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Saturday, August 31, 2013

Law - "How Fights Over Fixtures Can Derail a Closing"

This long article by Robin Finn was in the Sunday "Real Estate" section of the August 25th NY Times. It begins:

Even at their smoothest, residential real estate closings are not for the faint of heart. At stake is nothing less than the roof over the buyer’s head, but the repercussions can be primal when, just before the culmination of a deal worth hundreds of thousands or, in many instances, millions of dollars, weeks of negotiations unravel when the buyer and seller suddenly squabble over who gets custody of something as inconsequential as a $150 ceiling fan. * * *

There is a chronic dynamic at work here. Sellers are wary of having parted too cheaply with a profound investment, their residence. Buyers are leery of having paid too dearly and often are already punch-drunk from the trauma of the financial frisking endured during co-op board inquisitions or mortgage applications.

With the stage preset for regret and recrimination, and with lawyers at the ready to advocate in different directions at the drop of a dollar sign, nothing brings the process to a screeching standstill like a quibble over an inanimate item — a dusty chandelier, a sputtering air-conditioner, a wobbly Ikea shoe rack — that incomprehensibly assumes trophy status in the calculations of both buyer and seller.

Posted by Marcia Oddi on Saturday, August 31, 2013
Posted to General Law Related

Law - "In vitro fertilization can result in children born well after the death of one or even both parents, complicating inheritance laws"

A long column today by Paul Sullivan in the NYT's "Wealth Matters." It begins:

THE number of children conceived through in vitro fertilization has doubled over the last decade. The technology that has made these children possible has also challenged inheritance laws, especially in circumstances when a child is conceived after the death of a parent.

While this may sound bizarre, posthumously conceived children can become a quandary for the rich and the not-so-rich alike. The problem is always about money. The rich worry about who will get their assets after they are dead, while people of more meager means have turned to the courts in the hope of collecting federal benefits.

“We’re going to see a flurry of activity on this, because new technologies are ballooning,” said Sharon L. Klein, managing director at Wilmington Trust and chairwoman of the trusts, estates and surrogate’s courts committee of the New York City Bar Association.

“You read about women in their late 20s and early 30s who are saving their eggs and want to focus on their careers and haven’t met the right partner yet,” she said. The woman’s eggs could be used to produce a child even if the woman never wanted the eggs used after her death.

The law is clear on one thing: when a trust document does not address the issue, Ms. Klein said, “children born with the new technology are entitled to inherit with the same rights as a natural-born child.”

Posted by Marcia Oddi on Saturday, August 31, 2013
Posted to General Law Related

Courts - Justice Ginsburg having a very fun summer!

Read Ruth Marcus' Washington Post column today. Some quotes:

In the hermetic world the justices inhabit, Ginsburg has launched a virtual press tour this summer, granting interviews to Reuters, the AP, USA Today, Bloomberg and the New York Times, with two can’t-miss messages.

The first is aimed at liberals: She’s not retiring anytime soon, thanks for asking. * * *

Ginsburg’s second message is even sharper: an unsparing critique of her conservative colleagues.

On the court’s Citizens United v. FEC ruling loosening campaign finance restrictions, she told Bloomberg: “People are appalled abroad. It’s a question I get asked all the time: Why should elections be determined by how much a candidate can spend and why should candidates spend most of their time these days raising the funds so that they will prevail in the next election?”

To the AP, Ginsburg all but called her fellow opera buff a hypocrite. “Scalia, who really takes after the court for taking over legislative turf in same-sex marriage, doesn’t make a whimper in voting rights, which passed 98 to nothing in the Senate and 330 to something in the House,” she said. “I didn’t put that to him, but surely he’s going to be asked the question, ‘How do you distinguish the two?’ ”

And to the Times, Ginsburg repeated her earlier charge that the supposedly conservative majority was in fact an activist one. “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” she said. “Stunning in terms of activism,” she said of the court’s decision striking down a key provision of the Voting Rights Act.

Justices tend to reserve their disagreements to the courtroom and the pages of their opinions and dissents. This is gloves-off language from a justice who still favors a pair of dainty lace ones.

Posted by Marcia Oddi on Saturday, August 31, 2013
Posted to Courts in general

Law - "Gay and Married Couples in New Land of Taxation "

Must-read, lengthy, clip and file article by Tara Siegel Bernard, personal finance reporter for the NY Times, detailing precisely how the new IRS rules will impact you, your clients, your employees. A sample from the introduction:

The Internal Revenue Service this week set down the rules that will cost or save a particular couple money. That will depend on how much they earn, whether both spouses are working, and whether, together, they earn too much to claim the same sort of tax-saving deductions and credits they did when they were filing as singles (many of which phase out as income rise).

The rules also begin to clarify how couples residing in the 37 states that do not sanction same-sex marriages will fare. (Warning: Filing state returns won’t be easy, but not so bad that you’ll consider moving.)

Gay couples can now plan for how their financial lives will change when it comes to federal taxes, even though big questions remain about benefits like Social Security and veterans’ benefits. The ruling applies to a broad range of tax rules where marriage comes into play, and some will result in major savings. Some couples will no longer have to pay thousands of dollars in taxes on the value of their spouse’s health insurance, something their opposite-sex peers did not have to pay. Individuals can inherit a spouse’s retirement account and other assets without any extra tax implications. Nonworking spouses will be able to open an I.R.A. on their spouse’s earnings record. And the list goes on.

Later in the article:
WHAT ABOUT STATE TAX RETURNS? If you live in a state that recognizes your union, your life just got much easier. Couples residing in places like California, Massachusetts or New York can file a joint federal tax return as well as a joint state return, just as opposite-sex couples do.

But it’s not entirely clear what will happen in each of the states that do not recognize same-sex marriage, experts said, since some states require that a taxpayer’s state return filing status mirror their federal return. “I love that state taxing authorities are having to wrestle with this,” said Patricia Cain, a professor at Santa Clara University School of Law and an expert on sexuality and federal tax law. “It does remain to be seen, but it is likely that you won’t be filing jointly at the state level” if your state does not recognize your union.

If that’s the case, filing your state tax return will become more cumbersome. Each spouse will probably need to fill out a dummy federal return as if they were filing on their own (either as single or head of household) and then transfer the information on that return to their state return, which also must be filled out as single or head of household, according to tax experts. “It will be awkward, it will be time-consuming, but not necessarily difficult,” said Nanette Lee Miller, who leads the lesbian, gay, bisexual and transgender practice at Marcum, an accounting firm.

Re civil unions:
OTHER TYPES OF UNIONS Couples in civil unions or domestic partnerships are not viewed as spouses in the eyes of the federal government, and they cannot file a joint federal return, even if their state permits them to file jointly, according to senior Treasury officials. If you live in a state that permits civil unions but not same-sex marriage, for instance, you need to get legally married to be treated as a spouse for federal tax purposes.

Posted by Marcia Oddi on Saturday, August 31, 2013
Posted to General Law Related

Friday, August 30, 2013

Courts - "Justice Ginsburg to officiate same-sex wedding"

Robert Barnes long story in the Washington Post begins:

Justice Ruth Bader Ginsburg will become the first Supreme Court member to conduct a same-sex marriage ceremony Saturday when she officiates at the Washington wedding of Kennedy Center President Michael M. Kaiser.

The gala wedding of Kaiser and economist John Roberts at the performing arts center brings together the nation’s highest court and the capital’s high society and will mark a new milepost in recognition of same-sex unions.

Posted by Marcia Oddi on Friday, August 30, 2013
Posted to Courts in general

Ind. Gov't. - "State board cuts public pensions"

Excellent story by Niki Kelly of the Fort Wayne Journal Gazette, from yesterday. It is a must read if you are in PERF or TRF.

Recall this ILB post from April 28th, which noted that Eric Bradner (then of the C&P, now at Politico) had given coverage to:

... an important development not mentioned in other stories, except in passing:
[Bradner reports] Among the last-day developments in the budget, Republican lawmakers dropped a proposal to cut Indiana public employees’ retirement benefits.

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

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

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

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

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

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

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

These proposed changes can be seen in the first CCR draft, available here, from pp. 127-138. The changes do not appear to apply to legislators' pensions, or those of other elected officials.
Well, Kelly's story yesterday could be labeled "Part 2." She writes:
INDIANAPOLIS – The state’s top pension official on Tuesday stood behind a move to cut Indiana public employees’ retirement benefits despite concern from affected employees and several Democratic lawmakers.

Legislators briefly considered a similar change to the Annuity Savings Account program on the last day of the session, when it was inserted in a final draft of the budget.

But after last-minute negotiations, House Speaker Brian Bosma removed the provision, saying there wasn’t adequate discussion about it beforehand and it needed to be considered in future public meetings.

Instead, the Indiana Public Retirement System used its authority in July to unilaterally alter the system without consulting the Pension Management Oversight Commission.

“This is a big decision that affects a lot of people,” said Sen. Karen Tallian, D-Portage, a member of the legislative oversight panel. “I don’t know what the fiscal impact is. I thought (the Pension Management Oversight Commission) would vet it.”

In Indiana, members of the Public Employees’ Retirement Fund and Teachers’ Retirement Fund have a hybrid system that consists of a defined benefit plan and an annuity savings account component.

When someone retires, the person can take the money built up in the ASA and cash out for a lump sum or annuitize it with the Indiana Public Retirement System to receive monthly annuity payments calculated with a 7.5 percent interest rate.

About 50 percent of retirees take the annuity option.

The interest rate is generous compared with the open market. But legislative fiscal leaders expressed concern.

Steve Russo, executive director of the Indiana Public Retirement System, said it doesn’t make sense to have a guaranteed interest rate on annuity payments that is higher than the rate of return for the fund’s assets.

So the Board of Trustees decided instead to privatize the annuity system with a third-party vendor using market-based rates. This reduces the risk for the state and public employers and places the risk on employees.

According to state pension staff, the current market rate would be in the range of 4.0 percent to 4.5 percent. That means a typical PERF member who chooses to annuitize an ASA would receive about $77 a month less; the typical TRF about $180 less a month.

This is a loss in expected income of between $924 and $2,100 a year.

But the change won’t affect current retirees who have chosen the annuity route.

The new system would go into effect July 1, 2014, meaning some public employees might be forced to retire earlier than expected to keep the more generous state rates.

Other less onerous options were on the table, but the pension board voted unanimously to make the transition to an outside vendor. Russo said the decision came after months of study and discussion by the board in several public meetings.

“We have and will continue to operate with full transparency,” he said.

Minutes from the June meeting where it was discussed showed unease by several unnamed board members. The vote was taken in July and those minutes are not yet available.

The Indiana State Teachers Association sent a letter to Bosma recently expressing concern that the change was made without legislative hearings, as was the understanding during the final hours of budget negotiation.

“In some cases, the difference is likely to be in the tens of thousands of dollars over the course of one’s retirement,” the letter said. “The annuity change is particularly troublesome and seemingly arbitrary.”

The teachers union also said the move by the pension board is effectively retroactive for teachers. That’s because they have already begun the school year, and even if they were going to retire at the end of the school year, their effective retirement date by law is July 1.

This means teachers could not avoid the annuity change.

Russo acknowledged the technical issue and said the board will change the effective date to Aug. 1.

Sen. Phil Boots, R-Crawfordsville, said he would accept public testimony at the September meeting of the Pension Management Oversight Commission.

But he repeatedly said the pension board acted within its authority – “my feeling is we should let (them) do their work.”

The Indiana Public Retirement System already put out a Request for Proposal for an annuity vendor and received only two official responses by the deadline. Russo said the board will reissue another RFP in the coming months.

“I recognize that something needed to take place,” said Rep. David Niezgodski, D-South Bend. “I don’t see why more time could not have taken. The legislature held back for greater transparency. You took it away from the realm of the legislature.”

Here is the website of the Pension Management Oversight Commission. They include the minutes of the August 27th meeting, which state this on p. 2:
Director Russo outlined recent changes that the INPRS board has made in regard to the annuitization of PERF and TRF members’ ASA balances upon or after retirement. Prior practice was to calculate these annuities using a 7.5% interest rate and outdated mortality tables. The INPRS board adopted a resolution in July 2013 to provide members ASA annuities at marketbased rates through a third-party annuity provider effective July 1, 2014. Director Russo indicated that he will ask the INPRS board to change this effective date to August 1, 2014, in order to accommodate retirement time frames under TRF.

Representative Niezgodski, Senator Tallian, Senator Boots, and Director Russo discussed this recent change to ASA annuitization. It was determined that this issue will be more thoroughly examined by the Commission and will include public testimony at the second Commission meeting.

Here is the meeting notice for the next meeting, set for Sept. 23rd.

[More]
Here is Tom LoBianco's AP story in the IndyStar:
Indiana lawmakers grilled the head of the state’s pension system Tuesday on a decision to push future retirees into a market-based system that could almost halve the amount they earn from annuity plans.

The Indiana Public Retirement System voted unanimously last month to change how much new retirees earn from their annuity savings accounts, or ASAs. The state currently allows retirees to return a lump-sum amount earned over their time working for the government to the pension fund, in return for guaranteed monthly payouts based on 7.5 percent of that lump sum.

More than half of the roughly 425,000 retirees enrolled in Indiana’s major pension plans, the public employee retirement fund and the teacher’s retirement fund are enrolled in the annuity plan. But employees who retire after July 1, 2014, would have to look to market-based rates and a sharp drop in that guaranteed money.

INPRS Executive Director Steve Russo told the panel the new payout would likely drop from 7.5 percent to a figure equaling the 10-year Treasury Note rates plus another 1.5 percentage points. The 10-year Treasury yield on Tuesday was listed at 2.75 percent, making the new payout likely 4.25 percent.

The pension board’s July vote followed a last-minute push by the Senate’s lead budget-writer, Luke Kenley, to end the annuity payouts over concerns the state could not afford them. But lawmakers, including House Speaker Brian Bosma, R-Indianapolis, said the decision needed a public vetting and pulled it from the state budget.

Democrats on the panel said they were caught off guard by the changes.

“This is a big decision that affects a lot of people” said Sen. Karen Tallian, D-Portage. “Frankly, I had expected that this was something that would be vetted before PMOC, at one or two meetings, rather than have you just come back and say, ‘Well, this is what we did.’”

But Russo pointed out the pension board’s meetings are open to the public and they have been discussing the change for more than a year.

“I have no doubt in my mind there was complete and utter transparency,” he said.

Russo said the board was concerned about the long-term viability of paying out 7.5 percent on the annuity plans when the state’s pension funds are only expected to earn 6.75 percent interest. However, according to the General Assembly’s legislative analysts, they are 100-percent funded.

Posted by Marcia Oddi on Friday, August 30, 2013
Posted to Indiana Government

Environment - 2013 Edition of Indiana Environmental Statutes now available!

This is the new, 2013 edition of the annual publication, the Indiana Environmental Statutes, that I edit and publish each year. The publication is sponsored by the Environmental Law Section of the Indiana State Bar Association.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 572 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Friday, August 30, 2013
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, an 8-page opinion, Sr. Judge Sharpnack writes:

The Evansville Courier & Press and Rita Ward asked the Vanderburgh County Health Department to give them access to death certificates. When their requests were denied, they alleged a violation of the Access to Public Records Act (“APRA”) and sought a trial court order compelling the Health Department to give them access. The court denied relief. Because our statutes indicate death certificates are public records that may be disclosed only in certain circumstances not present here, we affirm. * * *

[See the opinion for the court's statutory analysis]

We acknowledge the interest in using cause of death information to identify public health risks perhaps otherwise overlooked by public agencies. Nonetheless, we are not at liberty to ignore the legislature’s intent as demonstrated through its statutes.

A local health officer need only provide a death certificate to an applicant fulfilling the direct interest and necessity requirements of Section 16-37-1-8. As neither the Courier & Press nor Ward provided any information to make such a showing, the Health Department properly denied their requests. We therefore conclude the trial court did not err in denying the plaintiffs’ summary judgment motion and entering judgment in favor of the Health Department.

The ILB has had four entries about this challenge - access them here for background.

In Joshua Gomillia v. State of Indiana, an 8-page opinion by Judge Barnes that concludes:

Gomillia has not shown that the trial court abused its discretion in sentencing him. We affirm.
NFP civil opinions today (2):

In Re The Involuntary Termination of the Parent-Child Relationship of E.M., G.M., and L.M.: B.M. v. The Indiana Department of Child Services (NFP)

In Re The Marriage of Kathryn Y. Huffer and Charles C. Dorton, Kathryn Y. Huffer v. Charles C. Dorton (NFP)

NFP criminal opinions today (10):

Bianca Mosley v. State of Indiana (NFP)

In Re: Matter of L.R. v. State of Indiana (NFP)

Curtis Ray Brock v. State of Indiana (NFP)

Gary Napers v. State of Indiana (NFP)

Darrell Spillers v. State of Indiana (NFP)

William Temple v. State of Indiana (NFP)

Anthony Eugene Winder v. State of Indiana (NFP)

Lloyd Kirk v. State of Indiana (NFP)

Henry L. Newton v. State of Indiana (NFP)

Joseph A. Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 30, 2013
Posted to Ind. App.Ct. Decisions

Courts - "A Spectacularly Awful Week in Rape: When courts can’t get even the easy cases right, we’re in big trouble"

Outstanding Slate article by Dahlia Lithwick.

About half-way through, this paragraph:

Massachusetts is one of 31 states in which rapists are allowed to sue for child custody and visitation. Thirty-one. Last summer, after Rep. Todd Akin’s absurd claims about “legitimate rape,” Shauna Prewitt shared her harrowing story of becoming pregnant after a rape, then dealing with her rapist’s efforts to gain custody of their daughter. In a law review article published in the Georgetown Law Journal in 2010, Prewitt argued for legislation that would protect the estimated 30 percent of women who opt to keep pregnancies that result from rape, noting that in most states, “a man who fathers through rape has the same custody and visitation privileges to that child as does any other father of a child.” As a consequence, a mother will usually bargain away her legal rights in the interest of creating a distance between herself and her attacker. In a legal moment at which we are talking about amending statutory language to say “forcible rape,” it’s worth wondering how it is even possible that we live in a country in which most states privilege the rapist’s right to access his child over the mother’s right to be left alone.
See also these two ILB posts from 2012: [More] Sentencing Law Blog has a post on the Montana rape sentencing controversy.

[More] ILB reader Don Shively, of the DeKalb County Prosecutor's Office, has sent this note:

Has anyone pointed out Indiana at least has IC 31-19-9-8(a)(4)? (consent of certain sex offenders not required for adoption of child resulting from criminal act). It's been 17 years since I've been in private practice, but that's a statute I've ALWAYS been sure to make victims I'm working with aware of...."

Posted by Marcia Oddi on Friday, August 30, 2013
Posted to Courts in general

Thursday, August 29, 2013

Law - More on "Same-sex couples will get federal tax recognition"

Good points in this Advance Indiana post on the Indiana implications of today's IRS ruling, including:

The move by the IRS also puts the Indiana Department of Revenue and Gov. Mike Pence in a precarious situation if the state doesn't adopt a similar rule. The Indiana income tax is coupled with the federal income tax. If Indiana does not treat legally married same-sex couples the same way as the federal law, state income tax compliance for same-sex couples will become highly complicated. In light of today's ruling, the Indiana Chamber of Commerce may have to reconsider whether it remains neutral in the gay marriage debate opponents have vowed to renew when the legislature convenes next year.
See also this Volokh Conspiracy post by Will Baude that begins:
Today the Treasury department announced that it will recognize all same-sex marriages valid in the “place of celebration” regardless of where the couple now lives.

Posted by Marcia Oddi on Thursday, August 29, 2013
Posted to General Law Related

Law - "Same-sex couples will get federal tax recognition" [Updated]

According to a Politico story by Lauren French:

The Treasury Department and IRS announced on Thursday that legally married same-sex couples will receive the same tax treatment and benefits as heterosexual couples, a decision that follows the Supreme Court ruling this summer that overturned the Defense of Marriage Act.

This tax treatment will apply even if a gay couple lives in a state that does not recognize same-sex marriage so long as they were married in a state that does. * * *

The ruling does not apply to domestic partnerships, civil unions or other formal relationships that may be recognized under state law.

The IRS and Treasury also ruled that same-sex couples are entitled to amend some past tax returns to reflect their marriage.

ILB: See the ILB observations about "civil unions after the Windsor decision" in this Aug. 25th ILB entry.

[Updated at 3:19 PM] Here is the full, detailed news release from Treasury, with links to guidance, etc., definitely worth reviewing. For example: "Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations. * * * [R]efund claims can still be filed for tax years 2010, 2011, and 2012."

[And from HHS] "Today, the Department of Health and Human Services (HHS) issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives. This is the first guidance issued by HHS in response to the recent Supreme Court ruling, which held section 3 of the Defense of Marriage Act unconstitutional."

Posted by Marcia Oddi on Thursday, August 29, 2013
Posted to General Law Related

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

For publication opinions today (2):

In In the Matter of the Trust of Dorothy Rhoades; Robert Kutchinski and Shelia Graves, f/k/a Shelia Kutchinski v. Joseph Strazzante and Monty Strazzante, Co-Trustees, a 21-page opinion, Judge Pyle writes:

Issue. Whether the trial court erred by granting summary judgment to Joseph and Monty on the issues of testamentary capacity and undue influence. * * *

The state of Dorothy’s mind at the time she amended the Trust and other estate documents involves a fact-specific analysis that does not lend itself to summary judgment. Construing the facts and reasonable inferences in favor of Robert as the nonmoving party, we conclude that there is a genuine issue of material fact regarding whether Dorothy was of sound mind at the time she executed the amendments at issue. Accordingly, we conclude that the issue of testamentary capacity is a question of fact for a jury to determine and that the trial court erred by granting summary judgment on this issue. * * *

Because we have determined that there is an issue of material fact regarding testamentary capacity, we conclude that summary judgment was also not appropriate on the issue of undue influence. * * *

Reversed and remanded.

In Ruth Sheek v. Mark A Morin Logging, Inc., a 17-page opinion, Judge Vaidik writes:
Ruth Sheek, who owned fifty-three wooded acres in Brown County, Indiana, entered into a contract with a logging company to have specific trees cut down. When Ruth realized the severity of the damage being done to her property during the timber-harvest process, she stopped the entire operation. The logging company performed some remediation work, but damage to Ruth’s property still remained. Ruth sued for breach of contract, and the logging company counterclaimed for breach of contract. The trial court awarded Ruth $55,572.50 in damages.

Ruth appeals arguing that the trial court used the wrong measure of damages for the injury to her real property and that the court erred by reducing her damages by the value of the unharvested trees the loggers left on her property. Because the record shows that the damage to Ruth’s property is temporary rather than permanent, the trial court properly used the cost of repair, and not the difference between the market value before and after the injury, to calculate the damages. We also conclude that, because Ruth was paid for all the trees and the loggers left behind $4000 in unharvested trees, the trial court properly reduced Ruth’s damages by $4000 to avoid a windfall. We therefore affirm the trial court.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Troy A. Schnitz v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 29, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Iowa governor declines comment on 'inappropriate' judicial questions"

This long story from the DesMoines Register, reported by Jason Clayworth, begins:

Gov. Terry Branstad has declined comment about two of his judicial nominating appointees who publicly asked questions to judicial applicants about covenant vows and church involvement.

And that silence is unfortunate because it could help maintain the integrity of Iowa’s judicial selection process, critics contend.

“I think it would be wise for the govern to basically say ‘Let’s clearly understand the parameters of what the judicial nominating commission is supposed to be seeking,’” said Jeff Angelo, a former senator who is now chairman of the group Republicans for Freedom, which advocates for individual liberty in marriage rights for same-sex couples.

Angelo continued: “It doesn’t surprise me he declined comment because he’s not a micro manager but at the same time I would guess he hopes this is an isolated incident that sort of resolves itself.”

The Register asked Branstad Tuesday to respond to questions about the issue. Today Tim Albrecht, a spokesman for the governor, said the governor is declining to speak about the issue.

The questions were made last week to two of 22 candidates seeking to become a judge on the Iowa Court of Appeals.

The question about covenant vows was made from nominating commissioner Scott Bailey, a vice president of the Network of Iowa Christian Home Educators from Otley, to Jeanie Vaudt, an assistant Iowa attorney general.

The question about church involvement came from nominating commissioner Elizabeth Doll of Council Bluffs, who asked applicant Jennifer Miller to “comment on her methodology of choosing a place of worship.”

Critics contend those types of questions are inappropriate and pollute the separation of church and state.

There are videos of two of the applicants responding to questions.

Posted by Marcia Oddi on Thursday, August 29, 2013
Posted to Courts in general

Ind. Courts - "Courts need to treat conflicts as other professions do"

John Krull, executive editor, TheStatehouseFile, posted this commentary this morning. It could serve as a companion piece to the ILB's post yesterday on the absence of a the standard for Indiana Supreme Court recusal.

INDIANAPOLIS – A prominent politician once told me a story about a friend of his who became a judge.

That friend, the politician said, had been a regular guy until he got elevated to the bench.

“Then he started acting like a judge, like a lot of them,” the politician said. “A lot of them start forgetting that they’re human beings just like the rest of us once they’ve been wearing those robes for a while.”

I’ve thought about that conversation as the controversy over Indiana Supreme Court Justice Mark Massa has played out.

A few days ago, a collection of environmental groups requested that Massa recuse himself from litigation involved with the Rockport coal-to-synthetic gas project because he had conflicts of interest. The conflicts in question came from his long friendship with Rockport project spearhead Mark Lubbers – who gave Massa his first job, spoke at the justice’s investiture on the Supreme Court and served with him as senior staff for Gov. Mitch Daniels – and from his work as chief counsel for Daniels, who strongly supported the project.

Massa responded within hours and denied the request. He said that his friendship with Lubbers was of no great consequence and that his time as Daniels’ top lawyer gave him no extrajudicial knowledge of the project.

Critics, including me, offered responses to Massa’s decision that ranged from derisive to scathing.

Since then Massa’s supporters have offered defenses of the justice’s refusal to recuse.

Perhaps the most thoughtful came in the form of a letter to the editor I saw in The Indianapolis Star. It was written by former state Supreme Court Justice Frank Sullivan, now a professor at Indiana University’s Robert H. McKinney School of Law.

Sullivan said that Massa was right to refuse to recuse himself for some interesting reasons.

Sullivan argued that the legal team for the environmental groups, which oppose the Rockport project, thought they would secure an advantage by having Massa removed from the suit. That may be true, but that argument also cuts the other way. If Massa does have a bias, then proponents for the plant gain an advantage by having the justice stay involved.

Perhaps that’s why Sullivan went to another argument – one that’s become increasingly popular among members of the judicial branch. He said that judges are used to rising above conflicts of interest and that such considerations really don’t apply to them.

It’s a defense made popular by U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas. In Scalia’s case, he’s used to that argument to excuse palling around with former Vice President Dick Cheney when matters concerning Cheney have been before the court. In Thomas’s case, it’s used to defend his participation involving issues dear to the tea party when his wife is lobbying for the group.

Again, this is an argument that could be applied to elected public officials or even journalists –that they have a special ability to rise above ordinary human considerations of friendship, loyalty or even self-interest to simply do their duty.

But here’s the thing: Most other professions have stricter codes of conduct than the standard Massa, Sullivan, Scalia and Thomas are advancing for members of the bench.

News organizations take steps to prevent reporters from covering stories that involve people or organizations with whom they have close or financial relationships – and certainly not without some acknowledgment of the potential for bias and some safeguard that the bias wouldn’t affect the reporting.

The reason news organizations have those rules in place is that they recognize that journalists, like politicians, businesspeople, lawyers and, yes, judges, are human beings. That’s why it’s wise not to put them in situations in which their personal interests might conflict with their duty.

And that raises an interesting question: Do we, as citizens, think it’s wise for judges to observe laxer standards in regard to conflicts of interest than most journalists do?

Or, to rephrase the question the way my politician would, do we want to continue to pretend that judges really aren’t human beings like the rest of us?

Posted by Marcia Oddi on Thursday, August 29, 2013
Posted to Indiana Courts

Wednesday, August 28, 2013

Ind. Decisions - "Indiana court clarifies rules for expunging record" NOT! [Updated]

I keep reading that headline to this very brief AP story and I believe it is wrong! The ruling, read it, in Alec Lucas v. State of Indiana, applies to ("clarifies") the now repealed expungement provision, IC 35-38-5-5.5.

[Update 8-29-13 at 9 AM] The content of the AP story has since been updated. Unfortunately reporters are generally not responsible for the headlines, and the headline here remains.]

Posted by Marcia Oddi on Wednesday, August 28, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Where is the recusal bar in Indiana - and does it vary from justice to justice?

Citizen confidence in the judiciary is eroded when the bar standard for recusal is unclear and seems to vary from justice to justice.

Only very rarely is a decision to recuse explained by a Supreme Court justice in Indiana. C.J. Shepard's Mike Tyson v. State recusal order is one instance. Justice Rucker's recusal order in Wilkins is another.

