly after a neighboring farmer activated his new irrigation system. Three hours after that, residents say, the wells at 11 homes dried up.

Mark Basch of the Department of Natural Resources Division of Water said it appears irrigation may be lowering the ground water level beyond the threshold of older, shallow wells like those in Templeton.

Benton County commissioners instructed the farmer to cease irrigation, after which water returned. But water cut out again by Sunday night.

The Journal & Courier’s attempts to reach the irrigator were not successful Tuesday.

“Unfortunately it sounds like an irrigator may have started back up again,” Basch said. “Until recently, things seemed to be kind of settling down. Water levels looked like they’d come back up.”

ILB: For more information on this topic, see this IDNR page, titled "Water Rights: Emergency Regulation - Indiana Code 14-25-4 ."

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Environment

Environment - "Panel wants peregrine falcon off Indiana’s endangered list"

From an AP story today:

INDIANAPOLIS (AP) — The peregrine falcon moved a step closer to being removed from the state endangered species list on Tuesday when the Indiana Natural Resources Commission approved the move in the wake of news that wildlife biologists had placed bands on a record 44 chicks this spring.

The move still is subject to review by the attorney general and governor, though — a process that can take more than two months. After that, it would become official 30 days after it is published in the Indiana Register, unless a later effective date is specified. * * *

Peregrine falcons became endangered decades ago because of pesticides. Indiana started its peregrine falcon reintroduction project in 1991. Peregrine falcons were removed from the federal endangered species list in 1999, but remained on the state list.

ILB: What is the significance of being on the state endangered list?

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Environment

Ind. Decisions - COA posted an additional ruling yesterday

As the ILB has written in the past, it is not easy to spot COA opinions that may have been added after the initial dump. Here is one that unaccountably was not part of the earlier list of 18.

In Steven Weinreb v. Fannie Mae, a 22-page opinion, Judge Riley writes:

Appellant-Defendant, Steven Weinreb (Weinreb), appeals the trial court’s partial grant of summary judgment and grant of a monetary award to Appellee-Plaintiff, Fannie Mae, Inc. (Fannie Mae). We affirm.

Weinreb raises eight issues for our review, three of which we find dispositive and which we consolidate as the following single issue: Whether the trial court erred when it found Weinreb personally liable based on a deficiency judgment.
On cross-appeal, Fannie Mae raises a single issue, which we restate as: Whether res judicata or collateral estoppel prevents Weinreb from challenging the trial court’s summary judgment. * * *

Based upon the foregoing, we conclude that claim preclusion and collateral estoppel do not preclude Weinreb from challenging the trial court’s partial grant of summary judgment. Further, the trial court properly issued summary judgment to Fannie Mae regarding the Deficiency because 1) the Loan Documents are not ambiguous; 2) the non-recourse carve-outs and prepayment premium provisions of the Note are enforceable; and 3) the Guaranty and the Loan Documents are not unconscionable.

Posted by Marcia Oddi on Wednesday, July 17, 2013
Posted to Ind. App.Ct. Decisions

Tuesday, July 16, 2013

Ind. Decisions - Supreme Court decides one today, just posted

In Commissioner of Labor on the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah N. Posey v. International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91, a 9-page, 5-0 opinion, Justice Massa writes:

In July 2008, Stephen Shofstall and Edward Posey lost a union election, and with it their jobs. Deborah Posey, Edward’s wife, had served the Union as a clerical employee, but the new Business Manager/Secretary-Treasurer of the Union discharged her as well. All three sued the Union to recover compensation for unused accrued vacation pay, but the trial court granted summary judgment to the Union and the plaintiffs appealed. Because Shofstall and Edward Posey held elected positions, we find they should be treated differently than Deborah Posey, and we therefore affirm in part, reverse in part, and remand. * * *

The Union bylaws clearly address the compensation, including vacation pay, of its elected officers. They are thus an “arrangement or policy” as we used those terms in Highhouse, and based on our precedent in Givens, the Union is the sole arbiter of disputes arising under its governing documents. The only exception to the deference courts show in these cases is when an association perpetrates fraud or some other illegal act upon the member that abuses or interferes with that member’s civil or property rights. We see no such deprivation in this case, so we affirm the decision of the trial court as to Edward Posey and Stephen Shofstall’s claims.

Deborah Posey, as an employee, is entitled to accrue vacation pay unless there was an arrangement or policy to the contrary. Because we find there is an issue of material fact as to whether an arrangement or policy regarding vacation time existed during her employment, we reverse the trial court’s grant of summary judgment for the Union against Deborah Posey’s claim and remand this case back to the trial court to conduct further proceedings in accordance with this opinion.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Ind. Sup.Ct. Decisions

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

This is not the first time ILB has used that heading. See this ILB entry from May 31, 2013. And this one from Sept. 5, 2012. But still, reports of abuses continue, as do promises for improvements.

Today Sandra Chapman of WRTV-13 has a story headed "Judge considers changes for small claims court fees."

In today's story Chapman reports:

"I don't see how anybody could see your series without thinking, 'Maybe we need to take a second look at attorneys fees,'" said Judge Louis Rosenberg.

Marion County Circuit Court Judge Louis Rosenberg is the advisor for all Marion County Township Courts. Judge Rosenberg is now proposing a rule change posted with the Indiana Supreme Court putting limits on how collection attorneys like Johnson collect fees, saying "the court has found divergent practices..."

But those quotes are also in this May 30th story...

Today's story continues:

Under the proposed countywide rule:

-Attorneys must document and justify the amount of time spent on a case. Work done by a paralegal can not be included. (A rate can still be collected by a paralegal.)

- No more charging each individual for full travel expenses. Attorneys would have to divide up the cost between all cases heard on the same day in the same court.

"What we need is a happy medium. One that balances the general interest and the reasonable expectations," Rosenberg said of the proposed changes.

The Indiana Supreme Court will post Judge Rosenberg's proposed rule changes on its website.

If you would like to comment you can do so for the next 45 days by sending your input to Judge Rosenberg. After the comment period, the judge can then decide to modify his proposal or adopt it as written.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Indiana Courts

Law - "Amid Falling Enrollment, Law Schools Are Cutting Faculty"

From the WSJ today, this story by Ashby Jones and Jennifer Smith. A few quotes:

Law schools across the country are shedding faculty members as enrollment plunges, sending a grim message to an elite group long sheltered from the ups and downs of the broader economy.

Having trimmed staff, some schools are offering buyouts and early-retirement packages to senior, tenured professors and canceling contracts with lower-level instructors, who have less job protection. Most do so quietly. But the trend is growing, most noticeably among middle- and lower-tier schools, which have been hit hardest by the drop-off. * * *

Law schools faced with a dwindling pool of applicants confront a tough choice. They can fill seats by relaxing admissions criteria, a tactic that risks jeopardizing their standing in the influential annual rankings put out by U.S. News & World Report. Or they can maintain standards and just accept fewer students, making up for lost tuition dollars through deeper cost-cutting. * * *

The broader legal market has yet to fully recover from the economic downturn, when a number of big law firms laid off lawyers as demand for legal services cratered. Many legal experts think it will be years, and perhaps decades, before employment rebounds to the levels reached in the middle of the last decade.

Would-be lawyers have taken note. As of July 5, law-school applications for the entering class of 2013 were down 36% compared with the same point in 2010, according to the Law School Admission Council. Last year first-year enrollments fell 8.5% nationwide, according to ABA data, and law schools outside the elite top tier are seeing even steeper declines.

The smaller classes mean revenue drops of "millions of dollars every year," said Brian Tamanaha, a professor at Washington University School of Law in St. Louis. and the author of the 2012 book "Failing Law Schools."

The pain isn't confined to regional law schools or those outside the top 50.

At George Mason University School of Law in Virginia, ranked 41st by U.S. News & World Report, the entering class of 2012 was about half the size of the 2010 entering class because the school chose not to boost enrollment by lowering admission standards.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to General Law Related

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

In Hoosier Env. Council v. U.S. Army Corps of Engineers (SD Ind., McKinney), a 21-page opinion, Judge Posner writes:

This appeal requires us to consider the scope of the duty imposed on the Army Corps of Engineers by section 404 of the Clean Water Act, 33 U.S.C. § 1344, and its implementing regulations, to protect wetlands that contain or are covered by waters of the United States (and so are within federal jurisdiction) from environmental degradation by—in this case—the construction of a highway. * * *

[p. 4 contains a color map of alternative routes for I-69 from Indianapolis to Evansville]

Environmentalists opposed building a highway on the direct route on the ground that it would destroy wetlands, disrupt forests, and also disrupt “karst” ecosystems, unusual landscapes permeated by caves and other formations that provide rich habitats for wildlife, including such endangered and threatened species as the Indiana bat (endangered) and the bald eagle (threatened). See U.S. Fish & Wildlife Service Midwest Region, “Karst Ecosystems,” www.fws.gov/midwest/ecosystemconservation/karst.html (visited July 1, 2013). Most of the environmental concerns have been resolved, however; this case is concerned just with the filling of wetlands and of stream crossings. Filling stream crossings means placing gravel, rock, or dirt in a stream in order to support a road that bridges the stream or even blocks it, in which event however a culvert can be built in order to conduct the stream under the road. The Clean Water Act requires a permit to fill streams that are waters of the United States—that is, that are within federal jurisdiction, as the waters affected by the highway are. The permit granted by the Corps allows six streams in section 3 to be filled where the highway crosses them, in addition to permitting the destruction of wetlands. The two types of action—destroying wetlands and filling streams—are the actions challenged as violations of the Clean Water Act. To simplify exposition, we’ll ignore the streams.

The plaintiffs advocate, in lieu of the new highway, simply upgrading to federal interstate highway standards the 88-mile stretch of Route 41 from Terre Haute to Evansville. That would bring the entire Indianapolis-Evansville route up to those standards. The environmental impact would be slight because all that would be involved would be upgrading an existing highway that occupies only 57 percent (88/155 miles) of the indirect route. This suggested alternative to the new highway would also be $1 billion cheaper ($1 billion versus $2 billion).

The federal and state highway authorities filed, as they were required to do, Environmental Impact Statements, which concluded that building a new interstate highway on the direct route was preferable to upgrading the indirect route. * * *

The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms (improper “segmentation,” discussed earlier). They may be playing a delay game: make the Corps do a public interest analysis from the ground up (along with an all-atonce six-section permit analysis) in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3—making it a road to nowhere. AFFIRMED.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't - More on "State attorney general Zoeller on expedition for invasive Asian carp"

Updating this ILB post from July 14th, Ryan Sabalow now has a long IndyStar story on AG Zoeller's:

... “working vacation,” a four-day float down the Wabash that will take him from north central Indiana to New Harmony in the southwestern corner of the state. The excursion, he said, is part smallmouth bass-fishing trip and part “river-inspection tour,” a public-awareness campaign about the issues facing Indiana’s rivers — not least being the invasive Asian carp.
Thre is also a short video.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Environment | Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Marshall Banter v. Joshua Sheets, a 5-page opinion, Judge Najam writes:

Marshall Banter filed a complaint against Joshua Sheets alleging negligence in causing an automobile accident. Sheets did not dispute his liability in causing the accident, but a jury found Banter 70% at fault. Banter filed a motion to correct error, which the trial court denied. We reverse and remand for a new trial. * * *

Because Sheets conceded liability, the only issue for the jury to determine was the amount of Banter’s damages, and there was no basis for any assessment of fault against Banter. We reverse and remand for a new trial, and the jury shall be instructed in relevant part that Sheets has conceded 100% fault in causing the accident and that the jury shall only determine the amount of Banter’s damages, if any. And as our supreme court observed in Kocher, “[w]hile a plaintiff’s post-accident conduct that constitutes an unreasonable failure to mitigate damages is not to be considered in the assessment of fault, a plaintiff ‘may not recover for any item of damage that [the plaintiff] could have avoided through the use of reasonable care.’” 824 N.E.2d at 675 (quoting Indiana Pattern Jury Instruction No. 11.120 (2003)).

In William Chavers v. State of Indiana, an 11-page, 2-1 opinion, Judge Mathias writes:
William Chavers (“Chavers”) appeals his conviction for Class A misdemeanor invasion of privacy in Marion Superior Court. Chavers argues that the State’s evidence was insufficient to support his conviction because there was a mistake of fact as to the existence of the no contact order. We affirm.
InThe Cain Family Farm, L.P., and The Cain Family Farm, LLC, v. Schrader Real Estate & Auction Company, Inc., Charles O. Drerup, Antlers Ridge, LLC, and Candace J. Somerlott, a 16-page opinion, Judge Najam writes:
The Cain Family Farm, L.P., and The Cain Family Farm, LLC, appeal the trial court’s grant of summary judgment in favor of Charles O. Drerup and Antlers Ridge, LLC on Cain Family Farm’s complaint seeking to prevent the transfer of real property owned by the Limited Partnership to Antlers Ridge. Cain Family Farm also appeals the trial court’s denial of its cross-motion for summary judgment. Cain Family Farm presents the following dispositive issues for review on appeal:
1. Whether the trial court erred when it concluded that there is no genuine issue of material fact regarding Candace Somerlott’s apparent authority to bind the LLC when she executed a purchase agreement for the sale of real property to Antlers Ridge.
2. Whether the trial court erred when it interpreted and applied Indiana Code Section 23-18-3-1.1(b) of the Indiana Business Flexibility Act. * * *

The dispositive issue on appeal is whether Candace had apparent authority to bind the LLC and, by extension, the Limited Partnership, when she executed the Purchase Agreement. While the designated evidence reveals questions of material fact concerning whether Candace had actual authority to bind the LLC and whether Schrader breached its contract and violated its fiduciary duty to Cain Family Farm, those issues are not before us in this appeal. The undisputed designated evidence shows that the Cain siblings gave Drerup the reasonable belief that Candace represented them and was authorized to execute the Purchase Agreement on behalf of the LLC. During the auction, the Cain siblings rejected the bid on Tract 5, while, insofar as Drerup knew or had reason to believe, they had not rejected the Antlers Ridge bids on Tracts 2 through 4 and 6 through 17, and their agent, Schrader, expressly and publicly stated that the farm was being sold that day and presented Drerup and Candace with a purchase agreement. By all appearances, Candace had authority, and there are no indicia that would have placed Drerup on notice or inquiry notice that Candace did not have authority to sign the Purchase Agreement for the LLC. Thus, the Purchase Agreement is valid and enforceable under the doctrine of apparent authority. And because Candace executed the Purchase Agreement “for apparently carrying on in the usual way the business” of the LLC, namely, to act as the general partner of the Limited Partnership, the Purchase Agreement is also valid and enforceable under Indiana Code Section 23-18-3-1.1(b). Whether we consider the question of apparent authority under the common law or the Indiana Business Flexibility Act, the outcome is the same. Affirmed.

NFP civil opinions today (3):

Jim A. Edsall v. Benson, Pantello, Morris, James & Logan (NFP)

Barbara Laskowski v. Amer Kazi, M.D. (NFP)

Susan Berg v. Wanda Peters Rice a/k/a Wanda Coleman (NFP)

NFP criminal opinions today (12):

Jeramie Murdock v. State of Indiana (NFP)

Jeffrey Nemcek v. State of Indiana (NFP)

Scott Banfield v. State of Indiana (NFP)

Oscar Guillen, Sr. v. State of Indiana (NFP)

Patrick Wiese v. State of Indiana (NFP)

Eric M. Kyner v. State of Indiana (NFP)

Christopher McCaster v. State of Indiana (NFP)

Romell Colvin v. State of Indiana (NFP)

Nicholas Joseph Bray v. State of Indiana (NFP)

Kenneth Horton v. State of Indiana (NFP)

Delford W. Jones v. State of Indiana (NFP)

Melvin Lee Hayes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Powerhouse Attorney: The cases and cars of Jim Voyles"

From WRTV-13, an extended interview with Indianapolis defense attorney Jim Voyles, by Scott Swan. A sample:

Voyles represents the rich. The powerful. The famous. Clients who often pay $600 an hour for his legal advice, which begins with two simple words.

"I hand out a card to all my clients saying 'stop talking.' When they get my business card, they get one of these (cards that say stop talking). There's a reason for that. I spend time undoing a lot of things they've said. People will say things about their event and they may not have all the details. They just want to immediately start explaining themselves. Give it a chance to settle down," said Voyles, who has a reputation for practicing what he preaches outside the courtroom.

"I don't do interviews. Don't talk to the media," joked Voyles. "I think my job is to stay out of the spotlight. I think my job is to represent my client and come here where I'm very comfortable and do my work. Our obligation as lawyers is to confine our work inside the courtroom. We certainly have a disciplinary rule that deals with conversation outside the courtroom. I always think it's so much simpler to say I don't have anything to say. I'll be polite but I want to do what I'm supposed to do inside the courtroom."

Now, Voyles is talking openly about his career as a defense attorney.

"Everybody wants to have their case dismissed. Everybody wants to be found not guilty. That's impractical," said Voyles.

Posted by Marcia Oddi on Tuesday, July 16, 2013
Posted to Indiana Law

Monday, July 15, 2013

Law - "Don’t Forget Non-code Statutes"

Check it out. Benjamin J. Keele's paper on Virginia non-code statutes, in the Virginia Lawyer. Keele is a research and instructional services librarian in the Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to General Law Related

Ind. Law - New Fastcase 50 includes William (Bill) Henderson, IU Mauer

The Fastcase 50 Class of 2013 includes:

William (Bill) Henderson Professor of Law and Director, Center on the Global Legal Profession, Indiana University Maurer School of Law As one of the very few law professors who studies the business of law, Bill Henderson's work has had profound effect outside the academy. One of his most recent works in Pepperdine Law Review, A Blueprint for Change, begins with the observation: “United States legal education needs to change. Simply stated, there is a shrinking demand for the product we offer” and concludes with a proposal for a consortium of change-agent law schools to teach lawyering skills in the third year. With others, Bill introduced a new first-year course at the IU School of Law in 2009 called The Legal Profession, a mandatory four-hour course that covers the ethics, competencies, and economics of the legal profession. The course uses legal ethics and the law of lawyering as the spine of a course that educates law students on the competencies they must develop to be successful lawyers in the 21st Century.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Law

Ind. Gov't. - Maybe not so "one-of-a-kind" after all

This ILB entry from July 13 was headed " Township Trustee Sandra Norman faces first-of-its-kind charges." The story quotes Kara Kenney of WRTV-6:

MARTINSVILLE, Ind. - Ashland Township Trustee Sandra Norman appeared in Morgan County court Friday morning to face first-of-its-kind charges and possible removal from office.

Prosecutor Steve Sonnega charged Norman with two Infractions for failure to file reports, including the fiscal year 2012 annual report and 100-R report, which also includes compensation of officers and employees.

Norman pleaded not guilty. * * *

Norman's case is the first time in Indiana history that a county prosecutor has taken such action against a public official. * * *

Norman isn't facing jail time because the infractions aren't criminal, similar to driving on a suspended license.

Today Madeline Buckley reports in the South Bend Tribune under the heading: "Olive Township trustee sentenced to probation, ordered to resign." Some quotes:

A township trustee who used a township ATM card to withdraw taxpayer funds at casinos in Indiana and Michigan will avoid prison but must resign his post.

St. Joseph Circuit Court Judge Michael Gotsch sentenced Olive Township trustee John Michalski, a Democrat, to one year but suspended the sentence, meaning the 72-year-old man will serve his punishment on probation.

The judge also ordered that Michalski resign as a trustee within 30 days. He cannot hold elected office for eight years as well, according to the terms of the sentence.

He must pay a $500 fine, as per the sentence. Michalski had already reimbursed the township for the stolen funds.

Michalski pleaded guilty in April to two counts of theft and one count of official misconduct, all class D felonies.

A grand jury indicted Michalski in January following an investigation spurred by a state audit.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Government

Ind. Law - "Indiana Scrubbing Disgraced Alumnus' Name from Campus"

Many of us Indiana Law-Indianapolis grads have been wondering for months what the school was going to do about the "Conour Atrium", so named to mark the generosity of now-disgraced alum William Conour, memorialized by a large bronze plaque built into the wall of the atrium, a plaque covered over by a discreet curtain since the revelations hit the fan.

Karen Sloan reports today in The National Law Journal:

“Indiana University President Michael A. McRobbie today announced that, in light of the guilty plea submitted by Indianapolis attorney William Conour, he will recommend to the Indiana University Board of Trustees that the Conour name be removed from the I.U. McKinney School of Law atrium and that the naming of the atrium in honor of Mr. Conour be rescinded,” the university said in a written statement.

In addition to removing Conour’s name, the law school will turn over the donated $450,000 to a compensation fund for his victims. That fund, established by the court, contained just $21,000 as of last month.

Here is a long list of earlier ILB entries re "Conour."

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Law

Law - Again on: "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online"

Updating this ILB entry from May 22nd, 2013, and this one from Aug. 7, 2008, the Electronic Frontier Foundation reported on July 9th in a story that begins:

In a victory for free speech and open government, the Sheet Metal and Air Conditioning Contractors Association (SMACNA) has conceded that it will no longer use trumped up copyright claims to try to stop Public.Resource.Org (Public Resource) from publishing safety standards that have been incorporated into law. Thanks to a lawsuit filed by the Electronic Frontier Foundation (EFF), Public.Resource.Org is now free to continue its mission of improving public access to the laws that govern our daily lives.
Here is a site containing the documents in the federal lawsuit, Public.Resource.Org v. Sheet Metal and Air Conditioning Contractors (SMACNA), including the original complaint and exhibits, as well as the SMACNA Stipulation and Judgment.

See particularly pp. 8-10 of the complaint, paragraphs #28-#44.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending July 12, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the April 12, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, July 12, 2013. It is 2 pages (and 25 cases) long.

Four transfers, including one Rule 56(A) transfer, were granted last week:

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Transfer Lists

Ind. Courts - Commission on Courts and other upcoming interim legislative meetings

The Commission on Courts will be meeting for the first time this summer on Thursday, July 18 at 2 PM. On the agenda are:

The meeting is in Rm. 431 of the Statehouse and will be videocast.

See this calendar for other upcoming meetings set for the remainder of July, and in August.

Here is a list of all the 2013 Interim Study Committees, many have not yet set their first meeting.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Tuan Chu v. State of Indiana, an 11-page opinion, Judge Barnes writes:

Tuan Chu appeals his convictions for three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one count of Class D felony failure to remit or collect sales tax. We affirm.