Equally rarely is the refusal to recuse explained by a justice. In addition to J. Massa's order earlier this month, the ILB has located only one such order. It was written by Justice Boehm in 2003, in Peterson v. Borst, the case challenging the 2002 Marion County redistricting.[1]

Justice Massa's order denying a motion to recuse in the Rockport coal gasification case, begins:

The moving parties make two arguments in support of their request. First, they claim my personal friendship with Mark Lubbers, the Indiana Project Manager for the investment group seeking to build the coal gasification plant at the heart of this regulatory and legal controversy, casts doubt on my impartiality. Second, they assert I was “exposed” to “extrajudicial information” regarding the statute at issue in this case during my tenure as General Counsel for Governor Mitch Daniels.
Massa quicky dismisses the first claim of "personal friendship", writing:
In recent years, our Court has been blessed with the services of Justices Boehm and Sullivan, who before taking the bench were hired at two of the state’s leading law firms whose lawyers often appeared before our Court. Both Justices routinely heard appeals argued by lawyers from those firms without any suggestion of recusal. Nor is it unusual for us to hear cases argued by lawyers we hired as law clerks before they entered appellate practice.

As for the second claim ("extrajudicial information"), Massa writes:

The movants also allege that I cannot hear this case because I once worked for Governor Daniels, a supporter of the project. But as Justice Boehm explained in Peterson v. Borst, 784 N.E.2d 934, 936 (Ind. 2003), “all Justices on this Court were appointed by the Governor. In every case the appointing Governor has selected someone with at least some history of support for the Governor’s political party." * * *

During my four-year tenure as General Counsel, I did oversee a team of lawyers who reviewed enacted legislation for constitutionality before the bills were presented to the Governor for signature. (Other policy aides provided more substantive review and advice.) Therefore, I would have reviewed the enabling legislation for that purpose, but I have no independent recollection of having done so, as Governor Daniels signed 757 separate pieces of legislation during my tenure.[2]

Massa concludes by pointing out that "even one unnecessary recusal impairs the functioning of the Court" and "Here, the moving parties can do the appellate math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the Court split and winning the tie."

Last Sunday's Indianapolis Star included an opinion letter from former Justice Frank Sullivan, titled "Mark Massa right not to step aside in coal gasification case". The first half of the letter speaks of "a lawyer representing certain environmental groups" trying to "knock off a justice" so that they needed only two, rather than three votes to win. The letter continues:

With this in mind, a Florida lawyer[3] representing the environmental groups formally asked Justice Massa not to participate in the case because of his long-standing friendship with Mark Lubbers, a former aide to Sen. Richard Lugar, Gov. Robert Orr, and Gov. Mitch Daniels. Lubbers is now a senior Indiana Gasification executive.

Justice Massa has explained in a carefully reasoned statement that he will participate in the case. His decision to participate is correct as a matter of both law and common sense.

First, the Indiana judicial ethics code requires judges to decide the lawsuits in their courts unless prohibited from doing so. Judges can’t duck cases. Nor can the litigants choose their judges.

Second, judges are prohibited from deciding cases only when “an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality.” Justice Massa’s friendship with Lubbers does not create a reasonable basis for doubting his impartiality in these circumstances.

All successful people stand on the shoulders of others but loyalty and appreciation to them is not blind. This is particularly true of judges who on a daily basis must rule in cases involving lawyers who are their friends, mentors and supporters. For a judge not to be impartial in such circumstances would demean the very basis of that friendship, mentorship and support.

We can be confident that whatever decision Justice Massa reaches in the Indiana Gasification case, it will be based on the law and the proven facts – and without consideration of any professional or personal relationship with any individual involved in the case.

Interestingly, Justice Sullivan himself recused from approximately 36 decisions during his tenure on the Supreme Court.[4]

As is the tradition where recusal is on the justice's own initiative, J. Sullivan gave no reason in any of his recusals. Frank Sullivan served as Gov. Bayh's state budget director for a number of years, and then was appointed to the Supreme Court by Bayh. Prior to that, in the early 80s, he was an attorney at Barnes & Thornburg. Sullivan's wife worked in state government during much of his tenure on the bench, including as head of FSSA.

To many it might appear that Sullivan's connections to his recusal cases were more tenuous than Massa's connection to the Rockport case. For example, Sullivan's wife likely had little or no knowledge about a county-level termination of parental rights case, and he probably had absolutely no knowledge of it.

A quick glance at recusals by other long-serving Indiana justices show roughly: Dickson, 22; Rucker, 14; Shepard, 43 - with no explanation. This makes it difficult for the public, and even for other justices to know what the bar is.

Finally, Justice Massa writes the Rockport opponents "would only have to convince two judges to prevail, leaving the Court split and winning the tie." Sullivan points to this in his letter of support, writing: "And it takes three votes to reverse a decision of the Court of Appeals. So if the environmental groups can knock a justice off the case, they only need two votes instead of three to win."

This is true, but it should not be the rationale for a justice to remain on a case to which the justice has a substantial connection. And it wasn't for Justice Sullivan in 2011, where unaccountably, he recused in the case of City of Greenwood v. Town of Bargersville. As this ILB post at the time points out, Justice Sullivan had recused himself on the day of the oral argument, January 20, 2011. On Jan. 29, when the remaining justices split 2-2, Appellate Rule 58C kicked in and the Court of Appeals decision was reinstated.

It also wasn't in Tyson, where CJ Shepard recused before the vote on the petition for transfer; a 2-2 split among the remaining justices meant that Tyson's transfer petition was denied.

And it certainly wasn't in the Wilkins disciplinary matter, Justice Rucker had been completely unaware that he had "served on the underlying Court of Appeals panel. Neither before the hearing officer nor in his petition to this court for review of the hearing officer's determination did respondent ever mention that I served on the panel."

Nonetheless, I acknowledge that the question is not whether I personally believe I have been impartial. Rather, it is whether a "reasonable person aware of all the circumstances" would question my impartiality. * * * In this case there is a possibility, particularly outside of the legal community, that my impartiality could be questioned. See, e.g., United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995) (noting that the average person on the street as "an observer of our judicial system is less likely to credit judges' impartiality than the judiciary"); In re Mason, 916 F.2d 384, 386 (7th Cir.1990) (observing that a lay observer would be less inclined to credit a judge's impartiality than other members of the judiciary). Because a judge has a duty to promote public confidence in the impartiality of the judiciary, Tyson, 622 N.E.2d at 459, and because "[c]oncerns about public confidence in the judicial system" underlie Canon 3, id., out of an abundance of caution I therefore recuse myself from further involvement in this case. And I do so effective immediately declining respondent's request to consider first his petition for rehearing now pending before this Court.
After Rucker's recusal, the remaining members of the Court in 2003 issued a disciplinary action on petition for rehearing with this conclusion:
SHEPARD, C.J., concurs; BOEHM, J., concurs in result with separate opinion[5]; RUCKER, J., not participating; SULLIVAN, J., dissents, believing respondent's conduct was speech protected by the First Amendment and so no sanction is permissible.
It is difficult, if not impossible, to reconcile Justice Massa's refusal to recuse with Chief Justice Shepard's recusal in Tyson or Justice Rucker's recusal in Wilkins. Although recusal opinions are not opinions of the Court but merely the opinion of one justice, litigants, lawyers, and citizens are understandably troubled when the standard is applied in such widely varied ways. Finally, as we have seen, this handful of recusal opinions is the exception, in scores of cases there is only the notation, "did not participate."

The oral argument in Indiana Gas Company, Inc. v. Indiana Finance Authority is set for Thursday, September 5th at 9 AM. See this ILB post for more information.

__________________
[1] Some quotes from Boehm's order denying the motion to recuse:

The stated ground for the motion is that in November, 2001 I was appointed by the Mayor of the City of Indianapolis as a member and chair of a newly created Cultural Development Commission (CDC). At the outset, let me state that if I agreed with the motion, I would resign from the CDC, not recuse in this case. For the reasons stated, I do not believe I need to take that step.
[2] However, the bill received much notoriety during the 2009 session. See this March 25, 2009 ILB post, headed "Governor signs first bill of 2009 session."

[3] Re the "Florida lawyer" the ILB has received this note from a reader: "A number of responses to the issue regarding Justice Massa's recusal refusal have made reference to a 'Florida lawyer' making the request for Justice Massa's recusal. The lawyer in question is Jerry Polk, who is a longtime Indiana practitioner representing the Citizen's Action Coalition. He only relocated to Florida in the last year or so. Not that there's anything wrong with being a Florida lawyer."

[4] The ILB used Google Scholar and searched for "sullivan, j., not participating" and "sullivan, j., did not participate". (Appellate opinions and duplicates were excluded.) For comparative purposes, additional searches were conducted, using other justices names, but these were limited to the "not participating" form. Additional research could increase the count.

[5] In which J. Boehm explained: "The votes of the Chief Justice and Justice Dickson are to grant rehearing as to the sanction only, and to impose a public reprimand. Justice Sullivan and I would vote for no sanction at all. But if neither of us joins in the result reached by Justice Dickson and the Chief Justice, we have no majority to grant rehearing as to any aspect of the original opinion and Wilkins' thirty-day suspension stands."

Posted by Marcia Oddi on Wednesday, August 28, 2013
Posted to Indiana Courts

About this blog - ILB on vacation!

The ILB will be off until Tuesday, Sept. 3, although there may be some sporadic posts.

But don't leave just yet, later this afternoon, look for an ILB commentary on recusal.

Posted by Marcia Oddi on Wednesday, August 28, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 0 today (and 13 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Re The Guardianship of K.S., S.E., v. K.B. (NFP)

Dennis Watson v. Michael Abraham, d/b/a Abraham Custom Paint Studio (NFP)

NFP criminal opinions today (11):

Kenneth Compton v. State of Indiana (NFP)

Christopher C. Anderson v. State of Indiana (NFP)

Oscar Eduardo Perez v. State of Indiana (NFP)

Hakuru Simaha v. State of Indiana (NFP)

Jamel Douglas Gilbert v. State of Indiana (NFP)

Dana L. Bering v. State of Indiana (NFP)

Charles Settles v. State of Indiana (NFP)

Teresa Smith v. State of Indiana (NFP)

Michael Pace v. State of Indiana (NFP)

Anthony Owens v. State of Indiana (NFP)

Terry E. Pearsall v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 28, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 3 today

In Mary Elizabeth Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, Individually and d/b/a Super 8 Motel, a 16-page, 5-0 opinion, Justice Rucker writes:

In this negligence case we address the application of Indiana’s Comparative Fault Act to the issue of fault allocation in a specific context: that in which a premises owner has a duty to protect a business invitee from the foreseeable criminal act of a third party. * * *

We affirm the judgment of the trial court.

In Juan M. Garrett v. State of Indiana, a 19-page opinion with a separate concurring opinion, Justice Rucker writes:
We hold that the “actual evidence” test announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal. * * *

Conclusion. Garrett has failed to show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Therefore we affirm the post-conviction court’s judgment.

Dickson, C.J., and David and Rush, JJ., conur.
Massa, J., concurs in result. [beginning on p. 18 of 19] I agree that, for reasons clearly stated in Part III of the Court’s opinion, the post-conviction court properly denied Garrett’s ineffectiveness claim; thus, I concur in result. I do not, however, share my colleagues’ belief that “there is a reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial,” and therefore I cannot join the Court’s conclusion “that Garrett was twice prosecuted for the same offense in violation of Article 1, Section 14 of the Indiana Constitution.”

In State of Indiana v. Russell Oney, a 12-page, 5-0 opinion, Justice Rucker writes:
Although a defendant who pleads guilty to driving while suspended as a habitual traffic violator may not later challenge the plea contending that an underlying offense has been set aside on grounds of procedural error, a defendant may be entitled to relief where an underlying offense has been set aside on grounds of material error.

Posted by Marcia Oddi on Wednesday, August 28, 2013
Posted to Ind. Sup.Ct. Decisions

Tuesday, August 27, 2013

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

For publication opinions today (2):

In Consolidated Insurance Company v. National Water Services, LLC., a 14-page opinion, Judge Brown writes:

In this interlocutory appeal, Consolidated Insurance Company (“CIC”) appeals from the denial of its motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) in favor of National Water Services, LLC (“NWS”). CIC raises one issue which we revise and restate as whether the court erred in denying its motion for judgment on the pleadings. We reverse and remand. * * *

The situation presented by the instant case is not unlike those in Hockelberg, Meek, and Adkins. Again, the relevant subrogation clause found in Paragraph 19 states: “You must transfer to us all your rights of recovery against any person or organization for any loss you sustained and for which we have paid or settled. You must also do everything necessary to secure those rights and do nothing after loss to impair them.” Appellant’s Appendix at 20. This language is substantially similar to that in the cases discussed above. Also, just as in those cases, here NWS settled with Arnold and, in so doing, executed the Release which released Arnold “for all claims which [NWS] has or could have asserted, known and unknown, arising out of the employment of Arnold by NWS both as an employee and an independent contractor.” Id. at 49. This Release “after loss” destroyed CIC’s right of subrogation and was a breach of contract on NWS’s part, therefore discharging CIC from obligation under the Policy to provide coverage. Accordingly, we conclude that the court erred when it denied CIC’s motion for judgment on the pleadings.

In Alec Lucas v. State of Indiana, a 7-page opinion, Judge Crone writes:
In 2011, Lucas was charged with several criminal offenses, some of which were dismissed pursuant to a plea agreement. He later filed a petition pursuant to Indiana Code Section 35-38-5-5.5 to restrict access to his arrest records for the dismissed charges. The trial court denied the petition, concluding that the statute does not apply to cases where some, but not all, charges are dismissed pursuant to a plea agreement. Lucas now appeals, arguing that the trial court misinterpreted the statute. While the statute is not a model of clarity, we conclude that it was intended to apply to any dismissed charge and not just in cases where all charges have been dismissed. * * *

Public Law Number 159-2013, effective July 1, 2013, repealed Section 35-38-5-5.5 and created a new Chapter 35-38-9, titled “Sealing and Expunging Conviction Records.” New Section 35-38-9-1 allows a person to petition a court to seal arrest records if: “(1) the arrest did not result in a conviction or juvenile adjudication; or (2) the arrest resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal.” This new statute does not appear to be a clarification of the old statute, but rather a shift from focus on the disposition of individual charges to whether the arrest ultimately resulted in a conviction. The trial court’s approach, however, was more consistent with the new statute than with the statute in effect at the time. We conclude that the trial court erred in concluding that Section 35-38-5-5.5 does not apply to cases where some, but not all, charges are dismissed. As there does not appear to be any other basis in the statute for denying Lucas’s petition, we reverse and remand with instructions for the trial court to grant the petition and issue an order pursuant to Section 35-38-5-5.5(i).

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: A.S.(Minor Child), and B.R.(Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Gregory Eve v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 27, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re Tort Claims Act

In John W. Schoettmer & Karen Schoettmer v. Jolene C. Wright & South Central Community Action Program, Inc., a 10-page, 5-0 opinion, Justice Massa writes:

After he was injured in an automobile accident, John Schoettmer cooperated with the other driver’s insurer in hopes of settling his claim. Nearly a year later, when settlement proved elusive, he hired a lawyer and filed suit. Only then did he learn that the other driver was employed by a political subdivision subject to the Indiana Tort Claims Act. Schoettmer cited several reasons to excuse his failure to comply with the notice requirements of that Act, including waiver, substantial compliance, agency, and estoppel. We find the first three unavailing, but conclude he should be permitted to present proof of estoppel to the trial court, and we reverse and remand on that basis. * * *

The trial court ultimately granted summary judgment in the defendants’ favor. The Schoettmers appealed, raising the same arguments they brought up in the trial court. A divided panel of our Court of Appeals rejected all of these arguments and affirmed the trial court. Schoettmer v. Wright, 971 N.E.2d 118, 120 (Ind. Ct. App. 2012). Judge Crone dissented, believing “South Central should be estopped from asserting the Schoettmers’ noncompliance with the ITCA.” * * *

Conclusion. We therefore reverse the trial court’s grant of summary judgment in the defendants’ favor as to the adequacy of the Schoettmers’ tort claim notice and remand this case for further proceedings consistent with our opinion.

Posted by Marcia Oddi on Tuesday, August 27, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "William Gibson's first murder trial on track to start in October in Floyd County"

This August 16th ILB entry, headed "Camm Trial Could Raise Floyd County Taxes," quoted from a WIBC story:

[Floyd County] has already spent over $1.4 million on the third Camm trial alone and has also allotted some funds for the prosecution of William Clyde Gibson, who is facing a capital murder trial this fall.
Today, Grace Schneider reports in the Louisville Courier Journal:
After they file motions and hold a final hearing for oral arguments early next month, lawyers expect to be ready — after two continuances — to start the first of William Gibson’s three murder trials in New Albany.

During a pretrial hearing Monday morning in Floyd Superior Court, prosecutors and two of Gibson’s public defenders checked calendars and confirmed dates for holding oral arguments Sept. 6 and choosing jurors starting Sept. 21 in Dearborn County.

Gibson was arrested in April 2012 and charged in the slayings of family friend Christine Whitis, 75, of Clarksville; Stephanie Kirk, 35, of Charlestown; and Karen Hodella, 44, of Port Orange, Fla. * * *

Gibson, 55, is to stand trial first in Whitis’ murder and early next year in Kirk’s death. Both are capital murder cases. Floyd County Prosecutor Keith Henderson is not seeking the death penalty in Hodella’s death.

At Monday’s hearing, Gibson sat quietly and listened as Floyd Superior Judge Susan Orth ran through several dates, with the trial starting Oct. 21 with sequestered jurors from Dearborn. * * *

Jurors are being selected in Dearborn, across the Ohio River from Northern Kentucky and near Cincinnati, to ensure a fair trial. Jurors will be brought to New Albany and sequestered during a trial that Henderson estimated could last at least two to three weeks.

Here are some earlier ILB entries on Gibson.

Posted by Marcia Oddi on Tuesday, August 27, 2013
Posted to Indiana Courts

Ind. Law - "2 minors rewarded for helping fellow drinker"

Bok Blake reports in the South Bend Tribune about a case of the Indiana "lifeline law" in operation:

SOUTH BEND -- A loud noise complaint at a South Bend townhome community led to more than two dozen underage drinking citations early Sunday.

Two people, however, avoided citations by helping a friend who was severely intoxicated get medical assistance, according to the Indiana State Excise Police.

St. Joseph County police were called to Irish Crossings Townhomes around 1 a.m. Sunday. Upon arrival, deputies found several people jumping off a balcony and running.

According to a release from the excise police, as excise officers were citing an 18-year-old woman and a 20-year-old woman for illegal consumption, among other charges, two minors walked outside carrying a severely intoxicated 22-year-old woman.

Police said the two minors admitted to being underage and drinking but wanted to get medical assistance for the woman. The woman was taken to Memorial Hospital of South Bend for treatment.

The two minors who brought the severely intoxicated woman to the officers’ attention were not cited and were released at the scene.

According to the excise police, Indiana’s new “lifeline law” provides immunity for certain alcohol-related offenses for someone who calls for medical assistance for someone else and then remains at the scene and cooperates with authorities.

ILB: Here is a website with information on the lifeline law.

Posted by Marcia Oddi on Tuesday, August 27, 2013
Posted to Indiana Law

Ind. Courts - "Supreme Court could echo Idaho ruling in RailCats foul ball lawsuit"

On August 19th the Supreme Court granted transfer in the case of South Shore Baseball, LLC, d/b/a Gary South Shore Railcats v. Juanita DeJesus.

In today's NWI Times Dan Carden writes in a story that begins:

INDIANAPOLIS | A recent decision by the Idaho Supreme Court could help a region woman partially blinded after being struck by a foul ball at a 2009 RailCats game convince the Indiana Supreme Court to allow her to sue the baseball team.

In a February ruling featuring eerily similar facts, the five Idaho justices became the first court in the nation to reject the "Baseball Rule," which generally provides that a team is not liable for spectator injuries caused by the game if the team provides screened seating behind home plate.

Bud Rountree lost an eye after a foul ball struck him while he was talking with another fan and not paying attention to the game in the unscreened Executive Club section of the Boise Hawks stadium.

The Idaho Supreme Court agreed that Rountree should be permitted to sue the team because the Idaho Legislature is best suited to determine the extent to which baseball teams have a duty to protect their fans, and Idaho lawmakers have yet to limit that liability.

"Here, whether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury," wrote Idaho Justice Jim Jones.

The Indiana Supreme Court last week agreed to review an appeals court ruling that prohibited Juanita DeJesus from suing the RailCats. Lake Superior Judge Calvin Hawkins initially allowed her lawsuit to proceed.

The appeals court said no trial was needed because DeJesus was warned three times by the RailCats about the danger of foul balls and chose not to buy seats behind the screen at home plate.

Like Idaho, the Indiana General Assembly has never decided whether a baseball team can be held liable for spectator injuries. Illinois law explicitly prohibits baseball fans from suing teams for game-caused injuries in nearly all circumstances.

ILB: In the Feb. 15th Court of Appeals opinion, now vacated, the COA relied on a 2011 Indiana decision involving injury on a golf course, Pfenning v. Lineman:
In Pfenning, the Indiana Supreme Court recognized that the potential to be hit by an errant shot is a risk inherent to being on a golf course and held that the risk of a person on a golf course being struck by a golf ball does not qualify as the “unreasonable risk of harm” referred to in the first two components of the Burrell three-factor test relating to liability under a theory of premises liability. 947 N.E.2d at 407. We believe the same reasoning can be applied to baseball.

Posted by Marcia Oddi on Tuesday, August 27, 2013
Posted to Indiana Courts

Monday, August 26, 2013

Ind. Courts - More on: Commission on Judicial Qualifications has filed disciplinary charges against the Judge Kimberly J. Brown of the Marion Superior Court

Updating this ILB entry from earlier today, Tim Evans and Marisa Kwiatkowski now have posted an expanded story with much more information, including:

Brown defied the Marion County Democrat Party in her bid for a seat on the bench, running against the party-slated candidates and winning the nomination in the 2008 primary election.

The judge is a 1980 graduate of Broad Ripple High School, according to the response she submitted to a candidate questionnaire from The Star in 2006 when she was seeking re-election as judge of the Washington Township Small Claims Court. She earned an undergraduate degree from Purdue University in 1986 and her law degree in 1991 from the Indiana University School of Law-Indianapolis.

Brown said she previously had worked as an attorney in private practice, judge pro tem in Center Township Small Claims Court, deputy attorney general, and commissioner in Marion County Probate Court.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Courts

Ind. Decisions - More on: Marion Sup. Ct. Court issues an Order Issuing Judicial Redistricting Plan and Order Entering Final Judgment [Updated]

Updating this ILB post from earlier this afternoon, Jon Murray, IndyStar, has now posted a story - here are some quotes:

A Maryland-based consultant drew the new boundaries. On April 16, the court appointed Fred Hejazi, CEO of Citygate GIS in Annapolis.

The ruling says the only factors considered in drawing the new boundaries were making them nearly equal in population, keeping them compact and ensuring that none crossed precinct lines. Welch wrote that no political considerations were used. The court didn’t review the Republican-backed plan, which the outgoing GOP-led council passed in 2011, or the new Democratic majority’s proposed maps from last year, the ruling says.

“This court’s plan was drawn with the (assistance) of a neutral master and was drawn with strict neutrality, without consideration of party affiliation or incumbency,” Welch wrote.

Still, it’s possible the court’s map could be suspended or altered by the Indiana Supreme Court.

Hejazi’s fee for the work is $6,000. The local court today ordered the council and the mayor’s office to split that cost. That sum is a fraction of the $50,000 paid to an attorney last year by the Democratic council and the $175,000 spent by the Republican council in 2011 as part of a larger $225,000 contract.

[Updated at 6:45 PM] Jon Murray's story has been updated several times now, with new analysis of the impact of the redistricting. For example:
The Indianapolis Star’s review found five districts that would pit two incumbent district members against each other. And one new Southside district is home to three incumbents: Democrat Frank Mascari and Republicans Jack Sandlin and Jefferson Shreve.

Six districts would have no incumbents under the court’s plan. * * *

Another wild card affecting any map is that the council’s four at-large members — currently Democrats — will lose their seats after the 2015 election because of legislation passed this year by the General Assembly. So those members could seek district seats as well.

The Star story now also includes a link to the Marion Superior Court Redistricting Order.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Ind. Trial Ct. Decisions

Courts - More on "Unusual Law Clerk Hire for D.C. Circuit Judge Janice Rogers Brown"

Updating this ILB entry from August 7th, Adam Liptak of the NY Times now has a long, very interesting article on Shon R. Hopwood, the bank robber who has won (13 years later) "a clerkship for a judge on the United States Court of Appeals for the District of Columbia Circuit."

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Courts in general

Ind. Courts - "Camm jurors see autopsy photos of two children, mother"

Charlie White of the Louisville Courier Journal has the long report on this morning's proceeding here.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Courts

Ind. Decisions - Marion Sup. Ct. Court issues an Order Issuing Judicial Redistricting Plan and Order Entering Final Judgment

Here are the maps. Thanks to Jon Murray, IndyStar.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending August 23, 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 August 16, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, August 23, 2013. It is two pages (and 26 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Lysa Wefler v. Mark Wefler (NFP)

Mir Iqbal, Et Al. v. S-Mart Petroleum, Inc. (NFP)

Term. of the Parent-Child Rel. of D.C., Minor Child, and K.C., Mother: K.C. v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate (NFP)

NFP criminal opinions today (6):

Stephanie Murry v. State of Indiana (NFP)

Kevin R. Harris v. State of Indiana (NFP)

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

Andrew D. Fisher v. State of Indiana (NFP)

Derrick King v. State of Indiana (NFP)

Anthony Robert Konsoer v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Commission on Judicial Qualifications has filed disciplinary charges against the Honorable Kimberly J. Brown of the Marion Superior Court

From the news release:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against the Honorable Kimberly J. Brown of the Marion Superior Court. The Commission alleges 45 counts of misconduct—including that Judge Brown’s conduct led to defendants being incarcerated beyond the dates they should have been released.

Procedurally, the 53-page “Notice of the Institution of Formal Proceedings and Statement of Charges” has been filed with the Appellate Clerk’s office. The charges are only allegations. Only the Indiana Supreme Court can determine whether and what, if any, misconduct occurred. Judge Kimberly Brown has the opportunity to file a formal Answer to the charges within twenty days of being notified that she is facing judicial misconduct charges.

Generally, the charges allege Judge Kimberly Brown violated the Code of Judicial Conduct while serving as an elected Judge in Marion Criminal Court Division 16 and Criminal Court Division 7. The allegations include:

  • delay and dereliction of judicial duties on cases

  • creation of a hostile environment for attorneys, court staff, clerks and others

  • failure to adequately complete necessary paperwork

  • failure to train or adequately supervise court staff and subordinate judicial officers

  • delay in the release from incarceration of at least nine defendants
The charges center on actions that took place from January 2009 through July 2013. The Commission alleges, “defendants suffered detrimental consequences due to the judge’s failure to rule on motions in a timely fashion.” She is accused of continuing bench trials for extended periods if she did not believe they could be completed by 4 p.m. and making derogatory comments about staff members. Judge Brown has a high rate of staff turnover, and is alleged to have fired a staff member she believed complained about her.

Judge Kimberly Brown faces charges of violating the Code of Judicial Conduct, including that she failed to preserve the integrity of the judiciary; perform judicial duties competently, diligently, and promptly; be patient, dignified, and courteous to all individuals with whom the judge deals in an official capacity; cooperate with other judges and court officials in the administration of court business; and require court staff to act in a manner consistent with the judge’s obligations under the Code of Judicial Conduct.

Here is the 12-page verified petition for interim suspension

Here is the 53-page notice of institution of formal proceedings and statement of charges.

Here is an initial IndyStar story.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Courts

Ind. Gov't. - "Call to End DCS Control of Juvenile Delinquency Funding"

Indiana Juvenile Justice Blog posts this morning:

It is time to take control of funding decisions for juvenile delinquency services away from the Indiana Department of Child Services (DCS). This topic should be put on the agendas for the DCS Oversight Committee and/or the Commission on the Improving the Status of Children, as a means of initiating legislative change. Enough is enough. * * *

When all of the parties and participants — the prosecuting attorney, probation officer, defense attorney and child, parents, and judge — have sought residential placement or other services because they are very familiar with the family and the needs of the child, it is repugnant to be denied funding by a random bureaucrat somewhere.

At meetings in the last year, court participants have advocated for the juvenile court judges to just override DCS — take back the control by the power of the bench. Anecdotally, some have. Others recognize the threat of expedited appeal (Indiana Appellate Rule 14.1) that was also part of HEA 1001 (2008). If DCS wins the expedited appeal, the individual counties must pay for the ordered services. But, the county funds to pay for such services were transferred to the State in 2008.

DCS has their hands full with their primary focus of caring for abused and neglected children and offering services to ensure safe permanency with their families. Let the juvenile courts and counties regain control over their delinquent children and the task of meeting their many, varied needs. It is time.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Government

Courts - More on "Justice Ginsburg's dedication undimmed after 20 years on court"

Updating this ILB entry from Aug. 2nd, Adam Liptak has an interview with the awesome Justice Ruth Bader Ginsburg, 80, in today's NY Times. Not to be missed. A sample:

Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.

Her age has required only minor adjustments.

“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”

Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”

“I love my job,” she added. “I thought last year I did as well as in past terms.”

With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.

The last two terms, which brought major decisions on Mr. Obama’s health care law, race and same-sex marriage, were, she said, “heady, exhausting, challenging.”

She was especially critical of the voting rights decision, as well as the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’s power to regulate interstate commerce.

In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Courts in general

Ind. Gov't. - "Monroe County setting limits on the courthouse lawn" Indianapolis tries to address homeless camp under CSX bridge south of downtown

Rachel Bunn reports today $$ in the Bloomington Herald-Times in a story that begins:

Homeless residents are losing another outdoor sleeping area.

On Friday, the Monroe County Board of Commissioners voted unanimously to approve an ordinance that enacts “open hours” on the Monroe County Courthouse grounds.

The courthouse grounds will be open from 6 a.m. to 10 p.m. seven days a week, and signs will be posted listing the hours. Littering, including solid and semi-solid waste and dead animals, is prohibited on courthouse grounds, as is consuming alcohol on the grounds. A violation of any of these is a Class E ordinance violation.

“This summer, a number of citizens have taken to camping on the courthouse grounds, and the camping activities have resulted in deposit onto the courthouse grounds of trash, garbage and every kind of bodily waste to the degree that public health is being threatened,” said David Schilling, county attorney.

Following the passage of the ordinance Friday, officials can ask those currently camping on the grounds to move, but they cannot impose fines until the ordinance has been published.

The ordinance specifically outlines that individuals have been “leaving trash and garbage,” “consuming alcohol to the point of vomiting” and have been “urinating and leaving human waste on the grounds.”

The long story outlines other problems, including:
In May, the city of Bloomington removed a group of protesters and homeless people who were camped out in the Fourth Street parking garage following complaints about garbage, open containers of alcohol, individuals who were intoxicated and public urination. Following the incident, Mayor Mark Kruzan said no trespassing would be allowed.
Today Diane Penner of the Indianapolis Star has this story - some quotes:
After months of back and forth with city officials and other authorities, the residents of Irish Hill on the south side of Downtown — near Georgia and Davidson streets — have been told to leave the area by 9 a.m. today.

Maurice Young, dubbed the “mayor of Irish Hill,” says nearly 60 residents don’t plan to leave and are willing to be arrested. They’ll be joined, he said, by advocates, elderly nuns and others in the community. * * *

The camp’s population fluctuates, he said, but a few weeks ago, there were 67 in the camp. The city’s Department of Public Works posted signs on Aug. 19 ordering the land to be vacated by today, and since then, about 10 people have moved on. * * *

The city contends the Irish Hill residents are trespassing. Most of the land they are on belongs to CSX — trains rumble and squeal on the bridge over the camp — and part of it belongs to the city, said Scott Manning, a Department of Public Works spokesman.

CSX wants access to the area to do bridge maintenance and cleaning, he said, and some of the shelters are spilling into the public right of way — the sidewalks and the streets.

In addition, businesses in the area have complained and expressed concerns about garbage and human waste at the site, Lotter said.

“It’s a public safety and a public health concern,” he said.

The city has coordi­nated with homeless serv­ices providers to match camp residents with serv­ices, and police officers routinely cruise the camp to make sure all is well, Lotter said.

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Government

Ind. Gov't. - "Diversity poised to alter Indiana’s landscape"

Here are some quotes from Maureen Hayden's column Sunday in the New Albany News and Tribune:

During the war that brought an end to slavery, Indiana mustered a massive number of volunteers — about 210,000 men — to serve in the Union forces. That’s easier to acknowledge and celebrate than the fact that racial segregation remained a critical part of our identity for decades after.

During the 1920s, the most powerful Ku Klux Klan organization in the nation was in Indiana. The Grand Dragon moved the white supremacist organization’s national headquarters to Indianapolis in 1922, the same year that Klansmen in the Indiana General Assembly passed a bill that created “Klan Day” at the Indiana State Fair, complete with a nighttime cross burning. By 1924, a Klan-backed slate of candidates had taken control of the Indiana General Assembly and the governor’s office and had set their sights on the state’s congressional delegation.

The organization based on the premise that native-born whites were superior in character to all other races started to lose its popularity only after its Grand Dragon was convicted of raping and murdering a young white woman. * * *

Consider this: Within a decade, the majority of people under 18 in the U.S. will be minorities. Like the rest of the nation, Indiana is on trend toward greater diversity as the numbers of blacks, Hispanics, Asians and other minorities are rising at a faster pace than whites. New census data released earlier this year showed the trend may accelerate in the years to come as the most racially and ethnically diverse age-group — Hoosiers under 5 — grow up.

It’s up to us to decide: Will we see diversity as a threat to our seemingly secure world? Or embrace it as a strength?

Posted by Marcia Oddi on Monday, August 26, 2013
Posted to Indiana Government

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

From Sunday, August 25, 2013:

From Saturday, August 24, 2013:

Posted by Marcia Oddi on Monday, August 26, 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 8/26/13):

Next week's oral arguments before the Supreme Court (week of 9/2/13):

Thursday, September 5

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/26/13):

Tuesday, August 27th

Wednesday, August 28th Next week's oral arguments before the Court of Appeals (week of 9/2/13):

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, August 26, 2013
Posted to Upcoming Oral Arguments

Sunday, August 25, 2013

Indiana Law - Indiana newspapers speak out on marriage equality, plus some observations from the ILB

Updating this ILB post from August 21st and this one from August 22nd, here are some quotes from recent editorials about HJR 6, which would add a prohibition against gay marriage to the Bill of Rights of the Indiana Constitution. [The ILB has highlighted two statements, with comments at the end of this post.]

From the Evansville Courier & Press, posted Aug. 23rd:

Lilly and Cummins plus other supporters of the new alliance recognize the importance of making Indiana a business friendly state for gays, lesbians and transsexuals. Indeed, if Indiana further shuts its door to gays and lesbians, it sends a message that skilled, talented workers and companies owned by gays, lesbians and transsexuals are not welcomed in Indiana, a state that needs new jobs. Indiana has no business attempting to drive jobs, businesses and industries away to other states.

According to the Associated Press, Lilly executive Ron Smith said, “We really need to recruit the very best and the very brightest. We think writing this language into the state’s highest legal document will provide a barrier to those efforts.”

The AP said about 62 percent of Fortune 500 companies offer same-sex domestic partner health benefits. The AP obtained that information from the Human Rights Campaign.

As we have said, statutory law already bans same sex marriage in Indiana, so to us, the proposed constitutional ban constitutes piling on by opponents of gay marriage.

In addition, the proposed Indiana constitutional amendment would also ban civil unions by same-sex couples.

Of course, backers of the proposed constitutional amendment has its own heavy hitters, among them Gov. Mike Pence, who billed himself as the “jobs” governor. We fail to see how discouraging some workers from coming to Indiana is a pro-jobs effort.

From the Aug. 23rd Indianapolis Star:
The battle over marriage in Indiana has ramped up with the launch of a bipartisan, business-backed coalition that will work to stop House Joint Resolution 6, the proposed constitutional amendment banning same-sex unions.

We wish the Freedom Indiana campaign well, but still hope that Hoosiers will be spared the “expensive and very divisive” ordeal that an Eli Lilly and Co. executive predicts will unfold if the General Assembly insists on pushing the constitutional ban.

Same-sex marriage already is forbidden under state law. That statute has withstood court tests and is not susceptible to legislative repeal in the foreseeable future
. To go further, to carve the ban into the state constitution and subject the state to a bruising referendum process in doing so, would serve no good purpose.

Indeed, in the eyes of many business, political, academic and religious leaders, stamping Indiana as unfriendly to gay people may do harm in many ways. * * *

Also of note is the bipartisan nature of the Freedom Indiana effort. Both Republicans and Democrats attended the kick-off event on Wednesday. And a Republican, Megan Robinson, with experience working for Sen. Dan Coats and U.S. Rep. Luke Messer, will manage the campaign. Old notions about a liberal-conservative split on this issue are no longer necessarily true.

A Ball State University poll taken last year showed Hoosiers were evenly split on same-sex marriage; but 54 percent opposed the amendment and 55 percent favored civil unions. The legislature and governor should heed the people, let HJR6 die and move on to far more productive work.

From the Sunday, August 25th Fort Wayne Journal Gazette:
True threat to liberty of Hoosiers

“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

– Article 1, section 23, Indiana Constitution

“Liberty” and “freedom” are highly prized by tea party activists promoting fiscal and social conservatism. They work as well for the broad coalition formed to defeat a proposed ban on gay marriage.

Coalition members recognize that writing restrictions of individual rights into the Indiana Constitution is contrary to founders’ intentions. Freedom Indiana rightly acknowledges that a statewide referendum aimed at amending the constitution threatens the guarantee for rights to be enjoyed equally by all.

In June, the U.S. Supreme Court struck down a federal prohibition on benefits for legally married gay couples, but left it to individual states to define marriage. Indiana law already defines marriage as between a man and woman; the amendment is unnecessary. House Joint Resolution 6 proponents argue it is needed to protect the sanctity of marriage.

The legislative odds are poor for opponents of the amendment. Gov. Mike Pence supports it. After the court ruling, Senate President Pro Tem David Long, R-Fort Wayne, and House Speaker Brian Bosma, R-Indianapolis, pledged to take up the measure quickly in January.

Freedom Indiana kicked off its campaign last week in hopes of blocking the second vote the resolution requires to be placed on the ballot. Organizers have the support of two of Indiana’s highest profile corporations, Eli Lilly and Co. and Cummins Inc.

Some observations from the ILB:

(1) Re the statement: "Same-sex marriage already is forbidden under state law. That statute has withstood court tests and is not susceptible to legislative repeal in the foreseeable future."

In Ruth Morrison, et al. v. Sadler, a 42-page, Jan. 20, 2005 opinion of the Court of Appeals, Judge Barnes (with J. Kirsch concurring and J. Friedlander concurring in result) wrote for the three-judge panel:

Conclusion. What we decide today is that the Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document. Nevertheless, Indiana’s DOMA, Indiana Code Section 31-11-1-1, does not violate Article 1, § 23 of the Indiana Constitution because opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it. The ability of opposite-sex couples to reproduce “naturally” and unexpectedly is the characteristic that rationally distinguishes them from same-sex couples. For much the same reasons, Section 31-11-1-1 also does not violate Article 1, § 12 of the Indiana Constitution. Finally, the Plaintiffs have failed to establish that they enjoy a “core value” right under Article 1, § 1 of the Indiana Constitution to marry each other and receive accompanying government benefits that is materially burdened by Section 31-11-1-1, even if Article 1, § 1 is currently capable of independent judicial enforcement in this context, which is doubtful. Section 31-11-1-1 does not run afoul of the Indiana Constitution and we conclude the trial court properly dismissed the Plaintiffs’ complaint because they failed to state a claim upon which relief could be granted.
The decision, with its emphasis on "responsible procreation," was not appealed to the Supreme Court, reportedly for strategic reasons.

(2) Re the editorial's statement: "The statute .. is not susceptible to legislative repeal in the foreseeable future"; in fact the statute, IC 31-11-1-1, could be repealed by the upcoming session of the General Assembly, if the members of the legislature so choose.

(3) Re the statement "In addition, the proposed Indiana constitutional amendment would also ban civil unions by same-sex couples."

Until the SCOTUS rulings this spring, the fact that HJR 6 would ban not only same sex marriage but also civil unions and perhaps more (" A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.") was a strong argument against its passage. Michigan's similar provision, which became part of its constitution in 2004, has been in litigation ever since.

There has been pressure to amend the proposed language to remove this second sentence. But that would mean the constitutional amendment would need to start over, as it has already passed one of the necessary two General Assemblys.

This Friday on Indiana Week in Review there was discussion of the "slow it down" strategy, which is being pursued by opponents of the constitutional amendment -- urging the removal of the second sentence, which would mean starting over, because a proposed constitutional amendment must pass two General Assembly with precisely the same wording, thereby adding several years before the proposal would go before the people. By then, the reasoning goes, the Indiana voting public may be more favorable to marriage equality.

But, as things stand now, that reasoning no longer holds. As the ILB first wrote on June 29th:

One of the strongest objections that has been voiced to HJR 6 is that this second sentence of the proposal could also be interpreted to ban civil unions:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
It has been argued that such language in the constitution would prevent any future legislature from approving civil unions "that would give gay couples the same rights and benefits as married couples," and that therefore the pending HJR 6 should be rewritten to eliminate that sentence. To do so, however, would mean the proposal would have to start anew in the General Assembly and identical versions would need to be passed by two different General Assemblys before the proposal could be submitted to the voters. That was a good argument until Wednesday, when Windsor issued. Now it is meaningless. As this post began: The SCOTUS decision this week invalidated DOMA’s Section 3, and recognizes state same sex marriages for the purpose of federal benefits. "Civil unions" are not mentioned.
Currently, various law suits are challenging this, most notably in Connecticut, which has a civil union law, but prohibits same sex marriage. Illinois is another such state.

For more on this, see this Aug. 15th post from Prof. Sarah R. Boonin, Suffolk University Law School, who writes in part:

Before Windsor there were two classes of marriages: 1) heterosexual marriages, which enjoyed full state and federal recognition throughout the U.S., and 2) same-sex marriages, which enjoyed full state recognition (in the dozen states that recognized same-sex marriages at the time) but no federal recognition. During oral arguments in the case, Supreme Court Justice Ruth Bader Ginsburg disparaged the second-class status of same-sex marriages as a "skim-milk marriage" situation, suggesting that equality compelled the federal government to offer same-sex marriages the "whole-milk" treatment that it offered heterosexual marriages. Yet after Windsor, there are no fewer than three classes of marriages: 1) heterosexual marriages, which enjoy full state and federal recognition; 2) same-sex marriages with "full" state and federal recognition, like the marriages of same-sex couples living in marriage-equality states; and 3) same-sex marriages with no state recognition but some federal recognition, like the marriages of same-sex couples who marry in marriage-equality states but live in marriage-discrimination states. If you include domestic partnerships and civil unions (like those in New Jersey), then you have a fourth class of same-sex "marriages" that enjoy some (but not always all) state recognition and some (but not all) federal recognition.

So the meaning of "marriage equality" differs now (as much as ever) based on where a same-sex couple lives. Without question, virtually all same-sex marriages enjoy greater federal recognition today than before Windsor, but the "skim-milk marriage" problem that so offended Justice Ginsberg is unresolved. In some ways Windsor simply reversed the problem, trading in skim milk for half and half. No longer are state-sanctioned same-sex marriages invalid under federal law. Now, federally sanctioned same-sex marriages are invalid under some state laws!

See also this August 5th post from law Prof. Will Baude, Stanford, the most recent of several posts he has written on civil unions and federal law.

Posted by Marcia Oddi on Sunday, August 25, 2013
Posted to Indiana Law

Ind. Courts - " Indiana investigator grilled on David Camm crime scene"

Here is Grace Schneider's long final wrap-up for the Louisville Courier-Journal of Friday's proceeding in the David Camm murder trial. It begins:

LEBANON, IND. — An Indiana crime technician testified Tuesday that he decided shortly after viewing the crime scene that former Indiana state trooper David Camm must have played a role in the murders of his wife and two children 13 years ago.

The scene didn’t match with a robbery or sexual assault gone awry, Jim Niemeyer, a now-retired state police technician, testified in court Friday.

Niemeyer said during a cross-examination by Camm’s defense lawyer, Stacy Uliana, that he’d assumed that if Camm’s wife, Kim Camm, encountered a stranger inside the garage when she’d come home, she would have quickly shifted her vehicle into reverse and sped off.

Instead, he said, his opinion was that Kim Camm had driven into the garage and found someone she was familiar with — her husband — so she felt no need to leave. Although it wasn’t clear to him when he first looked at the crime scene why someone would shoot her, Niemeyer said that he believed “the children were killed because they were witnesses.”

Posted by Marcia Oddi on Sunday, August 25, 2013
Posted to Indiana Courts

Ind. Law - "New sentencing law combines juvenile rehabilitation with adult punishment"

Vic Ryckaert's long report today is on the front-page of the Sunday Indianapolis Star. Some quotes:

[15-year-old Gabriel] Edwards is the first youth in Marion County — perhaps the state — to go to trial under a sweeping new law that puts greater emphasis on rehabilitation and grants judges much more flexibility in handling violent offenders who are 15 years old or younger.

That flexibility, however, cuts both ways. It means some violent offenders might never set foot in a prison. But it also likely means more juveniles might be tried as adults and, thus, potentially spend more time behind bars.

Under the old system, judges had one chance to decide whether a youth accused of a violent crime should be tried as a juvenile or adult. And that difference is significant. Those sentenced as juveniles have much better access to schooling and counseling, but they must be released before age 22 and more typically are freed around age 18, regardless of the severity of their crime. Those sentenced as adults serve much longer sentences and in a much harsher prison setting.

But the law that took effect July 1 creates an option that tries to combine the opportunity for rehabilitation with the threat of an adult prison sentence. Judges can sentence juveniles as adults but send them to a juvenile facility, where proponents of the law say there would be more supervision, better educational opportunities and a better chance to turn their lives around. Then, at age 18 when it’s time for the juvenile to be moved to an adult prison, there will be another hearing before a judge.

If the 18-year-old can convince the judge he or she has straightened out, the judge can suspend the rest of the sentence. The young man or woman would then walk free, but any slip-up and he or she could be sent to adult prison to serve out the rest of the sentence.

If, however, the judge is not swayed that the person has sufficiently reformed, the judge can require the 18-year-old to fulfill the remainder of the adult sentence in prison — a potentially powerful incentive for juveniles to change their ways.

“This certainly gives judges more flexibility and allows for changes two, three, four years down the road, after they see that a child’s been rehabilitated,” said Joel Schumm, a criminal-law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. * * *

Before the new law, Indiana had long faced criticism about how it dealt with those who were too young to truly be adults, but too violent to entrust to the juvenile system, where the jurisdiction ends when a person turns 22. That criticism has focused more acutely on juveniles sentenced as adults who then spend their formative years in a penitentiary before being returned to the community in their 20s or 30s — often as hardened criminals.

ILB: Although the story never identifies the new law, it is HEA 1108, "Sentencing alternatives for youthful offenders."

Posted by Marcia Oddi on Sunday, August 25, 2013
Posted to Indiana Law

Ind. Decisions - "Jury finds ex-husband guilty of murder"

Story wraps up coverage of reporter's tweets from Friday. From Madeline Buckley of the South Bend Tribune's story August 23rd:

A jury on Friday evening convicted a Goshen man of murder for brutally killing his ex-wife. The jury reached the verdict after a week-long trial that came close to abruptly ending in a mistrial on Friday afternoon. * * *

The trial was stalled for a couple of hours Friday afternoon, though, after the court found that a juror had brought his own legal research. A bailiff discovered Internet printouts in the jury room right after both the state and defense had rested.

The printouts described various definitions of reasonable doubt. St. Joseph Superior Court Judge Elizabeth Hurley questioned each individual juror until she determined who brought the information. Jurors are not supposed to do their own research on the facts of the case or related legal concepts.

Hurley excused the juror who brought in the research, which happened to be the only man on the jury.

“My apologies,” the juror said, when the judge asked him about the research. “I was trying to understand the best I could.”

The remaining jurors reported the outside information did not influence them. The judge instructed the jurors to only consider the court’s definition of reasonable doubt, given in the official jury instructions at the end of the trial.

Though she researched whether declaring a mistrial would be

appropriate, she decided against it.

Neither Griner nor Cotter asked for a mistrial.

Posted by Marcia Oddi on Sunday, August 25, 2013
Posted to Ind. Trial Ct. Decisions

Environment - "New judge needed in CAFO suit"

Updating earlier ILB entries about YMCA Camp Tecumseh and the hog farm, Chris Morisse Vizza reported August 23rd in the Lafayette Journal Courier:

DELPHI — Carroll Circuit Judge Benjamin Diener will not preside over a lawsuit filed in his court by YMCA Camp Tecumseh against the White County Board of Commissioners.

Diener filed a disqualification order last week, citing Indiana Trial Rule 79 in taking himself off the case.

The judge’s father, David Diener, is one of the three commissioners who voted for farmer John Erickson’s request to rezone 7 acres from general agriculture to agricultural industry.

Also, the judge’s wife, Abigail Diener, has served as legal council for the White County Area Plan Commission, which recommended the commissioners approve the rezoning.

In essence, Trial Rule 79 states a judge shall disqualify himself or herself whenever the judge or a close relation is a party to the legal proceeding in his or her court. Under the rule, the parties involved must choose an eligible special judge to preside over the case.

The rezoning approval cleared the path for Erickson to build a confined animal feeding operation capable of holding 9,240 pigs on land just north of White County Road 1000 South and just west of Springboro Road.

The site is roughly a half mile from the 600-acre camp, which has provided outdoor education and religious programming for youths and adults for 90 years.

The lawsuit contends the operation will interfere with Camp Tecumseh’s mission of providing outdoor education, recreation and worship areas for more than 35,000 youth and adults who visit the facility.

The camp is asking a judge to negate the ’ vote and send the rezoning petition back with instructions to reject the petition, according to court documents.

The lawsuit also seeks a court order suspending the rezoning until a judge can determine whether the decision was illegal.

The camp states it is able to post a bond and will pay all court costs if the rezoning is found to be valid.

Posted by Marcia Oddi on Sunday, August 25, 2013
Posted to Environment

Ind. Decisions - 7th Circuit decided two Indiana case Friday

LARRY BUTLER, et al., individually and on behalf of all others similarly situated v. SEARS, ROEBUCK AND CO. - [unfortunately, the 7th Circuit website appears to be down this morning]

In HUBERT E. WALKER, on behalf of himself and all others similarly situated, Plaintiff-Petitioner v. TRAILER TRANSIT, INC. (SD Ind., Pratt), a 13-page opinion, Judge Sykes writes:

Hubert Walker petitions for permission to appeal the district court’s denial of his motion to remand this case to state court. See 28 U.S.C. § 1453(c)(1). Representing a class of truck owner-operators, Walker sued Trailer Transit, Inc., a broker of trucking services, for breach of contract in Indiana state court. Trailer Transit removed the suit to federal court under the Class Action Fairness Act (“CAFA”), id. § 1332(d)(2). Walker moved to remand, contending that the removal was untimely.

The rules of procedure provide two different removal windows. First, a defendant has 30 days after receiving the plaintiff’s initial pleading to file a notice of removal (or 30 days after receiving the summons if the initial pleading is not required to be served). Id. § 1446(b)(1). However,

if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt … of … an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
Id. § 1446(b)(3). Under CAFA federal courts have original jurisdiction over class actions on behalf of more than 100 class members if the parties are minimally diverse and the amount in controversy exceeds $5 million. Id. § 1332(d)(2), (d)(5)(B). Walker argued that the notice of removal was untimely because it was filed more than 30 days after Trailer Transit “first ascertained” that the class’s theory of damages could result in recovery of more than $5 million. The district judge disagreed and denied the motion to remand. Walker petitioned for permission to appeal.

We have never addressed the standard for determining when the 30-day time period for removal begins to run. Accordingly, we grant Walker’s petition to appeal. On the merits we affirm the district court’s ruling. The 30-day removal clock is triggered by the defendant’s receipt of a pleading or other paper that affirmatively and unambiguously reveals that the case is or has become removable. Here, Trailer Transit never received a pleading or other paper from Walker specifically disclosing the damages demand. Trailer Transit based its notice of removal on its own estimate of damages after Walker introduced a new theory of damages into the case in response to requests for admission. Because the removal clock never started to run, the district court properly denied the motion to remand.

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

Friday, August 23, 2013

Ind. Courts - More on: Juror research in South Bend trial ... [Updated]

Updating this entry, a new tweet, just logged:

Madeline Buckley ‏@Mabuckley88 4m
Judge just took another break to do more research. She's considering declaring a mistrial. Attys aren't asking for one at this point.
Updated again
Madeline Buckley ‏@Mabuckley88 34m
The judge decided against a mistrial. The jury will now hear closing arguments.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Courts

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

Woops, forgot about these till just now!

For publication opinions today (2):

Adam Morris v. State of Indiana, a 7-page, 2-1, opinion on rehearing, Judge Barnes writes:

The State petitions for rehearing following our decision in Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013). We now issue this opinion granting rehearing on the issue of restitution only.

In our original decision, we held that, because the plea agreement was completely silent on the issue of restitution, the trial court lacked the authority to order Morris to pay $14,972.45 in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who was killed when she was thrown from the ATV that Morris was operating while intoxicated. * * *

We therefore now affirm the award of restitution against Morris in the amount of $14,972.45. * * *

RILEY, concurs.
BAKER, J., dissent with separate opinion. [that concludes] In my view, as we noted in our original opinion, applying the order of restitution to the class C felony charge that was dismissed as a part of the plea bargain was error. As a result, I vote to deny the State’s petition for rehearing. Finally, I would emphasize—as does the majority—that “plea agreements ideally should be more artfully drafted in cases such as this if the State wishes to seek restitution.”

In Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as Natural parents and next friends of Jordan Parker v. Indiana State Fair Board, an agency of The State of Indiana, a 24-page opinion, Judge Barnes writes:
Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as his parents and next friends (collectively, “the Parkers”) appeal the trial court’s denial of their petition for judicial review of a decision by the Indiana State Fair Board (the “Board”). We affirm in part, reverse in part, and remand.

The Parkers raise several issues. We reorganize and restate the dispositive issues as:
I. whether application of the Indiana State Fair’s Handbook violated the Administrative Orders and Procedures Act (“AOPA”);
II. whether the administrative proceedings were improper due to ex parte communications; and
III. whether the Parkers were denied their due process rights. * * *

Jordan’s lamb won the Grand Champion Market Lamb and participated in the Sale of Champions, where it sold for $23,300. The lamb was then transported to the Purdue Meat Lab, where it was slaughtered and drug testing samples were taken. * * * Two urine samples tested negative for foreign substances. However, a retinal sample tested positive for the presence of Zilpaterol, which is not FDA-approved for sheep. Zilpaterol is a feed additive used in cattle to “enhance leanness and growth rates.” * * *

I. Applicability of the Handbook and Its General Terms and Conditions. We first address the Parkers’ argument that the Handbook’s General Terms and Conditions, which include the statement that the drug testing results are final and binding, were void because the Board did not follow the AOPA rule-making procedures in creating the General Terms and Conditions. According to the Parkers, the Board acted in excess of its statutory jurisdiction and authority.

The Parkers did not raise this argument in their motion for summary judgment. In their response to the Board’s motion for summary judgment, the Parkers briefly mentioned the “rulemaking provision” of the AOPA, but they never argued that the General Terms and Conditions were void or that the Board acted in excess of its statutory authority. * * * We conclude that the Parkers waived this issue by failing to raise it before the Board. Consequently, for purposes of this appeal, we apply the General Terms and Conditions.

II. Ex Parte Communications. The Parkers argue that the administrative proceedings were improper because of communications between Dr. Hibberd and the Board during the Board’s deliberations. At the beginning of the hearing before the full Board, Dr. Hibberd recused himself. The Board president noted that Dr. Hibberd would not participate or vote on the matter but would be allowed to hear the arguments. After arguments by counsel, the Board discussed the matter. At that time Dr. Hibberd made comments regarding the testing procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr. Hibberd continued with his comments. * * *

The Parkers have not demonstrated how they were harmed by Dr. Hibberd’s comments. Although Dr. Hibberd’s comments were improper because he had recused himself from the Board’s deliberations and the Board was incorrect in allowing him to speak, we conclude that the error was harmless.

III. Due Process Rights. The crux of the Parkers’ argument is that Jordan was denied his due process rights. * * *

A. Waiver
Even if we assume, for purposes of this appeal, that the Parkers had a constitutionally protected property right here, we conclude that they waived their alleged constitutional rights. * * *

B. Zero Tolerance Policy
The Parkers argue that the “final and binding” provision regarding the drug test results is an unconstitutional “zero tolerance policy.” * * *

The Parkers have failed to demonstrate that the “final and binding” policy results in a due process violation.

C. Evidentiary Hearing
The Parkers argue that Jordan was improperly denied his due process rights because he did not receive an evidentiary hearing. * * *

We conclude that the Board improperly granted full summary judgment here.

We remand for the Board to conduct an evidentiary hearing regarding the penalties imposed on Jordan. We note that, even in this appeal, the Parkers’ main focus remains challenging the admissibility of the drug test results. However, we conclude that issue was properly resolved in summary judgment proceedings. Consequently, on remand, the Parkers may not challenge the admissibility of the drug test results or the policy that the drug test results are “final and binding.” Because of our remand for an evidentiary hearing regarding the penalty imposed by the ALJ Panel, we need not address the Parkers’ equal protection and excessive penalty arguments.

Conclusion. The Parkers waived their argument that the Handbook’s General Terms and Conditions are void. Further, they agreed to be bound by the Handbook, including its requirement that the drug testing was “final and binding.” We also conclude that any error in Dr. Hibberd’s comments during the Board’s deliberations was harmless error. However, because the summary judgment motions addressed only the admissibility of the drug test results, we conclude that Jordan was entitled to an evidentiary hearing regarding the penalties imposed on him. We affirm in part, reverse in part, and remand for further proceedings.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Juror research in South Bend trial ...

Tweet from South Bend Tribune reporter yesterday:

Madeline Buckley ‏@Mabuckley88 23h
Jury convicts man in double murder and will now hear state's case for life in prison.

ILB: Here is yesterday's story. Today the jury is considering the punishment phase of the trial.

Tweets this afternoon:

Madeline Buckley ‏@Mabuckley88 55m
Judge conferring w lawyers because the bailiff found Internet printouts abt the meaning of reasonable doubt in the jury room.