Chu raises one issue, which we restate as whether double jeopardy principles bar his convictions because the Indiana Department of Revenue (“the Department”) had already imposed nonpayment penalties for his failure to pay taxes. * * *

Chu has not shown that the assessment of nonpayment penalties and the criminal convictions violate United States or Indiana double jeopardy principles. We affirm.

NFP civil opinions today (1):

Gary McCoy v. Sandra Kay Roberts (NFP)

NFP criminal opinions today (6):

Darnell Chivers v. State of Indiana (NFP)

Jeffrey E. Howell v. State of Indiana (NFP)

Andre Hairston v. State of Indiana (NFP)

Andrew Albert Graovac v. State of Indiana (NFP)

Mack A. Sims v. State of Indiana (NFP)

Marc A. Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Governor Pence solicits public input in eliminating agency rules [Updated 7/16/13]

The Governor has a new website, titled "Cut the Red Tape," soliciting public input: "If you have ideas on which regulations could be simplified or eliminated in order to improve Hoosiers’ lives and businesses, send us your thoughts."

[Updated 7/16/13] The Fort Wayne Journal Gazette has a cautionary editorial today headed "Be sensible when cutting red tape."

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Indiana Government

Courts - "The Supreme Writer on the Court: The Case for Roberts"

Ross Guberman, guest-blogging at The Volokh Conspiracy, has this interesting post today. A few quotes:

The Chief Justice was no doubt one of the best advocates of his generation, but is he also the best writer on today’s Court?

The winner of such a contest would hinge in part on how the umpire calls balls and strikes. Applying my own rule book, I will judge these Justices based on three criteria: a knack for the aphorism, a command of the “impure style,” and a laser-like focus on issues. As I explain below, Roberts hits a home run on all three. * * *

On these three criteria, then, the Chief Justice is perhaps the Chief Writer as well. That said, tomorrow I’ll make the case that Justice Kagan is every bit Roberts’s equal on the Left. And in the meantime, I welcome any thoughts on whether my three criteria are fair and complete — and fairly applied.

ILB: There are already over 100 comments.

BTW, the ILB had given thought recently to publishing a similar article about our Supreme Court and Court of Appeals justices' and judges' writings, there was even a preliminary draft at one point, but ...

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Courts in general

Environment - "Greens Fight New Tollway South of Chicago"

From Jack Bouboushian of Courthouse News Service, a long story this morning that begins:

CHICAGO (CN) - A proposed toll road between Indiana and Illinois will destroy thousands of acres of farmland and forest and skirt the largest wilderness reserve in northeastern Illinois, environmentalists claim in court.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Environment

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

From Sunday, July 14, 2013:

From Saturday, July 13, 2013:

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/15/13):

Next week's oral arguments before the Supreme Court (week of 7/22/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/15/13):

Tuesday, July 16th

Next week's oral arguments before the Court of Appeals (week of 7/22/13):

Wednesday, July 24th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, July 15, 2013
Posted to Upcoming Oral Arguments

Sunday, July 14, 2013

Ind. Gov't. - "A fine mess: Drivers dunned for tickets from years ago"

The Monroe County Clerk has hired "the Eagle Accounts Group, a debt collection agency in Indianapolis" to collect on some "200,000 old traffic citation," some dating back to 1996, according to this long $$ story by Rachel Bunn this weekend in the Bloomington Herald-Times:

The person who authorized the collection of old citations is Linda Robbins, Monroe County clerk. * * *

As it has turned out, many of the old citations had already been paid or had been dismissed, but the efforts were not recorded in the clerk’s computer system.

“Back in the day, rather than making entries in the computer, they’d go pull the ticket and write notes on the envelope,” Robbins said.

That’s what happened to Lew Winkler, who received one of the first batches of collections letters in February.

Winkler was returning home from work in 2004 when he was pulled over for a broken headlight. He was given a citation, but was told by the officer who pulled him over that the citation would be dismissed if he fixed the light and brought it in to the police station to be checked.

Winkler said that is exactly what he did, and considered the matter closed. When he received a collections letter years later, he was surprised.

“That’s just an example of extreme not paying attention to things,” he said. “Someone should have known that was taken care of.

“Just a bureaucratic mess — that’s all it amounts to,” he continued.

In cases like Winkler’s, where the charges were dismissed at the time (he actually looked up the court record) and there is proof of the dismissal, Robbins said the claim goes away.

Though everyone is being contacted by the collections agency, no one’s credit should be affected, Robbins said.

Follow-up too late?

Robbins said she understands the frustration of the public.

Many of the tickets date back as far as Weiner’s, and some even further. Robbins said the clerk’s office has received payments from as far back as 1996.

“The government doesn’t have a forgiveness law for traffic tickets,” Robbins said. “Small claims, if after so many years you don’t make a payment, it goes adrift. It’s not the same for traffic tickets.”

The ILB has had several other similar stories, with similar reactions, from the Lebanon city court, and the Shelby and Clark County courts.

Posted by Marcia Oddi on Sunday, July 14, 2013
Posted to Indiana Government

Ind. Gov't. - " Monroe Hospital operating under Catholic doctrine: Relationship with St. Vincent Health means management’s religious views may override patients’ wishes"

Interesting long story today from the Bloomington Herald-Times ($$); Dann Denny reports:

Some local residents are upset that Monroe Hospital will not honor the health care wishes of its patients if those wishes run counter to the teachings of the Catholic Church.

They say the 32-bed hospital, which since September has been managed by St. Vincent Health — a 22-hospital Catholic health care system — is allowing Catholic Church doctrine to sometimes override the health care decisions of its patients.

“The pattern across the nation is that when hospitals merge with these large Catholic health systems, the hospitals’ physicians, staff and patients are required to follow Catholic rules regarding health care — regardless of their religious affiliation,” said Bloomington resident Clarke Miller, a former Catholic priest and retired nursing home director. “I would not object to these rules being applied if all the doctors, staff and patients were Catholic, but only 25 percent of our national population is Catholic.”

Joe Roche, Monroe Hospital’s CEO, confirmed that St. Vincent’s management agreement with Monroe Hospital requires that it be managed in accordance with the United States Conference of Catholic Bishops’ ethical and religious directives for health care organizations — a 38-page document that covers such issues as euthanasia, abortion and birth control. * * *

Miller said that may work in Bloomington, where there are two hospitals and several surgery centers, but not in smaller communities.

“Nationwide, many rural hospitals that can’t survive financially are merging with Catholic hospital networks,” he said. “And in these communities, there is only one hospital option.” * * *

Roche said abortions, tubal ligations and vasectomies are forbidden at all hospitals in the St. Vincent health care system, including Monroe Hospital.

Posted by Marcia Oddi on Sunday, July 14, 2013
Posted to Indiana Government

Ind. Gov't - "State attorney general Zoeller on expedition for invasive Asian carp" [Updated]

Some quotes from Maureen Hayden's report July 12th in the New Albany News & Tribune:

[T]he danger the Asian carp pose is bigger than their size, which is why Zoeller has invited the man known as the White House’s “Asian carp czar,” John Goss, to join him for the first leg of his nearly 400-mile trip.

Zoeller -- who's making the river trip on a donated boat and using no taxpayers funds for it -- wants Goss to carry the message back to Washington, D.C., that Indiana needs help combating what both men call the “Asian carp crisis.”

Goss’ official job is to keep self-sustaining populations of the fecund and voracious Asian carp from invading the Great Lakes and destroying the region's eco-system and its $7 billion fishing industry.

But Zoeller also wants that job to include helping Indiana eradicate the self-sustaining populations of Asian carp that are already here and wreaking environmental havoc.

“The real risk is that these things eat everything,” said Zoeller, of the species that was brought over from Asia to the U.S. in the 1970s -- with the federal government’s blessing -- to clean up the bottoms of catfish ponds and sewage treatment plants.

“They literally denude rivers of the nutrients that smaller fish eat,” Zoeller said. “And if you don’t have little fish, you don't have bigger fish.” * * *

Goss worked with state and federal officials to install electrified fences in the Illinois River to keep the Asian carp from spreading north into Lake Michigan. And also worked state officials on a “fish fence” that’s been installed near Fort Wayne to keep Asian carp from spreading to a marsh fed by a river that has connectors to Lake Erie.

During a visit to the Wabash River near Terre Haute last summer, Goss told the Tribune-Star newspaper that “Indiana sits right in the middle of the carp issue.” He also said the cost of getting rid of the carp is “astronomical.”

Asian carp have no natural predators, they’re prolific reproducers and the eggs they spawn in the fast-flowing waters they favor can end up 50 or 60 miles down river. And since they don’t bite on worm or insect bait, the only way to catch them is with a net.

Three years ago, Zoeller stepped into the Asian carp issue when he filed, on behalf of the State of Indiana, an amicus brief in the U.S. Supreme Court in support of Michigan’s legal efforts to force Illinois to shut down its shipping locks to keep the Asian carp out of Lake Michigan.

The high court declined to hear the case, but Zoeller and attorneys general in neighboring Great Lake states have continued to pressure the federal government to help them protect their own waterways.

Last summer, during his campaign for re-election, Zoeller traveled the Ohio River and stopped along the way to talk about the Asian carp threat and other issues impacting the river. He liked the trip so much, that he decided to travel the Wabash River this summer.

“We forget we have some of the most spectacular rivers in the U.S.,” Zoeller said. “We shouldn't take them for granted.”

[Updated 7/15/13] Here is a news release from the AG.

Posted by Marcia Oddi on Sunday, July 14, 2013
Posted to Environment | Indiana Government

Ind. Decisions - "The state’s highest court, in an unanimous decision, said it would not “accept transfer” of Hankins’ case"

A story yesterday by Douglas Walker in the Muncie Star-Press began:

MUNCIE — For Benjamin Hankins, a succinct announcement from the Indiana Supreme Court this week represented a significant amount of bad news.

The state’s highest court, in an unanimous decision, said it would not “accept transfer” of Hankins’ case.

That action essentially means that the 38-year-old Delaware County man’s April 2012 murder conviction — and a 64-year prison term later imposed by then-Judge Alan Wilson — will stand.

However, the Supreme Court made that decision over two weeks ago, on June 27, to be precise. It was information included in the transfer list linked in this July 1st ILB entry - 7th from the bottom on page 1.

Posted by Marcia Oddi on Sunday, July 14, 2013
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Saturday, July 13, 2013

Law - "HIPAA – a law that several experts say is woefully misunderstood"

Thanks to @IndianaOpenGov for the link to this long 7/13/13 story by Maria Papadopoulos of Enterprise News.* Some quotes:

Abington police and fire officials are refusing to divulge the name or condition of a 38-year-old car accident victim, citing the medical privacy act known as HIPAA – a law that several experts say is woefully misunderstood.

“What they’re citing is not accurate and it is an example of how HIPAA is misunderstood,” Attorney Rochelle Zapol, a partner of Prince Lobel & Tye in Boston who specializes in health care law, said Monday. * * *

HIPAA applies to health plans, health care clearinghouses and health care providers, and does not apply to police and fire departments, several attorneys said Monday.

“HIPAA was not designed and is not intended to stop the government from disclosing information about victims of crime or accidents who suffer injuries,” said Jonathan Albano, media attorney and partner at Bingham McCutchen, Boston. “That’s not what it’s about.”

“It’s so your doctor, your insurer, your employer does not release medical information about you,” Albano said. “It’s not intended to stop people from knowing who has been injured as a result of crimes or accidents.”
Police and fire departments are not covered entities that are subject to HIPAA laws, Zapol and others said.

ILB: And here is a July 3, 2007 ILB post quoting a NYT article headed" "HIPAA frustration: unnecessary secrecy is a 'significant problem'”.

_________
*According to its homepage: "The Enterprise is an afternoon daily newspaper published in Brockton, Mass. It is the newspaper of record for Brockton and several suburban communities of northern Bristol and Plymouth counties, and southern Norfolk County, Mass."

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to General Law Related

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

Supplementing this June 29th ILB post on the Hobby Lobby ruling, here is Prof. Marci A. Hamilton's July 11th commentary in Justia, headed "Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible."

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Courts in general

Ind. Decisions - "Court splits parenthood in surrogate mother deal"

Thursday's Court of Appeals opinion in In the Matter of the Paternity and Maternity of Infant T. (ILB summary here) is the subject of a July 12th AP story by Charles Wilson. Some quotes:

The state appeals court has decided that in Indiana, a surrogate mother is the legal mother, even if the child was conceived with an egg from an unknown donor and everyone agreed for the baby to become a third woman's child.

In a 3-0 decision Thursday, the Indiana Court of Appeals agreed with a lower court that there was no state law that allowed a woman to "de-establish" the maternity of the surrogate, but overruled the judge's decision that the surrogate's husband was the child's legal father.

Under the arrangement set up by Monrovia attorney Steven Litz, the husband of a woman who could not conceive artificially fertilized an ovum, whose donor remained anonymous. A married surrogate mother carried and gave birth to the infant, who was to be given to the first couple.

The man who had donated the sperm and the surrogate mother and her husband, last October filed a petition to "establish paternity and de-establish maternity" in a Putnam County court. But the local judge threw out the agreement, holding that the birth mother was the legal mother and her husband was the legal father unless a paternity test proved otherwise.

The Court of Appeals overruled part of a Putnam County judge's decision and held that the first woman's husband, who is the biological father, has paternal rights.

However, Judge Edward Najam Jr. wrote Thursday that state law presumes the birth mother is the child's biological mother unless another woman can prove the infant is her genetic offspring.

The recognition of genetic parenthood resulted from the appellate court's 2010 decision that even if a surrogate mother is involved, a child's biological parents are the legal parents if they can prove the child is genetically theirs. [ILB - see below]

"But in this case, the biological mother is unknown," said Litz, whose Surrogate Mothers Inc. has arranged hundreds of surrogate pregnancies for couples across the U.S. and overseas. "This was a surrogate pregnancy with an egg transferred from an anonymous donor."

Litz said he offered genetic testing results that proved the surrogate mother was not the child's genetic parent.

Litz said Friday that he intends to ask the Indiana Supreme Court to review the decision, which he believes is the first such ruling in the U.S.

ILB: Here is a quote from the Infant T opinion:
However, our holding does not exclude the indirect disestablishment of maternity, such as in Infant R. The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation. Infant R., 922 N.E.2d at 61-62. If the putative mother satisfies her burden of proof, the establishment of maternity in her would indirectly disestablish maternity in the birth mother.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Ind. App.Ct. Decisions

Environment - New "Weed threat a potential 'train wreck'"

From a story today in the Lafayette Journal & Courier, reported by David Smith:

A fast-spreading, herbicide-resistant weed with a villainous-sounding name is spreading noxious roots in 17 Indiana counties and may have a toehold in Tippecanoe, a Purdue University weed scientist says.

Palmer amaranth has been confirmed in 17 Indiana counties — up from seven last fall — and is no longer confined to the northwestern part of the state, says Bill Johnson, Purdue professor of weed science. It’s been spotted in several counties next to or near Tippecanoe County.

Palmer amaranth is no ordinary weed. It packs a trio of characteristics that pose potentially costly challenges to producers, particularly soybean farmers, wherever it is found.

“One or two plants in an 80-acre cornfield can cause a train wreck the following year,” Johnson said.

The plant can grow to abundant proportions, up to 7 feet high, rivaling giant ragweed in its ability to compete for sunlight, water and nutrients and reduce crop yields.

As if that weren’t enough, a single plant can produce up to a million seeds.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Environment

Ind. Law - "Felony charges for Indiana same-sex marriage applicants not likely"

Supplementing this FWJG editorial from July 11th, this long story today in the Elkhart Truth, reported by Lydia Sheaks, gives useful details about how the marriage license application process actually works. Some quotes:

Attorney Cynthia Gillard of Warrick & Boyn in Elkhart said the report that couples could get jail time for filling out a marriage license application is stretching the interpretation of the law.

“If a woman for example puts her information on the male side and strikes out ‘man’ and puts, ‘I’m a woman,’ that’s not false information,” Gillard said. “(The couple) can’t be charged for that. Their application may be denied, but they won’t be charged.”

She added, “The mere asking to apply (for a marriage license) is not a crime, it’s the actual applying and putting false information on the form.”

Gillard continued, “It’s somewhat misleading to say that (gay couples) would go to prison. Anyone filling out wrong information would be committing a felony. It’s obvious that (gay couples) would not get to that point unless they lie.”

Elkhart County Clerk Wendy Hudson pointed out that couples in Elkhart County who apply for a marriage license don’t usually have the opportunity to put false information on the application. The form is actually filled out by personnel at the clerk’s office. The couple applying for a license provide their information verbally.

“When a couple comes in, the person in the clerk’s office who is helping them asks for the answers to the questions, and we enter the answers into the application software,” Hudson said in an email. “We do not provide anyone with a blank form, as we are unable to print a blank form — the software only allows (the application) to be printed once it’s completed.”

Hudson continued, “(A couple) could lie to us. But it’s highly unlikely that such a lie would go unnoticed, since they are standing right in front of us. If they did lie, and the application process was completed, then yes, they would have committed a felony. It would be up to the prosecutor to decide whether to pursue prosecution.”

There’s also an option for couples in Elkhart County to start the process of applying for a marriage license online. On this online form, there are also blanks designating the male and female applicant.

“The e-file is not a complete process,” Hudson explained. “It gets a couple started on the application process, but the issuance of a license still requires the couple coming to the clerk’s office to complete the application. In other words, doing the e-file of the application is not actually filing the application or license.”

Why would couples in Indiana attempt to apply for a marriage license if they know they will be denied?

Some groups, like the Campaign for Southern Equality based in North Carolina, encourage gay couples to apply for a marriage license in states where same-sex marriage is not legal, in protest of the law. The group’s Facebook page and website displays photos and videos of many couples who have done this proudly displaying their denied marriage application.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Indiana Law

Ind. Gov't. - "Old Allen County documents dating back to 1816 will soon be more accessible to the public"

Vivian Sade's story today in the Fort Wayne Journal Gazette continues:

The Allen County commissioners Friday approved an enhanced online search system for the recorder’s office. The $58,500 three-year contract with Cott Systems will make records from 1816 to 1969 readily available, Allen County Chief Deputy Recorder Anita Mather said.

Those documents would be invaluable for genealogical searches and would include home deeds and mortgages, military discharges, property plats and title insurance, she said.

“We spent $250,000 to image all the documents, and this will make them easier to access online,” Mather said. The recorder’s office can recoup the one-time contract fee through user fees, she said.

The fee for such records will run between $5 and $6, she said.

The recorder’s office would keep a dollar of a $5 user fee and $4 would go to Cott Systems, Mather said.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Indiana Government

Ind. Gov't. - " Township Trustee Sandra Norman faces first-of-its-kind charges"

Kara Kenney of WRTV-6 reported Friday, with video:

MARTINSVILLE, Ind. - Ashland Township Trustee Sandra Norman appeared in Morgan County court Friday morning to face first-of-its-kind charges and possible removal from office.

Prosecutor Steve Sonnega charged Norman with two Infractions for failure to file reports, including the fiscal year 2012 annual report and 100-R report, which also includes compensation of officers and employees.

Norman pleaded not guilty. * * *

Norman's case is the first time in Indiana history that a county prosecutor has taken such action against a public official.

"It's very problematic when a trustee doesn't do the job the law requires," Sonnega said after Norman's hearing. "The filing of reports is pretty fundamental."

A judge would have to find Norman guilty and impose forfeiture of office as a penalty.

Norman isn't facing jail time because the infractions aren't criminal, similar to driving on a suspended license.

She also faces up to $1,500 in fines, Sonnega said.

"We came up with a course of action we thought would be in the taxpayers' best interest and the government's best interest," said Sonnega. "It is a new area."

The Attorney General’s Office sent demand letters to Norman, requesting she repay $7,860 after the State Board of Accounts found Norman made purchases without supporting documentation, including hotel stays, mileage, conferences, utilities, repair work and other expenses.

Morgan County Republican Chairman Daniel Elliott told Kenney that once the legal process is complete and there's a vacancy, the party will hold a caucus to select a new Ashland Township trustee.

Here is an earlier (undated?) WRTV-6 story about the State Board of Accounts audit.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Indiana Government

Ind. Law - "Hamilton County Young Republicans chief arrested on 3rd drunken driving allegation"

Catching up: Updating past ILB entries, including this one from Dec. 18, 2010, and this one from May 19, 2011, Tim Evans reported in the Indianapolis Star on July 9th:

Marietto “Mario” Massillamany, an attorney and chairman of the Hamilton County Young Republicans with two prior alcohol-related driving arrests, was arrested again Sunday morning on two charges related to driving while intoxicated.

Massillamany, 36, an attorney at Barnes & Thornburg and former deputy prosecutor in Marion and Hamilton counties, previously was reprimanded by the state Supreme Court after a 2010 drunken driving conviction, his second. * * *

A profile of Massillamany on the Barnes & Thornburg website says: “Mr. Massillamany is deeply involved in public service, including serving as chairman of the Hamilton County Young Republicans.” * * *

Massillamany has had two other alcohol-related driving arrests since 2000.

He was arrested for OWI in March 2010 after police saw his vehicle swerving and clocked it traveling at 71 mph in a 40-mph zone on 116th Street in Fishers. He resigned later that week from his post as spokesman for then-Marion County Prosecutor Carl Brizzi.

In December 2010, he pleaded guilty and was sentenced to serve 32 days in the Hamilton County Jail.

That was his second OWI conviction; he also was convicted in 2000 in Marion County.

In May 2011, the Indiana Supreme Court issued Massillamany a public reprimand for the 2010 conviction. The court’s disciplinary orders said Massillamany violated an Indiana Professional Conduct rule.

From the Brown County Democrat, also on July 9th:
The attorney representing Brown County was arrested over the weekend in Hamilton County on drunken driving charges. * * *

Brown County Commissioner Joe Wray said Tuesday that he was aware of the arrest.

The commissioners contracted with Barnes and Thornburg, not Massillamany as an individual attorney, Wray said. Wray is waiting to hear back from the law firm, which was hired earlier this year to replace local attorney Kurt Young, to learn whether or not the county will be assigned a different lawyer.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Indiana Law

Ind. Courts - Still more on: Suit claims "BMV Indiana overcharged millions of Hoosiers for driver's licenses"

Updating these ILB posts from March 7th (including the complaint) and March 21st (including the State's answer), yesterday Kristine Guerra reported for the Inpls Star:

The Indiana Bureau of Motor Vehicles announced this morning it will issue a credit to Hoosiers who were overcharged for their driver’s licenses -- but an attorney who filed the lawsuit that prompted the action says it’s not enough.

The class-action lawsuit filed last March stated that the BMV has “systematically overcharged” Hoosiers since 2007, collecting as much as $30 million to $40 million more than allowed under state law. It alleged that the agency charged drivers under the age of 75 from $4 to $7 more in driver’s license fees than the state allows.

In a response to the suit, filed by Irwin B. Levin, the BMV later admitted that it “may have inadvertently overcharged” a significant number of drivers.

Last month, the BMV rolled back its driver’s license fees and said a miscalculation resulted in a $3.50 overcharge. The agency then cut the six-year driver’s license fee to $17.50 from $21, the five-year license to $16 from $19.50, and the four-year license to $14.50 from $18.

Effective immediately, the BMV will return the fees that were overcharged between March 2007 and June 27, which is when the reduced fees took effect, in the form of a $3.50 credit. This means, according to the agency, that the next time an Indiana driver conducts a transaction at a local BMV branch or through its website, the final charge will reflect the driver’s credit.

“In order to make Hoosiers whole, we believe it is important to return the overcharge directly to those who have been impacted,” R. Scott Waddell, commissioner of the BMV, said. “It is the right thing to do.”

Levin, however, said the BMV is not giving credits for all the money that it “unlawfully took.” Despite the announcement, he said the BMV still will not cover interest on the money it has kept and will not pay anyone who has moved out of state.

“There are many people who won’t be doing business with the BMV and won’t get any credit,” Levin said. “A kid who’s in college (out of state) is not registering his car here anymore.

Eric Bradner reports for the Evansville Courier & Press:
The attorney who accused the Indiana Bureau of Motor Vehicles of overcharging motorists for years scoffed Friday at the state’s new plan repay that money by crediting Hoosiers’ accounts. * * *

Indianapolis attorney Irwin B. Levin filed a class-action lawsuit. He alleges that Indiana might have collected between $30 million and $40 million more than it should have including $8.8 million in 2012 alone as a result of the BMV’s fees.

That lawsuit is still pending, and Levin said the BMV’s latest move occurred outside of the legal case and without the court’s approval.

He said it amounts to “a nice gift,” but little more. He estimated that the BMV’s plan will pay Hoosier drivers about half of what they were overcharged not including interest.

“The plan that they’ve proposed doesn’t even pay all the damages that people have had,” he said. “So it’s a nice, cutesy way of trying to give them political cover, but it really doesn’t give them any credit in the lawsuit. They need to settle the lawsuit under court supervision.”

Another court hearing is scheduled for July 25, where Levin said he expects the BMV’s plan to credit motorists will be discussed. He said a potential settlement “can be as creative as necessary to make sure that it’s fair,” but that it must occur under the court’s supervision.

Under [BMV Commissioner R. Scott Waddell’s] leadership, the BMV has also faced a controversy over its denial and subsequent reversal of that denial of a pro-gay rights youth group’s effort to secure a specialty license plate.

Posted by Marcia Oddi on Saturday, July 13, 2013
Posted to Indiana Government

Friday, July 12, 2013

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

In MIGUEL GUTIERREZ v. MICHAEL R. KERMON (SD Ind., Pratt), a 24-page opinion, Judge Tinder writes:

Miguel Gutierrez brought this action under 42 U.S.C. § 1983 against Indianapolis Metropolitan Police Officer Michael R. Kermon (and others not involved in this appeal), alleging, among other things, that Kermon trampled his fourth amendment rights by seizing him without reasonable suspicion or probable cause. Officer Kermon moved for summary judgment, arguing that he had not violated Gutierrez’s rights or, if he had, that he was nevertheless entitled to qualified immunity. The district judge concluded that Kermon had reasonable suspicion to make an investigative detention but that genuine issues of material fact precluded a finding of qualified immunity on the issue of probable cause. Officer Kermon brought this interlocutory appeal challenging the district court’s denial of qualified immunity on the issue of probable cause. Because Kermon’s argument depends on a disputed fact, we dismiss this appeal for want of jurisdiction. * * *

Here, the district court found that the issue of whether Gutierrez was swaying or walking with an unsteady gait is a genuine factual dispute in need of a jury’s attention. Officer Kermon’s unabashed reliance on that disputed fact in support of his plea for qualified immunity deprives us of jurisdiction over this interlocutory appeal. We therefore DISMISS this appeal for want of jurisdiction.

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

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 J.J.; M.J. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, July 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Current process for dealing with corrected appellate opinions poses perils

Here are two ILB posts from several years ago that now have added relevance:

Both posts repeat this recommendation:

A second improvement, that I suggested to the Clerk's office several years ago, has to do with corrected opinions. It appears that when an opinion is corrected for typos, etc. a new version is posted in place of the old with nothing said. So different people may be reading different versions, depending on when they accessed the opinion. Why not append a correction sheet to the revised version?
On July 2nd of this year, an unidentified Court of Appeals panel issued an opinion, designated "Panel Per Curiam," in the case of Frederick L. King v. State of Indiana. The ILB commented at the time that "the ILB has never seen this before. The panel is not identified, either in the opinion or in the docket." (Subsequently one other panel per curiam was located, from 2010.) A reader commented: "I think every litigant is entitled to a real opinion with three named judges. Two classes of opinions, even for cases that appear to lack merit, is a bad precedent."

A July 3 update to the July 2 ILB post notes:

The names of the panel members have now been added to King ("Najam, J., Bailey, J., and Barnes, J."), along with a footnote that begins: "In per curiam opinions, judges serving on the panel are listed in order of seniority."
Here is the originally issued version of King v. State.

Here is the "updated"" or "corrected" version of King v. State.

Notice that they are both file-stamped Jul 2 2013, 10:43 am. But if you examine the two versions side-by-side, you will see that, in addition to the names of the panel members and the footnote, two new lines of citations have been inserted at the end of the final paragraph:

See Chambers v. State, Cause No. 53S01-1307-CR-459 (Ind. July 2, 2013); Merida v. State, Cause No. 69S01-1301-CR-24 (Ind. May 17, 2013); Lynch v. State, Cause No. 40S05-1301-CR-23 (Ind. May 17, 2013).
(Interesting, Chambers was decided by the Supreme Court on July 2, but file-stamped "2:25 pm.")

The online docket merely adds the names of the panel judges -- and does not note a corrected opinion was issued.

The perils posed by this practice.

If you downloaded or printed out the opinion on July 2, you do not have the corrected version.

If you access or link to King through the Court's website today, you will reach the "corrected" version, with no indication that it reads differently than the version posted at the time of the file-stamp, "Jul 2 2013, 10:43 am".

If you access the decision today through the ILB's earlier post, you will also reach the "corrected" version, because the ILB's link is to the Court's version.

But if you access King through the Indiana Lawyer's July 2nd write-up, as of today you will access the original version, because the IL downloads the opinions each day as they are posted to its own archive.

Moreover, I just found out yesterday that Lexis has the amended version; and that Westlaw has the original (and a wrong note at the top about it being NFP).

Also, I don't know whether the parties were mailed the new opinion.

In short, everyone is not using the same playbook. And the problem is not isolated to this case, it is a problem whenever an opinion is changed after it is filed and posted. Most of the time, we don't know about it. We know in the King case only because the ILB had been looking at it because the panel was unidentified. If a party seeks transfer, it is anyone's guess which opinion the Indiana Supreme Court justice will review.

What to do? At a bare minimum, the changed version should be so identified. A change sheet should be included in the posting so that the changes are easily found.

More should be done if changes go beyond typos, perhaps refiling the opinion. The parties, of course, must be notified. And a general notice system, perhaps similar to the one now used by the Court of Appeals for NFPs changed to FP, might also be employed.

Posted by Marcia Oddi on Friday, July 12, 2013
Posted to Indiana Courts

Ind. Gov't. - "Leucadia drops plan for Mississippi plant"

From an editorial today in the Evansville Courier & Press:

Leucadia, the New York-based company that would finance the $2.8 billion Rockport coal-gasification should it survive an Indiana Supreme Court case, has dropped plans for a $2 billion gasification plant in Mississippi, reports the Associated Press. The company has notified Mississippi officials it will not build a plant intended to turn petroleum coke, a byproduct of crude oil refineries, into substitute natural gas. Instead, the company decided to change its product from substitute natural gas to methanol and will not be purchasing a site in Moss Point, Miss., said the AP.

This comes at a time when Leucadia and others involved in the troubled Rockport, Ind., proposal are awaiting a decision by the Indiana Supreme Court on whether to allow new regulatory measures to stand. Proponents of the plant say upholding the new regulations would likely kill the plant, whereas the only chance for saving it would be for the court to uphold the original contract.

That original 30-year contract signed by the Indiana Finance Authority would tie up 17 percent of what Indiana residential and commercial natural gas users are charged each month, as opposed to the usual open-market prices.

Also, the Rockport decision has been targeted as a factor as to whether a Texas firm’s plans for a 440-mile Indiana to Mississippi pipeline to carry carbon dioxide will become a reality. Leucadia still has plans for a methanol plant in Lake Charles, La., but only time will tell whether Leucadia’s vision for energy producing plants and pipelines will become a reality.

Here is the AP story, dated July 9, as published in the Mississippi Clarion Ledger.

Posted by Marcia Oddi on Friday, July 12, 2013
Posted to Indiana Government

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

Updating this ILB entry from June 25th, Rebecca S. Green reports today in the Fort Wayne Journal Gazette, under the heading "Bobay dons robes, wins praise as newest Allen County judge." Wane.com also has a brief story.

Posted by Marcia Oddi on Friday, July 12, 2013
Posted to Indiana Courts

Law - "FCC Tackles Cost of Prison Phone Calls"

From the Blog of Legal Times, a post July 10th that began:

When it comes to sky-high telephone rates, it's hard to top the cost of making a call from prison - a phone call from an inmate across town may be ten times more expensive than ringing a friend in Singapore.

For a decade, prisoners' relatives and social justice advocates have clamored for the Federal Communications Commission to take action, joined in recent years by leaders from groups such as the Traditional Values Coalition and the National Association of Evangelicals.

Today [July 10th], the FCC moved to address the issue, holding a day-long workshop on prison phone rate reform, which participants framed as an issue of basic fairness as well as social benefit.

The post links to a long "Nationwide Prison Legal News (PLN) Survey Examines Prison Phone Contracts, Kickbacks" by John E. Dannenberg (found here) that begins:
An exhaustive analysis of prison phone contracts nationwide has revealed that with only limited exceptions, telephone service providers offer lucrative kickbacks (politely termed “commissions”) to state contracting agencies – amounting on average to 42% of gross revenues from prisoners’ phone calls – in order to obtain exclusive, monopolistic contracts for prison phone services.

These contracts are priced not only to unjustly enrich the telephone companies by charging much higher rates than those paid by the general public, but are further inflated to cover the commission payments, which suck over $143 million per year out of the pockets of prisoners’ families – who are the overwhelming recipients of prison phone calls. Averaging a 42% kickback nationwide, this indicates that the phone market in state prison systems is worth more than an estimated $362 million annually in gross revenue.

In a research task never before accomplished, Prison Legal News, using public records laws, secured prison phone contract information from all 50 states (compiled in 2008-2009 and representing data from 2007-2008).

From about 2/3 through the story:
Lawsuits challenging exorbitant prison phone rates have met with little success. In Walton v. NY DOCS, 18 Misc.3d 775, 849 N.Y.S.2d 395 (N.Y.Sup. 2007), the court held that New York’s then-57.5% kickback commission did not violate the constitutional rights of prisoners’ families. [See: PLN, Oct. 2008, p.24; April 2007, p.20]. This finding was upheld by New York’s highest court, the Court of Appeals, in 2009. See: Walton v. NY DOCS, 13 N.Y.3d 475, 921 N.E.2d 145 (N.Y. 2009) [PLN, Aug. 2010, p.18].

An Indiana appellate court denied an appeal in a class-action suit by prisoners’ families raising similar issues. See: Alexander v. Marion County Sheriff, 891 N.E.2d 87 (Ind.Ct.App. 2008) [PLN, June 2009, p.28]. New Mexico’s Supreme Court upheld the dismissal of a lawsuit challenging prison phone rates in 2002 [See: PLN, June 2003, p.17], as did New Hampshire’s Supreme Court that same year, in Guglielmo v. 
WorldCom, Inc., 148 N.H. 309, 808 A.2d 65 (N.H. 2002). Further, the Eighth Circuit Court of Appeals affirmed the dismissal of an excessive prison phone rate complaint in Gilmore v. County of Douglas, 406 F.3d 935 (8th Cir. 2005).

Such legal actions typically run afoul of the “filed rate doctrine,” which holds that once a telecommunications company files its rate structure (tariffs) with an appropriate regulatory agency, and then adheres to those rates, it is insulated from court challenges. [See, e.g.: PLN, Jan. 2005, p.6].

Posted by Marcia Oddi on Friday, July 12, 2013
Posted to General Law Related

Thursday, July 11, 2013

Ind. Courts - $346,975 later, Washington County courthouse still leaks

Marcia Walker reports in the Salem Leader in a story that begins:

Washington County has paid at least $204,273 for repairs to the courthouse roof and at least $142,702 for repairs to the stones on the exterior of the building - a total of $346,975 - and still the building leaks.

A frustrated Tony Maranto, the courthouse custodian, met with the Washington County Council on Monday and complained that county officials need to do a better job overseeing work on the historic building.

"I know that building pretty well, what needs done and what doesn't need done," Maranto told the council.

He said the leaks originate both from the roof and the stone exterior, but mentioned it was difficult trying to determine which company should be held responsible for resolving the problems. T & G Construction was given the contract for roof work while BJB handled work on the exterior, which included repairing loose stones and caulking around windows.

"There needs to be follow through, to see they are doing their job," Maranto said.

He told the council that the shingled portion of the roof was replaced first, then the rubberized sections. Workers had to walk over the shingled sections to reach the rubberized sections.

Posted by Marcia Oddi on Thursday, July 11, 2013
Posted to Indiana Courts

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

In UNITED STATES OF AMERICA v. DANNY HARMON (SD Ind., Magnus-Stinson), a 31-page opinion, Judge Tinder writes:

A jury convicted Danny Harmon of a marijuana conspiracy and related offenses. The district court sentenced him to 360 months’ imprisonment. Harmon appeals his convictions and sentence. He first contends that a trial continuance violated his Sixth Amendment right to a speedy trial and that the disclosure of his prior drug conviction deprived him of a fair trial. He also argues that the district court erred in its fact finding at sentencing. For the following reasons, we affirm Harmon’s convictions and sentence.

Posted by Marcia Oddi on Thursday, July 11, 2013
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (4):

In In the Matter of the Paternity and Maternity of Infant T., a 9-page opinion, Judge Najam writes:

In this nonadversarial proceeding, M.F. is the biological father of Infant T. Infant T. was born to S.T., who acted as a surrogate for M.F. and an unknown egg donor. During the pregnancy, M.F., S.T., and S.T.’s husband, C.T., jointly filed an agreed petition with the trial court to establish M.F.’s paternity and to “disestablish” S.T.’s maternity. The trial court denied the agreed petition and certified its order for interlocutory appeal, which we accepted. We address the following two issues:
1. Whether the trial court erred when it denied M.F.’s request to establish paternity.
2. Whether a surrogate may petition a court to disestablish maternity.
We reverse the trial court’s denial of M.F.’s request to establish paternity, but we affirm the trial court’s denial of S.T.’s request to disestablish maternity. Accordingly, we affirm in part, reverse in part, and remand with instructions. * * *

However, our holding does not exclude the indirect disestablishment of maternity, such as in Infant R. The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation. Infant R., 922 N.E.2d at 61-62. If the putative mother satisfies her burden of proof, the establishment of maternity in her would indirectly disestablish maternity in the birth mother.

But we are not presented with facts demonstrating maternity in any woman other than S.T. Indiana law presumes the birth mother of a child is the child’s biological mother. Id. at 61. “[T]his presumptive relationship will stand unless [another woman] establishes that she is, in fact, the biological mother of [the child].” Id. at 62. No other woman has petitioned the court to establish maternity. As such, the trial court properly dismissed S.T.’s petition to disestablish her maternity.

In Robert M. Gates v. City of Indianapolis, a 7-page opinion, Judge Najam writes:
Robert Gates appeals the trial court’s order denying his demand for a jury trial in this action in which the City of Indianapolis (“the City”) alleged that Gates violated three municipal ordinances [re curbing dog, etc.]. Gates presents a single issue for our review, namely, whether the trial court erred when it denied his demand for a jury trial. We reverse and remand with instructions. * * *

The nature of the underlying substantive claims brought against Gates is quasi-criminal, and he is entitled to a jury trial under Article I, Section 20 of the Indiana Constitution. We reverse and instruct the trial court to grant Gates’ jury trial request.

In Lindsay Tatusko v. State of Indiana , a 9-page opinion, Judge Najam writes:
Lindsay Tatusko appeals her convictions for forgery, a Class C felony, and theft, as a Class D felony, following a jury trial. Tatusko presents the following issues for our review: 1. Whether she was denied the effective assistance of trial counsel. 2. Whether the State presented sufficient evidence to support her forgery conviction. We affirm. * * *

Here, had the entire transaction been conducted on paper, Tatusko would have had to change the tip amount in writing, which would have satisfied the elements of the forgery statute, even according to Tatusko. Just because she changed the tip amount electronically does not mean that her conduct falls outside of the statute. Again, Indiana Code Section 26-2-8-106(c) provides that if a law requires a record to be in writing, or provides consequences if it is not, an electronic record satisfies the law. Accordingly, Tatusko’s electronic alteration of the authorized tip amount in Lee’s transaction constitutes forgery. The State presented sufficient evidence to support her forgery conviction.

In Kenneth Smith v. State of Indiana , a 9-page opinion, Judge Najam writes:
Kenneth Smith appeals the trial court’s order that he pay $1,380 in restitution to William Kirkham. Smith raises a single issue for our review, which we restate as the following two issues: 1. Whether the trial court abused its discretion when it attributed property missing from Kirkham’s house to Smith even though the State did not use that property to secure Smith’s conviction for theft, as a Class D felony; and 2. Whether the trial court adequately considered Smith’s ability to pay $230 per month in restitution when he acknowledged he was paying $240 per month for home detention fees and the court responded by suspending those fees until Smith had paid his restitution in full. We affirm.
NFP civil opinions today (2):

Cecilia Kelly v. GEPA Hotel Owner Indianapolis LLC, GEPA Hotel Operator Indianapolis LLC, and Schindler Elevator Corporation (NFP)

Dana L. Smith v. James L. Smith (NFP)

NFP criminal opinions today (2):

Paul Monet Fontaine v. State of Indiana (NFP)

David L. Howard v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - The Fort Wayne Journal Gazette on the gay marriage kafuffle

Rebecca S. Green, who covers the courts for the FWJG, authored this worthwhile editorial today, headed "The trouble in ignoring the new in ‘news’":

Before I’d even left the house Tuesday morning, Facebook friends were already posting about how you could go to jail for trying to get a marriage license as a same-sex couple.

By noon, a story coming out of northwest Indiana suggesting that changes to state law now made it a felony for same-sex couples to try to get a marriage license had gone completely viral. I saw it on Facebook. I saw it on local news station websites. And I saw it posted on political blogs, all taking a potshot at Indiana’s clearly backward nature.

But here’s the thing. It wasn’t true in all the ways that mattered.

Yes, Indiana has a law banning same-sex marriage. It’s been on the books for at least 16 years, probably more. And just like lying on any other government document or application, putting down false information on a marriage license application, including gender, is a crime. The only thing that changed in the past few months, or even years, was that Indiana recently reclassified its criminal code, making crimes that were once “Class D” felonies now “Level 6” felonies.

That’s it.

Yes, it’s still a crime for clergy to have a religious marriage ceremony for those who cannot marry legally, or civilly, such as same-sex couples or close relatives. But the state did not wake up Tuesday morning any more or less bigoted than it was Monday night when everyone went to bed.

Somewhere, though, a newspaper thought it had. And by the evening, the Associated Press was moving stories saying the same.

Tuesday was an example, journalistically, of how context is important, about how just because we notice something for the first time doesn’t mean it is news.

It is my job as a reporter to do one thing above all else: to tell what is true. And part of what is true is the context within which information exists. When we journalists fail to adequately explain, fail to use judgment in the information we gather, we fail the public. People are hurt. Reputations are damaged.

On Tuesday, it was Indiana’s reputation that was hurt.

For background (in case you have been in a vacation in maybe Australia), start with this ILB post from Tuesday, headed "Ind. Law - The story that will not die: 'Same-sex couples seeking marriage could be charged with perjury'".

Posted by Marcia Oddi on Thursday, July 11, 2013
Posted to Indiana Law

Wednesday, July 10, 2013

Environment - 7th Circuit rules on Indiana Right to Farm act, in nonprecedential opinion

The 4-page nonprecedential order is Ralph Dalzell v. Country View Farms. Some quotes:

In 2005 Don Leis acquired agricultural property in Randolph County, Indiana. The farm grew corn and beans. By 2007 Leis and entities he controlled had converted the property to a pig farm with 2,800 hogs. Neighbors who objected to the stench filed this nuisance suit under the diversity jurisdiction. 28 U.S.C. §1332. The district court granted summary judgment for the defendants, ruling that the Indiana Right to Farm Act, Ind. Code §32-30-6-9, blocks their claim. 2012 U.S. Dist. LEXIS 130773 (S.D. Ind. Sept. 13, 2012). * * *

Plaintiffs may believe that at a trial they could present the sort of information that the district judge found missing from this record. But summary judgment is the time when litigants must assemble the admissible evidence. Like the district court, we must evaluate the record as it stands. On this record, a reasonable jury could not find that the shortcomings plaintiffs’ experts found in defendants’ operations make the difference between a nuisance and a good neighbor. The judgment therefore is affirmed.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Environment | Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Marriage of Gregory Young v. Nicole Young (NFP)

NFP criminal opinions today (3):

Wesley Young v. State of Indiana (NFP)

Jacob Fuller v. State of Indiana (NFP)

Adam Voegel v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Citizens for Responsibility and Ethics "files IRS whistleblower complaint against campaign finance lawyer James Bopp"

Updating yesterday's ILB entry, Gannett's Maureen Groppe reports today in a story headed "Prominent conservative lawyer Bopp rejects tax-dodge charges." Some quotes from the long story:

WASHINGTON — A government watchdog group on Tuesday accused Jim Bopp, a prominent conservative attorney, of violating tax and other laws by having a private foundation he created funnel most of its tax-deductible contributions to Bopp’s Terre Haute law firm.

“Tax law does not allow those who run charities to give all the money to their own private interests, and that’s really what’s happening here,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics. “For all intents and purposes, the Bopp law firm is really the alter ego of the James Madison Center for Free Speech.”