Madeline Buckley ‏@Mabuckley88 24m
The judge will question each individual juror to determine if he or she was tainted by the printouts.

Madeline Buckley ‏@Mabuckley88 9m
The judge has excused the juror that brought in the Internet research. Happened to be the one man on the jury. An alternate will step in.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Courts

Courts - "Second Circuit Holds Owners Can't Revoke Permission to Use Copyrighted Litigation Documents"

A very interesting post from the Law Librarian Blog.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Courts in general

Ind. Courts - Literary References in Indiana Appellate Opinions

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

The two newest members of the Indiana Supreme Court have included literary references in recent opinions. Just yesterday in Becker v. State, Justice Rush began the opinion by quoting Shakespeare (“What’s in a name? that which we call a rose / By any other name would smell as sweet.”) and Gertrude Stein (“Rose is a rose is a rose is a rose.").

In March, Justice Massa began Walczak v. Labor Works as follows: "James Whitcomb Riley (1849–1916), our celebrated 'Hoosier Poet,' is widely credited with the origination of the Duck Test; as he expressed it, '[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.'”

There are surely many others, which we would like to collect and post next week. Please email your favorite literary reference from an Indiana Supreme Court or Indiana Court of Appeals opinion.

I'll get the ball rolling with the following from Justice Boehm's 2003 concurring opinion on rehearing in the In re Wilkins disciplinary opinion:

The votes of the Chief Justice and Justice Dickson are to grant rehearing as to the sanction only, and to impose a public reprimand. Justice Sullivan and I would vote for no sanction at all. But if neither of us joins in the result reached by Justice Dickson and the Chief Justice, we have no majority to grant rehearing as to any aspect of the original opinion and Wilkins’ thirty-day suspension stands. Lewis Carroll would love that result: half the Court believes no sanction is appropriate, and half would impose a small sanction, so the result is a major penalty. Only those who love the law could explain that to their children. To free parents everywhere from that burden, I concur in the result of granting rehearing as to the sanction and reducing it to a public reprimand.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Schumm - Commentary

Ind. Courts - "Spierers’ lawsuit action suspended pending a motion to dismiss case"

Updating this ILB entry from June 27th, and the followup from July 26th, Laura Lane of the Bloomington Herald-Times reported yesterday in a story that may be publicly available:

A federal court magistrate has put a hold of sorts on a civil lawsuit filed in the case of missing Indiana University student Lauren Spierer, advising both sides not to proceed until a ruling has been made on motions to dismiss the lawsuit.

After a closed pretrial scheduling hearing Thursday that lasted less than a hour, U.S. Magistrate for the Southern District of Indiana Tim Baker issued a ruling telling the attorneys not to proceed to the evidence-gathering portion of the case until federal Judge Tanya Walton Pratt has ruled on three motions to dismiss filed by the defendants in the case.

Rob and Charlene Spierer’s lawsuit claims Corey Rossman, Jason “Jay” Rosenbaum and Michael Beth, all IU students at the time of Spierer’s disappearance in June 2011, are responsible for their daughter’s disappearance and likely death because they knew she was intoxicated and impaired yet did nothing to ensure her safety when she left them to return to her downtown Bloomington apartment.

They hope that depositions taken for the trial will force the men to tell what they know about the night their daughter disappeared.

But lawyers for the three have asked that the lawsuit be dismissed, since there is no proof 20-year-old Spierer is dead and no evidence that their clients were involved.

“In light of the issues raised in the pending motions to dismiss, as well as defendants’ expected assertion of their Fifth Amendment rights against self-incrimination, the court grants the defendants’ request to stay all discovery pending rulings on those motions,” the judge’s ruling states.

Here is the Herald-Times webpage aggregating its Lauren Spierer stories.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Courts

Law - "Death, Prisons Keep Typewriters Alive, Clacking "

Fascinating, lengthy story today in the WSJ ($$). A few quotes:

Swintec, a New Jersey typewriter company, is one of the last manufacturers standing in a dying industry. What has helped keep it alive? Funeral homes.

Funeral directors in a handful of states must tap out death certificates on a typewriter, relics of the days when the machines represented a modern improvement over an undertaker's handwriting. * * *

In an era of apps, tablets and Google Glass, typewriters are still clacking along with the help of an unusual coalition of customers. Police departments, law firms and government agencies still punch out forms on the machines. Some municipalities use them for marriage and birth certificates. And Swintec executives found a way to save their business a decade ago with a new client: prisons.

Swintec had long done a robust business with mortuaries that in many states—New York, West Virginia, Connecticut, to name a few—were required to issue death certificates typed out or handwritten on paper. * * *

Swintec still sells about 3,000 to 5,000 typewriters a year, to customers including universities, senior centers and state and federal prisons.

The company also sells other almost-obsolete office products. Its office contains a menagerie of endangered items such as hefty desktop calculators and portable cash registers. A secretary still uses a typewriter—hooked up to a computer monitor that allows her to print the full document later. Its typewriters aren't the elegant manuals favored by collectors and nostalgic writers. The electronic workhorses weigh up to 25 pounds, and cost between $200 to just under $1,000. * * *

Then the company stumbled on an idea: a clear typewriter for prisons. The company's owner, Dominic Vespia, says they were inspired by other transparent products designed to prevent smuggling of contraband, from televisions to toothpaste tubes.

"It's easier to hide things [in computers]," says Dan Pacholke, assistant secretary for the Washington State Department of Corrections.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to General Law Related

Ind. Courts - "Prosecutor: Blood spatter remain crucial evidence that Camm killed family"

Here is Grace Schneider's final wrap-up for the Louisville Courier-Journal of yesterday's proceeding in the David Camm murder trial. Some quotes:

The first day of testimony in front of the 12 jurors and seven alternates featured unexpected fireworks when Camm’s lawyer, Richard Kammen, said during his opening statement that Boney was the killer, and that his criminal past involved a foot fetish.

Earlier this summer, Special Judge Jon Dartt had ruled that Boney’s criminal predilections couldn’t be admitted during the third trial. The judge lashed out at Kammen for “crossing the line,” but he denied a prosecution motion for a mistrial. * * *

The horror of the murders hit home for the courtroom audience when James Niemeyer, a now-retired Indiana State Police crime scene technician, took the stand and the prosecution showed a video he’d taken of the murder scene.

The camera showed images of Kim Camm, lying awkwardly on the garage floor, blood pooled near her head. The couple’s son, Bradley, lay near his mother's body. Jill lay slumped over the rear seat of her mother’s Ford Bronco, still strapped in her seat belt. * * *

Niemeyer, who was the third witness called by the prosecution, is expected to continue testifying Friday about his work at the crime scene. Uliana asked Niemeyer several questions about working with Robert Stites, a technician sent to process blood and other evidence from the murders by Portland, Ore.-based forensics expert Rod Englert.

Niemeyer acknowledged during the cross-examination that he resented that other technicians besides the state police were assigned to the scene and he thought Stites was unprofessional. But he said when he’d complained to a superior about Stites, the supervisor told him to stop complaining and get back to work, Neimeyer recalled.

A sidebar gives "a look at witnesses, in order, who testified on the opening day of the trial."

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Courts

Ind. Gov't. - "ALEC declares itself exempt from public-disclosure laws, and is challenged"

The ILB has a series of posts the end of July under the heading " Are General Assembly emails subject to the Public Records Law?" Here was the final post on July 29th.

The ILB also has had a long list of entries on ALEC.

Yesterday the Minn Post had a long, must-read story by Beth Hawkins - some quotes:

Sometime in the last year or so, the super-secretive American Legislative Exchange Council (ALEC), the group that helps its corporate and think-tank members get their wish lists into the hands of state lawmakers, decided to unilaterally declare itself exempt from public disclosure laws throughout the country.

Among other moves, it has taken to stamping a disclaimer on the ideologically charged bills and other policy proposals it hands to legislators: "Because this is an internal ALEC document, ALEC believes it is not subject to disclosure under any state Freedom of Information or Public Records Act."

Astonishing as that is, consider this: In Minnesota, their communications were already off limits — not because they are “internal,” but because the state’s lawmakers long ago exempted themselves from almost all of the Minnesota Data Practices Act.

To be more explicit, this means state senators and representatives may communicate privately with lobbyists or with organizations that specifically promote special interests, such as those of ALEC’s corporate and right-wing members, about laws the private-sector players want to see enacted.

The story goes on to discuss how this posture is being challenged elsewhere.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Government

Ind. Courts - Several Dissents From One COA Panel this Summer

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

The judges on the Indiana Court of Appeals are generally a very agreeable group; the vast majority of their opinions are issued unanimously. As noted in this May 10, 2013 post, one judge authored only one dissenting opinion in all of 2012 while on the high end judges wrote twelve and thirteen. The average number of dissents per judge in 2012 was about six.

In the past two months it seems like one panel (Judges Riley, Bradford, and Brown) has had an unusually high number of dissenting opinions. Yesterday’s opinion in Walls v. State included a dissent from Judge Riley. Other dissents from that panel include the following (each with a link to the ILB summary of the case):

Judge Riley Dissents

Judge Brown dissentsJudge Bradford dissents That’s twelve dissenting opinions from the panel in the past two months. Panels rotate every four months, and it’s unknown how many more cases this panel has to decide.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Schumm - Commentary

Ind. Courts - Former Justice Sullivan: "Mark Massa right not to step aside in coal gasification case"

Frank Sullivan Jr., professor, Indiana University Robert H. McKinney School of Law and Justice, Indiana Supreme Court, 1993-2012, has this opinion letter in today's Indianapolis Star:

Lawyers sometimes try to knock a judge off a case if they think it will help their client win the lawsuit.

That is what is going on in the highly publicized effort of a lawyer representing certain environmental groups who is trying to keep Indiana Supreme Court Justice Mark Massa from ruling in the Indiana Gasification case. The publicity helps the environmental groups, too.

The environmental groups want to stop Indiana Gasification LLC’s project to produce substitute natural gas. They appealed when the Indiana Utility Regulatory Commission (IURC) ruled in favor of Indiana Gasification. A three-judge panel of the Indiana Court of Appeals then ruled in their favor. Now Indiana Gasification is asking the Supreme Court to reinstate the IURC’s decision.

The Indiana Supreme Court has only five justices. If a justice does not participate in a lawsuit, there is no substitute. And it takes three votes to reverse a decision of the Court of Appeals. So if the environmental groups can knock a justice off the case, they only need two votes instead of three to win.

With this in mind, a Florida lawyer representing the environmental groups formally asked Justice Massa not to participate in the case because of his long-standing friendship with Mark Lubbers, a former aide to Sen. Richard Lugar, Gov. Robert Orr, and Gov. Mitch Daniels Lubbers is now a senior Indiana Gasification executive.

Justice Massa has explained in a carefully reasoned statement that he will participate in the case. His decision to participate is correct as a matter of both law and common sense.

First, the Indiana judicial ethics code requires judges to decide the lawsuits in their courts unless prohibited from doing so. Judges can’t duck cases. Nor can the litigants choose their judges.

Second, judges are prohibited from deciding cases only when “an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality.” Justice Massa’s friendship with Lubbers does not create a reasonable basis for doubting his impartiality in these circumstances.

All successful people stand on the shoulders of others but loyalty and appreciation to them is not blind. This is particularly true of judges who on a daily basis must rule in cases involving lawyers who are their friends, mentors and supporters. For a judge not to be impartial in such circumstances would demean the very basis of that friendship, mentorship and support.

We can be confident that whatever decision Justice Massa reaches in the Indiana Gasification case, it will be based on the law and the proven facts – and without consideration of any professional or personal relationship with any individual involved in the case.

Posted by Marcia Oddi on Friday, August 23, 2013
Posted to Indiana Courts

Thursday, August 22, 2013

Ind. Courts - "Prosecution asks for mistrial at start of David Camm trial" [Updated]

Grace Schneider reports for the LCJ early this afternoon:

LEBANON, IND. — Fireworks erupted at the start of David Camm’s third trial in the murder of his family when his lead defense lawyer mentioned the criminal history of another man serving a 225-year sentence in the killings.

Special Judge Jonathan Dartt angrily admonished Camm lawyer Richard Kammen for mentioning that Charles Boney, who is now in prison for the murders, had a foot fetish. The comment came during his opening statement and drew an immediate objection from Special Prosecutor Stan Levco.

“You could be looking at sanctions,” Dartt told Kammen after jurors were escorted from the courtroom.

Levco motioned for a mistrial before the court recessed for lunch, citing pre-trial orders from Dartt not to mention Boney’s prior criminal acts, including allegations that he had a foot fetish. Dartt ordered the parties to meet with him in chambers at 1:15 p.m. to discuss the matter before the afternoon session begins.

[Updated at 5:30 PM]
Eric Berman ‏@WIBC_EricBerman 40m
#Camm update [after lunch break]: no mistrial, as judge rules admonishment to jury enough. Testimony begins with bloody crime scene photos.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Courts

Ind. Gov't. - "Lake Co. Commissioners discuss frustration with attorney costs"

Carrie Napoleon reports in the Gary Post-Tribune:

CROWN POINT — A request for an additional $80,000 for attorney’s services in 2013 for the Lake County Sheriff’s Department turned into a call to find ways to cut spending on criminal justice.

The request riled commissioners but still gained approval 2-1.

Lake County Commissioner Micheal Repay, D-Hammond, was the lone vote against the request by Sheriff John Buncich to pay Attorney John Bushemi and the firm of Burke, Costanza & Carberry LLP additional funds to continue representing the department through the end of the year.

Bushemi said the $208,000 in the contract approved Jan. 2 has been spent defending the sheriff’s department in more than 45 pending lawsuits. So far his legal team has gotten 13 of those suits dismissed. His services are also used to represent the sheriff’s department in its settlement agreement with the Department of Justice concerning conditions at the jail under former Sheriff Roy Dominguez. Then there are the day-to-day issues that require the sheriff to consult with an attorney.

Repay and Commissioner Gerry Scheub, D-Crown Point, both said spending on criminal justice must be cut.

Scheub said he expects to see consultant costs shrink as the sheriff meets compliance with the DOJ mandate and control of the jail shifts back to the county.

“Criminal justice is 88 percent of our budget. That’s criminal,” Scheub said.

He said officials may need to consider privatizing the jail to get the county out from under the liability of lawsuits filed by inmates.

“People are frustrated. We’re frustrated. The county council is frustrated,” Scheub said.

Buncich said the amount of issues requiring the attorney’s assistance are overwhelming. Freedom of Information requests from inmates and a constant barrage of petty lawsuits, most of which are ultimately dismissed without liability to the county, occur almost daily.

“I’m frustrated too,” Buncich said.

Repay said county officials have attorneys on staff at a set rate to handle suits not covered under the approved amount of the contract and anything outside the scope of the original contract should be sent there, not to other attorneys at Bushemi’s firm.

“That’s where the cost overruns come in,” Repay said.

Commission President Roosevelt Allen Jr., D-Gary, said he would like to see how much in settlement payouts and plaintiff legal fees the county is saving by fighting lawsuits, and compare those savings to the cost of Bushemi’s contract.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Government

Law - "Employment Law Implications of the Affordable Care Act"

The State Bar of Michigan blog has this useful post today. In addition to the stories the post links, see also a new story today, here reported by USA Today and headed "UPS won't insure spouses of many employees."

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Ronald G. Becker v. State of Indiana, a 6-page, 5-0 opinion, Justice Rush writes:

Criminal cases are prosecuted in the name of the “State of Indiana.” But as Shakespeare famously asked, “What’s in a name? that which we call a rose / By any other name would smell as sweet.” Gertrude Stein’s answer was that “Rose is a rose is a rose is a rose.” Similarly, we conclude that in this matter related to the sex offender registry, “the State is the State,” whether it acts through a deputy prosecutor or through the Department of Correction. Both entities share the same substantial interest—to maximize an offender’s registration obligations—and are therefore in privity with each other in cases involving that interest. Accordingly, we hold that when the State (via a local prosecutor) fails to appeal an adverse sex-offender registration ruling, the State (via the DOC) becomes bound by it under principles of res judicata.

The DOC’s 2011 intervention in this case therefore came too late. On its face, the DOC’s motion challenged a trial court ruling issued a few weeks earlier—but in substance, it sought reconsideration of an unappealed 2008 ruling that had long since become binding against the State. We thus reverse the trial court’s order granting the DOC’s Motion to Correct Error. * * *

If the res judicata shoe were on the other foot in this case, Becker would be hard-pressed to avoid its preclusive effects. There is, after all, only one of him, with no alter egos to intervene on his behalf if a law later changed in a way favorable to his position. Final judgments in a criminal case should be similarly binding against “the State”—not just the prosecutor, but also the various alter egos of the State whose substantial interests are adequately represented by the prosecutor. In this case, the DOC is also “the State”—not because it is a State agency, but because it has the same substantial interests as the prosecutor in maximizing a sex offender’s registration obligations. The DOC, being in privity with the prosecutor, is thus bound by the unappealed 2008 final judgment in Becker’s favor. We therefore reverse the trial court’s grant of the DOC’s Motion to Correct Error, thus reinstating the June 2011 Agreed Order finding that Becker’s registration obligations are complete. [Emphasis by ILB]

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Dianne M. Ross, William L. Ross, Martha Jane Milhouse and Paul David Milhouse v. Bartholomew County Drainage Board and Stephen A. Hoevener, Jim Pence, Ron Speaker, Jeff Schroer, and Carl Lienhoop, a 12-page opinion, Judge Riley writes:

The Appellants raise four issues on appeal, which we consolidate and restate as the following two: (1) Whether the trial court abused its discretion when it found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and (2) Whether the trial court abused its discretion in calculating the attorney fees it awarded to Appellants for the Drainage Board’s violation of Indiana’s Open Door Law. * * *

Therefore, we agree with the trial court that the berm amounts to an obstruction which impedes the natural flow of the watercourse. Thus, the trial court did not commit clear error in affirming the Drainage Board’s conclusion that the removal of the obstruction would promote better drainage of County Road 650. * * *

Based on the foregoing, we conclude that the trial court properly found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and the trial court did not abuse its discretion in calculating the amount of attorney fees it awarded Appellants for the Drainage Board’s violation of Indiana’s Open Door Law.

In Alexander David Toradze v. Susan Blake Toradze, an 8-page opinion, Judge Riley writes:
Father raises one issue on appeal, which we restate as follows: Whether the trial court properly decided it had jurisdiction to enter an educational needs order pursuant to Ind. Code § 31-16-6-6. * * *

Based on the foregoing, we conclude that the trial court acquired jurisdiction with respect to Mother’s request for educational expenses following a dissolution of marriage based on I.C. § 31-16-6-6(a) & (c). Affirmed.

BRADFORD, J. concurs
BROWN, J. concurs in result with separate opinion [that begins] I concur in the result reached by the majority but write separately to fine tune a point and state my disagreement with the majority’s conclusion that the trial court acquired subject matter jurisdiction to decide Mother’s request to institute an order for educational needs based on the amendments to Ind. Code § 31-16-6-6.

In Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc. , a 9-page opinion, Judge Najam writes:
Roger Buchanan and Susan Buchanan appeal the trial court’s grant of summary judgment in favor of HSBC Mortgage Services, Inc. (“HSBC”) in this foreclosure action. The Buchanans raise two issues on appeal which we restate as:
1. Whether the trial court erred when it found that HSBC is the holder of a promissory note executed by the Buchanans when they purchased their home.
2. Whether the trial court erred when it found that the mortgage is valid despite an allegedly defective acknowledgement.
We affirm.
In Jeremiah Walls v. State of Indiana, a 16-page, 2-1 opinion, Judge Brown writes:
Walls raises four issues, which we revise and restate as:
I. Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his convictions for criminal trespass and intimidation;
II. Whether the trial court properly instructed the jury;
III. Whether the trial court properly limited Walls’s closing argument; and
IV. Whether the voluntary intoxication statute is unconstitutional.
We affirm. * * *

BRADFORD, J., concurs.
RILEY, J., dissents in part and concurs in part with separate opinion. {some quotes] I respectfully dissent with the majority’s decision to affirm Walls’ conviction and sentence for criminal trespass.

The majority veered off from our holding in Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc. 820 N.E.2d 158, 164 (Ind. Ct. App. 2010), and instead relied upon out-of-state case law. Our court has already established case law on this issue, and though it may seem “absurd”, this court has strictly interpreted the criminal trespass statute which requires that entry on property be denied by either the owner or its agent.

NFP civil opinions today (1):

In the Matter of D.S., Child in Need of Services; R.J. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Terry Eldridge v. State of Indiana (NFP)

Kevin Patterson v. State of Indiana (NFP)

Isaiah Adams v. State of Indiana (NFP)

Joshua Steelman v. State of Indiana (NFP)

Clifford N. Whitmer, II v. State of Indiana (NFP)

Timothy G. Lyles v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "ACLU sues state over abortion clinic law"

Updating this entry from earlier this morning, Tim Evans of the Indianapolis Star now has coverage - access it here. A quote:

The lawsuit targets Senate Enrolled Act 371, enacted this year, changed the definition of "abortion clinic" to include facilities that provide only the abortion pill mifepristone to terminate a pregnancy. Mifepristone is a non-surgical option, according to the statement, used during the first nine weeks of pregnancy.

The legislation, the ACLU said, “also amended state law to require clinics that offer non-surgical abortions to meet the same physical requirements as clinics that provide the surgical procedure.”

The ILB has now obtained copies of the ACLU's 14-page complaint, filed in the SD Ind., and the 8-page Exhibit.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Courts

Courts - "Public Defenders Fall to the Sequester: Steep budget cuts compromise the justice system and won't save money in the long run"

The Sentencing Law Blog quotes a WSJ commentary by former federal district judges Paul Cassell and Nancy Gertner.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Courts in general

Ind. Law - "Indiana’s same-sex ban under fire: Coalition presses lawmakers to stop measure"

Updating this ILB entry from yesterday, here is another report on yesterday's launch of a statewide campaign

... to defeat a proposed constitutional ban on same-sex marriage.

The fight will first reach the Indiana Statehouse, where the group will press lawmakers to table or defeat the measure.

But if that isn’t successful, the campaign will focus on getting Hoosier voters to beat the prohibition at the ballot box in November.

The story today is by Niki Kelly of the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Law

Ind. Courts - "Round 3: Opening arguments in David Camm's third murder trial today"

Grace Schneider of the Louisville Courier-Journal has this long story this morning, with video, that begins:

LEBANON, IND. — David Camm’s third murder trial is set to start Thursday morning here with opening arguments from Special Prosecutor Stan Levco and defense lawyers.

With a jury of eight women and four men listening, Levco is expected to lay out his case for why Camm should become the second man convicted in the September 2000 murders of Camm’s wife Kim, and their children, Bradley, 7, and Jill, 5. * * *

Levco has provided few details during recent pre-trial hearings about his plans, but the former five-term Vanderburgh County prosecutor has indicated he intends to pin the crime on both Camm and Charles Boney, a New Albany man who is serving 225 years in the slayings.

To set the scene for jurors, Levco said Wednesday, he intends to play the recording of the phone call Camm placed to the Indiana State Police post in Sellersburg on the night he said he came home and found his family murdered.

Camm, a former state trooper who had left the department four months before, is heard telling police in a high, panicked voice to send everybody to his home because his wife and kids have been killed.

Also notable:
The proceedings are expected to last eight to 10 weeks and feature up to 100 witnesses, including Kim Camm’s mother Janice Renn, who is scheduled to testify Friday afternoon, according to Nick Stein, the Renn family’s lawyer.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Courts

Ind. Decisions - "Judge splits verdict in EPA case against U.S. Steel"

Teresa Auch Schultz reports today in the Gary Post Tribune:

The federal government can’t seek to fine U.S. Steel for violations it claims the company made more than 20 years ago to its Gary Works plant, a federal judge ruled Wednesday, but it can seek to force the company to install new controls for pollutants.

U.S. District Judge Philip Simon said in his order that he agreed with U.S. Steel that the Environmental Protection Agency had waited far too long to file for penalties when the statute of limitations is five years.

The alleged violation took place in 1990 when U.S. Steel modified the inside of Blast Furnace No. 4. The EPA claimed in its lawsuit against U.S. Steel, filed last year, that the modification constituted a major change, which would have required U.S. Steel to get a permit for the construction work. The company never did.

Part of the permitting process would have required the company to install what’s called the best available control technology for pollutants. Violating this process can lead to a company being fined $37,500 for each day it does so.

However, Simon ruled that the violation was a one-time incident, instead of agreeing with the federal government that U.S. Steel continued to violate the permit each day it operated without going through the proper steps.

That means that trying to see penalties 23 years after the fact isn’t allowed by law, he ruled.

The statute of limitations applies only to penalties, however, so Simon ruled that the EPA could move forward with its claim that U.S. Steel must go through the proper steps now, which could involve installing best available control technology.

Here is a copy of ND Ind. Chief Judge Philip P. Simon's Aug. 21st, 26-page opinion in United States of America et al v. United States Steel Corporation. Judge Simon has a direct writing style, here is the beginning:
The Environmental Protection Agency and three similar state entities from Indiana, Michigan, and Illinois initiated this action against U.S. Steel in an 18-count complaint. (For simplicity’s sake, I will refer to the Plaintiffs in this case collectively as the EPA). The EPA alleges that three of U.S. Steel’s plants – one in each of the three states – are and have been violating the Clean Air Act. U.S. Steel says its done no such thing, but the merits of the case will be decided later. The only thing presently before me is whether Count 1 and parts of Count 3 are barred by the applicable statute of limitations and must therefore be immediately dismissed. As explained in detail below, I only buy half of that argument. U.S. Steel’s Motion to Dismiss will therefore be granted in part and denied in part.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Courts - "Laws regulating abortion clinics violate constitutional protections of privacy, due process and equal protection"

From the press release:

The American Civil Liberties Union of Indiana and the national ACLU Reproductive Freedom Project today challenged amendments to state laws that single out one health care center in Lafayette, Ind. for a host of unnecessary new regulations. The lawsuit, filed in federal court on behalf of Planned Parenthood of Indiana and Kentucky against the Indiana State Department of Health and the Tippecanoe County Prosecutor, claims that these laws violate the Fourteenth Amendment to the U.S. Constitution.

"These legislative changes specifically targeting PPINK's Lafayette health care center are not reasonably related to any legitimate purpose," said Ken Falk, ACLU of Indiana legal director. "The laws irrationally and invidiously discriminate against PPINK and pose a significant and unnecessary burden that violates the Constitution's guarantees of privacy, due process and equal protection."

Senate Enrolled Act 371, passed in the 2013 legislative session, changed the definition of "abortion clinic" to include facilities that provide only the abortion pill Mifepristone to terminate a pregnancy. Mifepristone is a safe, non-surgical option used during the first nine weeks of pregnancy. Lawmakers also amended state law to require clinics that offer non-surgical abortions to meet the same physical requirements as clinics that provide the surgical procedure.

These new regulations will require the PPINK health care center in Lafayette to renovate its facility by Jan. 1, 2014 to meet surgical standards -- including separate procedure, recovery and scrub rooms -- even though no surgical procedures are performed there. The law affects only the Lafayette center, and does not apply to private physicians' offices providing the same procedures.

"This law is clearly part of a coordinated national effort to end access to safe, legal abortion by trying to shut down Planned Parenthood health care centers, which also provide Pap tests, breast and testicular exams, birth control and STD testing and treatment," said Betty Cockrum, CEO of PPINK. "We have been providing health care for more than 40 years in Lafayette, and we will continue to do so."

The case, Planned Parenthood of Indiana and Kentucky, Inc., v. Commissioner, Indiana State Department of Health; Prosecutor, Tippecanoe County, Indiana, # 1:13-cv-01335-JMS-MJD was filed in the U.S. District Court Southern District of Indiana, Indianapolis Division, on August 22, 2013.

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Courts

Ind. Courts - "Indiana high court to decide Clark County's appeal of $865,000 airport expansion judgment"

Clark County Board of Aviation Commissioners v. Dreyer (for background start here) is the subject of a story today by Charlie White in the Louisville Courier Journal. Some quotes:

The Indiana Supreme Court has agreed to hear Clark County’s appeal of the $865,000 judgment it was ordered to pay the estate of a woman whose property was taken through eminent domain for airport expansion. * * *

The Clark County Board of Aviation Commissioners used eminent domain in 2009 to acquire property owned by Margaret Dreyer for expansion of the Clark County Regional Airport.

Dreyer sued the board before she died, saying the appraisals used to determine the property value were wrong. She won that case, and her family was awarded a judgment of $865,000.

Clark County appealed, arguing that the trial court did not have jurisdiction because exceptions to the court-appointed appraisals that Dreyer used to make her case were not filed in a timely fashion.

On March 21, the Indiana Court of Appeals rejected that argument and affirmed the lower court’s decision against the county.

The state Supreme Court, in taking the case Aug. 15, has vacated the appeals court ruling that stated a 2008 Indiana Supreme Court case that former County Attorney Greg Fifer cited to make his argument was “misleading.”

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - "Children's commission prioritizes top issues affecting youth"

Yesterday's first meeting of the State Commission on Improving the Status of Children is reported today by Marisa Kwiatkowski of the Indianapolis Star, who writes:

A commission charged with finding ways to improve the lives of Indiana children identified more than 50 issues during its first meeting Wednesday.