Bopp, a leading challenger of campaign finance laws who has also been a lawyer for the Republican National Committee and other GOP and conservative groups, called the charges ridiculous and politically motivated.

“I think you’re just paid by (George) Soros to harass conservatives, drive them out of the political system by filing bogus complaints,” Bopp said as he interrupted the conference call that Citizens for Responsibility and Ethics held with reporters.

Sloan said her group takes “the violations where we find them” and has gone after such Democrats as New Jersey Sen. Robert Menendez and Rep. Rob Andrews.

The heart of the group’s complaint is that Bopp effectively controls the James Madison Center for Free Speech, which has given more than 99 percent of its $2.1 million in contributions from 2006 through 2011 to Bopp’s law firm. The center, which Bopp co-founded to protect political speech, has no staff of its own and shares office space with Bopp’s law firm, which handles all the center’s management activities.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Indiana Law

Not Law - " Oklahoma City hospital posts surgery prices online; creates bidding war"

Fascinating story, with video, from NewsChannel4 in Oklahoma City. The long story begins:

OKLAHOMA CITY – An Oklahoma City surgery center is offering a new kind of price transparency, posting guaranteed all-inclusive surgery prices online. The move is revolutionizing medical billing in Oklahoma and around the world.

Dr. Keith Smith and Dr. Steven Lantier launched Surgery Center of Oklahoma 15 years ago, founded on the simple principle of price honesty.

“What we’ve discovered is health care really doesn’t cost that much,” Dr. Smith said. “What people are being charged for is another matter altogether.”

Surgery Center of Oklahoma started posting their prices online about four years ago.

(Click here to see the online prices at Surgery Center of Oklahoma.)

The prices are all-inclusive quotes and they are guaranteed.

“When we first started we thought we were about half the price of the hospitals,” Dr. Lantier remembers. “Then we found out we’re less than half price. Then we find out we’re a sixth to an eighth of what their prices are. I can’t believe the average person can afford health care at these prices.”

Their goal was to start a price war and they did.

The long story also lists "A handful of other Oklahoma medical facilities have started joining Surgery Center of Oklahoma in price transparency."

The ILB had a similar story about, I think, a clinic listing prices, some time ago but I can't locate it right now.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to General News

Courts - "What Vance v. Ball State Tells Us About Employment Discrimination"

Updating earlier ILB entries on Vance v. Ball State, Richard B. Lapp and Camille A. Olson have this article on "why Vance matters" in the a Yahoo finance Blog.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Courts in general

Ind. Courts - "Showdown between Delaware County judges, council settled"

From the Muncie Star-Press, this story by Roysdon and Walker reporting the "long-running financial dispute between Delaware County Council and local judges is over." More:

Officials told The Star Press on Tuesday that the legal action — sparked in January 2012 when a majority of the county’s circuit court judges asked for control of their own $1.8 million court system budget — has been settled.

A final vote by Delaware County Council — and payment of about $22,500 from council to the court budget — must still occur.

“We reached a settlement yesterday,” council President Kevin Nemyer told The Star Press on Tuesday. “We agreed to give them a small amount of money. Our attorneys had given us an estimate of several hundred thousand dollars in legal fees for both sides. Council thought it was best to settle out of court for a much smaller amount than that.”

Council member Rick Spangler noted the fiscal body hadn’t voted on the settlement yet.

“It was a divided council and it wasn’t split along party lines,” said Spangler, part of the Republican minority. “But the feeling of council was it’s the best we’re going to do and it’s the best for everybody.”

Delaware Circuit Court 5 Judge Thomas Cannon Jr., presiding judge in the county court system, acknowledged Tuesday that officials had “reached a settlement that is being reduced to writing.”

“I think we’re all glad we could reach a resolution,” Cannon said of his fellow judges. He also said the judges “never want to exercise the mandate authority.”

There is more to the story.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Indiana Courts

Courts - "SOMETHING ROTTEN IN THE STATE OF LEGAL CITATION: THE LIFE SPAN OF A UNITED STATES SUPREME COURT CITATION CONTAINING AN INTERNET LINK (1996-2010)"

I've seen two links already this morning, David Post at The Volokh Conspiracy, and Michelle Olsen @Appellate Daily, to this article by Raizel Liebler & June Liebert in 15 YALE J.L. & TECH. 273 (2013). From the abstract:

Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers.

Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions.

Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.

Posted by Marcia Oddi on Wednesday, July 10, 2013
Posted to Courts in general

Tuesday, July 09, 2013

Ind. Law - The story that will not die: "Same-sex couples seeking marriage could be charged with perjury"

Earlier today the ILB pointed out problems with the claim that "New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License." After dismissing the "new law" issue, the ILB post concluded by pointing out that in Sadler v. Morrison, the 2005 challenge to the prohibitions against same-sex marriage in Indiana, the plaintiffs sought an injunction requiring the clerk to issue licenses rather than filing applications and having them denied. Using this route, IC 31-11-11-1 and its penalty never came into play.

Regardless, this evening the Indianapolis Star has posted an unsigned AP story, quoting a WLFI-18 story by Krista Henry, dateline Lafayette, headed Same-sex couples applying for marriage could face jail time. Some quotes from the WLFI story:

TIPPECANOE COUNTY, Ind. (WLFI) - Same-sex couples applying for a marriage license in Indiana, where gay marriage is prohibited by law, could face prison time for submitting the application to their county clerk, even if it's denied.

"Applicants for marriage do sign their paperwork under penalty of perjury,” Tippecanoe County Clerk Christa Coffey said. “So if there is something on there that they know is false, then they would be eligible to be charged with making a false statement or committing perjury, which is a Class D felony."

Coffey said two men or two women seeking to marry would trigger the 1997 law.

Currently the state's electronic marriage license application specifically designates "male applicant" and "female applicant" sections for gathering required background data.

"In Indiana the law clearly states that one man and one woman are the only two who can apply for a marriage license and can have a marriage ceremony performed," Coffey explained.

Those who were to submit false information on the marriage license could face up to 18 months in prison and a potential fine of up to $10,000.

The Star version seems to go further:
Indiana’s current electronic marriage license application specifically designates “male applicant” and “female applicant” sections for gathering required background information. Coffey says that means if two men or two women applied for a marriage license, one of them would commit perjury.

“In Indiana the law clearly states that one man and one woman are the only two who can apply for a marriage license and can have a marriage ceremony performed,” Coffey said.

The Star version includes a photo of the beginning of the electronic application.

Some ILB thoughts: So do applicants have the option of a paper application, or is using the electronic form mandatory? Is there a statute denying use of a paper application where e-filing is available, or not? With a paper form, the applicants may, as Doug Masson writes:

almost certainly take themselves out of risk of this particular crime by simply crossing out the incorrect gender designation and replacing it with the correct ones.
Do applicants have the option of going to a county that doesn't have e-filing? The answer to this question is "no." IC 31-11-4-3 provides: "Individuals who intend to marry must obtain a marriage license from the clerk of the circuit court of the county of residence of either of the individuals."

Interestingly, the marriage license e-filing system, which has been installed across the State within the past several years, is a product of the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC). According to a map on their website, all but 18 counties currently are using the e-filing system.

JTAC has prepared a factsheet on the "Marriage License E-file System." One of its stated selling points is that "Code requirements [will be] enforced by the application." In other words, couples using the electronic form only have the options provided.

One question that may be asked is, is this enforcement of the code requirements, including the state's DOMA, the responsibility of the judicial branch? Or, under our constitutional doctrine of separation of powers, that is the role of the executive branch: "Art. 5, Section 16. The Governor shall take care that the laws are faithfully executed."

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Indiana Law

Courts - "The Supreme Writer on the Court: The Case for Kagan" [Updated]

Great read at The Volokh Conspirary, by guest blogger Ross Guberman, who wrote "Point Made: How to Write Like the Nation's Top Advocates" (which is on my desk).

[Updated] The Volokh Conspiracy links to a recent video interview with Jeffrey Rosen. I saw it at the time and can attest that it is certainly worth watching.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Courts in general

Ind. Decisions - More on "7th Circuit Panel Reinstates False Claims Suit Against ITT "

Supplementing this ILB post from early this morning, Alison Frankel writes this afternoon for Reuters in a long story labeled as "opinion", that gives a lot of context to the ruling yesterday. Some quotes:

U.S. District Judge Tanya Walton Pratt certainly took a dim view of Leveski’s suit, which the Justice Department declined to join. Even though a previous judge twice denied motions to dismiss by ITT’s lawyers at Gibson, Dunn & Crutcher, Pratt tossed the case in August 2011, concluding that the old FCA case against ITT that Leveski had reviewed before filing her suit amounted to a public disclosure of the practices Leveski alleged. Leveski didn’t add sufficient detail to distinguish her claims from the previous suit, the judge said, and didn’t have enough direct and independent knowledge to be considered an original source of new information. Pratt mentioned the dismissal of two of Matusheski’s other FCA suits in the August 2011 ruling, but the judge really ripped into the plaintiffs lawyer in a subsequent opinion in March 2012 awarding ITT $394,998 in attorneys’ fees from Matusheski, Leveski’s local counsel at Plews Shadley Racher & Braun and a late entry to the case, Motley Rice. Pratt wrote that Matusheski had “tiptoed around sanctions awards” in two previous FCA cases against for-profit educational institutions, which made his decision to proceed with the substantially similar Leveski case “risky, if not ridiculous.”

“Matusheski’s tactics are far worse than the garden-variety ‘ambulance chasing,’” Pratt wrote.

“At least in those scenarios, the lawyer has some guess that the prospective plaintiff may have a viable case – he or she has, after all, suffered some harm. Here, by contrast, Matusheski plucked a prospective plaintiff out of thin air and tried to manufacture a lucrative case. And, given Matusheski’s extensive track record (which includes an apology to a federal court in a very similar case), the court is persuaded that some type of monetary penalty is necessary to deter Matusheski and those attorneys who assist in his schemes from engaging in this type of conduct going forward.”

Those are mighty harsh words – but according to a ruling Monday by a three-judge panel of the 7th Circuit Court of Appeals, they’re completely unwarranted. Appellate Judges Daniel Manion and John Tinder and U.S. District Judge John Lee (sitting by designation) said in an opinion by Tinder that Leveski’s case should not have been dismissed. She raised enough new and specific claims to distinguish her suit from previous public disclosures, the judges said, and moreover was an original source of direct and independent knowledge of ITT’s practices even though she did not hold a position of authority at the company. “Leveski’s case appears to be substantial, not frivolous,” the 7th Circuit said.

There is much more in the story.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "'We at least tried,' says lesbian couple denied marriage license at Monroe County Clerk's Office" [Updated]

Following up on the ILB entry from this morning, some quotes from Laura Lane's report today in the $$ Bloomington Herald-Times:

On Friday, June 18, nine couples paid their $20 and applied for marriage licenses at the Monroe County Clerk’s Office. One, from Glorianne Mae Leck and Susan Marie Savastuk, was denied.

The Bloomington women left with a completed application form marked “void” and a reference to the Indiana law that prohibits same-sex marriage in the Hoosier state.

The county clerk cannot issue a marriage license if either applicant is under the influence of drugs or alcohol when applying, if they are more closely related than second cousins, if either applicant is of unsound mind or if applicants are both the same gender. * * *

Monroe County Clerk Linda Robbins greeted the women at the marriage license counter and confirmed for them they could not get a license. “They are such nice ladies,” said Robbins, who knew she could not grant them permission to wed.

Leck and Savastuk watched with envy as a 30ish couple, a man and a woman who came in for a marriage license about the same time they did, followed a court clerk to a nearby courtroom for a quick wedding.

“Why couldn’t that be us?” Leck asked.

Robbins said Leck and Savastuk are the first gay couple to complete an application for a marriage license in Monroe County that she is aware of. “It’s never happened before, so there was some learning about who can apply and the difference between making an application and actually getting a license.”

During a 2009 demonstration against Indiana’s ban on same-sex marriage, two Bloomington women attempted to apply for a marriage license at the Monroe County Clerk’s Office, but were turned away. Jim Fielder was the county clerk at the time.

[More] As discussed in this morning's post, under IC 31-11-4-12, after the clerk's refusal to issue a marriage license, the parties had a right to a court hearing on the issue, if they had so requested.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Indiana Law

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

In ROGER L. PEELE v. CLIFFORD BURCH, individually and as Portage Police Department Chief, et al (ND Ind., Cherry, Mag.J.), a 15-page, very interesting opinion, Judge Kanne writes:

Roger L. Peele was a detective in the Portage Police Department. In his spare time, he was active in local politics. Peele supported Steve Charnetzky’s Democratic primary campaign for the mayorship of Portage, Indiana. Charnetzky lost, and Peele spoke about the loss to a local reporter. Peele’s comments were published the next day. The day after that, Peele was transferred out of the Detective Bureau. Peele sued, claiming that he was transferred in retaliation for his comments. The district court granted summary judgment in favor of the defendants. For the reasons that follow, we reverse. * * *

Here, we think that there is enough evidence for a reasonable jury to conclude that Peele’s comments were both sufficient and necessary causes of his transfer. To begin, the timing of Peele’s transfer was highly suspicious. Suspicious timing is rarely enough, by itself, to create a triable issue of fact. Kidwell, 679 F.3d at 966. “Occasionally, however, an adverse action comes so close on the heels of a protected act that an inference of causation is sensible.” Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011); see also id. (collecting cases). And even if suspicious timing alone is not enough to create a triable issue in a particular case, suspicious timing remains “an important evidentiary ally of the plaintiff.” Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011).

Here, Peele made his protected comments on May 8, 2007. They were published in the newspaper the very next day (May 9, 2007), and Peele was transferred the day after that (May 10, 2007). “The closer two events are, the more likely that the first caused the second,” Loudermilk, 636 F.3d at 315, and it is hard to imagine two key events closer in time than the ones at stake here. Even if this extraordinary temporal proximity is not enough to create a triable issue of fact on its own—a question we need not answer—at the very least, it provides some evidence that a retaliatory motive lurked behind Peele’s transfer. See id.; Spiegla, 371 F.3d at 943 (“It is settled in this Circuit that a plaintiff may establish a causal link between protected expression and adverse action through evidence that the adverse action took place on the heels of protected activity.”) (internal comma, brackets, and ellipsis omitted).

In addition to this circumstantial evidence, Peele has also presented direct evidence of retaliatory motivation. That evidence comes from the deposition of Joe Radic, the officer who held the Station Duty Officer position before Peele replaced him. (See R. 50-4 at 14-23.) According to Radic, Chief Burch told Radic that he would not have to work as the Station Duty Officer anymore. Burch then went on to explain that Peele was being transferred to the Station Duty Officer position because Peele had “made the mayor mad.” (Id. at 21.) Burch further explained that the “mayor” he was referring to was Velazquez, who had just defeated Charnetzky in the primary and presumably would soon become mayor. (Id. at 22.)

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - " Suspended attorney's clients get $50K from Indiana State Bar Association: Money paid to 19 clients"

Kara Kenney of WRTV 6 is reporting today in a long story that begins:

CARMEL, Ind. - The Indiana State Bar Association is stepping in to help 19 clients who paid a Carmel defense attorney currently suspended by the Supreme Court.

As the Call 6 Investigators reported, Sarah Nagy was disciplined for not paying her attorney registration fees, not complying with her continuing legal education, as well as disability.

Clients RTV6 spoke with said they paid Nagy money, but their cases are still unresolved years later.

The Indiana State Bar Association Clients Financial Assistance has allocated $50,000 to 19 of Nagy’s clients, which is the maximum amount allowed per single attorney.

“ISBA members voluntarily contribute $2 of their annual membership dues to this fund each year,” said Carissa Long, public relations director for ISBA. “It is important for the public to note that this is not a government program, but rather, just a bunch of lawyers doing the right thing. There is no claim of right to money.”

The story also links to earlier WRTV coverage of Nagy.

Here is the June 28, 2012 order of the Supreme Court, suspending Nagy due to physical disability.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Indiana Law

Ind. Gov't. - "Clark County auditor will pay sheriff's bills"

Charlie White reported July 8th in the Louisville Courier Journal on Clark County's continuing financial woes. Some quotes:

The Clark County auditor is expected to keep paying bills for the county sheriff’s department, which spent its remaining budget for 2013 before the end of June and estimates it will need another $2.9 million to keep it and the county jail operating for the rest of the year.

Clark Circuit Court Judge Vicki Carmichael on June 21 granted Sheriff Danny Rodden’s lawsuit request for an injunction and ordered his office and the Clark County Council to go into remediation to find money from funds outside the county general fund. * * *

Much of the county’s ongoing budget crisis stemmed from a decision by the County Council in 2007 to cut property tax collections by 25 percent, or $2.7 million, for the following year. The state limits increases in county property tax collections each year to no more than about 3 percent, meaning the council can’t increase tax collections enough to keep up with increased expenses since 2008.

The Indiana Department of Local Government required another budget reduction this year because projected tax revenues again “were insufficient to fund the adopted budget.”

The council appealed to the Indiana Tax Court in January 2012 but the court has yet to rule on whether it will overturn a Department of Local Government decision in late 2010 that rejected a special property tax increase the county requested to solve budget problems created by the 2007 levy reduction.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Ind. Tax Ct. Decisions | Indiana Government

Courts - "A.C.L.U. Lawsuit Aims to Overturn Pennsylvania’s Ban on Gay Marriage" [Updated with complaint]

That is the headline to a NY Times story today reported by Trip Gabriel. Some quotes:

The suit, carefully assembled by the American Civil Liberties Union, was filed in Federal District Court in Harrisburg with the aim of adding Pennsylvania to the column of 13 other states permitting same-sex marriage, plus the District of Columbia. The 23 plaintiffs come from many walks of life, including a doctor, college professors, a truck driver, a Vietnam veteran and a widow who lost her partner of 29 years. * * *

The legalization of same-sex marriage has primarily come through the political process, with lawmakers and voters approving it in six states in just the past year. But earlier victories were achieved through state courts, including in Massachusetts and Iowa. The A.C.L.U. acknowledged that it was bringing suit in Pennsylvania because overturning the state’s gay marriage ban in the Republican-controlled legislature is a near-term impossibility.

Pennsylvania’s law defines marriage as between a man and a woman – similar to the federal law struck down by the Supreme Court — and it denies recognition to same-sex marriages legally performed elsewhere. * * *

The A.C.L.U. plans to file suit shortly in two other states, Virginia and North Carolina.

The ILB is checking for the complaint.

[Updated at 5:01 PM]
Here is the 53-page complaint in Whitewood v. Corbett, filed today, via the ACLU Pennsylvania website.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Courts in general

Ind. Gov't. - More on: As if to show that fears of state government sites going down are real

Updating this ILB entry from March 22, 2012, which quoted from the Washington Post:

The Economic Development Administration, a small job-development agency in the Commerce Department that gives out grants to low-income communities, is in its eighth week of a cyber-blackout.

Commerce officials say they still haven’t determined what is behind the virus that has affected all of EDA’s computers since mid-January, prompting the government to take the network off-line.

Today Eugene Volokh quotes from the June 26, 2013 Inspector General’s report on the Economic Development Administration’s reaction to the infections:
In the end, nothing identified on EDA’s components posed a significant risk to EDA’s operations.

However, EDA’s CIO concluded that the risk, or potential risk, of extremely persistent malware and nation-state activity (which did not exist) was great enough to necessitate the physical destruction of all of EDA’s IT components. EDA’s management agreed with this risk assessment and EDA initially destroyed more than $170,000 worth of its IT components, including desktops, printers, TVs, cameras, computer mice, and keyboards. By August 1, 2012, EDA had exhausted funds for this effort and therefore halted the destruction of its remaining IT components, valued at over $3 million. EDA intended to resume this activity once funds were available. However, the destruction of IT components was clearly unnecessary because only common malware was present on EDA’s IT systems.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Indiana Government

Ind. Law - What's wrong with this headline? "New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License" [Updated at 8:39 PM]

This is one of those headlines that has popped up all over the internet (eg here) in the past few days. It is wrong. The linked story begins:

Indiana lawmakers have revamped a 1997 law that makes furnishing false information on a marriage license a class D felony. Beginning July 1, 2014, a same-sex couple applying for a marriage license in the state of Indiana will be guilty of a Level 6 felony, punishable by 18 months in prison and a $10,000 fine.
What is correct is that provision is not new, the prohibition has been in effect since 1997:
IC 31-11-11-1
Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Class D felony.
As added by P.L.1-1997, SEC.3.
In fact, that same prohibition was in effect long before 1997. 1997 is when Title 31 was recodified, without substantive change. IC 31-11-1-1 was previously numbered IC 31-7-1-2 and, as explained later in this post, was passed in 1986.

The "revamp" this year is the result of the passage of the massive HEA 1006, the 432-page bill that made many changes to the criminal code, particularly in the area of sentencing, including changing the nomenclature. Sentences have been reclassified so that most "Class D" felonies are now "Level 6" felonies.

HEA 1006 makes the following change to IC 31-11-11-1, effective July 1, 2014:

Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Level 6 felony.
As added by P.L.1-1997, SEC.3. Amended by P.L.158-2013, SEC.307.

What the story does bring to light is a variance between the penalty provision of IC 31-11-11, and the procedures set out in IC 31-11-4.

Who designs the application for a marriage license? IC 31-11-4-4 sets out the requirements. Subsection (c) reads:

(c) The state department of health shall develop uniform forms for applications for marriage licenses. The state department of health shall furnish these forms to the circuit court clerks. The state department of health may periodically revise these forms.
IC 31-11-4-12 provides that the clerk may refuse to issue a marriage licenses in certain cases, and provides for a hearing on the issue, if requested:
Sec. 12. (a) If it appears that two (2) individuals do not have a right to a marriage license, the clerk of the circuit court shall refuse to issue the license. If the clerk refuses to issue the license and if requested by the individuals, the clerk shall:
(1) certify the refusal to the circuit court; and
(2) notify the individuals of the clerk's actions.
(b) At the earliest practicable time, the court shall hold a hearing on whether a marriage license should be issued to the individuals. The court shall notify the individuals of the time and place of the hearing. The hearing shall be held without a jury and may be held in court or in chambers. The court's finding concerning the issuance of a license is final.
(c) The clerk of the circuit court shall:
(1) issue; or
(2) refuse to issue;
a marriage license in conformance with the court's order.
(d) The individuals who intend to marry are not liable for costs for any actions taken under this section.
As added by P.L.1-1997, SEC.3.

The 2005 Court of Appeals opinion in Sadler v. Morrison sets out the procedure used in Indiana's earlier challenge. From pp. 4-5 of the opinion:

The predecessor to current Indiana Code Section 31-11-1-1(a) was passed in 1986. Similar statutes, commonly referred to as “Defense of Marriage Acts” (“DOMA”), have been passed by at least thirty-seven other states and the federal government. The relevant portion of Indiana’s DOMA at issue today states: “Only a female may marry a male. Only a male may marry a female.” Ind. Code § 31-11-1-1(a). All three couples meet the legal requirements for marriage aside from being of the same gender.

On August 22, 2002, the Plaintiffs filed a declaratory judgment complaint seeking an injunction requiring the Hendricks and Marion County clerks to issue marriage licenses to them because Indiana’s DOMA violated several provisions of the Indiana Constitution, namely, Article 1, § 23; Article 1, § 1; and Article 1, § 12. After the Plaintiffs filed a second amended complaint, the trial court granted the State’s motion to dismiss on May 7, 2003, for failing to state a claim upon which relief could be granted. The Plaintiffs now appeal.

In short, the plaintiffs sought an injunction requiring the clerk to issue licenses instead of filing applications and having them denied. Using this route, IC 31-11-11-1 and its penalty never came into play.

[Updated at 8:39 PM] Jon Murray of the Indianapolis Star has just posted a story to the IndyStar site, titled "Indiana's gay marriage debate takes strange turn in blogosphere," that compiles many of the recent stories that portray laws that have been on the books for years as "new laws passed this year by the Republican-controlled General Assembly" intended to "make it a felony for a same-sex couple even to apply for a marriage license and a misdemeanor for a clergy member to solemnize such a marriage." The second half of the story references the ILB and some of its findings in the ILB post this morning.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Indiana Law

Ind. Law - Citizens for Responsibility and Ethics "files IRS whistleblower complaint against campaign finance lawyer James Bopp"

From the news release:

Washington, D.C. — Today, Melanie Sloan, Executive Director of Citizens for Responsibility and Ethics in Washington (CREW), filed a whistleblower complaint with the Internal Revenue Service (IRS) against James Bopp, Jr., the Bopp Law Firm, and the James Madison Center for Free Speech (JMCFS).

The complaint alleges Mr. Bopp and JMCFS, a tax-exempt 501(c)(3) organization, misrepresented their activities to divert virtually all of JMCFS’s money into the Bopp Law Firm for Mr. Bopp’s personal enrichment. Additionally, CREW asked the Indiana Attorney General, the U.S. Attorney for the Southern District of Indiana, the Indiana Secretary of State, and the D.C. Department of Consumer and Regulatory Affairs to investigate.

As the head of JMCFS, Mr. Bopp diverted nearly all of JMCFS’s funds to his own law firm in violation of prohibitions against using charitable organizations for private inurement and private benefit.

As a result, JMCFS and the Bopp Law Firm now owe the IRS more than $6.2 million in back taxes. Further, by repeatedly signing and submitting to the IRS inaccurate tax forms, Mr. Bopp may have made false statements in violation of federal criminal law.

Sloan stated, “Mr. Bopp is well-known for pushing the legal envelope, but you’d think he’d be more careful to comply with incontrovertible law. No matter how just Mr. Bopp believed his cause, there is no excuse for end-running the tax code.”

CREW’s complaints to the the Indiana Attorney General and the U.S. Attorney for the Southern District of Indiana allege the self-dealing in which Mr. Bopp engaged violated criminal law and Indiana and D.C. laws governing charitable organizations. The complaints to the Indiana Secretary of State and the D.C. Department of Consumer and Regulatory Affairs allege JMCFS failed to file reports and its articles of incorporation, as required by Indiana and D.C. law.

Sloan continued, “Mr. Bopp is a self-described expert on the laws governing non-profits so he can’t claim to have made innocent mistakes. He knew what he was doing when he funneled all of JMCFS’s assets to his own firm and he had to know it was wrong. Misusing a non-profit for personal gain is a serious offense and merits a thorough investigation.”

The site also includes links to a number of documents and exhibits.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Wayne L. Patton v. State of Indiana, a 10-page opinion, Judge Baker writes:

In this case, the appellant-defendant Wayne L. Patton challenges a certain condition of probation that the trial court imposed following his conviction for Child Seduction, a class D felony. Patton contends that the condition prohibiting him from accessing various internet websites and computer programs in which children are likely to participate is “overly broad, excessively vague,” and impermissibly impinges on his First Amendment rights under the United States Constitution. Appellant’s Br. p. 4.

A trial court may impose conditions of probation that restrict a defendant’s activities substantially beyond the ordinary restrictions that are imposed upon an individual. The condition that the trial court imposed upon Patton is reasonable and is neither overbroad nor excessively vague because the condition relates directly to preventing Patton from communicating with children on the internet. The condition also specifically informs Patton that he is prohibited from engaging in internet activity that is designed and known to be used by children. As a result, we decline to strike this condition of probation, and we affirm the judgment of the trial court. * * *

Because the condition of probation in this case is specifically tailored to only those internet activities that are “frequented by children,” Patton is provided with adequate notice that he would be in violation of his probation by accessing websites that are designed and known to be used by children for communication. Also, in light of the vast nature of the internet, it would be virtually impossible for the legislature to list each and every website, chat room, or instant messaging program that permits communication by and among children. In short, because the language of the probation condition afforded Patton a predictable standard and notice with regard to his internet usage during his probationary period, his constitutional claims fail, and we decline to set aside the condition of probation that relates to his internet usage.

NFP civil opinions today (4):

Term. of the Parent-Child Rel. of: R.J. and T.W. (minor children), C.J. (Mother) and K.J. (Father) v. The Indiana Dept. of Child Services (NFP)

Turf Pro Plus, Inc. v. Indianapolis Department of Public Works, The City-County Council, and The Hon. Greg Ballard (NFP)

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

John S. Dillman, Jr. v. Michelle Dillman (NFP)

NFP criminal opinions today (8):

Larry A. Rowe, Jr. v. State of Indiana (NFP)

Brandon T. Wright v. State of Indiana (NFP)

Steven Gates v. State of Indiana (NFP)

Raymond E. Schakel v. State of Indiana (NFP)

Phong Tien v. State of Indiana (NFP)

William Zollinger v. State of Indiana (NFP)

Eugene Hill v. State of Indiana (NFP)

Matthew A. Baugh v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "7th Circuit Panel Reinstates False Claims Suit Against ITT "

Yesterday's 7th Circuit opinion in DEBRA LEVESKI v. ITT EDUCATIONAL SERVICES (see ILB summary here) is the subject of a brief InsideHigherEd story today. Some quotes:

A federal appeals court on Monday reinstated a federal False Claims Act lawsuit brought against ITT Educational Services, Inc. by a former enrollment official. A federal judge in Indiana dismissed the suit against the for-profit higher education provider last year, saying the court did not have jurisdiction because the plaintiffs in the case were not the original source of the allegations against the company, as is required under the false claims law. The court also slapped the plaintiffs with nearly $400,000 in fines for having brought, in the judge's words, a "frivolous" lawsuit.

A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit sharply disagreed Monday. * * *

In directing the lower court to consider the case, and in at least temporarily reversing the financial penalties against her lawyer, the court said: "We do not know whether Leveski will ultimately prevail, nor do we state any opinion as to whether Leveski should ultimately prevail. But we do believe that Leveski should be allowed to litigate her case on the merits, and thus, sanctions for bringing a frivolous lawsuit are inappropriate."

The ILB has also received this statement from the Indianapolis law firm of Plews Shadley Racher & Braun LLP (PSRB):
INDIANAPOLIS – The Seventh Circuit Court of Appeals has ruled that a lawsuit brought against ITT Educational Services, Inc. should be allowed to proceed. The Seventh Circuit has reversed a decision by U.S. District Court Judge Tonya Walton Pratt dismissing the lawsuit brought against ITT by former employee Debra Leveski, represented in part by Indianapolis-based Plews Shadley Racher & Braun LLP (PSRB).

Leveski alleges that ITT Educational Services knowingly submitted false claims to the U.S. Department of Education to receive funding from federal student financial assistance programs. The district court dismissed the lawsuit saying that Leveski’s claims had already been publicly disclosed and she was not the original source of her allegations. However, the Seventh Circuit says Leveski’s allegations merit further development and are distinct from prior public disclosures.

At the time the lawsuit was dismissed by Judge Walton Pratt, she also issued sanctions against all of the lawyers involved in the suit. The Seventh Circuit has reversed the decision, including an action directed against PSRB.

“We are gratified that the Seventh Circuit has held this case is ‘substantial’, which is what our client has contended all along, and reversed the sanctions,” said PSRB Managing Partner John Ketcham.

Posted by Marcia Oddi on Tuesday, July 09, 2013
Posted to Ind. (7th Cir.) Decisions

Monday, July 08, 2013

About this Blog - "If You Like What You See at the Election Law Blog…."

The Election Law Blog has just posted this message:

If You Like What You See at the Election Law Blog….

please consider letting the ABA Journal know (before August 9).

Thanks for your support!

I'm going to do that, the Election Law Blog is one of the law blogs I rely on.

Do you feel the same about the Indiana Law Blog?

If so, please consider letting the ABA Journal know (before August 9). The ILB would love to be nominated to be included in the ABA's annual list of the 100 best legal blogs!

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to About the Indiana Law Blog

Law - "The Library of Congress is Archiving Legal Blogs", including ILB

Robert J. Ambrogi reports today on his LawSites blog that the Library of Congress has been archiving a selection of law blogs since 2007. Some quotes:

The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says. * * *

In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”

The site launched this week is actually a “new and improved” version of an archive that was already available through the LOC site. * * *

Each archived blog gets its own record page, with general information about the blog and its source URL. Click on the thumbnail image of the blog to bring up the full captured view. A pull-down menu lets you adjust the view to specific dates, or you can use a calendar to access posts by date. The archive is searchable, although in a fairly tedious way that gives you a list of blogs with matches, but then requires you to go through each blog and find the match.

Although the archiving began in 2007, it appears to have stopped for most of the blogs in 2010.

Here is the main page of the LOC Legal Blawgs Web Archive. 134 blogs were selected. The ILB first reported on its inclusion in this 2009 post.

Here is the archived LOC Indiana Law Blog page. It includes "13759 captures from May 2, 2005 to June 16, 2010 across 4569 pages."

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to General Law Related

Ind. Law - "William Conour seeks plea change to 'guilty'"

Tim Evans reports this afternoon in the IndyStar:

William Conour, once one of Indiana’s top construction accident attorneys, wants to plead guilty to a federal wire fraud charge, according to a motion filed by his public defender.

The petition to change his plea from not guilty to guilty was filed July 3 in U.S. District Court for the Southern District of Indiana.

His guilty plea petition was filed just six days after U.S. District Judge Richard L. Young ordered Conour jailed for violating terms of his release on bond. Young ruled Conour showed a "persistent" pattern of "deception" in spending $90,000 — money targeted to repay his victims, including widows, orphans and victims with life-long medical needs — without the court's approval.

Conour had been free on bond since he was charged April 27, 2012, with misusing more than $4.5 million meant for 25 former clients.

The story links to the petition to enter a guilty plea, filed July 3rd.

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Indiana Law

Ind. Decisions - Two Indiana decisions today (one a reversal) from the 7th Circuit; plus one on BACT

In CINCINNATI LIFE INSURANCE COMPANY v. BEYRER (SD Ind., McKinney), a 32-page opinion, Judge Kanne writes:

In 2006, Kevin Beyrer (“Kevin”) and his wife Marjorie Beyrer (“Marjorie”) moved to Terre Haute, Indiana, to manage several car dealerships owned by Mark Savoree. The next year, Savoree proposed selling the dealerships to the Beyrers through a series of stock purchases to be financed by a $3.5 million loan from Casey State Bank (“CSB”). The Beyrers accepted and began the process of acquiring the dealerships. Soon after negotiating the loan with CSB, Kevin took out a life insurance policy with Cincinnati Life Insurance Co. that named Marjorie as the beneficiary. Two months later, in July 2007, Kevin assigned that life insurance policy to CSB.

The dealership purchase began to fall apart almost immediately, however. Eventually the Beyrers declared bankruptcy, and multiple rounds of litigation between each of the aforementioned parties ensued. During all of this, Kevin was diagnosed with terminal cancer. He passed away in June 2010, which set the stage for an additional fight over the insurance policy proceeds. Cincinnati Life deposited the proceeds, some $3 million, with the Clerk of the Superior Court of Vigo County, Indiana, and sought judicial determination of the rightful owner. This appeal represents a culmination of that quest, including various cross- and third party claims that have been filed along the way. * * *

Marjorie Beyrer has brought this appeal challenging each of the decisions that the district court decided against her. By way of review, those decisions are: (1) the grant of summary judgment on the proceeds issue; (2) the rejection of the motions to modify and reconsider; (3) the dismissal of claims one, two, three, and seven; and (4) the entry of summary judgment on claims four, five, and six. Because of the rather complicated procedural history of this case and the large number of issues to be addressed, we will structure our review as follows: first, we will consider the dismissals of the Beyrers’ cross-claims and third party claims for failing to meet pleading standards; second, we will review the district court’s grant of summary judgment on claims four through six; third, we will address the district court’s grant of summary judgment on the life insurance proceeds distribution; and finally, we will review the court’s denial of Marjorie’s motions for modification and reconsideration. Finding no merit in any of the issues appealed, we affirm the district court’s judgments.

In DEBRA LEVESKI v. ITT EDUCATIONAL SERVICES (SD Ind., Pratt), a 51-page opinion, Judge Tinder writes [emphasis by ILB]:
Debra Leveski brings this lawsuit against ITT Educational Services, Inc. on behalf of the United States, pursuant to the qui tam provision of the False Claims Act (FCA), 31 U.S.C. § 3730(b). ITT is a forprofit institution with over 140 locations across the United States that offers post-secondary educational training, including associate’s, bachelor’s, and master’s degrees. Leveski, who worked at the ITT campus in Troy, Michigan, for more than a decade, alleges that ITT knowingly submitted false claims to the Department of Education in order to receive funding from federal student financial assistance programs.

Four years after Leveski filed this lawsuit, the district court dismissed it for want of jurisdiction, finding that Leveski’s allegations had already been publicly disclosed and that Leveski was not the original source of her allegations. In addition, the district court granted sanctions in the amount of $394,998.33 against all three law firms representing Leveski and against one of Leveski’s attorneys individually. Accusing Leveski’s attorneys of “pluck[ing] a plaintiff out of thin air and tr[ying] to manufacture a lucrative case,” the district court found Leveski’s allegations wholly “frivolous.”

Contrary to the district court, we believe that Leveski’s allegations merit further development, and more importantly, we believe they are sufficiently distinct from prior public disclosures to give the federal district court jurisdiction over Leveski’s lawsuit. Consequently, we reverse both the dismissal and the sanctions, and we remand the case back to the district court for further proceedings. * * *

Of course, if it becomes clear later in the course of litigation that Leveski has made up all of her allegations and all of her supporting evidence, then sanctions may be warranted. But for now, the truth of Leveski’s allegations is not appropriately resolved on a motion to dismiss for lack of subject-matter jurisdiction. Leveski has presented enough to move forward with this litigation. Consequently, we REVERSE both the district court’s dismissal of Leveski’s case for lack of subject-matter jurisdiction and the district court’s award of sanctions in the amount of $394,998.33 against Leveski’s counsel, and we REMAND the case back to the district court for further proceedings consistent with this opinion. Circuit Rule 36 will apply on remand.

In UNITED STATES OF AMERICA and STATE OF ILLINOIS v. MIDWEST GENERATION, LLC, EDISON MISSION ENERGY, and COMMONWEALTH EDISON COMPANY (ND Ill.), an 8-page opinion, Chief Judge Easterbrook writes:
Any “major emitting facility” built or substantially modified after August 7, 1977, in parts of the country subject to the rules about prevention of significant deterioration (PSD), needs a permit. 42 U.S.C. §7475(a). This construction permit is in addition to the operating permits that many facilities require under the Clean Air Act and the need to comply with state implementation plans. One condition of a construction permit is installation of “the best available control technology for each pollutant subject to regulation under” the Act. 42 U.S.C. §7475(a). * * *

The question “how much repair or change requires a permit?” has been contentious and difficult. * * * Commonwealth Edison took the position that permits were not required and that it therefore was not obliged to install “the best available control technology” (called BACT in the jargon of environmental law).

This was a risky strategy because, if someone had contested the decision within the statute of limitations (five years; see 28 U.S.C. §2462), then Commonwealth Edison could have needed to undertake a further round of modifications to get the permit and might have had to pay hefty penalties for the delay. As it happened, however, no one sued until 2009, a decade after the last of the modifications had been completed. * * *

Plaintiffs’ contention that a continuing injury from failure to get a preconstruction permit (really, from failure to use BACT) makes this suit timely is unavailing. What these plants emit today is subject to ongoing regulation under rules other than §7475. Today’s emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began. Once the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits. That’s the point of decisions such as United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977), and Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which hold that enduring consequences of acts that precede the statute of limitations are not independently wrongful. AFFIRMED

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (2):

In Re: Paternity of B.B.; M.B. v. Y.M.M. (NFP)

In Re The Guardianship of Carlton H. Word; Timothy W. Word and Tracy L. Wise v. Rance Buehrer, Guardian of Carlton H. Word (NFP)

NFP criminal opinions today (8):

Jason J. Klinker v. State of Indiana (NFP)

Tharl Pinkston v. State of Indiana (NFP)

Jeffrey Bowles v. State of Indiana (NFP)

Edwin Valladares v. State of Indiana (NFP)

Daniel Paul Foster v. State of Indiana (NFP)

Christopher Long v. State of Indiana (NFP)

Terrence Boyd v. State of Indiana (NFP)

Benjamen Benjamen v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 5, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the April 12, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, July 5, 2013. It is one page (and 1 case) long.

One transfer was granted last week, with opinion, in the case of Michael Chambers v. State of Indiana. See the ILB summary here, from July 2, 2013.

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Indiana Transfer Lists

Law - "The power of kings to spare a condemned person's life lies solely with the governor in Kentucky"

Interesting survey by the AP. The long story begins:

LOUISVILLE, Ky. -- The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators.

"The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

More from the story:
Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri. * * *

Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to General Law Related

Ind. Law - "Student restraint rules changing in Indiana: State commission to create new policy on way schools apply control"

Eric Weddle reports today in the Indianapolis Star:

By the end of summer, new rules and policy on how Indiana schools isolate and restrain students will be issued, a change ­intended to boost safety by reducing injuries and the number of children improperly confined in “safe rooms.”

A law passed by this year’s General Assembly created a nine-member commission to decide ways to limit those behavior-control methods, train staff and notify parents of school policy. The State Board of Education already recommends schools use a 2009 fed­eral policy as a basis for their own discipline rules, but not all school have plans in place.

Danielle Shockey, deputy superintendent of public instruction and commission chairwoman, said a state policy and a plan for these methods will be written, but public schools and some private ones will not be required to follow those standards exactly. Instead, schools will be asked to review their current behavior-intervention plan and compare it with the commission’s recommendations.

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Indiana Law

Catch-up: What did you miss over the 4-day weekend from the ILB?

From Sunday, July 7, 2013:

From Saturday, July 6, 2013:

From Friday, July 5, 2013:

From Thursday, July 4, 2013:

Posted by Marcia Oddi on Monday, July 08, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/8/13):

Next week's oral arguments before the Supreme Court (week of 7/15/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/8/13):

Wednesday, July 10th

Next week's oral arguments before the Court of Appeals (week of 7/15/13):

Tuesday, July 16th

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, July 08, 2013
Posted to Upcoming Oral Arguments

Sunday, July 07, 2013

Ind. Law - "What is the cost of controversy?" Defending lawsuits over legislation and the costs to the taxpayer

From a long editorial column in the NWI Times by Brian Howey, publisher of Howey Politics Indiana:

What is the cost of controversy to you, the taxpayer?

In the past five years, legislation passed by the Indiana General Assembly has defunded Planned Parenthood and created new immigration laws, and there have been moves to amend the Indiana Constitution to prohibit same-sex marriage.

In addition, the Indiana attorney general has challenged a key provision in the Affordable Care Act, and the Indiana treasurer attempted to thwart the 2009 merger of Chrysler and Fiat.

The Republican-dominated Legislature passed these controversial measures over increasingly smaller and weaker Democratic minorities. The responding Democratic battle cry often has been: See you in court.

And we’ve seen the law defunding Planned Parenthood and parts of the immigration law struck down by the federal appellate courts.

In fact, from 2008 to the present, the state has paid $916,426.37 in plaintiffs’ attorneys’ fees to the American Civil Liberties Union of Indiana in 16 lawsuits where ACLU prevailed against the state.

Indiana dodged another showdown when the Bureau of Motor Vehicles reinstated the specialty plate of a gay-youth advocacy group. ACLU attorney Ken Falk agreed to dismiss yet another federal lawsuit in return for the restoration of the plates.

The irony here is Hoosier lawmakers and officeholders -- many carrying a copy of the U.S. Constitution in their pockets -- routinely pass legislation that fails to pass constitutional muster.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Indiana Law

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

That was the heading to this June 30th ILB post, quoting a Fort Wayne Journal Gazette editorial.

Today the South Bend Tribune has a column by Jack Colwell, headed "Indiana in no rush to crack down on BP pollution." Some quotes:

Will BP do for Lake Michigan what it did for the Gulf?

The oil giant continues to dump nearly 20 times more toxic mercury into the lake than federal water quality standards permit. This may not lead to an environmental disaster of the type BP brought to the Gulf, but it is a threat to lake waters that are used by millions of people for drinking, waters that are a precious Midwest resource for recreation and fishing.

The Chicago Tribune, in its role as a watchdog on governmental and corporate wrongdoing, played a key role back in 2007 in bringing public and congressional pressure on BP to curtail its plans to dump tons upon tons of additional ammonia and suspended solids into the lake at its Whiting refinery in connection with major expansion at the facility.

Some Indiana politicians, including then-Gov. Mitch Daniels, defended a decision of the Indiana Department of Environmental Management to approve a refinery upgrade permitting dumping of an average of 1,583 pounds of ammonia and 4,925 pounds of suspended solids per day.

Daniels said jobs for the refinery expansion were at stake in Indiana and suggested that the Chicago newspaper and the Illinois congressional delegation wouldn't have cared about added pollution if the jobs were in Illinois. Actually, many jobs go to workers from nearby Illinois, and the Chicago Tribune long has crusaded for environmental standards for all the Great Lakes, no matter the source of pollution.