Hoosier children face an overwhelming number of challenges, members of the State Commission on Improving the Status of Children said, listing poverty, abuse, mental illness, suicide, health and juvenile justice reform among them.

“All of our children can be vulnerable children,” said Susan Lightfoot, chief probation officer for the Henry County Probation Department. “It doesn’t matter what door they come in. They should all be able to access services.”

The Indiana legislature created the commission to evaluate access to services, funding, cooperation among state agencies and the implementation of laws or programs. The group must submit a report of its work each July 1 to the governor, Supreme Court chief justice and legislature.

This commission is unique because the 18 members come from all three branches of government and the private sector. Members are not allowed to designate a representative to attend on their behalf, meaning power brokers are leading the effort. * * *

Indiana Supreme Court Justice Loretta Rush, who is the commission chairperson, said creating the commission sends a clear message that children are important. “We see firsthand the disarray and the trauma children go through,” she said. “There’s plenty to do.”

The commission's next meeting is scheduled for Oct. 16 in Indianapolis.

No word on a webpage for the Commission or whether further meetings will be videocast AND archived. Although Kwiatkowski @IndyMarisaK tweeted during the meeting "It's kind of sad how excited I am about the amount of data in this commission packet," the absence of a website means there is no way for the public (including those who work with children at the state and local level) to access the data.

Another tweet, "Uh oh... Justice Loretta Rush just warned the commission members they will be leaving with homework assignments," but no word on what they were. She also tweeted that the Commision did not get through its agenda: "The meeting is over, with the rest of the agenda moved to the next meeting in October."

Posted by Marcia Oddi on Thursday, August 22, 2013
Posted to Indiana Government

Wednesday, August 21, 2013

Environment - "Indiana seeks water use strategy"

Olivia Covington of The Statehouse File has this story in Nuvo:

Indiana has one of the best water supplies in the nation but lacks a central management system to ensure it is used appropriately, experts told the Water Resources Study Committee on Monday.

"While other states are fighting over water, I think we're in a position where we should be laying out a plan (so) we don't allow our water advantage that we have today to go to waste," said Sen. Ed Charbonneau, R-Valparaiso, who chairs the legislative study committee.

Hydrologist Jack Wittman told the committee that while much of the western part of the country is facing a drought, Indiana is "in one of the better areas of the country" for water supply. But, portions of Indiana are still receiving less water than needed.

Wittman said most water competition occurs in the High Plains, the Southwest, the Gulf Coast and metropolitan areas, so Indiana doesn't face much competition. But, since Indiana doesn't have any major rivers or lakes that provide drinking water, the state has to rely on underground aquifers for water.

Most of the state's aquifers and other water sources are in the north, but water is needed the most in the south. Wittman also said there are "barely adequate" supplies of water in central Indiana.

"We have to be cognizant of the fact that water is a limited resource," Charbonneau said.

The state's natural resources, environmental management, agriculture and health departments - plus the Indiana Utility Regulatory Commission - all have some jurisdiction over different areas of water management. Wittman and Charbonneau each said they believe the state needs a plan to oversee all areas of water management.

"We don't have a statewide plan for the construction of infrastructure and regulation of (an) increasingly important resource: water," Charbonneau said. "We need to be recognizing ... and leveraging our water advantage while preserving and enhancing natural resources by providing a sustainable approach to water that will protect the quality and quantity of water now and well into the future."

Experts also said Indiana needs to plan for the state's future. Purdue climatologist Dev Niyogi said droughts like the one in 2012 are difficult to foresee, so he said the state should create a drought response team to deal with the effects of dry weather.

Niyogi also said he believes the state should shift some of its focus to water plans in cities, rather than focusing only on water for agriculture and irrigation.

Legislators took some first steps to developing a water management plan by passing Senate Bill 132 in 2012, which requires water utility companies to submit an annual report detailing their water use to the Indiana Utility Regulatory Commission. But, Commissioner Carolene Maystold the committee very few utilities submitted usable data.

The meeting was Aug. 19th. Here is the agenda.

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Environment

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

For publication opinions today (3):

In Rodney Melton v. State of Indiana, a 16-page opinion, Judge Brown writes:

Rodney Melton appeals his conviction and sentence for dissemination of matter harmful to minors as a class D felony and his sentence for child molesting as a class C felony. Melton raises three issues which we consolidate and restate as: I. Whether the evidence is sufficient to sustain Melton’s conviction for dissemination of matter harmful to minors; and II. Whether Melton’s sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm.
In In Re: The Matter of A.H., and S.H., Minor Children, V.H., Mother v. Indiana Department of Child Services, a 17-page, 2-1 opinion, Judge Brown writes:
V.H. (“Mother”) appeals the trial court’s order granting Petitions to Interview Children filed by the Indiana Department of Child Services (“DCS”). Mother raises one issue, which we revise and restate as whether the court erred in issuing the order. We affirm. * * *

Based upon the record and under these circumstances, we conclude that Mother has failed to establish that the trial court erred in granting DCS’s Petitions to Interview Children or that she was denied due process. Accordingly, we affirm the ruling of the trial court.

BRADFORD, J., concurs.
RILEY, J., dissents with separate opinion. [which concludes] I conclude that the case does not present an issue of great public interest and, therefore, I would dismiss the appeal as moot.

In In the Matter of the Commitment of T.K. v. Department of Veterans Affairs, a 14-page opinion, Judge Bradford writes:
An application for the emergency detention of Appellant-Respondent T.K. was filed on February 8, 2013. The application alleged that T.K. was a mentally ill and dangerous person. That same day, the trial court issued an order granting the application. T.K. was admitted to the Richard L. Roudebush VA Medical Center (“the VA Medical Center”) on or about February 11, 2013. Following a February 19, 2013 evidentiary hearing, the trial court issued an order of regular commitment, finding that T.K. was suffering from mental illness and was dangerous to others. On appeal, T.K. challenges the sufficiency of the evidence to sustain the trial court’s order. * * *

In sum, concluding that the evidence is sufficient to sustain the trial court’s determination that, without treatment, T.K. posed a danger to others as well as the determination that the ordered regular commitment offered the least restrictive alternative to ensure that T.K. received the needed long-term inpatient and outpatient treatment, we affirm the judgment of the trial court.

NFP civil opinions today (1):

Runyon Equipment Rental, Inc. v. Review Board of the Indiana Department of Workforce Development and Stephen Mortimore (NFP)

NFP criminal opinions today (5):

Dustin Trowbridge v. State of Indiana (NFP)

John Aaron Shoultz, III v. State of Indiana (NFP)

Luke Smith v. State of Indiana (NFP)

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

Marcella Mullins v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Coalition to defeat Indiana gay marriage ban" [Updated]

Two stories today on the new group. Jon Murray's long story in the Indianapolis Star begins:

Opponents of the effort to add a ban on gay marriage to the Indiana constitution say they will announce a new coalition Wednesday that comes with bipartisan firepower.

The kickoff for the coalition, called Freedom Indiana, comes as gay-rights groups and allies gear up for the fight next year in the General Assembly — and, if necessary, at the ballot box.

Several groups will be joined at noon in Downtown Indianapolis’ Artsgarden by supportive companies, including Eli Lilly and Co. and Cummins. Also on hand will be a new campaign manager who is a veteran of Republican campaigns.

Freedom Indiana will be run by Megan Robertson, the group said. She managed last year’s winning campaign of U.S. Rep. Luke Messer, R-Ind., an opponent of gay marriage, and was his communications director until recently.

Robertson also managed Indianapolis Mayor Greg Ballard’s reelection campaign in 2011, was political director for U.S. Sen. Dan Coats’ 2010 campaign and has worked on other campaigns. She was not available for comment Tuesday.

“She’s absolutely what we need, and she knows what to do,” said Rick Sutton, executive director of Indiana Equality Action, which lobbied unsuccessfully against the amendment before the legislature approved it in 2011. He will be the coalition’s president.

Charles Wilson of the AP reports in a long story that begins:
INDIANAPOLIS (AP) — An alliance of businesses and human rights groups is launching an effort to defeat passage of an amendment that would write Indiana's ban on same-sex marriage into the state constitution.

A coalition that includes major corporations such as Eli Lilly and Co. and groups such as Indiana Equality Action was scheduled to announce the new organization Wednesday in downtown Indianapolis.

The gay marriage ban is expected to be a top issue in Indiana in 2014 as Republicans controlling the Legislature face a deadline to pass the amendment in order to put it to voters. Lawmakers passed the proposed amendment in 2011, but the bill needed a second vote of approval either this year or next year in order to go to voters. Lawmakers let the issue lie dormant this year while they awaited a U.S. Supreme Court ruling on gay marriage.

Indiana is the latest state to consider adding a gay marriage ban into its constitution. Republicans in Minnesota pushed the issue to the 2012 statewide ballot, where it failed on Election Day. The campaign that formed to defeat the amendment quickly turned its resources to legalizing gay marriage, which became law this month.

See this ILB post re Minnesota.

[Updated at 3:15 PM]
Here is Jon Murray's IndyStar report on the kickoff at the Artsgarden.

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Indiana Law

Ind. Courts - "Kokomo attorney suspended by state Supreme Court"

Scott Smith reports in the Kokomo Tribune:

Kokomo attorney Dan May will be suspended from practicing law for 60 days in connection with a 2011 incident in a Clinton County courtroom.

The Indiana Supreme Court Disciplinary Commission issued the suspension Aug. 15, saying May violated two professional conduct rules and his oath of attorney when he allegedly grabbed and pushed a client.

A probable cause affidavit filed in May 2012 by an investigator for the Clinton County prosecutor’s office indicates courtroom video in Clinton Superior Court captured the incident, which happened after a divorce custody hearing.

May’s client, Michael Davis, told investigators May became “extremely mad at him” after a discussion about visitation and had pushed him backward over the railing in front of the jury box. Davis told investigators May was yelling that Davis “better never embarrass him again.”

“Mr. Davis stated that he kept trying to leave … and Attorney May told Mr. Davis he was not going to leave until he was done with him.” The victim alleged he was suffering back pain due to the incident.

ILB: Here is the disciplinary order.

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - "North Carolina judges say social networking ban illegal"

Gary D. Robertson of the Associated Press reports in a long story the NC Charlotte Observer:

RALEIGH The North Carolina law banning registered sex offenders from commercial social networking sites like Facebook that children can use is unconstitutional because it’s vague and violates free speech, the state Court of Appeals ruled Tuesday.

A three-judge panel ruled unanimously in vacating the additional felony conviction of a registered offender in Durham County for accessing a site after authorities say he had created a profile page on Facebook. * * *

The case was the first before the appeals court to challenge the law’s constitutionality, [Judge] Elmore wrote. He arrived at his decision in part by reviewing federal cases in which somewhat similar laws in Nebraska and Indiana [sic.]. But Cooper said “the constitutional journey of these types of laws is early yet.”

ILB: Start here for background on the Indiana law.

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Courts in general

Ind. Courts - Updating "Pa. boobies bracelet case may influence FWCS suit"

Updating yesterday's post, Rebecca S. Green of the Fort Wayne Journal Gazette has this story today - some quotes:

The girl argued that the bracelet, and the right to wear it, was protected as free speech under the Constitution. The girl’s mother was a breast cancer survivor, and the bracelet was worn to raise awareness and show support.

School officials, though, argued the bracelets were in the same vein as others they confiscated that suggested students “(expletive deleted) off” or ask about each other’s sex organs. The bracelets were worn merely for the students to find another reason to say the word “boobies,” which apparently they did not need, according to court documents.

At a hearing in June, the girl’s attorneys argued the school’s ban on the bracelets was unconstitutional and asked U.S. District Judge Joseph VanBokkelen to prevent enforcement of the ban.

After nearly two months’ deliberation, the judge ruled Tuesday that Fort Wayne Community Schools administrators could enforce the ban at North Side High School.

The judge’s ruling came a day after he agreed to consider a case from the U.S. 3rd Circuit Court of Appeals in Pennsylvania. The recent higher court ruling found, in a split decision, it was unreasonable to interpret the bracelet’s message as vulgar.

In his ruling, VanBokkelen took issue with the plaintiff’s argument that high school students are mature enough to be exposed to the slogan on the bracelets.

“Yet high school is not a magical place where students leave behind a sexually charged middle school environment and automatically become mature adults,” VanBokkelen wrote.

“The evidence in the record reveals a low maturity level at the school. … The school could therefore reasonably conclude that the bracelet contained sexual innuendo that was vulgar within the context of North Side High School.”

And, VanBokkelen wrote, it wasn’t just middle school students who found the bracelets’ slogan sexually suggestive.

“The ‘Keep a Breast Foundation’ has denied requests from ‘truck stops, … vending machine companies, and pornographers to sell the bracelet,’ ” he wrote. “Clearly, the breast cancer awareness message does not eliminate the vulgar meaning behind ‘I (heart) boobies.’ ”

FWCS spokeswoman Krista Stockman said the district is pleased with the court’s decision, always believing their actions were appropriate.

Indiana ACLU legal director Ken Falk said they were disappointed with the ruling, which ends the case, and had not determined whether they would appeal the decision.

The ILB intends the post the ND Ind. opinion...

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Indiana lawmakers to take up winery sales issues today" [Updated]

Megan Banta's Statehouse File story appears here in the Indianapolis Star. The story begins:

Lawmakers will begin Wednesday to discuss the possibility and potential effects of allowing Indiana farm wineries to sell and ship directly to retailers and dealers.

The wine industry in Indiana is growing, but wineries can’t sell their own wine unless they have a micro wholesaler permit. Winery owners and industry representatives say that needs to change.

The Interim Study Committee on Economic Development is required to study farm winery issues and other topics as a result of legislation passed during the most recent session of the General Assembly. Wednesday’s committee meeting is set to begin at 10 a.m. in Room 431 of the Statehouse.

Sen. Jim Buck, a Republican from Kokomo who chairs the committee, said it’s important for the committee to study the issue because wine is becoming a greater source of “revenue both at the local and state level.”

“Indiana’s becoming a larger and larger contributor to the wine industry,” he said.

But while the industry is growing, wineries can’t self-distribute unless they have a micro wholesaler permit, which representatives of wineries say is often expensive to maintain and can mean splitting up a family business.

Here is the meeting agenda. The meeting will be videocast, but not archived, so tune it at 10 AM if interested.

[Updated August 25, 2013] "Restrictive wine laws are all about greed" is the heading to this August 22nd story in Nuvo by Howard Hewitt.

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Indiana Law

Ind. Decisions - More on “Three Is a Magic Number” writes Judge Magnus-Stinson

Updating this ILB entry from Sunday, which includes the Order, the Columbus Ledger-Inquirer has an AP report headed "Court allows scholarship case vs. NCAA to proceed

Read more here: http://www.ledger-enquirer.com/2013/08/19/2642832/court-allows-scholarship-case.html#storylink=cpy." It begins:

INDIANAPOLIS — The NCAA has lost another court round, this time over scholarships.

U.S. District Court Judge Jane Magnus-Stinson rejected the governing body's motion to dismiss a case brought by former college football player John Rock.

NCAA lawyers contended Rock's case should be thrown out because he could not show one-year scholarships or scholarship limits on football teams in the Football Bowl Subdivision and Football Championship Subdivision created an anti-competitive effect.

In a 27-page ruling issued Friday by the Southern District of Indiana, Magnus-Stinson wrote that, by law, she was accepting Rock's arguments as truthful and could not find anything in the NCAA's arguments to prevent the case from going to trial. Magnus-Stinson did, however, acknowledge that the standard of proof would be exceedingly higher for Rock — if the case actually is heard in a courtroom.

Rock claims that after playing three seasons of college football at Gardner-Webb, the new football coaching staff refused to renew his scholarship in July 2011. The team captain and starting quarterback said he then had to pay thousands of dollars out of his own pocket to earn a political science degree. The NCAA now allows schools to offer multi-year scholarships.

"Based on these allegations, which the Court must accept as true at this time, Mr. Rock has sufficiently alleged that the bylaws he challenges resulted in anticompetitive effects that injured his proposed market as a whole," Magnus-Stinson wrote. "Accordingly, the Court rejects the NCAA's argument to the contrary."

Posted by Marcia Oddi on Wednesday, August 21, 2013
Posted to Ind Fed D.Ct. Decisions

Tuesday, August 20, 2013

Ind. Courts - "Camm murder trial to begin Thursday"

Rob Rose has this wrap-up report in the Lebanon Reporter this evening.

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Courts

Ind. Courts - "Ex-lawyer (Conour) charged with fraud wants to keep fees "

From the AP this evening, this story - some quotes:

INDIANAPOLIS (AP) — A former prominent Indianapolis lawyer who pleaded guilty in July to defrauding clients of $4.5 million wants to keep $2 million in legal fees he says were legitimately earned.

William Conour's attorney, Michael Donahoe, said Tuesday that the defense is still negotiating with authorities to what amount Conour is entitled.

"There seems to be a significant difference of opinion between the government and us," said Donahoe, who works for the U.S. public defender's office.

Donahoe said the government wants to count Conour's legal fees toward restoring clients' losses, while Conour believes he is entitled to legitimate legal fees and expenses.

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Courts

Ind. Courts - Still more on: Inaugural Meeting Set for State Commission on Improving the Status of Children

Updating this ILB entry from August 18 and this one from August 13th, today the agenda for tomorrow's first meeting has been released.

There are no plans to videocast the inaugural 4-hour meeting of this high-powered group, which would allow it to be watched throughout the state.

One hopeful note - Tomorrow's agenda has this item at #7: "Commission website and webcasting future meetings: Kathryn Dolan, Public Information Officer"

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Courts | Indiana Government

Ind. Courts - More on "Pa. boobies bracelet case may influence FWCS suit", and a personal comment

Updating her story from this morning, Rebecca S. Green of the Fort Wayne Journal Gazette reports late this afternoon:

A federal judge ruled in favor of Fort Wayne Community Schools in the case involving "I (heart) boobies" bracelets, upholding the district's belief the bracelets are lewd.

U.S. District Judge Joseph S. VanBokkelen's decision comes nearly two months after a hearing on whether the district could ban the bracelets. * * *

Tuesday's decision comes just a few days after the bracelets were deemed to be constitutionally-protected speech by the U.S. 3rd District Court of Appeals in Pennsylvania.

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Carl J. Brandenburg v. State of Indiana, a 6-page opinion, Judge Najam writes:

Carl Brandenburg appeals his sentence following the revocation of his probation. He presents two issues for our review: 1. Whether the trial court abused its discretion when it ordered him to serve the balance of his suspended sentence in the Department of Correction. 2. Whether the trial court miscalculated the amount of his child support arrearage. We affirm, but we remand with instructions.
In Gregory Johnson v. State of Indiana, a 9-page opinion, Judge Barnes writes:
Even if we were to assume that the tinting on the windows of the minivan Johnson was driving was legal, that does not negate Officer Minch’s testified-to observation that, at the time of the stop, he could not clearly identify the vehicle’s occupants. Likewise, we are precluded from accepting Johnson’s invitation to consider photographic evidence presented during trial that he argues shows the tinting on his rear window was not excessive and, in fact, was no darker than other similar Dodge Caravans. To do so at the expense of Officer Minch’s testimony of what he observed at the time of the traffic stop would constitute reweighing the evidence, which we cannot do. Viewing the evidence in a light most favorable to the trial court’s ruling, even if Officer Minch was mistaken about whether the rear window of the minivan violated the Window Tint Statute, his testimony establishes that it was a good faith mistake and that there was reasonable suspicion to make the stop. * * *

Johnson also makes a statutory argument, which is essentially that the General Assembly could not have intended to permit police officers unbridled discretion to pull over vehicles with legal window tinting on the basis of their own subjective assessment that the tinting is too dark, or that Officer Minch’s testimony that he could not adequately “identify . . . and describe” the occupants of the minivan did not meet the requirements of the Window Tint Statute. We observe, however, that Officer Minch gave very similar testimony in Sanders, which our supreme court deemed adequate to establish reasonable suspicion to pull over a vehicle. We also assume that, when drafting and subsequently recodifying the Window Tint Statute, the General Assembly was well aware of the constitutional principle that police officers are permitted to pull over vehicles upon reasonable suspicion that a traffic law has been violated, and furthermore that “pretextual” stops of vehicles for minor traffic violations do not run afoul of either the United States or Indiana Constitutions. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996); Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001). If the General Assembly believes it would be wise to re-write the Window Tint Statute in such a way as to limit police officer authority to pull over vehicles for suspected violations of that law, it could do so. Additionally, the primary check upon potential abuse of the Window Tint Statute as a pretext to conduct traffic stops must lie with trial courts, which are in a position to judge the credibility of police officer testimony regarding the ability to see through a particular vehicle’s window tinting.

NFP civil opinions today (6):

Deborah D. Minnich v. William B. Minnich (NFP)

City of Bloomington v. Cheryl Underwood (NFP)

In the Matter of the Termination of the Parent Child Relationship of: D.W., Minor Child, D.C., Father v. The Indiana Department of Child Services (NFP)

Hoosier Enterprises VII, LLC v. Diamond Vending, Inc. (NFP)

Debra Barrett v. Katie Patton (NFP)

NFN Valance v. Brandy L. Valance (NFP)

NFP criminal opinions today (3):

Joyce Ann Hawkins v. State of Indiana (NFP)

Janyer Pinto v. State of Indiana (NFP)

Akeem Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A Big Waste of County Money and State Resources"

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

More than five years after the Indiana Supreme Court upheld the enforceability of sentencing waiver provisions in plea agreements in Creech v. State, 887 N.E.2d 73 (Ind. 2008), numerous appeals that never should have been filed are still making their way through the Court of Appeals.

And criminal appeals are not free. Counties generally pay appointed counsel an hourly or flat rate. The Attorney General’s office must assign a lawyer to file a brief in response, and the Court of Appeals must then issue a written opinion.

The most recent example is Burnett v. State, where the language of the sentencing waiver provision virtually tracked the provision upheld in Creech, and the defendant did not “claim that he failed to understand the provision or that it was unclear.”

Looking back just a few months, here are other examples:

Prosecutor’s Role

Some of these appeals result from imprecise or sloppy language in plea agreements. Although I’m in no way advocating that every prosecutor include a sentencing waiver provision in every plea agreement, if the term is going to be included it should be carefully drafted to obviate an appeal of the sentence. Here are a few examples of problematic plea language:

Judge’s Role

Other appeals result from the judge’s role during the guilty plea hearing or afterward. As discussed in Hawkins (quoted below), defendants may be entitled to relief in narrow circumstances, which are entirely avoidable if the trial court exercise care in the plea colloquy. Those cases are Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied.

Ricci involved a written plea agreement which provided that the defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea hearing, the trial court unambiguously stated that, according to its reading, Ricci had not surrendered the right to appeal his sentence, and the trial court’s statement was not contradicted by counsel for either party. Id. In those circumstances, we concluded that all parties entered the plea agreement with the understanding that Ricci retained the right to appeal his sentence and held the waiver to be a nullity. Id. at 1094.

A similar situation occurred in Bonilla. Bonilla entered into a written plea agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing, the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id. However, the court proceeded to advise Bonilla of his right to appeal and asked if he understood that right. Id. Given the contradictory information Bonilla received at the plea hearing and the fact that Bonilla was not a native English speaker, we concluded that Bonilla did not waive his right to appeal his sentence. Id. at 590.

Judges can carefully review the plea provision with a defendant—or simply say nothing in the face of a carefully drafted plea provision according to Creech. Problems arise when judges muddy the waters with statements such as those in Bonilla and Ricci.

Although there is no right to appeal a sentence in the face of a valid waiver provision in a plea agreement, judges nevertheless appoint counsel in some cases. Doing so will start a process that appointed counsel will unlikely be unable to escape—and will likely result in an opinion like the one last week with no winners—and a county’s taxpayers and the state’s limited appellate resources again the loser.

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Schumm - Commentary

Ind. Decisions - More on: Transfer list for week ending August 16, 2013

The ILB has now completed short summaries of the seven cases granted transfer last week.

Interestingly, two of the cases granted transfer were initially issued as NFP by the COA, then changed weeks later to FP - I've yet to check the docket to see if this was on a motion of a party in each case.

The ILB has received this note from a reader that is worthy of note:

I noticed from the Supreme Court’s transfer list you reported on yesterday that transfer was denied in a case of mine. Once again I have received no notice of that action, either by email, fax or mail. Are other attorneys reporting similar continuing problems with that notification process?

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "Fake letters supporting ex-Gary cop sent to judge, prosecutors claim"

Teresa Auch Schultz has the story today in the Gary Post Tribune. The stroy begins:

A former Gary police officer sent fake letters of support to help convince a federal judge to give him a lenient sentence, federal attorneys claim.

A new sentencing memorandum, filed Friday in the U.S. District Court, does not say how many of the letters supporting David Finley were faked or how they were faked, but it does say that federal attorneys believe this is the first time a defendant has done this in the Northern Indiana district.

Later in the story:
Federal attorneys argue that because Finley lied about the letters, he should lose credit for accepting responsibility and see his sentenced increased for obstruction justice. They ask that he serve 42 months in prison, instead of the 24 to 30 months federal sentencing guidelines recommend.

“Finley committed another serious crime during the sentencing process,” the filing says. “The court should consider that if the brazen attempt to mitigate his criminal behavior had been prosecuted, a consecutive sentence would have to be imposed.”

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Courts

Ind. Courts - "Pa. boobies bracelet case may influence FWCS suit", and a personal comment

Rebecca S. Green of the Fort Wayne Journal Gazette has this story today. Some quotes:

A federal judge evaluating a local free speech case will also consider a recent appeals court case from Pennsylvania in making his decision.

The case of “J.A. v. Fort Wayne Community Schools” awaits U.S. District Judge Joseph S. VanBokkelen’s decision after a June hearing. The unnamed girl, then a sophomore at an unnamed FWCS high school, sued the district over an “I (heart) boobies” bracelet in 2012.

Filed by the ACLU on behalf of the girl, the lawsuit claims the district violated her First Amendment rights to free speech when it took the bracelet away.

School officials took the bracelet from the girl but later gave it back to her and told her she could no longer wear it to school.

ACLU attorneys argued the bracelet was neither disruptive to the school environment, nor was it lewd, vulgar, obscene or offensive – all factors that give schools the right to censor certain types of speech.

They asked a judge to prevent the school from banning the bracelets in an earlier motion for an injunction.

But FWCS attorneys argued the girl admitted the phrase could be viewed as lewd or offensive, which demonstrates the school did not violate her First Amendment rights.

They also argued that the age of the students is less important when schools are “regulating sexually charged speech,” according to court documents.

Earlier this month, the U.S. 3rd Circuit Court of Appeals ruled in a split decision in a similar case that the bracelets were constitutionally protected free speech because they are not “plainly lewd” and commented on social issues, specifically breast cancer awareness.

The higher court ruled the school couldn’t ban the bracelets.

ACLU attorneys filed a request last week to have VanBokkelen consider the 3rd Circuit ruling. On Monday, the judge granted their request, according to court documents.

Indiana ACLU legal director Ken Falk said the plaintiff still waits the decision on the injunction.

ILB comment: The ILB in the past has avoided posting the "I (heart) boobies" cases because they make me cringe, as I also noted in this Nov. 21, 2010 post headed "'I (Heart) Boobies' and other inane efforts to put a shiny face on breast cancer."

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Indiana Courts

Environment - "Camp Tecumseh asks court to stop hog operation: Lawsuit contends CAFO will interfere with camp's mission"

Updating a long list of earlier ILB entries on Camp Tecumseh, the one from July 1st headed "White County commissioners OK request for large hog farm near Camp Tecumseh", Chris Morisse Vizza reports today in the Lafayette Journal Courier:

Camp Tecumseh is not waiting to see what happens when a confined animal feeding operation capable of holding 9,240 hogs is built about one-half mile away.

The camp board has gone to court, seeking a review and suspension of the rezoning approval that cleared the way for the facility to be built. * * *

Among other things, the lawsuit asserts the 600-acre YMCA camp is similar to a small town, educational facility or church center, and based on that, the commissioners should have required larger setbacks or property buffers between the CAFO and the camp.

The suit also contends the commissioners’ rezoning decision ... “threatens to substantially burden Camp Tecumseh’s religious exercise” ... during regular services at its outdoor chapels six days a week through the summer months and Sunday services throughout the year, weather permitting.

The legal action was filed in Carroll County where Camp Tecumseh is located, not in White County where the Erickson family plans to build the hog operation. The county line lies just east of Springboro Road, and the Y-camp is just east of the dividing line.

Legal counsel for the camp did not respond to phone calls from the Journal & Courier on Monday.

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Environment

Ind. Decisions - Supreme Court accepts resignation of William R. Wallace III from the Indiana bar

Several disciplinary orders were filed by the Supreme Court On August 14th. One is this is this order accepting the resignation of William R. Wallace III from the Indiana bar, effective immediately.

The ILB has had a number of entries on Mr. Wallace, a Gibson County attorney. The most recent quoted a July 16th C&P story that was subsequently corrected by the C&P editors. The corrected version 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 about 60 days. If it is rejected then he would still face a disciplinary hearing.

The earlier version has stated: "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."