BP at first said it couldn't do much about the additional pollution if it was going to go ahead with a $3.8 billion expansion of the refinery to permit processing heavy Canadian crude oil and bring thousands of construction jobs and some additional permanent jobs to the facility.

But environmental groups, in Indiana and Michigan as well as in Illinois, quickly obtained 100,000 signatures on petitions protesting the added pollution. Members of Congress threatened punitive action and introduced a bipartisan resolution condemning the Indiana environmental OK for the dumping. The House resolution passed 387 to 26. That's back when Congress could get together on something significant.

BP got the message. Gosh, they could curtail the pollution after all. And they did on the ammonia and solids.

Mercury?

BP also promised back then to develop technology to sharply reduce the discharge of toxic mercury.

The Chicago Tribune, following up in its watchdog role, now reports that BP, with the Indiana Department of Environmental Management saying OK, still can discharge nearly 20 times the quantity of mercury allowed under federal water quality standards. * * *

You've seen those TV ads, including the one where the BP spokesman insists: "Safety is at the heart of everything we do."

We'll see. Safety of lake waters that millions of people drink is pretty important. Preservation of Lake Michigan and the other Great Lakes is vital for the Midwest.

And Indiana regulators and politicians should understand that Lake Michigan isn't just Chicago's lake. It's our lake, too.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Environment

Ind. Law - "New law loosens physical therapy restrictions"

Vanessa Renderman reported in the July 5th NWI Times:

A state law that went into effect Monday allows people to be evaluated and treated by a physical therapist for 24 calendar days without a doctor's referral.

Referrals still are needed for spinal manipulation and sharp debridement, a procedure that eliminates dead tissue.

"I think this is a huge step," said physical therapist and athletic trainer Kyle Savino. "I think it helps to provide more immediate and direct care to individuals who require that."

Gov. Mike Pence signed the legislation, House Bill 1034, in April.

With Indiana's new law, now all 50 states and the District of Columbia allow patients to be evaluated by a physical therapist without a referral, and 48 states and the District of Columbia allow some level of treatment by a physical therapist without a referral, according to the American Physical Therapy Association. * * *

After 24 days, a patient must obtain a referral from an authorized health care provider to continue treatment.

"Instead of the traditional pattern of waiting to see a doctor and waiting to get therapy, we can get them on the road to recovery while they wait to see their physician," Savino said.

This legislation is ideal for someone who does not know the severity of a condition that is bothering them and wants to get it checked out, he said.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Indiana Law

Environment - "Karst topography poses challenges for I-69 construction"

"Building I-69 through area’s limestone topography requires special procedures, which can be costly," is the sub-head to this story by Laura Lane today in the Bloomington Herald-Times ($$). A sample:

As flowing water erodes the limestone layered beneath the Earth’s surface in southwestern Indiana, caves and sinkholes develop.

This hilly underground landscape occurs naturally and allows unfiltered surface water into the groundwater, which makes construction in karst areas an environmental — and costly — challenge.

Studies focused on the construction of Interstate 69 between Bloomington and Evansville indicate that efforts to mitigate damage to karst-laden areas would cost $1 million.

And now that road construction is going full-bore in Section 4, a 27-mile stretch that extends from Greene County to Ind. 37 in western Monroe County, workers have entered the 10- to 50-mile-wide swath of karst topography that extends from Crawfordsville to the Ohio River at the Indiana-Kentucky state line.

Back in 1993, the Indiana Department of Transportation and other state agencies agreed on a memorandum of understanding outlining procedures and regulations that must be used in planning, designing and constructing roads and highways in areas featuring karst topography.

The “Section 4 I-69 Karst Agreement,” dated March 9, 2012, includes a commitment from INDOT, the Department of Natural Resources, Indiana Department of Environmental Management and the U.S. Fish and Wildlife Service “to locate sinkholes, caves, underground streams, and other karst features and their relationship prior to determining the potential impacts of the proposed rehabilitations or construction.”

They must implement an erosion-control plan to make sure excess silt and unfiltered water do not damage or seal off fissures in the karst, which could cause roadway flooding. The agencies are required to photograph and use dye to map the drainage areas for each sinkhole or karst feature to document drainage patterns of the area. A monitoring plan also is required.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Environment

Environment - "More than 400 sign petition objecting to gravel mine north of Americus"

Following on its coverage last week of Camp Tecumseh and the plan for a nearby hog farm, the Lafayette Journal Courier this weekend has a story reported by Justin L. Mack and David Smith that begins:

When Bill and Kay Miller moved to a house overlooking the Wabash River valley off Indiana 25 North 38 years ago, they were happy to be eight miles from Lafayette’s noise and crowds.

Over the years, traffic on the highway increased to the point they added a turnaround in their drive for visitors’ safety.

Then, last October, the Hoosier Heart­land project reduced the traffic noise by moving Indiana 25 two miles eastward.

The peace of mind caused by traffic reduction was short-lived. On June 4, the Millers received notice of a proposed stone quarry on farmland across the road, with the potential of 300 gravel trucks a day rumbling by.

“It’s nice and peaceful,” Bill said Friday while walking under the shade of mature trees in his front yard. “They finally got the traffic off the highway. Now they want to put 300 trucks a day back on it.”

The proposed quarry in northeast Tippecanoe County will be the topic of back-to-back public meetings this month. If a petition started by the Millers and signed by more than 400 county residents of voting age is any indication, the meetings will be well attended.

The meetings will be July 23 and 24 - see the story for more information.

ILB: The story does not include a map. I tried to located the areas involved via Google maps, but had difficulty.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Environment

Ind. Gov't. - "Gary nears approval of 2 legal settlements"

Michael Gonzalez reported in the Gary Post-Tribune July 5th:

GARY — Gary officials are closer to approving two legal settlements totaling $330,000.

The larger debt remains to Indianapolis law firm Baker Daniels, one of the nation’s largest law firms. Gary has paid $125,000 of a $280,000 judgment to the firm, which represented the city in actions taken against the Majestic Star Casino in 2008.

The city remains mired in a legal dispute with the casino, as millions of dollars in monthly fees, possibly owed to Gary, languish in an escrow account. Two years ago, the casino resumed its monthly fees to the city, but attorneys representing the city continue trying to get funds from the escrow account.

According to court documents, Baker Daniels, at one point claimed the city owed the firm more than $300,000.

Last month, officials finishing paying a $50,000 settlement to a Gary homeowner who claimed the city tore down her house mistakenly in 2009.

The city settled with Edith Robbins over the demolition of a house that once stood at 5211 W. 2nd Ave. At that time, a city official claimed the structure was unsafe and ordered an emergency demolition.

Another Gary resident also has sued the city over what she claimed was the improper demolition of a home on the 2600 block of Polk St.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Indiana Government

Ind. Courts - "2 suits test ministerial exception: Ohio, local cases challenge Catholic Church"

The Fort Wayne Journal Gazette has a long story today by Rebecca S. Green that begins:

FORT WAYNE – More than a year ago, a local school teacher sued the Fort Wayne-South Bend Catholic Diocese, alleging she was fired in an act of religious discrimination after she underwent in vitro fertilization, an act related to both her gender and a medical disability.

And a month ago, in a federal courtroom in Ohio, a jury awarded a former Ohio Catholic school employee $170,000 after she was fired for undergoing artificial insemination to become pregnant. The Archdiocese of Cincinnati is appealing the jury’s verdict.

While the cases appear similar, there are a few key differences between the women and the nature of their lawsuits.

But in both cases, the local representatives of the Roman Catholic Church argue that church officials were well within their rights to terminate the female employees because, as employees, both women violated the teachings of the church. The dioceses each argue they are exempt from the lawsuits by the ministerial exception protected by the Constitution.

The long story goes on to compare and contrast the two cases, and then to discuss in detail "ministerial exception" issues.

For background, see this list of earlier ILB entries on the Herx lawsuit, as well as the June 3rd 6th Circuit ruling.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Indiana Courts

Ind. Courts - "Clinton County Courthouse exterior getting makeover"

Justin L. Mack reported July 4th in the Lafayette Journal Courier in a long, interesting story that begins:

FRANKFORT — What began as a job to patch bullet holes littering the Clinton County Courthousehas evolved into a full overhaul of the building’s aging exterior.

Last fall, maintenance crews working in the courthouse discovered dozens of bullets holes in the clock face, the metal dome and one of the four statues perched atop the structure.

The Clinton County Sheriff’s Office investigated the case, but ultimately no arrests for the vandalism were made and the origin of the gunshots remains unknown.

As the Clinton County Commissioners went through the process of dealing with the insurance company to get the damage repaired, it was decided to expand the scope of the job to give the courthouse some much needed TLC.

“We figured that since the contractor was going to be here, we just went ahead and had them come from the top and go ahead and refurbish the exterior,” said Commissioner Skip Evans. “We wanted to start on this last fall, but we didn’t have much luck with the weather. With the bullet holes, you could see light shining through the courthouse dome.”

Evans said the job will cost about $74,000 with the insurance company covering about $35,000.

Posted by Marcia Oddi on Sunday, July 07, 2013
Posted to Indiana Courts

Friday, July 05, 2013

Ind. Gov't. - "Life after prison: Local judge says funding makes it tough to keep people from coming back"

Amanda Beam of the New Albany News & Tribune had a very long story July 3rd about Indiana prison recidivism and its causes. A few quotes:

According to William Farrell, professor of criminal justice at Indiana University Southeast, incarcerating nonviolent offenders only exasperates the problem.

“The trend over the last 40 years or so has been get tough on crime, and the war on drugs is a part of that. The way this has manifested itself is in large-scale incarceration. We incarcerate five times as many people now as we did in 1980,” Farrell said.

Amazingly, the number of violent offenders imprisoned hasn’t changed in the last 30 years. In fact, it’s stayed the same. What has increased is the number of first-time, nonviolent drug users.

“That’s a problem because for these people, prison seems to make them worse. And we incarcerate them for very long periods of time with very little to do, which means when they get out, they’re still drug-dependent,” Farrell said. “But now they have two problems: they’re drug addicts and they’re ex-cons.”

Clark County Circuit Court Judge Dan Moore understands the difficulties those recently released from prison face. Despite his and probation officer Denise Poukish’s efforts to help former inmates adapt, the recidivism rates are troubling.

Cash-strapped counties do what they can despite limited resources and heavy caseloads. Risk assessments aid in identifying potential problems, but funds and time to provide the programs aren’t always easy to come by.

“We can pinpoint where the needs are now. But the problem is it’s the time.” Poukish said. “When you’re sitting on a caseload of 200 offenders, it’s nearly impossible with all the other responsibilities probation has, and the courts too, to spend that time with them.”

Moore said unfunded state mandates don’t make matters any easier.

During the past few legislative sessions, he said the Indiana General Assembly has attempted to divert some of the state prison population to the county level. Overcrowding continues to be a concern for many corrections agencies. Yet, Moore laments that no money nor additional resources accompany the shift.

“Funding is going to be the name of the game,” Moore said. “Prisoner management is really becoming a big part of our job. We’re really hoping the money will follow the order right down I-65 [from Indianapolis] so the county can be helped.”

Posted by Marcia Oddi on Friday, July 05, 2013
Posted to Indiana Government

Environment - "A federal judge tossed a lawsuit by a group of Dune Acres residents against the National Park Service’s efforts to restore Cowles Bog to its original state"

Updating earlier ILB entries on the Cowles Bog restoration in NW Indiana, Teresa Auch Schultz's story July 3rd in the Gary Post-Tribune continues:

U.S. District Judge Philip Simon wrote in his ruling that the park service did have the authority to decide to restore the bog and did so based on an informed decision.

The Coalition to Protect Cowles Bog Area filed suit against Indiana Dunes National Lakeshore in December after the government started cutting down about 3,400 trees in 24 acres of Cowles Bog. Park officials said the purpose was to restore the area to its original natural state, which is a wetland, and said the trees were not native and were keeping other native plants and animals from returning to the area. Several local environmental groups, including Save the Dunes and the Field Museum, supported the project.

The coalition claimed that legislation creating the Lakeshore insisted the park be kept it in its state then, in 1966, which would prohibit the park from restoring it to a prior period.

However, they also argued that park officials purposely hid evidence proving that the area was not, actually, a wetland and did, in fact, have trees.

Simon ruled against both arguments and noted that the plaintiffs had no evidence supporting their claim about the original state of the bog.

“All of plaintiff’s perceived deficiencies are little more than fly specks,” Simon wrote. “... Calling these flyspecks is an insult to the comparative enormity of flyspecks.”

As for the National Park Service’s authority, Simon said that although the legislation that created the park is confusing, it doesn’t make sense to think Congress wanted the entire park to remain exactly as it was in 1966, especially considering parts of the park were not added until decades later.

“If that were the case, wouldn’t the secretary (of the Department of the Interior) have to make individualized decisions as to every flower, shrub, tree, etc. to ensure that the Lakeshore looks exactly as it did in 1966?” Simon wrote. “That is an absurdity, of course.”

Posted by Marcia Oddi on Friday, July 05, 2013
Posted to Environment | Ind Fed D.Ct. Decisions

Courts - "It would not be an exaggeration to call the recently completed Supreme Court term a lollapalooza"

So begins Nina Totenberg's nearly 8-minute wrap-up story today for National Public Radio.

Posted by Marcia Oddi on Friday, July 05, 2013
Posted to Courts in general

Ind. Courts - "Supreme Court suspends E.C. attorney for at least 3 years"; and some observations on the disbarment option.

Dan Carden of the NWI Times reported July 2nd on the Supreme Court's June 28th decision in In the Matter of: Noah HOLCOMB, Jr.:

INDIANAPOLIS | A longtime Lake County defense attorney, who served briefly as East Chicago city judge, has been suspended from practicing law for at least three years for misusing client funds.

The Indiana Supreme Court determined Noah Holcomb Jr. violated numerous professional conduct rules, including charging unreasonable fees, commingling client and attorney funds, taking trust account funds for personal use, failing to pay money a client was entitled to and engaging in conduct prejudicial to the administration of justice.

Holcomb's three-year suspension begins Aug. 2. He was denied automatic reinstatement and must demonstrate remorse and rehabilitation to the court to regain his law license.

Chief Justice Brent Dickson, a Hobart native, said Holcomb's punishment likely would have been more severe had he not reached an agreed settlement with the court's disciplinary commission.

Nevertheless, two of the five justices dissented from the disciplinary ruling because they believed Holcomb should have been disbarred.

The opinion concludes:
All Justices concur, except David and Rush, JJ. who dissent, believing Respondent should be disbarred.
ILB: Recall this May 8th ILB post, quoting a reader who observed the number of dissents by J. David in disciplinary rulings, calling for stronger punishment. The reader asked: "It's an area of the Supreme Court's jurisdiction that gets very little attention, but I wonder if Justice David will be able to cobble together a coalition of Justices who will share his approach."

J. David was also the sole justice to call for disbarment in the notorious Usher case - see this May 17th post.

Posted by Marcia Oddi on Friday, July 05, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - Appeal raises "critical questions about the scope of the computer crime laws"

Jacob Gershman of the WSJ Law Blog had this post July 2nd.

From Prof. Orin Kerr's post at The Volokh Conspiracy about the brief he has filed in the case:

At bottom, the case is about the freedom to surf the web. But once you get into the details, it’s also about several kinds of prosecutorial overreach: Circular theories that try to turn misdemeanors into felonies; an astonishing view of venue that would allow any AUSA anywhere to bring charges in their district for crimes having nothing to do with their district; and punitive sentences based largely on smoke and mirrors. And it’s all in there in a single case.
Kerr invites reader comments on his brief and there are many of them.

Posted by Marcia Oddi on Friday, July 05, 2013
Posted to Courts in general

Thursday, July 04, 2013

Courts - "Exclusive: Supreme Court's Ginsburg vows to resist pressure to retire"

Joan Biskupic, of Reuters, has the exclusive with Justice Ginsburg this morning. My conclusion after reading - don't mess with this Justice, she is one tough cookie!

Posted by Marcia Oddi on Thursday, July 04, 2013
Posted to Courts in general

Wednesday, July 03, 2013

Law - New Stanford Law article on techniques to determine authorship in unsigned judicial opinions

This new How Appealing post links to this article from the Stanford Technology Law Review, titled "Using Algorithmic Attribution Techniques to Determine Authorship in Unsigned Judicial Opinions." From the introduction:

United States courts publish a shocking number of judicial opinions without divulging the author. Per curiam opinions, as traditionally and popularly conceived, are a means of quickly deciding uncontroversial cases in which all judges or justices are in agreement. Today, however, unattributed per curiam opinions often dispose of highly controversial issues, frequently over significant disagreement within the court. Obscuring authorship removes the sense of accountability for each decision’s outcome and the reasoning that led to it. Anonymity also makes it more difficult for scholars, historians, practitioners, political commentators, and—in the thirty-nine states with elected judges and justices—the electorate, to glean valuable information about legal decision-makers and the way they make their decisions. The value of determining authorship for unsigned opinions has long been recognized but, until now, the methods of doing so have been cumbersome, imprecise, and altogether unsatisfactory.

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to General Law Related

Ind. Courts - Appellate Sentence Review in Indiana: Death By a Thousand Per Curiams?

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

The one substantive area of Indiana law that has shifted the most dramatically since the retirement of Chief Justice Shepard and Justice Sullivan is the substantive appellate review of sentences. Appellate Rule 7(B), which implements the Indiana Constitution’s review and revise power found in Article 7, Sections 4 and 6, allows appellate courts to revise a statutorily authorized sentence “if, after due consideration of the trial court’s decision, the Court find that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

As detailed in this chart, between 2008 and 2012 the Court granted significant reductions to lengthy sentences on a few occasions each year. Justice Dickson would almost always dissent. Justice Rucker would nearly always join and sometimes even write the majority opinion. Justice David joined some opinions and dissented in others.

Court of Appeals’ Statistics

More remarkable than those three or four cases decided by the Supreme Court each year, though, were the many reductions by the Indiana Court of Appeals. I included statistics on Court of Appeals’ reductions in the Indiana Law Review criminal law survey article last year and the one forthcoming this year.

Between October 1, 2010 and September 30, 2011, criminal defendants raised 7(B) claims in 29% of 1337 appealed criminal cases and prevailed in 26 (7%) of those cases. In the most recent survey period (October 1, 2011-September 30, 2012), defendants raised 7(B) claims in 30% of 1249 appealed criminal cases but prevailed in only 16 (less than 5%) of those cases.*

Before the retirement of Chief Justice Shepard, the State would rarely seek transfer from a reduction; it has done so routinely since his retirement. The last sentence reduction case in which transfer was not sought was Hough v. State, decided in July of last year.

Transfer Grants in the Past Year

For nearly a year, it appears the State has sought transfer in every case in which a sentence was reduced under Rule 7(B), and transfer has been granted in every one of those cases:

The Court of Appeals appears to have noticed the trend. Despite sentencing challenges being frequently raised, the only case in which the Court of Appeals reduced a sentence in 2013 was Chambers.

Per Curiam Opinions

Nearly all the Supreme Court’s opinions have been short, per curiam opinions that briefly recite the facts and legal standard before a concluding paragraph (in the most recent cases) that reads:

Having reviewed the matter, our collective judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate revision. Accordingly, we affirm the sentence imposed by the trial court. [Merida]
As noted here, yesterday the Court of Appeals issued a similarly worded “panel per curiam” opinion. What remains to be seen is whether this was a one-off or part of a new practice for rejecting Rule 7(B) claims.

No Funeral Yet

Although some are ready to erect a gravestone on Rule 7(B) claims, I’m less pessimistic. The justices’ questions during the Lynch oral argument suggested the Court was trying to refine its approach to addressing the claims rather than completely abandoning 7(B) review. Even the Deputy Attorney General did not argue for abandoning the rule but did suggest the Court of Appeals should set forth a compelling analysis. For example, the Court of Appeals’ opinion in Merida cites a couple of cases for the legal standard and marshals the relevant facts but did not apply any Supreme Court child molesting sentence reduction precedent. As the chart linked to above shows, sentences have been reduced in several child molesting cases.

None of those cases—nor any 7(B) precedent — has been overruled.

Moreover, even Chief Justice Dickson has agreed to reduce sentences in some cases, most recently authoring the opinion reducing a life without parole sentence to 65 years in Castillo v. State, decided last July. A month earlier he joined the per curiam opinion in Walker v. State, which reduced a maximum 20-year sentence for drug possession to 12 years, relying heavily on a similar case in which he had dissented just months earlier: Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind. 2012) (“but for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.”) Both of those cases emphasized the nature of the offense rather than the character of the defendant, which may be important to securing the Chief Justice’s support in a future case.

Finally, as highlighted by the Chief Justice’s questions at the Lynch oral argument, Appellate Rule 7(B) includes the language: “after due consideration of the trial court’s decision,” which is often not included in appellate briefs or Court of Appeals’ opinions. Reductions may be more likely to stick in the future if that language is included — and careful deference to the trial court’s decision is discussed.
______________
* During the most recent survey period whether a defendant secured a revision of his or her sentence varied widely by the judges to which the appeal was randomly assigned. Three of the judges on the Court of Appeals did not vote to reduce any sentences during the year; one of them dissented in one case in which his two colleagues reduced a sentence. Two judges cast only one vote to reduce a sentence (one offsetting that vote with a dissent in another case); another two cast two votes to reduce a sentence. On the high end, three judges cast seven, six, and five votes respectively to reduce sentence. (I’m intentionally not posting the names here, because some may misuse that information to suggest a judge is somehow soft on crime. Reducing sentences, though, is sometimes necessary to ensure that similar defendants who commit similar offenses are treated similarly. It’s seldom going to garner a favorable newspaper headline and will sometimes provoke a negative one. Nevertheless, it’s essential to “leavening the outliers,” as many cases mention.)

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Schumm - Commentary

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman, a 7-page opinion, Judge Mathias writes:

Harry Tillman (“Husband”), by guardian Deborah Wagner (“Wagner”), appeals the Warrick Superior Court’s dismissal of his petition for dissolution of marriage from his wife, Virginia Tillman (“Wife”). Through his guardian Wagner, Husband argues that both the trial court’s ruling and the currently controlling law in Indiana are inconsistent with Indiana’s no-fault approach to dissolution of marriage. We affirm. * * *

Neither the current Indiana statutes governing dissolution of marriage nor
governing the guardianship of incapacitated persons provide a means for the guardian of an incapacitated person to file a petition for dissolution of marriage on behalf of the incapacitated person. The facts of the present case are parallel to the facts of Quear in this regard. In this case, both Husband and Wife are incapacitated and neither are competent to consent to the filing of a dissolution petition. Since Indiana statute does not provide guardians of incapacitated persons the authority to petition for dissolution of marriage on the incapacitated person’s behalf, the trial court’s dismissal of the motion Wagner filed on Husband’s behalf was proper.

In Pier 1 Imports (U.S.), Inc., v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc. , a 12-page, 2-1 opinion, Judge Bradford writes:
Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal. On the merits, we conclude that summary judgment in favor of Acadia and Boyd was inappropriate: Whether Acadia discharged its duty of care merely by contracting with Boyd is a question for the jury to decide, and, because there is evidence that additional salting was necessary after Boyd salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing its snow and ice removal services. The judgment of the trial court is reversed and remanded for further proceedings. * * *

RILEY, J., concurs.
BROWN, J., dissents with opinion: I respectfully dissent from the majority’s conclusion that Pier 1 did not have a practical opportunity to object to the motions for summary judgment by co-defendants Acadia and Boyd prior to those parties’ dismissal. * * *

Accordingly, based upon the holdings and language in U-Haul and Nationwide and the Indiana Supreme Court opinions upon which they rely, I would find that Pier 1 failed to preserve and thus waived its claim for appeal, and I would affirm the judgment of the trial court.

In Booker T. Prince, Jr. v. Marion County Auditor and Marion County Treasurer, an 11-page opinion, Sr. Judge Sharpnack writes:
Booker T. Prince, Jr., appeals the trial court’s denial of his motion for relief from judgment. We affirm.

Prince raises two issues, which we restate as:
I. Whether the trial court abused its discretion in determining that the application for judgment and order for sale of Prince’s property of the Marion County Auditor and Marion County Treasurer (collectively, “the officials”) substantially complied with statutory requirements.
II. Whether the trial court abused its discretion in determining that the officials’ notices to Prince regarding the tax sale process met the requirements of due process.

In Richard Hawkins v. State of Indiana , a 7-page opinion, Judge Riley writes:
Hawkins appeals his sentence following a guilty plea to dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1 and possession of cocaine, a Class A felony, I.C. § 35-48-4-6.
We affirm.

Issue. Whether Hawkins knowingly and voluntarily waived his right to appeal the appropriateness of his sentence when he entered into a plea agreement with the State. * * *

Ricci
and Bonilla are inapposite to the case at hand as the trial court did not make any contradictions or raise any ambiguities with respect to the plea agreement and the waiver language. The trial court clearly enumerated the rights Hawkins had foregone by pleading guilty and then asked Hawkins if he understood he would have the right to appeal if he went to trial, but that by entering into the plea agreement, he had waived that right. Hawkins answered affirmatively. Then, after having concluded its advisements on the right to appeal, the trial court explained that he had the right to be represented by an attorney at any stage of the proceedings. By separating the right to appeal from the right to representation, the trial court properly advised Hawkins without contradicting itself or raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived his right to appeal his sentence.

In Keion Gaddie v. State of Indiana, a 9-page opinion, Chief Judge Robb writes:
Keion Gaddie appeals his conviction, following a bench trial, of resisting law enforcement, a Class A misdemeanor. Gaddie raises the following issue for our review: whether the evidence was insufficient to sustain his conviction because he was free to disregard law enforcement in what was a consensual encounter. Concluding that Gaddie had no duty to stop when law enforcement ordered him to do so, we reverse. * * *

The United States Supreme Court has stated that “a person is ‘seized’ . . . when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). To hold that Gaddie should have stopped immediately upon being ordered to do so by Officer Newlin or else face a criminal conviction would mean that a seizure took place under the Fourth Amendment. A seizure requires, at the minimum, a reasonable suspicion of criminal activity based on specific and articulable facts. See id. at 554. The Fourth Amendment is not implicated in what is termed a “consensual encounter,” see Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied, where “the person to whom questions are put remains free to disregard the questions and walk away,” Mendenhall, 446 U.S. at 554. To agree with the rationale in Corbin would effectively render the consensual encounter nonexistent in the state of Indiana. However, “[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Mendenhall, 446 U.S. at 553-54 (quotes and citation omitted). Thus, we hold that as long as a seizure has not taken place within the meaning of the Fourth Amendment, a person is free to disregard a police officer’s order to stop and cannot be convicted of resisting law enforcement for fleeing. * * *

Gaddie was under no duty to stop when Officer Newlin ordered him to do so. Moreover, there was no reasonable suspicion which would justify a seizure of Gaddie. Thus, his conviction for resisting law enforcement is reversed.

NFP civil opinions today (7):

Thomas R. Tokarski and Sandra W. Tokarski v. State of Indiana (NFP)

In Re: the Marriage of: William Scott Wilson v. Andrea (Wilson) Gunning (NFP)

In Re: The Paternity of S.J.E-C: Clarence Cones, III v. S.J.E-C, by next friend: Tabetha J. Emenaker, and Tabetha J. Emenaker (NFP)

Armando B. Quintero v. Maria L. Quintero (NFP)

Corrie Tomblin v. Michael A. Tomblin (NFP)

Greg Haney, as Trustee of the Revocable Trust Agreement of Jay Budman Farrar Executed October 5, 1999 v. Patricia J. Farrar, as Personal Representative of the Estate of Jay B. Farrar (NFP)

Arlisha Williams v. Review Board of the Indiana Department of Workforce Development, and UPS Ground Freights, Inc. (NFP)

NFP criminal opinions today (12):

State of Indiana v. Mark M. Hairston (NFP)

Alfred Vela v. State of Indiana (NFP)

Michael G. Chamlee v. State of Indiana (NFP)

Jasen M. Snelling v. State of Indiana (NFP)

Adam J. Smith v. State of Indiana (NFP)

Wesley Cashdollar v. State of Indiana (NFP)

Kevin Govan v. State of Indiana (NFP)

Justin Land v. State of Indiana (NFP)

William Temple v. State of Indiana (NFP)

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

Carlos A. Smith v. State of Indiana (NFP)

Anthony Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Federal Judge accepts former Marion Co. deputy prosecutor David Wyser's guilty plea to bribery"

The Indianapolis Star today has this story by Tim Evans that begins:

As Marion County’s chief deputy prosecutor, David Wyser took a hard line against crime.

As an aspiring political candidate, however, the tough-talking prosecutor stepped across that line.

In federal court Tuesday, a contrite Wyser admitted he accepted a bribe in 2009 to reduce the prison sentence of a woman convicted in the murder of her husband.

It was a long and hard fall for the attorney who had dedicated the last 20 years of his life to public service. But he has one more chance to play a key role in the pursuit of justice.

As part of a deal with federal prosecutors that led to his guilty plea, Wyser, 53, has agreed to cooperate with investigators looking into other allegations of public corruption.

U.S. District Court Judge Sarah Evans Barker accepted Wyser’s guilty plea to a federal charge of bribery, a felony, and allowed him to remain free on bond pending sentencing.

During a 20-minute plea hearing, the judge reminded Wyser his cooperation with federal investigators would be considered at sentencing.

Details of Wyser’s crime were revealed for the first time Tuesday in a document submitted to Barker called a “Stipulated Factual Basis.” Court documents filed when Wyser was charged in May did not include specifics of the allegations against him.

The Star story links to the 3-page stipulated facts document.

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Indiana Courts

Ind. Courts - "Allen Circuit Court magistrate seat open after promotion"

Updating this ILB entry from June 25th, Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a story that begins:

FORT WAYNE – Allen Circuit Court Judge Tom Felts is looking for a new magistrate after his longtime domestic relations magistrate Craig Bobay was appointed to an open judge’s seat.

In an unrelated announcement, former Circuit Court hearing officer John Kitch III was sworn in as a Circuit Court magistrate – a second magistrate’s position created by state law in 2012. Kitch oversees the child support enforcement division in Circuit Court.

With the new law, the state now pays Kitch’s salary. The county paid him as a hearing officer, which he had been since 2008.

The deadline for applying for the other open magistrate’s seat is Monday, and interviews will be conducted next week. Applications must be submitted to Eric Zimmerman, and not through the county’s Internet application process.

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Indiana Courts

Ind. Law - "Per new law: Fewer Indiana juveniles may be imprisoned with adults"

Sophia Voravong of the Lafayette Journal Courier reports today on the probable impact of a new law, HEA 1108, on the practice of waiving teens from juvenile jurisdiction so that they may be tried as adults. She quotes one such teen, Levi J. Saltsman:

“When they told me I was getting waived, that I could be going to prison with people in their 30s, 40s, that’s when I got real worried,” Saltsman, now 19, said Monday. He spent 20 months at Wabash Valley Correctional Facility, an Indiana Department of Correction maximum security prison for adults.

“ … I was young. Young and skinny. People are going to pick on the young, skinny kid.”

Such scenarios could become scarce under a new alternative sentencing law for juveniles that took effect Monday.

The legislation gives judges more discretion on how to handle youth who are convicted as adults, with one option placing them at DOC-operated juvenile correctional facilities until age 18. A judge can then re-evaluate an offender’s remaining sentence when he or she turns 18, with options that include sending the offender to an adult prison; suspending a sentence to community corrections or probation; or releasing an offender.

The concept is commonly referred to as “blended sentencing” or “dual sentencing,” and Indiana had been one of only four states without that alternative sentencing option.

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Indiana Law

Ind. Decisions - "Mick Alexander lawsuit back from the dead"

The 7th Circuit's June 26th opinion in Alexander v. U.S. was the subject of a June 29th story by Douglas Walker and Keith Roysdon in the Muncie Star-Press. The long story begins:

In the Byzantine, dog-eat-dog atmosphere that at times envelopes the world of Delaware County government and politics, it’s been said more than once that what goes around comes around.

It also seems that controversies, seemingly resolved in one fashion or another, have a way of suddenly springing back to life.

A case in point: local attorney Michael J. “Mick” Alexander’s federal lawsuit, filed three years ago, that alleged two FBI agents and others, including then-Delaware County Prosecutor Mark McKinney, had “entered into a conspiracy to falsely accuse (Alexander) of a conspiracy to commit bribery.”

Alexander was charged with that crime in 2008. In 2009, a local jury deliberated for about an hour before finding the attorney not guilty of conspiring to bribe a witness in a client’s criminal case.

In his suit, Alexander maintained he was targeted because of his public criticism of the Muncie-Delaware County Drug Task Force and its representation in civil forfeiture proceedings by McKinney.

In October 2011, a federal judge — who had earlier granted a motion to remove McKinney as a defendant in the lawsuit — dismissed what remained of Alexander’s suit, against the FBI agents.

Not so fast, a federal appeals court seated in Chicago said last week, ruling that Alexander’s 2010 lawsuit alleging “malicious prosecution and intentional infliction of emotional distress” can proceed.

The appeals court ruled the federal court judge who dismissed the case “asked too much of Alexander,” penalizing the attorney for not offering specific theories as to why the FBI agents would have sought to harm his reputation.

“Unfortunately, in a world where public corruption is hardly unknown, we cannot agree that Alexander’s complaint is too implausible to hold together absent of allegations of this sort,” federal appeals court Judge Diane P. Wood wrote in last week’s decision. “We might wish to live in a world in which such an egregious abuse of one’s official position might be unthinkable, but experience suggests we do not.”

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "Ruling on Same-Sex Marriage May Help Resolve Status of Divorce"

Updating the ILB entries headed "Same-sex couple wed in Mass. files petition for dissolution in Marion County court", the most recent of which is here, Erica Goode reports on a similar story today in the NY Times. Some quotes from the long story:

Adam Cardinal’s wedded life began happily in New Hampshire, where same-sex marriages are legal. It went sour three years later in Florida, where they are not.

Mr. Cardinal, who lives in Fort Lauderdale, separated from his husband several months ago. But the couple cannot get a divorce because, in the eyes of Florida officials, their marriage does not exist.

Returning to New Hampshire to sever the bond is not an option either. Although marrying can be accomplished with a brief visit there, a divorce requires residency in the state for at least a year.

Mr. Cardinal cannot remarry — to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.

From later in the story:
The legalization of same-sex marriage in a dozen states in recent years led to a flood of weddings, many of them involving couples from states where such unions are still forbidden. Like newlyweds everywhere, most gave little thought to the prospect of divorce.

“You think, ‘This is perfect, this is great, I never have to worry about anything,’ and it’s only in retrospect that you sit back and say, ‘I shouldn’t have done that,’ ” said a woman who lives in Florida but married in Connecticut. She insisted on anonymity because she did not want to jeopardize her chances of eventually obtaining a divorce.

Returning to the state where the wedding was performed is rarely practical. Most states require residency to file for divorce, and few couples have the means or flexibility to move for an extended period. (Six states, including Delaware and Vermont, allow nonresident same-sex couples who married in the state to divorce under some circumstances.)

At the same time, states that do not recognize same-sex marriage also decline, at least officially, to dissolve marital bonds formed elsewhere. An exception is Wyoming, which as a result of a State Supreme Court ruling allows divorces for same-sex couples who married in other states. In some states, sympathetic judges have quietly granted divorces, but for the couples involved, the emotional turmoil of the split is often compounded by the fear that someone will challenge its legality.

Even when same-sex couples divorce in states that recognize their marriages, the process is often more complex than for heterosexual couples. The Supreme Court’s decision may correct some of those inequities — the division of retirement funds and tax deductions for alimony payments, for example. Peter Zupcofska, a family law and divorce lawyer who practices in Massachusetts and New York, said that in light of the court’s decision, married couples living in states where they can divorce “really should look at estate planning documents and prenuptial agreements,” because federal regulations governing the division of assets may now apply.

Posted by Marcia Oddi on Wednesday, July 03, 2013
Posted to General Law Related

Tuesday, July 02, 2013

Ind. Law - More on: New expungement law took effect yesterday ...

Updating this ILB post from earlier today, Amanda Gray writes for the South Bend Tribune:

Also in effect are new laws regarding record expungement. These laws stipulate how early someone can file for expungement, according to the legislation digest.

According to St. Joseph County Clerk Terri Rethlake, many people have called her office to ask how to expunge records, but few have filed the petition.

“Not many people will apply right now because they have to file through an attorney,” Rethlake explained. “They will probably wait until the state puts the forms online.”

Rethlake said there were complications with the form through the State Court Administration, however, so the forms aren’t online at the moment.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Indiana Law

Ind. Decisions - Another Court of Appeals "Panel Per Curiam" opinion

A reader has written to point out another (and perhaps the only other) Court of Appeals "Panel Per Curiam" opinion. It was the 17-page, NFP July 20, 2010 opinion in Daniel Brewington v. Melissa Brewington. I had never looked at this opinion before.

This is NOT Daniel Brewington v. State of Indiana, the Court of Appeals opinion now set for oral argument before the Supreme Court in September. It is the marital dispute that preceded it.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Michael Chambers v. State of Indiana, a 3-page, 5-0 per curiam opinion, the Court concludes:

Our collective judgment is that the sentence imposed by the trial court in this case is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer, affirm the sentence imposed by the trial court, and summarily affirm the decision of the Court of Appeals in all other respects. See App. R. 58(A).

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

There are similarities between this Supreme Court opinion today and the Court of Appeals opinion discussed in the previous post. Both are "per curiam" (although "per curiam" is not unusual in Supreme Court opinions). Both use the initials "per". The final two paragraphs of both opinions are substantially similar.

However, the names of the justices are on this opinion. Here the trial court had sentenced Chambers to maximum consecutive terms (a total of forty years executed), and:

A majority of the Court of Appeals panel revised the sentence to concurrent terms of twenty years, concluding that the forty-year executed sentence was an outlier in comparison to Walker v. State, 747 N.E.2d 536 (Ind. 2001), and Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008). See Chambers v. State, No. 53A01-1209-CR-401 (Ind. Ct. App. Feb. 27, 2013) (mem. dec.). The dissenting opinion, on the other hand, noted that Chambers has a more significant criminal history than the defendants in those cases and that the nature and circumstances of the offenses Chambers committed was not the same.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP) [Corrected 7/2/13] [Updated 7/3/13]

For publication opinions today (2):

In Tequita Ramsey v. Lightning Corporation , an 11-page opinion, Judge Baker writes:

In this case of first impression, we are confronted with the issue on interlocutory appeal as to whether the trial court abused its discretion in ordering the temporary decertification of a class, in an action brought by appellant-plaintiff Tequita Ramsey against the appellee-defendant Lightning Corporation, d/b/a First Class Car Company (Lightning). Ramsey claimed that she had the right to maintain a class action suit to recover vehicle document preparation fees that Lightning charged. Ramsey asserts that the trial court erred in determining that she lacked standing to bring her lawsuit as a class action, that the class was improperly decertified, and that she could not be a representative of the class.

Notwithstanding these contentions, Indiana Trial Rule 23 contemplates that a class action certification is subject to change before a decision is made on the merits. And there is nothing in the rule altering this standard when the trial court conditionally certifies a class action. Here, the evidence established, among other things, that Ramsey is not a member of the defined class, and therefore may not serve as a class representative. Thus, we cannot say that the trial court erred in decertifying the class. As a result, we affirm the trial court’s judgment.

Frederick L. King v. State of Indiana is odd. The ILB has already received several emails about it. It is labeled as "Panel Per Curiam", which the ILB has never seen before. The panel is not identified, either in the opinion or in the docket. But the initials , "jsk", are those of Judge Kirsch*. One reader asks: "A FP per curiam opinion that is one page and one paragraph long with absolutely no analysis?" Another reader asks if "they" are going to do all sentencing opinions like this in the future? Is this is going to be a "template" of sorts that they will use over and over again for these types of cases? In that case, maybe the "template" is FP and those that follow will be NFP? Whatever, the brief opinion concludes:
Having reviewed the matter, we conclude that the trial court did not impose an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial court.
[*Correction at 3:55] The ILB has made a bad error, the initials on the opinion are not "jsk", they are "per". Judge Kirsch was kind enough to send a note, reading:
Dear Marcia,
Today’s Indiana Law Blog has a reference to Frederick L. King v. State of Indiana case and suggests that I may have participated in the decision because “the initials, ‘jsk’, are those of Judge Kirsch.” Those are, indeed, my initials, but I did not participate in the case in any way.
Sincerely,
Jim Kirsch
ILB: Many thanks to Judge Kirsch for sending the quick note clearing this up, and my sincere apologies!

So who is "per"? There is no COA judge with those initials. (Every opinion is assigned a distinctive identifying code, including the initials of the writing judge; here it is "07021301per.pdf"). My guess is the initials here stand for the "per" in "per curiam." From a reader earlier today: "I think every litigant is entitled to a real opinion with three named judges. Two classes of opinions, even for cases that appear to lack merit, is a bad precedent."

[Updated on 7/3/13: The names of the panel members have now been added to King ("NAJAM, J., BAILEY, J., and BARNES, J."), along with a footnote that begins: "In per curiam opinions, judges serving on the panel are listed in order of seniority."

NFP civil opinions today (4):

Darryl Crenshaw and Krisean Porter v. State of Indiana (NFP) is a 3-page opinion designated as NFP, although it is concerning the trial court's denial of petitions for restricted disclosure of arrest records, a topic much in the news currently.

Fireworks West International, et al. v. David Prim, et al. (NFP)

Maria Torres v. Lovisa Enders (NFP)

Fred L. Froeschke and Judith A. Froeschke v. City of Vincennes (NFP)

NFP criminal opinions today (4):

Iris Newt v. State of Indiana (NFP)

Charles Hall v. State of Indiana (NFP)

Steven C. Cupery v. State of Indiana (NFP)

Dwight A. Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Ind. App.Ct. Decisions

Courts - Michigan federal litigation on marriage benefits worth watching [Updated]

For starts, Michigan's constitution, as amended in 2004, reads:

Article 1, section 25: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”
This bears similarities to HJR 6's (the proposed constitutional amendment pending second approval by the 2014 General Assembly) second sentence, which reads:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
Here are two relevant stories on the case of Bassett v. Snyder, now in federal district court in Detroit.

[Updated at 2:16 PM] The State Bar of Michigan Blog now has a post headed: "What The Two Federal Judges Allowing Challenges To Michigan's Same-Sex Partner Laws To Proceed Actually Said."

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Courts in general

Courts - Analysis of SCOTUS decision in Vance v. Ball State

The SCOTUS June 24th ruling in Vance v. Ball State is the subject of an article by Hofstra University Prof. Joanna L. Grossman at Verdict, headed: "The Power to Harass: The Supreme Court Adopts A Definition of “Supervisor” that Reduces Employer Liability for Harassment."

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries"

Stanford's Legal Research Plus blog points to an article by Jonathan Abel in the Georgetown Law Journal. Some quotes from the abstract:

The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development. * * *

The central argument of this Article is simple: The courts’ attempts to graft an access-to-courts rationale onto a law library system that had developed for other purposes led to a law library doctrine riddled with contradictions and doomed to failure. This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts. As prisons look to update their law libraries in light of sweeping technological changes, it is all the more important to understand the history of the law library system so that authorities can plan for its future.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to General Law Related

Indiana Courts - Second Quarter Transfer Statistics and Trends

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

During the just-finished second quarter of 2013, the Indiana Supreme Court was a bit more conservative in granting transfer than it had been in the first quarter when it granted transfer in nearly 12% of cases.

Indiana Supreme Court Transfer Dispositions: April 1, 2013-June 30, 2013*
  FP cases NFP cases FP & NFP
CIVIL 7/39 (17.9%) 4/33 (12.1%) 11/72 (15.2%)
CRIMINAL 6/29 (20.7%) 2/103 (1.9%) 8/132 (6.1%)
ALL CASES 13/68 (19.1%) 6/136 (4.4%) 19/204 (9.3%)

The second quarter overall grant rate of 9.3% is more in line with the long-term historic average. But two of the individual categories were anomalous. First, the 23.3% grant rate in published criminal cases is almost 50% higher than the rate in published civil cases. During the last three quarters of 2012, the rate in published civil cases (19.8%) was instead 50% higher than the criminal published rate (13.1%). The most notable outlier, though, is the 12.1% rate in NFP civil cases, which is nearly four times the 3.3% rate from April to December 2012.

Civil NFP cases

The high percentage of transfer grants in NFP civil cases is explained in large part by the grants in two Evansville cases involving challenges to anti-smoking ordinances, which were surprisingly issued NFP. The other two NFP civil cases were a child custody case (still pending) and a termination of parental rights case that had been dismissed by the Court of Appeals but was reinstated and resolved against the parent by the Indiana Supreme Court.