Posted by Marcia Oddi on Tuesday, August 20, 2013
Posted to Ind. Sup.Ct. Decisions

Monday, August 19, 2013

Law - "The thing with social networking is, no matter what your interest is, you can find people with the same interest or even more extreme interest ... so by extension, you can feel normal"

That is a quote from Indiana State Police Lt. Chuck Cohen, chief of the state's Internet Crimes Against Children task force, in this story by Charles Wilson of the AP, here published in the Houston Chronicle. The long story begins:

INDIANAPOLIS (AP) — In a cluttered office cubicle in a nondescript building on Indianapolis' derelict east side, a man with rolled-up shirt sleeves scans email attachments of videos that depict startlingly young children being sexually tormented in ways that can make even federal judges weep.

Detective Kurt Spivey is trying to find the people who record or collect such images. He has 30 days to locate as many as he can. After that, the trail could go cold as the data on the hard drive dissolves.

Spivey is a 43-year-old police detective who parlayed his nine years in vice and experience with computers into a position on the city's cybercrime unit. It's part of central Indiana's Internet Crimes Against Children task force, which has become one of the nation's most aggressive and effective child pornography hunters, with a reach that extends around the globe.

"They are really cutting-edge," said Francey Hakes, who worked for three years as a special assistant to the U.S. Attorney General overseeing child exploitation units in various agencies within the Justice Department. "I would say that most districts that have learned of some of the techniques and tactics used there have tried to model and adopt them as best they can."

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to General Law Related

Ind. Courts - "Indiana Case Shows That Merit Selection Not A Recusal Controversy Panacea"

From the State Bar of Michigan Blog, this post. Some quotes:

Proponents of merit selection of judges often argue against the popular election of judges by pointing out how campaign expenditures can compromise judicial impartiality, or at least the appearance of impartiality. Indeed, the definitive U.S. Supreme Court case, Caperton v. Massey, held that a West Virginia justice's failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violated the other party's Due Process rights. An ongoing controversy in Indiana, however, illustrates that big recusal fights can arise in appointive systems, too. * * *

Last year, outgoing Indiana Governor Mitch Daniels appointed his chief counsel, Mark Massa, to the Indiana Supreme Court. When the case came before the Court this year, the Sierra Club and other opponents of the gasification plant filed a motion for disqualification, citing Massa’s "long and close" relationship with the project director for the proposed coal gasification plant and his work as Gov. Mitch Daniels’ general counsel when the governor pushed enabling legislation for the project. Last week, Justice Massa denied the motion to disqualify. In response, the Indianapolis Star has published "Of course, Mark Massa should have recused himself."

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Indiana Courts

Ind. Courts - Commentary by John Krull: "Massa’s decision damages court’s and his own reputation"

Just posted at The Statehouse File, John Krull writes in part:

INDIANAPOLIS – If Indiana Supreme Court Justice Mark Massa ever gets a chance to address a law school class or graduation ceremony, let’s hope he speaks about something he understands – like the importance of loyalty and friendship.

He should stay away, though, from subjects he just doesn’t get – such as conflicts of interest.

Or the dignity of the state’s highest court.

A few days ago, Massa delivered a lesson on the limits of his comprehension. On the morning of Aug. 14, four environmental groups filed a request with the Indiana Supreme Court that Massa recuse himself from a case coming before the court, the controversial coal-to-synthetic gas plant proposed for Rockport.

The environmental groups cited two reasons that Massa would have a conflict of interest – his personal friendship with Mark Lubbers, the Indiana project director for the group trying to build the plant, and the work Massa did as general counsel for former Gov. Mitch Daniels. Daniels was an energetic supporter of the plant.

Massa gave the request about as much consideration as he would choosing the toppings on a pizza – and he got the response out in about the amount of time it takes to get one delivered. He released it Wednesday afternoon, just hours after the environmental groups filed the request.

It was a remarkably fast bit of writing, given that he must have been typing with only his middle finger.

A bit more from the long commentary:
In his response, the Indiana Supreme Court justice dismissed his friendship of 28 years with Lubbers as being of no great consequence. Massa must have forgotten that Lubbers helped launch his career by hiring him to be part of Gov. Robert Orr’s staff in the 1980s and spoke at his investiture for the Supreme Court. Clearly, the times that he and Lubbers were on Daniels’ senior staff also must have slipped his mind.

Massa also said that he had no extrajudicial knowledge of the enabling legislation that made the plant possible. He argued that he “had no involvement in the Indiana Finance Authority and Indiana Gasification.” He also said that he didn’t review the bill before it became law.

Given that he was the governor’s top staff lawyer and the Rockport deal was one of the Daniels’ administration’s major initiatives, Massa’s statement immediately prompted scientists to begin searching the Statehouse for the hermetically sealed bubble in which the man must have been working and living.

One thing Krull says later in the article that opponents of the project will differ with:
One way or the other, the Rockport deal will be resolved soon and fade from public attention.
If the Rockport plant is built, and Indiana citizens are tied to artificially high gas prices over 30 years, the deal will not fade from memory.

Here is a list of earlier ILB entries on the Rockport project.

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Indiana Courts

Ind. Courts - "Experts expect a different outcome as third David Camm retrial starts in Boone County"

Grace Schneider had a long story in the Sunday Louisville Courier Journal - some quotes:

David Camm has been twice tried — and twice convicted — in the murders of his wife and children in a gruesome case that is now 14 years old.

But criminal law experts predict that when Camm’s third trial ends this fall, he will walk away a free man.

That’s because, they predict, prosecutors will struggle to explain a motive — after their previous efforts were thrown out in appeals of his previous convictions — and why Camm, a former Indiana state trooper, should be convicted even though another man, Charles Boney, is in prison for the murders.

Plus, blood spatter and forensics experts could paint a confusing picture for jurors about a crucial part of the prosecution’s case: how tiny dots of blood got on Camm’s T-shirt.

“The odds look much better for the defense this time,” said Kent Wicker, a former federal prosecutor and defense lawyer in Louisville. “Having been reversed twice, the state isn’t likely to have much motive evidence left.”

Steve Romines, a Louisville defense lawyer who has followed the case closely, agreed that the prosecution now has fewer weapons because of the overturned convictions.

“There’s so little evidence that indicates (Camm is) guilty,” so the prosecution faces “an uphill battle,” Romines said. * * *

He is being tried this time in Boone County, northwest of Indianapolis, where Special Judge Jonathan Dartt moved the proceedings to ensure a fair trial. Jury selection began last week, and opening arguments are expected to start this week.

“This may be the biggest case in the history of Floyd County,” said Stephen Beardsley, a New Albany defense lawyer.

It’s certainly the most expensive. Costs for all the trials, including Boney’s, have reached a total of nearly $4 million, with $639,000 paid this year and bills still rolling in, according to Floyd County records.

With the county’s reserves drying up, the Floyd County Council last week discussed getting a bank loan or borrowing from a bridge and road repair fund to pay the final bills from the third trial.

Floyd Councilman Brad Striegel said county taxpayers have taken a big hit. “It’s unfortunate we find ourselves obligated to pay,” and it’s squeezed money for fixing roads and bridges and employees raises.

In addition to the story, the LCJ has a comprehensive timeline of key dates in the David Camm case.

Here is a long list of earlier ILB entries on David Camm.

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Indiana Courts

Environment - Still more on "Amid Pipeline Debate, Two Costly Cleanups Forever Change Towns"

Updating this ILB entry from August 16th, NPR's Diane Rehm Show today focuses on "The Aftermath Of Oil Spills In Michigan And Arkansas." The intro:

In March of this year, an Exxon Mobil pipeline in Arkansas burst, spilling about 200,000 gallons of thick Canadian crude oil. Three years ago in Michigan, an Enbridge Energy pipeline ruptured. More than 840,000 gallons of oil spewed into the Kalamazoo River. Communities in both states are still dealing with the aftermath. The fear of a major oil spill is one of the reasons many environmentalists are fighting the proposed Keystone XL pipeline. Industry experts argue pipeline technology has improved greatly in recent years. They say Keystone will be safe and will help the U.S. economy. Diane and her guests discuss the latest news on the oil spills and the safety of shipping oil through pipelines.

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP) [Links now repaired, sorry]

For publication opinions today (1):

In Derik A. Blocker and Tammi Blocker v. U.S. Bank National Association as Trustee for the Certificateholders Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificate Series 2007-AHL3, a 10-page opinion, Judge Barnes writes:

Derik and Tammi Blocker appeal the trial court’s summary judgment and decree of foreclosure entered in favor of U.S. Bank National Association as Trustee for the Certificateholders Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates Series 2007-AHL3 (“U.S. Bank”). * * *

There are no genuine issues of fact that would preclude the entry of summary judgment and a decree of foreclosure in favor of U.S. Bank against the Blockers. We affirm.

NFP civil opinions today (2):

Jerry Corbier and Stephanie Corbier v. William B. Nourse and Teresa L. Nourse (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: X.M., Minor Child, A.B., Mother v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Ryan A. Osowski v. State of Indiana (NFP)

Wayne A. Wasson v. State of Indiana (NFP)

Waldo Lynn Jones, Jr., v. State of Indiana (NFP)

Yoni Solis v. State of Indiana (NFP)

Mark A. Cook v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 16, 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, August 16, 2013. It is two pages (and 30 cases) long.

Seven cases were granted transfer last week:

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Indiana Transfer Lists

Ind. Courts - Trial courts required to report guilty findings against lawyers to Disciplinary Commission

The latest issue of the IBJ has an editorial titled "Root out rogue attorneys." Unfortunately, it is $$, but Advance Indiana set out the gist in a post this weekend. Here is the beginning:

They’ve been in the headlines for all the wrong reasons. Yet next to the names Paul J. Page and David Wyser in the Indiana Roll of Attorneys appear the words: “Active in good standing.”

Page, a Marion County criminal defense attorney, in January pleaded guilty to a felony wire fraud charge in connection with an Elkhart real estate deal. Wyser, a former Marion County deputy prosecutor, in May pleaded guilty to a felony bribery charge for accepting a campaign donation in return for a reduced sentence for a convicted murderer.

The men face potential prison time for their crimes. But the Indiana Supreme Court Disciplinary Commission has allowed them to continue practicing law in Indiana. Adding insult to injury: The attorneys’ public files with the agency show no active disciplinary cases.

Today, G. Michael Witte of the Indiana Disciplinary Commission appears to respond, or has excellent timing, in an article headed "Another Judge’s Duty: Reporting Lawyer Criminal Convictions to the Indiana Disciplinary Commission" that begins:
A judge who has entered a criminal guilty finding against a lawyer has an affirmative duty to report the conviction to the Disciplinary Commission. This duty is found in Admis. Disc. R. 23 §11.1(a)(1). The rule requires the judge to transmit a certified copy of the finding of guilt to the Disciplinary Commission within ten (10) days of the finding being made. This rule applies to all criminal convictions and not just felonies. It has become a myth handed down through generations of the bar that this rule only applies to felony convictions. That myth is inaccurate.

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Indiana Courts

Ind. Courts - Plenty of Room for Improvement in Expediting Cases Involving Children in Indiana

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

Friday’s opinion in In Re the Matter of the Adoption of Minor Children; C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., included the following section on the inordinate and inexcusable delay in a trial court’s ruling on a petition involving children:

I. Undue Delay in Cases Involving Children’s Rights.

Before addressing the parties’ issues, we pause to address an issue they have not raised—the three-year delay in resolving Natural Mother’s petition to set aside the adoption at the trial level. We are gravely troubled by that lengthy delay. Time is of the essence in matters involving children, as the Twins illustrate particularly vividly. They became CHINS at age 1½, their parent-child relationship with Natural Mother was severed at age 4½, and their adoption was challenged at age 5½. They are now age 10, with this dispute still unresolved.

In our Appellate Rules, we have strictly limited the parties’ ability to seek extensions of time in cases involving children’s rights, and have required ourselves to give them priority consideration. Ind. Appellate Rules 21(A), 35(C)–(D). We applaud the Court of Appeals for its promptness in resolving the previous level of this appeal—and express our firm expectation that parties and courts will do likewise at the trial level, even without being expressly compelled to do so by a comparable Trial Rule.

The Court is optimistic that the scenario will not be repeated in the absence of a Trial Rule that requires promptness in addressing issues involving children. If it is, perhaps a rule should be adopted — or some system of monitoring delays should be implemented.

The focus of this post, though, is appeals involving children. Specifically, Appellate Rule 21(A) requires expedited consideration of appeals involving “issues of child custody, support, visitation, adoption, paternity, determination that a child is in need of services, termination of parental rights ....” As this April 2, 2013 post noted, “[a]lthough ‘expedited’ is a relative term, two years seems a long wait for an appellate resolution of a case involving children.” It is unfortunate when we become accustomed to measuring an expedited process in years rather than months.

The Adoption Case

The “expedited” adoption challenge decided Friday took about sixteen and a half months. Although that may seem like a long time, it is an improvement over other recent cases. Here’s the timeline:


Some of these time periods are certainly shorter than the appellate norm. For example, the Indiana Supreme Court generally takes considerably longer than a month and a half after hearing oral argument to issue an opinion. Moreover, although not required to do so, the court reporter completed the transcript in about half of the ninety-day allotted period.

Other periods, though, seem unusually long. The Court of Appeals took nearly three and a half months from receiving the case to issue an opinion. Its average in all appeals is a little over a month. Although the case arrived at the Supreme Court at the end of January, the Court did not grant transfer for about six weeks and then set oral argument more than three and a half months later. In some other non-child cases (especially criminal cases), transfer decisions are made in a matter of two or three weeks, and oral argument is sometimes scheduled with only a month’s notice. For example, the Court issued an order December 13, 2011, setting oral argument for January 10, 2013, in K.W. v. State.

Other Recent Cases Involving Children

The Indiana Supreme Court issued opinions in two cases involving children in June of this year. Although purportedly expedited by the Court’s rules, both were pending on appeal for even longer than the adoption case. In Perkinson v. Perkinson, the Indiana Supreme Court ultimately reversed the trial court’s order prohibiting a father from exercising any parenting time—almost two full years after the appeal was initiated. Here’s the timeline:


The periods of delay in Perkinson are different from those in the adoption case. Specifically, although the Perkinson case arrived fully briefed at the Indiana Supreme Court in May of last year, the Court did not hold oral argument for more than six months and then took more than six more months to issue an opinion. That’s yet another birthday, Father’s Day, and Christmas in which a father was prohibited from any contact with his child.

The other June case, Termination of Parent-Child Relationship of K.K., et al. was initially dismissed by the Court of Appeals on May 12, 2012, and transmitted to the Indiana Supreme Court on transfer on October 15, 2012, where it remained for seven and a half months before an opinion was issued on June 5, 2013. The Court affirmed the trial court’s termination of parental rights, unlike the two cases discussed above in which the trial court was reversed.

Although a year and a half or two years seems like a long time for an expedited appeal, some cases in recent memory have taken even longer. For example, an appeal of the high profile case involving an “adoption granted to a New Jersey resident for children brought to Indianapolis for their birth to a South Carolina woman who had been inseminated with biological material from California” resulted in reversal of the trial court — but was not final for nearly three years. The notice of appeal was filed November 2, 2006, and the Indiana Supreme Court issued its opinion two and half years later on April 8, 2009 —more than fourteen months after the case was transmitted there fully briefed. The opinion did not become final until September 29, 2009, when rehearing was denied.

A Truly Expedited Process

Appellate Rule 14.1 lays out a far more expedited process for appeals involving the payment of placements or services by the Department of Child Services. Specifically:

Any petition to transfer must be filed within five days after the Court of Appeals’ decision.

I’m not suggesting those deadlines are workable for appeals from lengthy hearings involving children, but it is not unreasonable to think most appeals involving children should be resolved in a matter of months instead of years.

Expediting appeals involving children has been a persistent problem, and a true solution is not going to occur overnight. More than a decade ago I wrote an article as part of a symposium on Expedited Appeals in State Appellate Courts for the Journal of Appellate Practice and Process. The title says it all: Expedited Appeals in Indiana: Too Little, Too Late. Although progress has been slow and uneven, Justice Rush’s opinion on Friday is an important step in the right direction.
______________
* Of course, as alluded to in the adoption opinion, any appeal resolved by an Indiana Supreme Court opinion is not truly over for more than an additional month. Appellate Rule 65(E) provides: “The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified,” and certification does not occur until the time for seeking rehearing has run or a petition for rehearing has been resolved.

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Schumm - Commentary

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

From Sunday, August 18, 2013:

From Saturday, August 17, 2013:

From late Friday afternoon, August 16, 2013:

Posted by Marcia Oddi on Monday, August 19, 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 8/19/13):

Thursday, August 22nd

Next week's oral arguments before the Supreme Court (week of 8/26/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/19/13):

Tuesday, August 20th

Next week's oral arguments before the Court of Appeals (week of 8/26/13):

Tuesday, August 27th

Wednesday, August 28th ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

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


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

Posted by Marcia Oddi on Monday, August 19, 2013
Posted to Upcoming Oral Arguments

Sunday, August 18, 2013

Ind. Decisions - “Three Is a Magic Number” writes Judge Magnus-Stinson

On August 16th, SD Ind. Judge Jane Magnus-Stinson issued this 28-page Order Denying Motion to Dismiss in the case of John Rock v. NCAA that begins with some unexpected citations:

As Schoolhouse Rock teaches, three is a magic number. Bob Dorough, “Three Is a Magic Number,” Schoolhouse Rock, ep. 1 (1973); see also Blind Melon, “Three is a Magic Number” (Atlantic Records 1996). Presently pending before the Court is Defendant National Collegiate Athletic Association’s (“NCAA”) Motion to Dismiss, [dkt. 47], arguing that Plaintiff John Rock’s Second Amended Complaint, [dkt. 46], is insufficient as a matter of law. This is the third time that this Court has ruled on the sufficiency of a plaintiff’s complaint challenging two NCAA bylaws at issue—the prohibition on multi-year scholarships and the cap on the number of allowable scholarships. This is the first time, however, that the Court concludes that the complaint at issue pleads the rough contours of a relevant market that is plausible on its face and in which anticompetitive effects of the challenged regulations could be felt. This ruling should not be read too broadly. The burdens at the subsequent stages of litigation are significantly higher than they are in opposing a motion to dismiss, and Mr. Rock may struggle to identify admissible evidence to support some of the allegations that the Court was required to accept as true for purposes of ruling on the NCAA’s motion. Nevertheless, because Mr. Rock has alleged sufficient factual allegations to support an antitrust claim that is plausible on its face, the Court denies the NCAA’s motion to dismiss.
A reader has commented to the ILB:
I'd venture to guess that this is the first federal court case citing Blind Melon. In case you didn't know ... Blind Melon's lead singer, Shannon Hoon, was a Lafayette native. I say "was," because he died of a cocaine overdose. From the NY Times obit:
Shannon Hoon, the Lead Singer Of Blind Melon, Is Dead at 28 ...
Oct 22, 1995 ... Shannon Hoon, a singer and songwriter whose band, Blind Melon, shot to the top of the charts in 1993 with their eclectic single "No Rain," died ...

Posted by Marcia Oddi on Sunday, August 18, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Awaiting 7th Circuit rulings in Grote and Korte...

The federal circuits which have ruled have split on whether a company can claim religious objections to the new health care act and, as reported here, "the Sixth and Seventh circuits are expected to be decided soon." The two cases awaiting decision by the 7th Circuit are Grote Industries v. Sebelius and Korte v. Sebelius.

On August 16th, Judge DeGuilio of the ND Ind., issued an Opinion and Order in Tonn and Blank Construction v. Sebelius, which concluded:

For the foregoing reasons, the Court GRANTS the Defendants’ Motion to Stay and temporarily STAYS the case until thirty (30) days after the Seventh Circuit has issued an opinion on the consolidated Grote and Korte appeal.

Posted by Marcia Oddi on Sunday, August 18, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "How sex crimes ruin lives and challenge our justice system"

Updating this entry from last Sunday, the $$ South Bend Tribune now has a number of additional stories under this heading, reported by Madeline Buckley.

Posted by Marcia Oddi on Sunday, August 18, 2013
Posted to Indiana Courts

Ind. Courts - More on: Inaugural Meeting Set for State Commission on Improving the Status of Children

Updating this ILB entry from August 13th, the Fort Wayne Journal Gazette has an editorial today that reads:

A high-powered committee convenes Wednesday for work that bodes well for Indiana children. The State Commission on Improving the Status of Children is comprised of the top officials in charge of services for the state’s youngest residents.

The commission was established under Senate Enrolled Act 125, authored by Sens. Travis Holdman, R-Markle, and John Broden, D-South Bend, to address long-standing problems in Indiana’s child protection services. Department of Child Services Director James Payne resigned last September after a troubled tenure of nearly eight years. DCS drew complaints from judges, service providers, child advocates, health officials and lawmakers across the state as spending was slashed and control was shifted from counties to Indianapolis.

After years of failing leadership, the powerful panel is an encouraging sign the state is moving in the right direction. With Supreme Court Justice Loretta Rush as chair, Gov. Mike Pence sends a strong message that Indiana intends to do what’s best for its children.

“This unprecedented cross-agency collaboration is vital,” Rush said in a news release. “All three branches of government are coming together to realize overall systems improvements for Indiana’s youth.”

Holdman, who co-chaired last year’s DCS oversight committee, said Rush was insistent on naming top state executives to the commission.

“Her fear was that if they delegated the work to others, we would lose the consistency and urgency,” he said. * * *

Holdman said he’s pleased with the new direction of DCS, first under interim director John Ryan and now under Mary Beth Bonaventura, the former Lake County Juvenile Division judge appointed by Pence in February.

“Director Bonaventura got right in and got to work – collaborating with provider groups, foster homes – trying to turn the page on some of the issues,” he said. * * *

The bold statement the administration has made in filling the commission is an excellent sign that Indiana children finally will be Priority One.

The editorial has a sidebar headed "High-powered panel" listing the membership:
Indiana Supreme Court Justice Loretta H. Rush, chairwoman
Mary Beth Bonaventura, director of Department of Child Services
Rep. Rebecca Kubacki, R-Syracuse
Sen. Travis Holdman, R-Markle
Rep. Gail Riecken, D-Evansville
Sen. Tim Lanane, D-Anderson
Glenda Ritz, superintendent of public instruction
David Powell, director, Indiana Prosecuting Attorneys Council
Larry Landis, director, Indiana Public Defender Council
Debra Minott, secretary, Family and Social Services Administration
Kevin Moore, director, Division of Mental Health and Addiction
Susan Lightfoot, chief probation officer, Henry County Probation Department
Brian Bailey, director, Indiana State Budget Agency
Ryan Streeter, senior policy director for Gov. Mike Pence
Attorney General Greg Zoeller
ILB: Again, as I wrote last week - No word on whether the meeting will be videocast so that it can be viewed throughout the State ...

Posted by Marcia Oddi on Sunday, August 18, 2013
Posted to Indiana Courts

Saturday, August 17, 2013

Ind. Courts - "Of course Mark Massa should have recused himself"

Dan Carpenter's Sunday Indianapolis Star column looks at Justice Massa's decision not to recuse himself in the Leucadia Coal Gasification (Rockport) case. It begins:

Then-Gov. Mitch Daniels may have paid no mind to the fact Mark Massa had been his chief counsel when he named him to the Indiana Supreme Court last year.

Justice Massa may draw a blank about his sponsor and his long friendship with Mark Lubbers when he weighs the fate of a $2.8 billion power plant project of which Lubbers is director.

It could happen.

What matters to Hoosiers concerned about our imperiled environment and about the bills an energy monopoly will send them is whether an impartial opinion can be rendered by a human being who, like every appointed judge, owes his job at least in part to politics.

In all three branches of Indiana government, of course, contemptuous familiarity is a fact of life, challenged in sporadic quixotic fashion by maverick elected officials and citizens groups such as those who petitioned for Massa’s recusal.

His rebuff was disingenuous, to put it charitably: that he looked over a lot of business for Daniels, a champion of the dubious coal gasification venture; that he and Lubbers, who recruited him into the Daniels coterie, don’t socialize all that much; that his recusal would cripple the court by allowing the plant’s enemies to win with just two votes (Like nobody has ever faced a four-justice Indiana Supreme Court?).

One wonders just how close a judge must be connected to a party before he can consider recusing himself. Many of us amateur observers would call this one a no-brainer. Yet, unlike a Massa vote against the Rockport power plant, it comes as no shock.

Th ILB has earlier posts on this aspect of the Rockport case:Oral arguments on the Rockport case are scheduled for Sept. 5.

Posted by Marcia Oddi on Saturday, August 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Supreme Court ruling could pull twins from adoptive home"

Yesterday's Supreme Court opinion in In Re the Matter of the Adoption of Minor Children C.B.M. and C.R.M. is the subject of a story today by Dan Carden of the NWI Times, headed "Indiana Supreme Court ruling could pull twins from adoptive home":

INDIANAPOLIS | In a ruling it described as "harsh" and "devastating," the Indiana Supreme Court declared Friday it had no choice but to void the adoption of twins originally from Jasper County.

The twins, now 10 years old, were removed by the Department of Child Services from their natural mother's home at age 18 months for unspecified reasons and placed with a foster family. Their natural father is unknown, according to court records.

In January 2008, the Jasper County child services office won county court approval to terminate the parental rights of the natural mother. She, however, appealed that decision.

While the appeal was pending, the foster parents formally adopted the twins, who already had been living with them for three years.

The natural mother received no notice of the adoption case, because notice is not required by Indiana law when a parent's rights have been terminated.

Two months after the adoption was finalized, the Indiana Court of Appeals reversed the decision to terminate the natural mother's parental rights. It found DCS did not satisfactorily show that continuing the parent-child relationship would threaten the twins' well-being.

The natural mother then asked Jasper Superior Court Judge James Ahler to set aside the adoption decree. He refused to do so.

In a 5-0 ruling, the Supreme Court reversed that decision, even as it noted that may ultimately result in the twins being removed from the only home they've ever known.

"A fit parent's rights are fundamental and constitutionally protected, and even a matter as important as the twins' best interests does not necessarily override that right," wrote Justice Loretta Rush. "Since the only judicial determination that the natural mother is unfit to retain her parental rights has been overturned on appeal, letting the adoption stand would be an overreach of state power into family integrity. The adoption must be set aside."

The high court ordered a new adoption hearing be held in Jasper County, where the natural mother can make her case as to why the twins belong with her. The justices recommended the children remain with the adoptive mother until that case is concluded. The adoptive father was killed in an auto accident in May 2011.

Employing unusually direct language, the Supreme Court also urged DCS, lawyers, judges and others involved in the adoption process to change their procedures -- so no Hoosier children are ever again put in a similar position.

"There are no winners in some cases, and this is one of them," Rush said.

There is also an unattributed AP story that appears in the state's Gannett papers.

Posted by Marcia Oddi on Saturday, August 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Kentucky opens customer call center for health insurance exchange"

A story yesterday by Mike Wynn in the Louisville Courier Journal begins:

LEXINGTON, KY. — Kentuckians without insurance can call a new customer service center for information on obtaining health care coverage under the federal Affordable Care Act, known as Obamacare.

Gov. Steve Beshear announced Friday that the state has contracted with Xerox to open a call center in Lexington, providing about 60 representatives who can help people navigate Kentucky’s new health insurance exchange and the online application process. The center is expected to have around 100 representatives when open enrollment begins Oct. 1.

Beshear said signing up for insurance could be a “daunting experience” for many and that the call center will play a critical role in the exchange’s success.

“I’m proud that we are leading the way as one of the first states to reach this stage of implementation,” he said.

Posted by Marcia Oddi on Saturday, August 17, 2013
Posted to Indiana Government

Ind. Law - "Shelby County’s prosecutor questions expungement law"

Paul Gable of the Shelby News reports today:

Shelby County Prosecutor Kent Apsley said he understands the bill’s intent.

“This bill started out as an attempt to give first-time, non-violent offenders a fresh start. However, the final bill went way beyond that. From an offender’s standpoint, this law is, obviously, a huge benefit. They can essentially wipe out a whole lifetime of crime. There is no limit on the number of convictions that can be covered up and no limit on the number of counties they can do it in,” Apsley said.

Those interested must petition a court to have their records of the conviction and initial arrest expunged. Such a petition requires the individual to: 1) Not have been charged with or committed other crimes; 2) Successfully complete their sentence; 3) Not have a pending or existing driver’s license suspension; and 4) pay a licensing fee.

Under the law, crimes such as battery, operating a motor vehicle while intoxicated causing death, theft and forgery are eligible. Most sex or violent offenders, as well as those convicted in a homicide case, aren’t eligible to have records cleared.

“Obviously the big losers are employers who can no longer ask about ‘non-expunged’ crimes. In fact, it is now an offense if they do ask. Most employers would like to know if people they are looking to hire have a history of theft, drug offenses, drunk driving and so on,” Apsley said.

Apsley said that despite Pence signing the measure into law, it will be “largely ineffective.”

“Once a person has been charged, convicted and that information hits the World Wide Web, there is no way to cover up those facts. Anyone looking for this sort of information will simply turn to the Internet, rather than to previously available and more accurate public records,” Apsley said.

Posted by Marcia Oddi on Saturday, August 17, 2013
Posted to Indiana Law

Friday, August 16, 2013

Ind. Courts - ACLU Files Suit to Stop Indianapolis from Violating Free Speech Rights of Panhandlers

From the news release:

The American Civil Liberties Union of Indiana filed the class action lawsuit on behalf of four individuals who were unlawfully ordered to move by Indianapolis Metropolitan Police Department officers for requesting donations within the past week. The plaintiffs, who all live in poverty, passively solicit contributions from pedestrians near Circle Centre Mall by holding up signs. They do not seek funds from people driving by, and do not verbally harass pedestrians. The plaintiffs’ activity is fully protected by the First Amendment.

ACLU of Indiana Legal Director Ken Falk said, “The First Amendment protects the rights of all people to ask for contributions, whether they are seeking political donations or asking for assistance for poor people on city sidewalks. This case seeks to vindicate a right that is fundamentally important for all.”

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Courts

Courts - NJ citizens have civil unions, but not marriage equality

Some quotes from an editorial in Thursday's NYT:

A civil rights suit to be heard on Thursday in a New Jersey state court could finally change that. Brought on behalf of six couples and Garden State Equality, New Jersey’s largest gay rights group, the case squarely addresses an urgent legal question for New Jersey that grows out of the United States Supreme Court’s ruling in June that ended the unjust denial of federal marriage benefits for married same-sex couples under the federal Defense of Marriage Act. * * *

Now that married same-sex couples are eligible for federal benefits, like joint tax filing and veteran’s survivor payments, New Jersey couples in civil unions who are denied those benefits face an even bigger equality gap: they are clearly not afforded the same rights. In July, the plaintiffs in this suit filed a motion for a summary judgment asking the state court to declare what the Supreme Court ruling made obvious: New Jersey civil unions are not equal to marriage and violate the State Constitution. * * *

In a brief filed on behalf of the Christie administration, the state’s acting attorney general, John Hoffman, veered between urging caution in redefining marriage and trying to shift the blame for discrimination to the federal government. It bizarrely suggests that federal agencies are blocking equality by declining to grant benefits to civil union partners, as if the state’s refusal to allow same-sex couples to marry did not cause the denial of benefits in the first place.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court decides adoption case

In In Re the Matter of the Adoption of Minor Children; C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., an 11-page, 5-0 opinion, Justice Rush writes:

The foster parents of C.B.M. and C.R.M. adopted them while their natural mother’s termination of parental rights (TPR) appeal was still pending. Our statutes specifically allow those competing processes to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal.

That is exactly what happened here, and we cannot unscramble that egg. Either the adoptive family prevails in violation of the natural mother’s constitutional rights, or the natural mother prevails at the risk of pulling the children away from the only family they know. But the natural mother’s rights, both as a parent and as a litigant with an absolute right to an appeal, are constitu-tionally protected. We cannot cut corners on those rights, despite our concerns for the children’s undoubtedly vital interest in a speedy and permanent placement.

We therefore conclude that the trial court should have set aside the adoption, because the prior TPR “judgment upon which it is based has been reversed or otherwise vacated”—making the adoption voidable under Indiana Trial Rule 60(B)(7). And since a dilemma like this ill-serves the interests of everyone involved, we also offer guidance for mitigating the harsh result in this case, and in any future cases of this type. * * *

There are no winners in some cases, and this is one of them. Ruling in favor of the Adop-tive Parents would violate the Natural Mother’s constitutional rights, while the opposite ruling would risk pulling the Twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the Twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions—and we must take a narrow view of the exceptions to that principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families. Thus, when the TPR judgment in this case was reversed, we must conclude that the no-consent adoption that followed on its heels became voidable under Trial Rule 60(B)(7). The trial court therefore abused its discretion in failing to set aside the adoption.

Accordingly, we reverse the trial court’s judgment, and remand with instructions to vacate the adoption decree within seven days of this Court’s opinion being certified, to reset the adoption petition for a contested hearing, and to promptly serve notice and summons of that hearing on Natural Mother. Pending that hearing, the trial court could exercise its authority to entertain motions regarding temporary custody of the Twins under Indiana Code section 31-19-2-13, until final judgment is entered.

ILB: A section of the opinion beginning on p. 10 is headed: "IV. Avoiding a Repeat of This Situation." It reads:
We are all too aware of the harsh effects this decision may have on the Twins, and future children who may find themselves similarly situated through no fault of their own. We therefore offer guidance for mitigating those harsh effects in this case, and potentially avoiding them completely in future cases.

Foremost, this case illustrates the wisdom of doing more than “just the bare minimum.” Due Process notice requirements are just that—a bare minimum that parties always may, and sometimes ought to, exceed. While the Adoptive Parents were not required to serve notice on Natural Mother, I.C. § 31-19-2.5-4(2)(F), doing so voluntarily may well have saved the adoption from reversal. If Natural Mother had been served, the Adoptive Parents could then have requested a contested adoption hearing for litigating an alternative basis for dispensing with consent under Indiana Code section 31-19-9-8(a). Natural Mother would then have been offered a “day in court” independent of the TPR, giving this Court an alternative basis to affirm the adoption—because either she would have appeared and been heard, or else failed to appear and been properly defaulted. We emphasize that such notice is not required, and adoptive parents have the statutory right to rely solely on a trial-level TPR judgment and seek adoption pending the TPR appeal. We merely caution that such reliance comes at the adoptive parents’ peril. See Cunningham, 402 N.E.2d at 21 n.4.

Second, some of the uncertainty for the Twins could have been avoided if DCS had left the underlying CHINS case open until Mother’s TPR appeal was complete. As this case shows, children may have a particularly great “need of services” when a TPR judgment is reversed on appeal. By then, they will have been removed from the parents’ home for a substantial time, and will be bonding into a new home—especially when, as here, the foster parents plan to adopt. And the natural parent, even if not unfit, may also be in need of services before the children could appropriately return to their original home. Yet without a CHINS case, there is no ready means to provide the support all the parties here will require while reexamining the Twins’ status in light of the TPR reversal. (Indiana Code section 31-9-2-13 could authorize the Adoptive Parents to seek temporary custody of the Twins while the adoption is pending—which may very well be beneficial to the Twins, but falls far short of the services a CHINS case would permit.) We strongly suggest that in the future, DCS’s best practice would be to leave underlying CHINS cases open until any related TPR appeal is complete.

Finally, we reiterate that granting an adoption pending TPR appeal is a discretionary decision of the trial court. Our Legislature has authorized the practice, and there are surely cases in which it will be entirely appropriate to expedite the adoption. Yet it is only permitted, not required. In view of the potentially devastating consequences of having an adoption invalidated by a TPR appeal, we encourage courts to exercise that authority with an abundance of caution. Speedy per-manency for children is vitally important. But balanced against the risk that materialized in this case, a few months’ additional delay in granting an adoption may often be preferable.

See also the two footnotes on p. 2.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - "The problem is the state may not have enough rules governing CAFO operations"

That is how this editorial today in the Fort Wayne Journal Gazette concludes. It begins:

The prospect of a large industrial hog farm being built near Steuben County lakes has raised questions about the potential threat to those prized natural resources. Indiana Department of Environmental Management officials have scheduled a public meeting in an attempt to address citizens’ concerns, but state regulators’ jurisdiction over large agricultural operations is shockingly limited.

“IDEM looks only at water quality,” said Kim Ferraro, staff attorney and director of water and agricultural policy at the Hoosier Environmental Council. It does not weigh air pollution, odors, traffic congestion, road damage, land use or zoning.

“People come hoping to have IDEM address their questions and concerns and walk out only being told IDEM doesn’t regulate those issues,” Ferraro said. “So, they sometimes end up walking away more frustrated.

“That doesn’t mean that people shouldn’t show up,” she added. “If people show up en masse, it may sway local officials.”

Barry Sneed, an IDEM spokesman, said Steuben County officials must approve zoning for the project. The state agency only approves the confined animal feeding operation permit.

The land already is zoned for agricultural use, but because more than 300 head of hogs are proposed, a special exception is required from the county.

Keith Werner, a third-generation farmer, recently created K and D Contract Pork LLC and wants to build a 4,800-head confined animal feeding operation for hogs on a 60-acre parcel. The property, located at County Roads 200 North and 600 West, is close to several popular lakes.

“If nothing else, people will leave the meeting knowing more than when they came,” Sneed said. “We just uphold the statutes and regulations as they exist. If it falls within the rules, we approve it, and if it doesn’t, we don’t.”

But that is one of Ferraro’s concerns.

“All these facilities have a direct impact on water, whether it’s through direct discharge or through runoff or groundwater contamination,” Ferraro said. “The regulatory system – the rules and laws in place for CAFOs – more serve the interest of CAFOs than they serve the public interests or the environment, and they are very hard to defeat.”

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Environment

Ind. Law - "Indiana drunken driving law creates 'incentive to flee'"

Of course, you'd need to know the law first.

Kristine Guerra of the Indianapolis Star now has a very lengthy story online, possibly written for the Sunday Star. From the beginning of the story:

In Indiana, a drunken driver who kills someone, stays at the scene and calls 911 — as required by law — faces a B felony charge or up to 20 years in prison if his or her blood alcohol content is 0.15 percent or higher. But if that same driver flees the scene and is caught, say, after 24 hours, when an alcohol test is futile, he or she faces a lower C felony charge carrying up to 8 years in prison.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Law

Ind. Gov't. - Two Gary Indiana stories

From the NWI Times, this story from Joseph S. Pete headed "Gary has nowhere near the debt of bankrupt Detroit." Some quotes:

GARY | When Detroit filed for the largest municipal bankruptcy in U.S. history, it called up recent memories of Gary going before the Distressed Unit Appeals Board year after year, and led some to wonder if the city U.S. Steel built could end up just as broke.

The Steel City has a lot in common with the Motor City. Both are largely one-industry towns in the Rust Belt.

Both are less than half as populous as they were during the 1960s, when factory jobs were still plentiful. Both have since suffered from crime, blight and buildings run-down enough to be compared to ancient ruins.

But unlike Detroit, Gary has little debt on the books.

After years of steep cuts and sweeping layoffs, Gary owes less to creditors than many towns a fraction of its size, according to the Indiana Department of Local Government Finance. The Steel City currently has about $8.4 million in outstanding debt for bonds, loans and leases, as well as utility and redevelopment projects. That's less than every other city and town in Lake County, except for New Chicago, Schneider and Winfield.

Last year, the state agency started collecting and publishing municipal debt figures online so the public can see how much local governments are borrowing, how much they owe in interest and how they are repaying the debt.

Only two cities in Indiana currently have less total debt per capita than Gary, according to Department of Local Government Finance records. One is Sullivan, which has a population of 4,200 and a single park. The other is Alexandria, which was designated "Small Town USA" by the Department of Defense in 1943 and has only added about 300 more residents in the seven decades that have since passed.

Mayor Karen Freeman-Wilson said the city's finances have been improving, despite a 55 percent reduction in property tax revenue brought on by the statewide tax caps. The city has cut expenses, avoided indebtedness and reduced Gary's overall debt burden significantly over the last several years.

And from the NY Times yesterday, a story by Steven Yaccino headed "A Chance to Own a Home for $1 in a City on the Ropes." Some quotes from the long story:
Officials say that a third of the houses in Gary are unoccupied, hollowed dwellings spread across a city that, like other former industrial powerhouses, has lost more than half its population in the last half-century.

While some of those homes will be demolished, Gary is exploring a more affordable way to lift its haggard tax base and reduce the excess of empty structures: sell them for $1.

The program, announced in June, will offer Gary residents a chance to pay less for a house than for their morning coffee, as long as they meet a minimum income threshold (starting at $35,250 for one person) and demonstrate the financial ability to bring the neglected property up to code within six months. Those selected would have to live in the home for five years before receiving full ownership.

Nearly 400 people picked up applications on the first day they were available. After an extensive preselection process, the city will choose 12 out of 25 finalists in a lottery next month.

“My target would be to sell 50 houses a year,” Mayor Karen Freeman-Wilson said. “We’re getting these people to contribute as taxpayers. They can be part of the group that moves out, or they can be part of the group that invests.”

Efforts to revive distressed postindustrial cities across the country are being watched closely since last month when Detroit became the largest American municipality to file for bankruptcy. Indiana is one of 21 states that does not allow its cities to file for bankruptcy protection, according to the National Conference of State Legislatures. While Gary does not carry the same debt load that led the Motor City into bankruptcy court — officials say its liabilities are around $8.4 million compared with Detroit’s estimated $18 billion — the decline of both manufacturing hubs are strikingly similar.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Government

Ind. Gov't. - "State legislators are bringing in a third party to analyze what impact the criminal code overhaul will have on prison populations"

So reports Brandon Smith of Indiana Public Media in a story today. A quote:

Indiana’s Legislative Services Agency, the General Assembly’s nonpartisan analysis group, and the Department of Correction fundamentally disagree on the issue. DOC predicts a steadily increasing incarcerated population, while LSA’s projections show an initial decline in prison numbers.

State Representative Greg Steuerwald, R-Danville, says lawmakers are bringing in an independent, third party firm called Applied Research Services, which has conducted similar studies in other states. Steuerwald says part of the struggle with developing a clear answer to House Bill 1006’s impact is the antiquated data gathering systems the DOC has to work with.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Government

Environment - More on "Amid Pipeline Debate, Two Costly Cleanups Forever Change Towns"

Updating this ILB entry from August 11th on the continuing problems relating to the Enbridge spill three years ago in Marshall, Michigan, Mike Mikus had a story in the August 15th Gary Post-Tribune headed "Enbridge explains new oil spill protocols." It begins:

MERRILLVILLE — Using a hypothetical spill in Hobart, Enbridge officials explained how new plans developed by the pipeline company would address an oil spill.

The company invited members of emergency response crews Wednesday to hear how Enbridge staff would respond within the first 48 hours of a reported spill.

The company, according to staff at the panel, developed more detailed response plans after the pipeline rupture in Marshall, Mich. caused 20,082 barrels of oil to spill into the Kalamazoo River.

“Let’s not beat around the bush,” said Mark Curwin, Enbridge’s director of major projects execution. “Marshall happened. We can’t change that now. But what we can change is what we do since that happened. It has affected us as employees, and we spent a lot of time and effort trying to keep Marshall from happening again.”

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Environment

Ind. Courts - "Brizzi's competence on trial as former secretary of state Charlie White seeks relief from conviction"

Here is Dan McFeely's Indianapolis Star story on the Charlie White PCR hearing. The story begins:

NOBLESVILLE — Former Indiana Secretary of State Charlie White’s appeal hinges on the following question: Was his attorney, Carl Brizzi, incompetent or did the decision not to present much of a defense boil down to an agreed-upon “legal strategy” that went wrong?

Despite a long day of legal arguments Thursday, mixed in with some testimony from two witnesses — one expert and White’s wife, Michelle — little progress was made in answering that question.

Hamilton Superior Court Judge Daniel Pfleging instead said he wanted to hear from White and Brizzi.

White, who is trying to erase his felony convictions for theft and voter fraud, spent the day beside his new attorney, Andrea Ciobanu, who struggled to put on her case after the judge dismissed several of the arguments she had prepared.

Pfleging agreed with special prosecutors from the state that many of White’s arguments for post-conviction relief, including flawed jury instructions and a contention that his conviction violated state and federal law, already had been argued and answered in the previous trial.

But Pfleging denied the state’s attempt to dismiss the “incompetent counsel” argument, allowing Ciobanu to proceed with trying to show that Brizzi did not do his job.

The hearing was continued to Oct. 15th.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Courts

Ind. Gov't. - "Phantom attorney behind Elkhart sewer ordinance may scuttle issue"

Dan Spalding of the Elkhart Truth had this interesting August 15th report - some quotes from the long story:

ELKHART — Days after Republican city council members passed their own compact sewer ordinance with the help of an outside attorney, Mayor Dick Moore is seeking information about how that ordinance was drafted.

Republican councilman David Henke’s ordinance was prepared with the help of an outside attorney after the city’s chief legal counsel refused to assist.

Henke has declined to identify the attorney, who he said did the work free of charge.

On Monday, Aug. 15, city attorney Vlado Vranjes filed a public records request on behalf of Moore.

Henke contends the administration wants to know the attorney’s name, but Vranjes is seeking all details related to work involving preparation of the ordinance.

The request was sent to Mary Jo Weyrick, the administrative assistant to the city council. She responded with a memo to Vranjes explaining that she had no records related to the ordinance and Vranjes replied saying it was directed to Henke.

Henke claims there was virtually no paperwork involved.

Moore and Vranjes contend Henke’s ordinance may not stand up in court if it become city policy.

Vranjes said in an email to The Elkhart Truth that he wants to discuss details of the ordinance with the attorney.

“I am willing ... to entertain discussion on the legal viability of the proposed ordinance with the attorney that drafted this Ordinance, but Councilman Henke is preventing any type of discussion with the attorney that drafted it,” Vranjes said.

“Councilman Henke is unable to answer questions about the legal foundation and reasoning of this Ordinance. This is important because if this Ordinance takes effect, the city taxpayers will have to pay the legal expenses for a court to ultimately decide the validity of this Ordinance.”

Vranjes added, “Until he can produce sufficient legal justification supporting (the ordinance), the administration will rely on the legal opinion that I have provided to the Mayor.

Henke, though, said he doesn’t see any reason to turn the name over and hinted that Moore wants the name for vindictive reasons.

“There’s no point to it in process, but he does want to know who to blame,” Henke said. “There’s no reason that that name matters. It’s a well-written ordinance. It was done by a professional, municipal attorney from the state of Indiana and that’s all we need to know.”

Henke said he doesn’t have permission from the attorney to reveal the name and that he had limited communications with the attorney for a reason.

“I had no direct contact,” Henke said. “We were smart enough to know Dick is a very vengeful person.”

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Government

Courts - "Litigation Over Noncompete Clauses Is Rising"

From the August 14th WSJ, a $$ story by Ruth Simon and Angus Loten that begins:

More employers are requiring their new workers to sign "noncompete" agreements, which they say are needed to prevent insiders from taking trade secrets, business relationships or customer data to competing firms when they leave.

But with a more than 60% rise over the past decade in the number of departing employees who are getting sued by their former bosses for breaching the agreements, some worry these clauses are having an unintended damping effect on U.S. entrepreneurship, by preventing people from leaving the corporate world to launch their own businesses, or hire workers when they do.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Courts in general

Ind. Gov't. - "Camm Trial Could Raise Floyd County Taxes "

From WIBC 93.1 FM, this story:

Residents of Floyd County could see a tax hike thanks to an accused murderer.

Floyd County officials say a loan may be required to pay the mounting expenses for the third murder trial of David Camm. The Floyd County Auditor says that if a loan is taken out, residents of Floyd County could foot the bill in the form of a tax hike.

The county has already spent over $1.4 million on the third Camm trial alone and has also allotted some funds for the prosecution of William Clyde Gibson, who is facing a capital murder trial this fall.

Gibson's trial is being held in Floyd County with a jury being brought in from Dearborn County, near Cincinnati.

Here are some earlier ILB entries on Gibson.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Government

Environment - "Options narrowed for Eagle Marsh carp plan"

Dan Stockman reported yesterday in the Fort Wayne Journal Gazette:

Federal officials have narrowed their list of options for preventing Asian Carp from reaching the Great Lakes through Eagle Marsh from nine to two.

The U.S. Army Corps of Engineers announced Thursday that it had decided to study the last two of the nine options it presented in November.

Fort Wayne sits along a continental divide: The eastern half of Eagle Marsh, on the city’s southwest side, drains into the Great Lakes by way of Junk Ditch, the St. Marys River and the Maumee River. The western half of the marsh drains into the Mississippi River by way of the Graham-McCulloch Ditch, the Little River, the Wabash River and the Ohio River.

When there are floods in Fort Wayne, Junk Ditch can flow backward, flooding overland through Eagle Marsh and into the Graham-McCulloch Ditch, allowing species to move from one basin to the other, including Asian carp, a huge, voracious fish that has invaded the Mississippi River system.

To prevent this, the Indiana Department of Natural Resources built a temporary fence across the marsh in 2010. The Corps, meanwhile, was investigating options ranging from a $2.8 million plan to just add screens at existing weirs to a $20.2 million plan to build a huge berm and pump station near Homestead Road.

The plans still on the table include reconstructing an existing berm along the Graham-McCulloch Ditch at a cost of $5.5 million, and a similar, but more ambitious plan that would reconstruct the berm, remove another berm and construct wetlands. That plan would cost $7.7 million.

None of the plans are ideal, said Betsy Yankowiak, director of preserves and programs for the Little River Wetlands Project, which owns and oversees Eagle Marsh nature preserve, but they’re better than the alternative of invasive species using the marsh as a highway back and forth between watersheds.

“Alternatives H and I were preferable, but obviously we’re not looking forward to seeing our nature preserve becoming a construction zone,” Yankowiak said. “We’re just going to have to hold our breath and wait for it to be over.”

She points out that the berm is preferable in other ways, too: Only a physical barrier preventing the two waters from ever touching will prevent the biggest invasive threat, which is viral hemorrhagic septicemia virus, known as VHS. Fences and screens may prevent fish getting through, but not a virus.

Yankowiak said the biggest drawback to the plan, if it is built, is that it will take up to five years for native plants and animals to re-establish themselves in the construction zone.

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Environment

Ind.. Courts - Indiana Courts site now has expungement forms for 2013 law [Updated]

Access them here, specifically the two marked REVISED JUNE 28, 2013, but posted apparently today. Also those re IC 35-38-9. Although the tweet from the Courts said "and instructions," I am not seeing instructions.

[Updated at 1:24 PM] Dan Carden of the NWI Times has posted this story, headed "State develops sample petitions to guide expungement requests."

Posted by Marcia Oddi on Friday, August 16, 2013
Posted to Indiana Courts

Thursday, August 15, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today, plus interesting CWA shield decision from Wisconsin

In UNITED STATES OF AMERICA v. JAMES A. SIMON (ND Ind., Miller), a 38-page opinion, Judge Rovner writes:

A jury convicted James A. Simon of filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud. He challenges the legal basis for his convictions on failing to file reports of foreign bank accounts and also contests the district court’s decision to limit the evidence he could present in his defense on the false income tax return counts. He also contends that the court erred in its rulings on jury instructions, and he maintains that a reversal on some counts necessarily requires reversal on other counts. We affirm.
In WISCONSIN RESOURCES PROTECTION COUNCIL, ET AL. v. FLAMBEAU MINING COMPANY (WD Wis.), a 21-page opinion, Judge Ripple writes:
The Wisconsin Resources Protection Council, the Center for Biological Diversity and Laura Gauger (collectively the “plaintiffs”) brought this action under the Clean Water Act’s (“CWA” or “the Act”) citizen‐suit provision, 33 U.S.C. § 1365(a)(1), alleging that Flambeau Mining Company (“Flambeau”) violated the CWA by discharging pollutants without a permit. The district court denied Flambeau’s motion for summary judgment, holding that Flambeau was not protected by the CWA’s permit shield provision, id. § 1342(k). After a bench trial, the district court determined that Flambeau had violated the CWA and assessed penalties against Flambeau. Because the CWA’s permit shield applies, we reverse the judgment of the district court.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Two John Mellencamp sons face felony battery charges"

Laura Lane has the just-updated story ($$) in the Bloomington Herald Times, complete with the charging documents. The story begins:

John Mellencamp’s two teenaged sons face felony battery charges stemming from a July incident during which police say they punched and kicked a 19-year-old man they assaulted on his front porch.

The fight left the victim with facial fractures and cuts that required stitches.

Speck Mellencamp, 18, 870 S. Woodscrest Drive, and 19-year-old Hud Mellencamp of 5807 Lower Schnooner Road in Nashville, each face a charge of battery resulting in serious bodily injury. The charges were approved by a judge and filed today.

Monroe County Chief Deputy Prosecutor Bob Miller said arrangements are being made for the Mellencamps to turn themselves over to police.

Ty Smith, 19, 3330 S. Spring Branch Road, a friend of the Mellencamps, also was charged with felony battery for his part in the fight. He is the son of Indiana University baseball coach Tracy Smith and an IU football team freshman walk-on.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Indiana Courts

Ind. Courts - "87 U.S. Chief Judges Appeal to Congress for Funding Help"

From the U.S. Courts website:

Describing themselves as "the boots on the ground in our nation's federal trial courts," 87 chief U.S. District judges have sent a letter to Congressional leaders (pdf) stating that reduced funding and sequestration have "...forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts."
Included among the signatories are Philip P. Simon, Chief Judge, Northern District of Indiana, and Richard L. Young Chief Judge, Southern District of Indiana.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Indiana Courts

Courts - "White women sent to Ohio prisons in record numbers, reports say"

Thanks to Sentencing Law Blog for pointing to this August 15th story by John Caniglia of The Cleveland Plain Dealer. Some quotes:

CLEVELAND, Ohio -- Amanda Lane is the face of Ohio's fastest-growing prison trend.

Lane, 28, is white and from rural Pickaway County, where she was convicted of drug charges and sentenced to 18 months in prison. The state's prisons are filling up with people just like her, a surge that has shocked researchers and experts.

White women, many from rural Ohio, are the fastest growing population in Ohio prisons. In fact, they made up 80 percent of the female felons sentenced to prison between June 30, 2012, and July 1, or fiscal year 2013, according to state records. * * *

Researchers say it is clear where many of the the numbers are coming from: rural Ohio.

"That's the thing that jumped out at me," said James Austin, a national researcher who studied women in Ohio prisons through a grant from the U.S. Justice Department. "The numbers weren't coming from Cleveland or Columbus, but from predominantly white, rural counties." * * *

"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs.

"People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."

In a 2006 report for Ohio prisons, Austin found that "the increase in admissions has been largely limited to white females who tend to come from the more rural and suburban areas of the state. Compared to males, female admissions tend to be more white, older convicted of a non-violent crime, have short sentences (and) no prior incarcerations."

The report said "the large urban counties with larger proportions of minority/black communities have shown little, if any, increases in female admissions." * * *

Austin's report said one of the key reasons for the growth of white women in prison is that smaller, rural counties have a limited number of community-based programs for women, meaning judges have few programming options in sentencings.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Courts in general

Ind. Gov't. - " Clinton County Courthouse Wears A 'New Crown'"

So reports Russ Kaspar of the Clinton County Daily News:

The Massachusetts State House Dome on Beacon Hill in Boston is gilded in 23 carat Gold (95.8% pure gold). The Clinton County Courthouse dome now has a “dressed up” new look and though the dome is not made of Gold, it is getting covered with a special paint that goes for about $300.00 dollars per gallon. * * *

At $300.00 per gallon, the paint should last for many many years, according to John Reid, owner of Pioneer Restoration, contracted to do repair and restoration work on the courthouse. This type of expensive paint is also used for certain kinds of aircraft, according to Reid.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Indiana Government

Ind. Gov't. - "IPL coal plant upgrades get OK by state regulators" but with a $10 million penalty

John Russell has this Aug. 14th Indianapolis Star story. It begins:

Indianapolis Power & Light Co. has won state approval to spend more than $500 million on environmental upgrades at two old coal-fired power plants, a move that will raise rates starting next year.

The rate increase was fought by the Sierra Club and Citizens Action Coalition, who said electric customers shouldn’t have to pay higher rates to extend the life of outdated coal plants. They want IPL to invest in clean, renewable energy sources, such as wind or solar power.

The Indiana Utility Regulatory Commission on Wednesday approved the company’s plan to spend $511 million on upgrades to its Petersburg and Harding Street coal-fired plants. Individual generating units at those plants are 27 to 46 years old.

Dan Hulman has this report in today's IBJ, headed "State sends IPL $10 million 'message' for subpar work." Some quotes:
Displeased with the quality of work IPL put into its request for state approval, the Indiana Utility Regulatory Commission opted to send IPL a "message" in the form of a $10 million penalty.

Specifically, the state agency tacked on an extra $10 million to a credit that IPL must give its customers as part of its project. In all, IPL must credit $39 million—up from an originally expected $29 million—for what is known as an environmental cost recovery rate base credit. * * *

"IPL’s presentation of its case in this proceeding fell below our expectations given the size of the proposed capital investment, the timeframe in which this Commission was provided to make a decision, and the contested nature of the proceeding that should have been anticipated prior to filing this Cause,” commissioners wrote in Wednesday's order approving the plant upgrades.

In particular, the company did not provide cost production models, Wednesday’s order notes.

Commissioners referred to $10 million increase as a “direct message to IPL management concerning how this proceeding should have been conducted.”

“Merely chastising IPL in this Order would not, in our opinion, have a lasting impact on insuring [sic] the quality of the support in the regulatory process,” the order said. “Instead, this Commission should provide feedback to a utility in a manner that provides an incentive for improving quality, while moving the regulatory process forward.” * * *

Environmentalists, including the Sierra Club’s Beyond Coal Campaign, had challenged IPL’s plans, saying they weren’t sufficient.

It would be better, opponents said, to shut down the plants altogether and replace them with more modern technology, like IPL is doing with a $631 million natural gas plant that will replace coal-fired units in Martinsville.

Opponents argued in the case that IPL's research was too slipshod and did not back its claims that upgrading coal units would be better.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Environment | Indiana Government

Ind. Courts - Interesting tweets re Massa recusal

Interesting tweets re Massa recusal:

Marisa Kwiatkowski ‏@IndyMarisaK
I find this fascinating, particularly the speed with which it was done... Justice Massa denies request to step aside

Niki Kelly ‏@nkellyatJG
@indymarisak I agree. It seems Justice Massa expected the challenge and already had the 7-page order ready to go.