Criminal NFP cases

The two criminal cases were both petitions filed by the defendant and involve issues of alleged juror misconduct (still pending) and a challenge to a trial court’s sentencing statement that was remanded by the Indiana Supreme Court.

The State’s Batting Average: .833

The State filed six petitions to transfer during the second quarter, all from published Court of Appeals’ opinions. Five of the six were granted.

Four of the cases are pending and include the high profile Castleton Mall shoe camera case and the Muncie principal who conducted a short investigation rather than immediately reporting an alleged rape. A third case involves a trial court’s denial of the State’s motion to commit to a state mental hospital a defendant suffering from Alzheimer’s disease. All three of these were 2-1 Court of Appeals’ opinions.

The fourth case involves challenges to parole conditions (and bears a civil cause number, as explained in the footnote).

The fifth case has already been resolved; the denial of a motion to suppress based on police stopping a vehicle because of its window tinting was affirmed.

The only case in which the State’s petition to transfer was denied was Whitener v. State, where the Court of Appeals denied the State’s cross-appeal as untimely. The vote was 3-2; both the Chief Justice and Justice Massa voted to grant transfer.

The flip side of the State’s impressive batting average is that of criminal defendants, who batted a mere .024—or about a 1 in 42 chance of a transfer grant.

Variation Among Justices

A grant of transfer requires a minimum of three votes, but the order granting transfer does not include a vote line. As lawyers approach oral argument, there is no way to know which three (or more) justices voted to take the case. Questions at oral argument may give a hint, and several times during the past year the justices decided to vacate a grant of transfer after hearing argument.

When transfer is denied, however, the order includes a vote line that notes which, if any, justices voted to grant transfer. During the second quarter—and consistent with prior quarters—Justices David and Rush were the most likely to vote to grant transfer (12 votes each). Justice Rucker had 8; Chief Justice Dickson 7; and Justice Massa was the least likely to vote to grant transfer with 3 votes last quarter.
______________
*Although Bleeke v. State may seem like a criminal case in terms of parties and subject matter (parole conditions), the case bears a PL (civil plenary) cause number and is therefore included in the civil statistics. If the case were instead classified as a criminal case, the civil FP statistic would fall to 15.8% and the criminal FP would be 23.3%.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - "Commission on Improving the Status of Children begins fixing fractured system"

CNHI's Marueen Hayden reports today in the New Albany News & Tribune:

The new Commission on Improving the Status of Children in Indiana hasn't had its first official meeting, but its chair, Indiana Supreme Court Justice Loretta Rush, has already started prodding members to get to work.

In a recent informal meeting in her chambers, Rush urged other newly appointed commission members to embrace their ambitious challenge: Figuring out how to fix the state's fractured system of services for vulnerable children.

“It's rough out there for kids,” Rush said later, in talking about the commission's charge, “rougher than it's ever been.”

The new law that created the commission, effective July 1, came in response to revelations last year of problems at the state's Department of Child Services and the failings of its statewide child-abuse hotline. A summer study committee found that among other things, there were children in danger who were falling through bureaucratic cracks.

But the commission's mission goes far beyond oversight of the DCS. It's tasked with taking a deeper look at how well — or more accurately, how poorly — a myriad of agencies, organizations and entities are working together to help children in harm's way.

Rush had been pushing for such a commission for several years, based on concerns of judges like her who'd seen the need for better coordination of services for children who ended up in the court system.

She'd spent 14 years as a juvenile-court judge before she was tapped for the high court, and years before that as a court-appointed advocate for children who'd been abused, neglected or abandoned.

She'd seen how the tangle of services and programs aimed at helping children too often failed them, either from lack of coordination or by working at cross purposes.

Of the hundreds of memorable cases she's dealt with, she talks about one that embodies the problems the commission must face: It involves a teenage girl who grew up in the chaos of mental illness and poverty, and had been shuffled from foster home to foster home and in and out of different schools.

By the time the girl was in Rush's court, she was victim of repeated sexual abuse. “I remember her describing the abuse and her asking me, ‘Is this too hard for you to hear?’” Rush recalls. “I remember thinking, ‘Too hard for me? This should be too hard for you.’”

There is much more in the long story.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Indiana Government

Ind. Courts - A Big June at the Indiana Supreme Court? Sort of

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

This June 3 post pondered whether the Indiana Supreme Court would continue its tradition of issuing several opinions in long-pending cases in the final month of its fiscal year. It also discussed whether the remarkable unanimity of previous months would likely continue as the justices resolved some of these more complicated and contentious cases.

Twelve Opinions

The Court posted twelve opinions during June, which is considerably lower than the 23 to 26 opinions issued in June during most recent years. Because of the unusually robust July (Justice Sullivan’s last month on the Court), the Court’s total number of opinions for the year (77) was only slightly below recent years.

Among the twelve opinions, though, were high profile cases that had been pending for several months, including the legislative fines case. It was one of seven opinions from the list of cases pending more than three months after oral argument; the others were Fry (10/11); Passwater (1/10); Perkinson (12/13); Wright v. Miller (12/13); Buschman (1/17); Wysocki (2/14). The other five cases were all decided without oral argument, including the Center Township Small Claims mandate case and four fairly straightforward criminal cases, including the shortest free-standing opinion* in recent memory: 191 words.

Diminished Unanimity

As detailed in earlier posts, the Court was in the midst of a remarkable period of unanimity as it approached June. In contrast to nearly 90% unanimity earlier in the year, the justices were unanimous in 75% (8/12) of the opinions issued in June. This is still above the 66% unanimity rate of recent years.

Independence and Civility

The four cases that included separate opinions highlight that these justices—like their recent predecessors and unlike the U.S. Supreme Court—are an independent group who rarely align based on partisan affiliations. Although the three justices in the majority of the legislative fines cases were each appointed by Republican governors, so too was Justice Rush, who joined Justice Rucker in dissent.

Fry v. State, which overruled long-standing precedent to require the State to bear the burden of proof in denying a bail to a defendant charged with murder, included dissenting opinions from Justice Massa and Justice Rucker — the two justices most unlikely to agree in criminal cases at the beginning of the year.

The remaining two opinions included dissents from Justice David (Wright v. Miller) and Justice Rucker (Wysocki).

Finally and refreshingly, unlike U.S. Supreme Court opinions that often include numerous verbal barbs and assaults among justices whom disagree with each other, the separate opinions in each of these cases were respectful and civil.
_______________
*The Court will sometimes issue a lengthy lead opinion the same day it issues much shorter opinions that briefly apply that precedent. For example, Peterink was decided the same day in February as the much longer opinion in Jennings.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Schumm - Commentary

Ind. Law - New expungement law took effect yesterday ...

HEA 1482 took effect yesterday to what looks like mass confusion. For instance, Norman Cox reported on WRTV 6 last evening:

The criminal record law means expunged convictions would no longer show up in public records. Some expungings will be automatic, others up to a judge's discretion, and some need approval from prosecutors.

The law that took effect today only provides for an arrest to be blocked from public view, but not from law enforcement, and only if there was no conviction.

It exempts murder, serious assault cases and most sex offenses. There was confusion because some people thought they only had one day to block those records from public view.

"I believe some people are under the understanding that you could only file those on July 1, and that's not the case. July 1 is just when the law has gone into effect. Moving forward from here, from here forward, we will accept those filings," said Clerk's Chief of Staff Scott Hohl.

People who hope to take advantage of the new law should also know it now requires a filing fee of $141.

The accompanying video, headed "Blocking crimonal records, confusion produces long lines today", features Cox in front of the Marion County City/County Bldg, saying that in addition to the $141 filing fee, "Officials advise people to go to a lawyer before filing, because if you mess it up the first time, you can never do it again."

In addition, the ILB understands that the Marion County Courts have not yet decided what court(s) is going to handle the expungements, and whether it will be criminal or civil.

WISH-TV has had two features on the new law, this one from June 28, and this one from July 1.

Posted by Marcia Oddi on Tuesday, July 02, 2013
Posted to Indiana Law

Monday, July 01, 2013

Ind. Law - "How Young Is Too Young For Delinquency Court?"

Important post at Indiana Juvenile Justice blog. It begins:

Indiana does not have a minimum age for juvenile court jurisdiction when a child is accused of a delinquent act. For many years, there was an unwritten “rule” that followed the Indiana Department of Correction wardship statute that delinquency court was used primarily for children between the ages of twelve and eighteen. Those who committed acts when seven or eight years old were often referred to the juvenile court as CHINS cases under the premise that a child that young was put in a situation where he/she could get into trouble because of a lack of supervision or bad decisions by the parents.

Today around the state, children as young as six are being arrested by law enforcement and sent to detention centers, which are not equipped to handle very young children.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Law

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

Updating this ILB entry from June 28 (which includes a copy of the petition), and this one from later in the day, WISH-TV's Jim Shella now has a post on his blog that concludes:

Donald Schultz Lee can’t get a divorce unless laws are changed either here or in Massachusetts.

The case has been assigned to Judge David Shaheed who has not yet ruled on it. Kathy Harmon expects that he will reject the divorce petition. She is already prepared to take the case to the state Court of Appeals.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Courts

Ind. Gov't. - "Dubois County Commissioners are considering exploring an ordinance to create a poop-free area around the county courthouse"

A story in the Dubois County Free Press, reported by M. Crane, recounts a discussion at a meeting of the Dubois County Commissioners.

A reader sent the ILB a copy of the story. I am having trouble accessing it online, so here are some quotes (emphasis by ILB):

Jasper — Dubois County Commissioners are considering exploring an ordinance to create a poop-free area around the county courthouse.

Janalyn Oster, a Huntingburg resident, is employed at the Birk and Birk law firm on the Square in Jasper and brings her 8-month-old Peekapoo puppy Snickers to work. Thomas Birk, the owner, says that he supports his employees bringing pets to work because of studies that have shown the practice relieves stress and improves employee performance. * * *

Naturally, where there’s puppies, there’s poop, and the only green space nearby is the courthouse lawn. So, about twice a week Snickers does a little doodoo in the green grass on the southeast corner of the courthouse property and Oster promptly cleans it up.

The groundskeeper of the courthouse has yet to complain of finding any Peekapoo poop on the lawn but some folks have complained about seeing the dog doing it’s duty there. Last month the commissioners were informed of the second letter the county has received regarding the practice and decided to send Oster a letter asking her to stop.

Oster and the suspect puppy appeared in front of the commissioners today with her mother, Janice Burger, her two sons, Blake and Dylan, and nearly the entire office staff of Birk’s law firm. Oster told the commissioners that she was the only one to receive a letter concerning the practice although she regularly cleans up other dog’s feces on the lawn before allowing her own puppy to romp around on the grass.

“If I was leaving a mess, don’t you think the groundskeeper would be complaining to you,” Oster told the commissioners.

Besides the county lawn, there is no green space for pets to use around the square. Currently the county does not have an ordinance against the practice and Oster complies with the City of Jasper ordinance which requires that pet owners clean up after their pets. * * *

Commissioner Larry Vollmer stated since no ordinance existed, maybe the commissioners should explore banning pets from the lawn and interior of the courthouse. “Someone just complained that it doesn’t look good having a dog doing that on the lawn in the public,” he said.

“I think some people have too much time on their hands to worry about something like that,” mused Oster’s mom, Janice.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Government

Environment - "State of Minnesota's law firm in 3M case disqualified"

Amazing story by Jim Anderson of the Minneapolis Star-Tribune (H/T to ABA Blog) The long story begins:

In a major setback to the state’s 2½-year-old lawsuit against 3M Co. over PFC contamination in the east metro, the Minnesota Court of Appeals on Monday agreed to disqualify the state’s law firm for violating rules of professional conduct.

Covington & Burling, one of the nation’s premier corporate and environmental law firms based in Washington D.C., had represented the company for years on regulatory issues surrounding perfluorochemicals, PFCs.

However, when Covington agreed to take the state’s case on a contingency basis in late 2010, just as it ended its legal work for 3M, it failed to notify the company that it was then preparing a lawsuit against it on those very same PFC issues — only on the opposite legal side. And presumably aided, the company argued, by the valuable inside information the law firm had gained while representing 3M.

In affirming the district court’s earlier ruling, the three-member panel of judges agreed that that conflict of interest broke the rules. The company, by the rules, should have been given a chance to give its consent for Covington to represent the state.

“The integrity of the legal system demands that scrupulous care be taken so that client confidences are protected and legal counsel acts a vigorous advocate without a conflict of interest,” the ruling says.

Another H/T to the ABA Blog for a copy of the Minnesota Court of Appeals opinion, which notably is not-for-publication.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Environment

Ind. Law - The 2013 Indiana Code is up, but the HTML version is gone. Or is it?

In the past, the Indiana Code that the General Assembly makes available at its website has presented both PDF and HTML versions of each provision.

For example, in the 2012 version of the online Indiana Code, you could select either the either the HTML version of IC 13-14-2 ("CHAPTER 2. POWERS OF DEPARTMENT "), or the PDF version.

With the newly posted, 2013 version, you no longer have that choice. Only a difficult to manipulate PDF version is available. Nothing else - no HTML, no text or Word version, no XML.

And a mystery. IC 13-14-2-1 was amended in 2013 (so I am using it in this test to be sure I do not accidentally pull up some earlier version). If I do a Google search for IC 13-14-2-1, I get the HTML version of the section, including the 2013 amendment. So does Google have an HTML version for us, but the General Assembly web site does not!

Not exactly. If I use the search box (here, bottom of right column) on the GA site, and type in 13-14-2-1, I get the HTML version. So how to explain?

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Law

Ind. Gov't. - FSSA accidently discloses personal information about 187,533 clients

The error was discovered on May 10, 2013. The notice went out today. Some quotes from the press release (emphasis by ILB):

[FSSA] Indiana FSSA notifying clients of potential information breach

INDIANAPOLIS (July 1, 2013) - The Indiana Family and Social Services Administration (FSSA) is in the process of notifying some FSSA clients that some of their personal information may have been accidently disclosed to other clients. The accidental disclosures may have occurred when RCR Technology Corporation (RCR), a contractor for FSSA, made a computer programming error to a document management system the company supports on behalf of FSSA. This error caused an undetermined number of documents being sent to clients to be duplicated and also inserted with documents sent to other clients. This means some of the clients may have received documents belonging to other clients along with their own documents.

The programming error was made on April 6, 2013, and affected correspondence sent between April 6, 2013, and May 21, 2013. The error was discovered on May 10, 2013. RCR determined the root cause of the programming error and it was corrected on May 21, 2013.

In compliance with federal and state privacy law, FSSA has sent written notices to the 187,533 potentially impacted FSSA clients informing them that some of their personal information may have been disclosed.

The type of information that may have been disclosed includes name, address, case number, date of birth, gender, race, telephone number, email address, types of benefits received, monthly benefit amount, employer information, some financial information such as monthly income and expenses, bank balances and other assets, and certain medical information such as provider name, whether the client receives disability benefits and medical status or condition, and certain information about the client’s household members like name, gender and date of birth. Of the 187,533 clients, 3,926 may have had their social security numbers disclosed. This is being noted in the specific letters being sent to this smaller group. * * *

FSSA clients who receive notifications are being advised of steps they can take to protect themselves against identity theft. This includes placing a fraud alert on their credit report by calling the toll-free number of any of the three credit bureaus. A fraud alert places a note on a credit report for 90 days requiring creditors to verify identity before granting credit. There is no charge for a 90 day alert.

For those clients who may have had their social security information disclosed, additional advice is being given to them that they could place a security freeze on their credit reports. This can block an identity thief from opening a new account or obtaining credit in the client’s name. * * *

Statement from Debra Minott, secretary of the FSSA:

“Clients entrust their information to us and we take the security of that information very seriously. We are ultimately responsible for the safekeeping of that information and regret that in this rare instance some information may have been accidently shared inappropriately. We do not believe this was a widespread disclosure of information and have only been made aware of a handful of instances where information was received by the wrong person. Still, we are taking the most complete and prudent approach to notifying all potentially impacted clients.”

Statement from Robert C. Reed, president of RCR Technology Corporation:

“We at RCR Technology Corporation apologize that our actions may have caused some FSSA client information to be disclosed in error. We will do everything possible to prevent such an incident from happening again in the future. We value our relationship with the State of Indiana and our service to our fellow Hoosiers who are clients of the Indiana Family and Social Services Administration.”

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Government

Ind. Law - More on: Many New Indiana laws taking effect Monday, July 1st ..., but how to access them?

In this post yesterday I wrote about the 106-page "digest" of enactments available from the General Assembly website:

It has no Table of Contents, no index, and is merely the lengthy digest of each bill that was enacted into law, arranged by bill number. In my opinion, it is useless. The General Assembly could do so much more to provide information to the citizens it represents.
Well, it turns out, the staff of the Indiana Senate Democrats caucus has done more, per this new link from their blog, "The Briefing Room." The post links to "the Senate Democrats’ 2013 Session Summary provides a breakdown of each bill approved this year."

I took a look at their 225-page 2013 Session Summary. It does have a Table of Contents. It also has very useful bookmarks to the PDF document, where the legislation is arranged by topic. It also includes conversion tables between bill numbers and public law numbers, and voting records. Wonderful. The only problem is it is an impossible 18.7 MB!

Given that drawback, the ILB downloaded the document, reduced it in size to 2.36 MB using Acrobat magic, and has made it available here. I also set the document to open showing the bookmarks. (I could have made it even smaller, but that would have involved removing the cover, which has a graphic, and the voting records.)

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Law

Environment - "White County commissioners OK request for large hog farm near Camp Tecumseh"

Updating this ILB entry from June 29th, Brian Wilson of the Lafayette Journal Courier reports today:

MONTICELLO The White County commissioners this morning unanimously approved a zoning petition for a large hog farm near Camp Tecumseh, the popular YMCA-operated destination about 15 miles northeast of Lafayette.

The vote came two hours after comment for and against White County farmer John Erickson's plan to build two hog barns on a 7-acre tract of land one half mile from the YMCA Camp Tecumseh.

The commissioners’ 3-0 vote changes the zoning of the propery from agricultural to agricultural-industrial, a designation that allow for a more intense agricultural use of the land. Erickson plans to build a concentrated animal feeding operation capable of housing nearly 10,000 hogs in two buildings.

The property is a half-mile from the camp’s entrances.

Going into today’s meeting, Erickson had met every state environmental requirement necessary and 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.

He spoke briefly about the property at today’s meeting, calling the large-hog operation a natural extension of his longtime family farm.

Erickson’s attorney, Joe Bumbleberg, told commissioners today the hog farm represents the type of farming the county wants. The county approved a plan in 2011, he noted, calling for entrepreneurial farming.

"Now I'm asking you to allow the ordinance to do its work," Bumbleburg said.

A technical specialist working on behalf of the project said that, according to a Purdue model, the property would be 99 percent “annoyance free.” * * *

Scott Brosman, CEO of Camp Tecumseh, told the commissioners today that more than 3,200 people have signed a petition opposing the industrial farm.

He remains convinced the operation would cause water contamination or odors wafting over a camp where outdoor activity is a constant.

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

Erickson, a fifth-generation farmer, 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.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Environment

Ind. Decisions - Transfer list for week ending June 28, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the April 12, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, June 28, 2013. It is two pages (and 25 cases) long.

One transfer was granted last week, with opinion, in the case of Valentin Escobedo v. State of Indiana. See the ILB summary here, from June 28, 2013.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court issues one, on requiring juvenile to register as sex offender

In N.L. v. State of Indiana, a 9-page, 5-0 opinion, Justice Rush writes:

Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration’s serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court’s order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand. * * *

Conclusion. It is well within a trial court’s discretion to hold more than one hearing to determine whether a juvenile’s risk of reoffending warrants placing them on the sex offender registry. But when it does so, every hearing held for that purpose must be an “evidentiary hearing” as J.C.C. requires. That is, juveniles must have the opportunity to challenge the State’s evidence and present evidence of their own; and if an “evidentiary hearing” is continued, they must have continued representation by counsel at the subsequent hearings as well. Finally, the child may not be ordered to register unless the trial court expressly finds, by clear and convincing evidence, that the child is likely to commit another sex offense — based exclusively on evidence received at such a hearing. Here, the May hearing was not an “evidentiary hearing” as J.C.C. requires; N.L. did not have the benefit of counsel in May, even though he did for the February hearing; and the trial court made no findings about N.L.’s likelihood to reoffend.

We therefore reverse the order requiring N.L. to register as a sex offender, and remand to the trial court with instructions to conduct a new “evidentiary hearing” as J.C.C. requires to determine whether N.L. is likely to commit another sex offense, and thereafter to make an express finding of whether the State has made that showing by clear and convincing evidence.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Marijuana's march toward mainstream confounds feds"

Sentencing Law and Policy quotes from a long AP story.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to General Law Related

Ind. Law - "HJR6’s support comes from fear of political harm"

Maureen Hayden's (CNHI Statehouse Bureau) column today in the New Albany News and Tribune begins:

Chances are good that someone you know and love is gay.

That’s the reality that Indiana lawmakers may need to face in the wake of the U.S. Supreme Court rulings on the constitutionality of same-sex marriage and the coming political battle in Indiana to enshrine a separate status for gay people into our state constitution.

That theme is repeated throughout the column, culminating with:
When HJR 6 was stalled earlier this year pending the high court’s decisions, I had Republican and Democrat legislators alike who voted for it last time tell me that someone they know and love is gay. I heard stories — told only on the promise they wouldn’t be reported — of beloved siblings, much-loved nephews, favorite cousins, and dear friends who were not only gay but who were living in loving relationships.

Then why not oppose HJR6, I would ask. And the off-the-record answer, almost always, had to do with politics and their perception that a “no” vote would harm them in their next campaign. On the record, they’d duck the question and say: Hoosiers should have the right to vote on it. Expect to hear that line again and again in the months to come.

Someone I know and love is gay: My “baby” brother, who is one of the nine O’Connor siblings raised by my Catholic parents in a long-lived traditional marriage.

That brother and his partner of 28 years have what I and the rest of my siblings believe is the happiest and healthiest of relationships of all of us. It’s certainly one of the longest and most stable in the family.

Earlier this month, they officially tied the knot when marriage equality finally became law in the place where they live. For the life of me, I don’t understand how that commitment to each other does anything to undermine the institution of marriage.

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Indiana Law

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

From Sunday, June 30, 2013:

From Saturday, June 29, 2013:

From late Friday afternoon, June 28, 2013:

Posted by Marcia Oddi on Monday, July 01, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 7/8/13):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 7/8/13):

Wednesday, July 10th

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, July 01, 2013
Posted to Upcoming Oral Arguments