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 7 today (and 10 NFP)

For publication opinions today (7):

In Natasha F. Hortenberry v. Thomas Palmer , a 9-page opinion, Judge Crone writes:

Thomas Palmer attempted to initiate a negligence action against Natasha F. Hortenberry, but the check he sent to the clerk along with the complaint was $2 less than the applicable filing fee. By the time that Palmer realized the mistake and rectified it, the statute of limitations had run. Palmer filed a motion with the trial court requesting that the complaint be treated as if it had been timely filed, and the court granted the motion. On the same day that the motion was granted, an attorney entered an appearance for Hortenberry, and when he realized that Palmer’s motion had been granted, he filed a motion to set aside the order. The trial court denied that motion, and Hortenberry now appeals. Because Indiana Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee is required for the commencement of an action, we conclude that the trial court erred by denying Hortenberry’s motion. Therefore, we reverse and remand.

[ILB: The opinion does reference the July 30th Supreme Court opinion in Miller v. Dobbs, which involved a $7 fee paid 3 days later, stating: "Miller turned on a “straightforward statutory ground,” and did not involve interpretation of Trial Rule 3."]

In Charles Kietzman v. Amanda S. Kietzman, a 10-page opinion, Judge Bailey concludes:
We find no abuse of discretion in the dissolution court’s decision to grant Mother’s request to relocate with K.K. Nor do we find any abuse of discretion in the dissolution court’s decision to deny Father’s request to modify custody. We accordingly affirm the decision of the dissolution court.
In Roger Jay Piatek, M.D., and The Piatek Institute v. Shairon Beale , a 5-page opinion, Judge May writes:
We grant the petition for rehearing in order to address an argument Piatek advanced on appeal and to note a mischaracterization of the record by Piatek’s counsel in their rehearing petition. We reaffirm our original opinion.
In Adrian Jackson v. State of Indiana, a 16-page opinion, Judge Baker writes:
In this case, a criminal defendant asserted his constitutional right to self-representation but unfortunately discovered that proceeding pro se is riddled with pitfalls. Following a jury trial, the appellant-defendant, Adrian Jackson, was found guilty of Counts I and II, class B felony Criminal Confinement, Counts III, IV, and V, class B felony Robbery, and Counts VI and VII, class C felony Battery. Following a sentencing hearing, the trial court sentenced Jackson to an aggregate term of thirty years.

Jackson appeals, requesting a new trial with new counsel. Jackson claims that the trial court failed to inquire into his appointed counsel’s alleged conflict of interest when Jackson advised the court that he wished to proceed pro se and that the trial court should have appointed him alternative counsel. Jackson also claims that the trial court violated his Sixth Amendment right to counsel because he did not make a knowing, voluntary, and intelligent waiver of this right.

Concluding that the trial court had no duty to inquire into Jackson’s conflict of interest allegations or to appoint Jackson alternative counsel when he decided to proceed pro se and that Jackson made a knowing, voluntary, and intelligent waiver of his right to counsel, we affirm the judgment of the trial court. * * *

In conclusion, we find that the trial court properly inquired into Jackson’s request to proceed pro se and provided him with sufficient advisements related to his decision to forfeit that right. Jackson also signed a written advisement form that stated that he had thoroughly reviewed all the dangers and disadvantages of self-representation and had full knowledge of them. Jackson cannot now contend that his waiver of his right to counsel was not knowing, voluntary, or intelligent just because his choice to proceed pro se was due to his dissatisfaction with the way his appointed counsel was representing him.

In Danny Stephens v. State of Indiana , a 6-page opinion, Judge Crone writes:
Danny Stephens got drunk at home, was assaulted by his niece’s boyfriend, and left the house when the police failed to arrest the boyfriend. He went to a public place and called the police, admitting that he was drunk and requesting that they take him to jail so that he would not have to return home. The State charged him with class B misdemeanor public intoxication, and a trial court convicted him as charged.

Stephens now appeals, challenging the sufficiency of evidence to support his conviction. Finding the evidence insufficient to establish that Stephens endangered either his life or another person’s life, breached the peace or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person, we reverse.

In Kenneth McBride v. State of Indiana, a 17-page opinion, Judge Baker writes:
Following a jury trial, the appellant-defendant, Kenneth McBride, was found guilty of Counts I and II, class B felony criminal Confinement,1 Counts III, IV, and V, class B felony Robbery,2 and Count VI and VII, class C felony Battery,3 for which the trial court sentenced McBride to an aggregate term of thirty years.

McBride appeals, asking our Court to vacate all of his convictions or, in the alternative, to revise his sentence pursuant to our authority under Indiana Appellate Rule 7(B). Specifically, McBride claims that the trial court committed reversible error when it allowed him to proceed pro se because he did not make a knowing, voluntary, and intelligent waiver of his right to counsel. McBride also contends that the trial court committed fundamental error when it admitted evidence obtained through an improper show-up identification procedure and that his thirty-year executed sentence is inappropriate in light of the nature of the offenses and his character.

Finding no reversible error and concluding that McBride’s sentence is not inappropriate, we affirm.

In State of Indiana v. Robert Owens, a 13-page, 2-1 opinion, Judge Bradford writes:
Appellant-Plaintiff the State of Indiana appeals from the trial court’s grant of Owens’s motion to suppress evidence. Owens concedes that any evidence relating to Owens’s alleged flight from or battery of the police officers should not have been suppressed. The State argues that (1) even if the initial stop of Owens was illegal, Owens’s subsequent criminal actions were sufficient to remove the taint of that illegal stop and (2) the officers’ actions were reasonable such that Article I, Section 11 of the Indiana Constitution does not require suppression of any evidence. Finding the State’s arguments unpersuasive, we conclude that Owens’s actions following the illegal stop were not sufficient to dissipate the taint of the stop, and so any evidence gathered pursuant to the stop should have been suppressed. Consequently, we affirm in part, reverse in part, and remand for further proceedings. * * *

BROWN, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion. [which begins at p. 11 of 13] I respectfully dissent from the majority’s decision to reverse the trial court’s suppression of evidence pertaining to Owens’s battery upon and flight from Officers Shipley and Solomon.

NFP civil opinions today (2):

In Re the Paternity of C.H.: S.L. v. K.H. (NFP)

Auto-Owners Insurance Company v. C & J Real Estate, Inc. (NFP)

NFP criminal opinions today (8):

William D. Cornett v. State of Indiana (NFP)

Jessica Wilkinson v. State of Indiana (NFP)

William R. Marks, Jr., v. State of Indiana (NFP)

Mark A. Atherton v. State of Indiana (NFP)

David Newson v. State of Indiana (NFP)

Willie G. Maffett v. State of Indiana (NFP)

Antwon Davis v. State of Indiana (NFP)

Chad Matthew Hagan v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 15, 2013
Posted to Ind. App.Ct. Decisions

Wednesday, August 14, 2013

Ind. Courts - "Supreme Court Justice Mark Massa denies request to step aside on Rockport case"

Here is Tony Cook's just posted Indianapolis Star story. Some quotes:

Indiana Supreme Court Justice Mark Massa today denied a request that he step aside in a high-profile case involving a controversial coal gasification project in Rockport.

Four environmental groups had filed a motion Tuesday asking the judge to recuse himself from the case. The groups argued that Massa’s longtime friendship with the project’s director, Mark Lubbers, and the judge’s earlier job as chief counsel for Gov. Mitch Daniels, a strong supporter of the $2.8 billion plant, should disqualify him from ruling in the case.

The motion was filed by the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Valley Watch.

In an order today, Massa defended his decision to stay on the case, saying it would be “disabling to this Court if we were required to recuse every time a ‘friend’ came before us as a lawyer or worked as an employee of, or consultant to, a party.”

He acknowledged his friendship with Lubbers, but said the two don’t socialize often. He also conceded that he would have reviewed legislation related to the project as Daniel’s chief counsel, “but I have no independent recollection of having done so, as Governor Daniels signed 757 separate pieces of legislation during my tenure.”

Kerwin Olson of Citizens Action Coalition said the environmental groups were disappointed with Massa’s decision.

“If this particular case is not a text book example of one in which recusal is appropriate and expected, I don’t know what case would be,” he said. “The point of these ethics laws and ex-parte rules is to give the public confidence that decisions made are based on sound public policy and proper legal judgment. These laws and rules are nothing more than meaningless words on paper if the spirit of them continues to be ignored by those expected to honor and enforce them.”

In his order, Massa noted that his recusal would leave a four-person bench to decide the case. Those seeking his removal “can do the appellate math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the court split and winning the tie,” he said.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Courts

Courts - "Michigan's anti-begging statute cannot withstand facial attack"

See How Appealing's post on the 6th Circuit ruling today.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Courts in general

Ind. Law - Still more on "Bullying legislation worries Valparaiso School Board" [Updated]

Updating earlier ILB entries, thanks to the reader who points out this very useful looking Anti-Bullying School Policy page posted on the Indiana Department of Education website August 1st.

[Updated on 8/15/13] See also this Indiana Juvenile Justice Blog post, commenting on the above resource, headed "Anti-Bullying — Schools as Law Enforcement Investigators?"

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Law

Ind. Courts - Supreme Court Massa issues Order refusing to recuse

In a 7-page Order just released, Justice Mark S. Massa denies the Citizens Groups’ Verified Motion for Judicial Disqualification. Here is the Order. The Order concludes:

When we take the bench, we assume a duty under the Canons to hear and decide cases and not to recuse “except when disqualification is required.” Ind. Judicial Conduct Rule 2.7 (2009). Justice Boehm has said this is “a particularly powerful consideration for Justices of Supreme Courts, where there is no procedure to replace a recused Justice, and a recusal is in practical terms a vote for the party who prevailed in the last court.” Peterson, 784 N.E.2d at 935. The late Chief Justice Rehnquist made this point in more detail in Laird v. Tatum, 409 U.S. 824 (1972), when he wrote:
While it can seldom be predicted with confidence at the time that a Justice addresses himself to the issue of disqualification whether or not the Court in a particular case will be closely divided, the disqualification of one Justice of this Court raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled. The undesirability of such a disposition is obviously not a reason for refusing to disqualify oneself where in fact one deems himself disqualified, but I believe it is a reason for not “bending over backwards” in order to deem one’s self disqualified.
Id. at 837–8 (emphasis added). Here, the moving parties can do the appellate math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the Court split and winning the tie. Thus, “even one unnecessary recusal impairs the functioning of the Court,” Cheney, 541 U.S. at 916 (quoting Press Release, U.S. Supreme Court, Statement of Recusal Policy (Nov. 1, 1993)), something I will not do in the absence of sufficient cause in a question of large public import. I therefore will participate when this case is heard.
[ILB] The Order by Justice Massa is in response to a Motion filed earlier today by several environmental gourps. Details are available in this post.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Courts

Ind. Courts - "IndyBar Board of Directors Approves Model Rule Guidelines for Marion County Judicial Selection"

Info from the Indianapolis Bar Association.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Courts

Ind. Courts - More on "Groups Move for Recusal of Supreme Court Justice Mark Massa From Leucadia Coal Gasification Case"

Updating this post from early this morning, Tony Cook has a new story at the IndyStar site expanding on the recusal motion and concluding:

Kathryn Dolan, a spokeswoman for the court, said the code of judicial conduct prevents Massa from commenting on pending cases. She said justices are not required to respond to motions for recusal though they can if they want.

Oral arguments on the Rockport case are scheduled for Sept. 5.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Courts

Ind. Law - More on "Bullying legislation worries Valparaiso School Board"

Following up on yesterday's ILB post, the Indiana Juvenile Justice Blog today has this post headed "Anti-bullying School Policy Implementation".

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Law

Ind. Gov't. - "Attorney general should stop filing friend-of-the-court briefs"

That is the headline to this Letter to the Editor in today's Indianapolis Star:

Indiana Attorney General Greg Zoeller in an Aug. 10 letter in The Star defended his decision to file yet another friend-of-the-court brief in the U.S. Supreme Court — this time in a case from New York challenging the conduct of legislative prayer.

Whether one agrees or disagrees with the attorney general’s position on the merits, his voluntary participation in this case raises an issue that troubles us as attorneys and as taxpayers. Simply stated, Zoeller has shown an unseemly proclivity to weigh in — ostensibly on behalf of all Hoosiers — on so-called “culture war” issues not directly related to Indiana. This time, it’s public prayer; a few months ago, it was opposition to federal recognition of same-sex marriages performed in states where such marriages are legal.

These forays into matters not directly involving Indiana or its residents may play well with the Republican Party’s religiously conservative base, but they do not serve the interests of the broader Indiana community. Indiana was not a party to those cases, and it was unnecessary to take a side in matters about which Hoosiers remain sharply divided.

Zoeller defended his culture war activism by noting his office “routinely” files friend-of-court briefs. This is precisely what concerns us. Just as courts exercise judicial restraint and refrain from deciding issues not squarely before them, we believe that Zoeller should show similar restraint by not volunteering Indiana as a partisan “culture warrior” in cases to which the state is not a party. He claims no tax money is involved in the preparation of these briefs, because his staff researches and writes them. That staff, of course, is paid with Hoosiers’ tax dollars.

If lawyers in the office have enough time to work on numerous legal matters not germane to state business, it would seem the office is overstaffed.

Zoeller denies he is advocating any personal position and is only seeking “finality” on this and other controversial issues. But, as any lawyer can attest, issues of this sort are never “final.” It is hard to escape the conclusion that Zoeller is using his public office to advocate for his personal religious views — views that are highly divisive in an increasingly pluralistic society. Such use of an elected office is improper, and it should stop.

Bill Groth
Fillenwarth Dennerline Groth & Towe, LLP

Sheila Kennedy
Professor, Law and Policy, School of Public and Environmental Affairs
Indiana University Purdue University Indianapolis

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 25 NFP)

For publication opinions today (3):

In Richard Dillon v. State of Indiana , a 9-page, 2-1 opinion, Judge Vaidik writes:

The State charged Richard Dillon with operating while intoxicated as a Class D felony based on a prior conviction within five years. Dillon moved to dismiss the felony enhancement because when he allegedly committed the instant OWI, he did not have a prior OWI within five years because the State had inadvertently dismissed it. The trial court denied Dillon’s motion to dismiss, reasoning that the trial court had reinstated Dillon’s prior OWI conviction with a nunc pro tunc entry. We find that because the trial court made the nunc pro tunc entry reinstating Dillon’s prior OWI conviction after he allegedly committed the OWI in this case, he in fact did not have a prior OWI within five years when he allegedly committed the OWI in this case. The trial court should have granted Dillon’s motion to dismiss the felony enhancement. We therefore reverse. * * *

FRIEDLANDER, J., concurs.
BAKER, J., dissents with separate opinion.

In Christopher Naas v. State of Indiana, a 6-page opinion, Judge Vaidik writes:
Christopher Naas appeals his conviction for Class B misdemeanor public intoxication under Indiana’s recently amended statute. He contends that the evidence is insufficient to show that he was intoxicated and that he breached the peace and/or annoyed or alarmed another person. The evidence of Naas’s red, watery eyes, slurred speech, unsteady balance, odor of alcohol about his person, and Naas alarming others by walking toward them in an aggressive manner while yelling at them which caused them to back away from him is sufficient to prove public intoxication. We therefore affirm his conviction.
In Nick McIlquham v. State of Indiana, a 14-page opinion, Judge Baker writes:
The appellant-defendant Nick McIlquham is appealing his convictions for the Unlawful Possession of a Firearm by a Serious Violent felon,1 a class B felony, Neglect of a Dependent,2 a class D felony, Possession of Marijuana,3 a class A misdemeanor, and Possession of Paraphernalia,4 a class A misdemeanor. McIlquham challenges the police officers’ search of the apartment where he occasionally resided and the discovery of a handgun, marijuana, and a scale in the residence. As a result, McIlquham argues that these items should not have been admitted into evidence at trial. Finally, McIlquham maintains that his conviction for possession of paraphernalia cannot stand because the State failed to present sufficient evidence with regard to that offense.

The State counters that the seizure of these items and their admission into evidence did not violate McIlquham’s Fourth Amendment rights under the United States Constitution because the search of the apartment was consensual and contends that the community caretaking exception to the warrant requirement justified the warrantless search.

We conclude that McIlquham’s Fourth Amendment rights were not violated and the evidence was properly admitted into evidence. Similarly, we find that the evidence was sufficient to support McIlquham’s conviction for possession of paraphernalia. Thus, we affirm McIlquham’s convictions.

NFP civil opinions today (10):

In Re the Matter of I.E.: J.E. v. W.L. and R.L. and N.V. (NFP)

Eric D. Smith v. J. David Donahue, Dan McBride, Linda Vannatta, Pam Bane, and Nell Hayes (NFP)

Term. of the Parent-Child Rel. of: M.B. (Minor Child), and B.B. (Mother) v. The Indiana Dept. of Child Services (NFP)

James Ticen v. Vicki Ticen (NFP)

Dwayne E. Gray v. Chase Home Finance, LLC. (NFP)

Joseph A. Taylor v. Sgt. Rinehart (NFP)

Daljit Gill v. Baldish Gill (NFP)

In the Matter of the Termination of the Parent-Child Relationship of J.B. (Minor Child), and T.S. (Mother) v. The Indiana Department of Child Services (NFP)

Nichole Temple v. AM General (NFP)

Jodi Sears v. Rachel Rust-Johnisee (NFP)

NFP criminal opinions today (15):

Phillip Rogers v. State of Indiana (NFP)

Billy J. Lemond v. State of Indiana (NFP)

Jonathon McDonald v. State of Indiana (NFP)

Henry McMullen v. State of Indiana (NFP)

Michael Burnett v. State of Indiana (NFP)

William Gajdik v. State of Indiana (NFP)

Arthur Dale Miller v. State of Indiana (NFP)

Wilby Stumph v. State of Indiana (NFP)

Lamar Allen Colley v. State of Indiana (NFP)

Willie Drew v. State of Indiana (NFP)

Willis James Simmons v. State of Indiana (NFP)

Jami C. Sipich v. State of Indiana (NFP)

Darod A. Wheeler v. State of Indiana (NFP)

Jesse Doyle, Jr., v. State of Indiana (NFP)

Randall W. Ogle v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Groups Move for Recusal of Supreme Court Justice Mark Massa From Leucadia Coal Gasification Case"

The ILB has received this news release:

FOR IMMEDIATE RELEASE
August 14, 2013
Contact: Jodi Perras, Sierra Club - jodi.perras@sierraclub.org, 317-296-8395
Kerwin Olson, Citizens Action Coalition - kolson@citact.org, (317) 702-0461

Groups Move for Recusal of Indiana Supreme Court Justice Mark Massa From Leucadia Coal Gasification Case

INDIANAPOLIS - Citing Justice Mark Massa’s long and close relationship with the project director for the proposed Rockport coal gasification plant and his work as Gov. Mitch Daniels’ general counsel when the governor pushed enabling legislation for the project, the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Valley Watch filed a motion asking the Indiana Supreme Court justice to be recused or disqualified from hearing a case that will determine the project’s future.

According to the Code of Judicial Conduct, “A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment” and “shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.” Additionally, the code establishes that a Justice must disqualify himself or herself from a proceeding in which he has actively served as an attorney for one of the parties, regardless of whether actual bias or prejudice exists. Previous Indiana Supreme Court justices, like former Chief Justice Randall Shepard, recused themselves to prevent even the appearance of potential bias and preserve the court’s integrity and independence.

“We have great respect for the Indiana Supreme Court and its history of fairness. As our highest judicial authorities, our Supreme Court justices have a responsibility to avoid even the appearance of impropriety by recusing themselves where impartiality might be reasonably questioned,” said Jodi Perras, Indiana Campaign Representative for the Sierra Club’s Beyond Coal campaign.

The brief notes that Justice Massa has a long documented relationship with Mark Lubbers, the project’s director, which began almost 30 years ago when Lubbers recruited Massa to join the administration of then-Gov. Robert D. Orr. Their professional paths crossed again when both Massa and Lubbers worked in the administration of Gov. Mitch Daniels, with Massa serving as general counsel to the governor and Lubbers as a senior advisor. Lubbers left the Daniels’ administration in 2006 and shortly thereafter joined Indiana Gasification, the developer for the proposed Leucadia coal gasification plant.

“Mr. Lubbers is the Indiana Project Director for a party whose 30-year contract and multibillion dollar project, on which he has worked since 2006, is at risk,” the motion states. “Justice Massa’s relationship to him reaches back 27 years and they have publicly, during the pendency of the appeal of this matter, expressed mutual admiration if not affection for each other. Justice Massa credits Lubbers for giving him ‘his first lucky break’ and being the ‘first of many’ to inspire him.”

The close relationship between the two men was put on display when Lubbers provided remarks on behalf of Justice Massa during his 2012 robing ceremony to the Supreme Court. “To anyone listening this day who doesn’t know Mark Massa I say, he’s a gem of extraordinary quality. His facets have been in the making and cut and polished for years. He will be a great jurist’ and ‘on behalf of all [Justice Massa’s] your friends gathered here, I say to you, we are proud of you and we expect great things,” Lubbers said. The ceremony took place on May 7, 2012, just two weeks after groups opposing the project filed their briefs with the Court of Appeals.

“Given the long and close relationship between Justice Massa and Lubbers, as well as Massa’s previous employment in the Daniels administration, how could one not question the impartiality of the Justice given the circumstances? In order to protect the integrity and independence of the court, Justice Massa should recuse himself from proceeding in this case,” said Kerwin Olson, Executive Director of Citizens Action Coalition.

In addition to his relationship with Lubbers, Justice Massa’s past role as Gov. Daniels’ general counsel exposed him to extrajudicial information about legislation that established the financing for the proposed coal gasification plant. Between 2007 and 2009, during Massa’s time as general counsel, the Daniels administration led efforts to pass multiple pieces of legislation, included the 2009 legislation that enabled the Indiana Finance Authority to act as a purchasing intermediary for synthetic natural gas from the proposed coal gasification plant. The current case asks the Supreme Court to interpret key provisions of that legislation and the contract negotiated pursuant to it. As general counsel, Massa would have had some involvement and familiarity with the legislation and the negotiations at the time they were passed, the brief says.

“He has been privy to facts from extrajudicial sources, such as his service as general counsel for Governor Daniels during the negotiation and enactment of critical … legislation,” the motion says. “Continuing to sit on this case notwithstanding legitimate grounds for recusal will damage public confidence in his impartiality for years to come.”

“This is not a case of mere background associations, frequent appearances before the court, or mere allegations of bias,” the motion states. “Instead, this is a case in which an ordinary person could not avoid having a reasonable doubt that Justice Massa would have problems being impartial given the totality of the circumstances. Justice Massa therefore has a duty to promote public confidence in the impartiality of the judiciary by recusing himself.”

Earlier this year, the Indiana General Assembly passed legislation directing the Indiana Utility Regulatory Commission to review the financing agreement for the proposed coal gasification plant, but only if the Supreme Court invalidates the original contract.

The motion for recusal can be read here.

[More] The ILB posted legal background on the recusal issue on June 7th and on June 9th.

Posted by Marcia Oddi on Wednesday, August 14, 2013
Posted to Indiana Courts

Tuesday, August 13, 2013

Law - "New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than good"

See this post from the Sentencing Law Blog.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to General Law Related

Ind. Courts - Inaugural Meeting Set for State Commission on Improving the Status of Children

Here is the full news release.

Justice Loretta Rush is the Commission chair. The inaugural meeting is August 21st:

This eighteen member Commission will meet on August 21, 2013 from 10:00 a.m. to 2:00 p.m. in Conference Room C at the Indiana Government Center South. Meetings are also tentatively scheduled for October 16 from 10:00 a.m. to 2:00 p.m. in Conference Rooms 1 & 2 and December 11 from 10:00 a.m. to 2:00 p.m. in Conference Rooms 1 & 2. The meetings are open to members of the public.
No word on whether the meeting will be videocast so that it can be viewed throughout the State ...

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Indiana Courts

Ind. Decisions - More on: "Charges related to Duke Energy ethics scandal dismissed against former Indiana utility regulator David Lott Hardy"

Updating this ILB post from yesterday, John Russell has this expanded version of his story in today's Indianapolis Star. Some quotes:

Marion Superior Court Judge William J. Nelson said he had no choice but to dismiss four felony counts of official misconduct against Hardy, saying they were based on what he called a flaw in Indiana’s law. * * *

The judge ultimately ruled that because none of those allegations constituted a criminal act, Hardy could not be charged with the crime of official misconduct.

The issue of whether Indiana law allowed allegations of a noncriminal rules violation to be used as the basis for a criminal charge of official misconduct was first raised by the Indiana inspector general three years ago — before Hardy was charged with a crime.

At the inspector general’s urging, the General Assembly clarified the law, effective in 2012, to require charges of official misconduct to be based only on criminal acts.

Hardy’s lawyer, David Hensel, argued that a public servant has to commit a crime in the course of his job to be guilty of official misconduct. He said Hardy did not commit any crimes. * * *

Indiana civil law sharply restricts private conversations, also known as ex parte communication, between regulators and company officials on pending cases. * * *

The judge said his ruling could be interpreted to go against “every sense of righteousness that gets to the very essence of morality.”

But he said he put much weight in a report issued Sept. 7, 2010, by Indiana Inspector General David Thomas, who said he found a defect in the public misconduct law. The defect was that even noncriminal behavior, such as violating a noncriminal procedural rule, could amount to a violation of the law.

Thomas recommended that the General Assembly change the language, requiring that a charge for misconduct “must rest upon criminal behavior that is related to the performance of official duties.” The General Assembly changed the law, effective July 1, 2012, to reflect that.

Nelson said the legislature’s quick action to clarify the law “is indicative of the legislative intent to apply the amendment retroactively.” * * *

The judge’s ruling surprised several groups that have decried the secrecy behind the Edwards­port plant’s regulatory review.

“This is certainly a low point for accountability in Indiana government,” said Julia Vaughn of Common Cause Indiana, a government watchdog group. “Clearly, this was a poorly crafted law, and it’s tragic that Hardy is going to escape through a loophole.”

Kerwin Olson, executive director of Citizens Action Coalition of Indiana, said: “This whole thing stinks to high heaven.”

But a legal expert said the court’s ruling rested on solid legal ground.

Joel Schumm, clinical professor of law at Indiana University’s Robert H. McKinney School of Law in Indianapolis, said that in prior cases, defendants convicted of official misconduct have committed a crime, not just a violation of a rule. “The language of the statute was amended to make this clear,” he said.

ILB: Perhaps... But here the amended law is being applied retroactively because, as the judge states at the end of his opinion:
[T]he quick action of the Indiana Legislature in responding to inspector General Thomas’s request to ciarify the application of the Official Misconduct is indicative of the legislative intent to apply the amendment retroactively.
More credible might be an assertion that the lack of a retroactivity clause clearly indicates the General Assembly did NOT intend for it to apply retroactively.

And yesterday's ruling raises the question of whether not only this, but any statute the General Assembly enacts after having been urged to by the Inspector General (or by the Court), is intended to apply retroactively, unless the new law provides otherwise! -- which would be the direct opposite of the way statutes have been applied for decades...

Here is a copy of yesterday's Order to Dismiss.

Here is the Sept. 7, 2010 Inspector General Report recommending a change to the official misconduct statute.*

And here is SEA 262, from 2012, which repealed IC 35-44-1-2 (by PL 126-2012, SEC. 53) and replaced it with IC 35-44.1-1-1.
__________________
*The ILB has had much trouble figuring out how to locate individual Inspector General Reports (not the annual reports) such as the one from 2010 linked above. This one I located via google with a search "indiana inspector general report misconduct", because I already knew the document existed. I have not found online any index or list of these individual Inspector General Reports ...

I did come across this "Complete list of Advisory Opinions", which is a different series, but it is only the most skeletal of aids.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP) [Updated]

ILB: Unfortunately, today's COA opinions are PASSWORD protected, so the ILB cannot post excerpts. [Updated at 4:55 PM] - The problem with the opinions now has been corrected, so the ILB will be adding summaries later today.]

For publication opinions today (4):

Rollett Family Farms, LLC. v. Area Plan Commission of Evansville-Vanderburgh County, Vanderburgh County Board of Commissioners, and Vanderburgh County Recorder

Richard Littke v. Laurie Littke

Gregory A. Harris v. State of Indiana

Gabriel Atkinson v. State of Indiana

NFP civil opinions today (7):

In Re The Adoption of S.H., L.H., and J.H., Benjamin Hankins v. G.Nick Peterson, Andrea Peterson (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.P., D.P., & C.H., (Minor Children), and J.P. (Mother) v. The Indiana Department of Child Services (NFP)

Eric D. Smith v. Superintendent, Et Al., (NFP)

Karen J. Marshall v. Casa M. Marshall, Center Bank, Treasurer of Porter County, State of Indiana (NFP)

LTC Investments Inc., v. EGR Indiana Properties, LLC. (NFP)

James E. Chalfant v. Lana Lods (NFP)

In The Matter of the Termination of the Parent-Child Relationship of: M.A. (minor child): Mi.A. and C.A. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (13):

Cory A. Myers v. State of Indiana (NFP)

Jeremiah Kelley v. State of Indiana (NFP)

John Latta v. State of Indiana (NFP)

John Dumitru v. State of Indiana (NFP)

Lebronze Myles v. State of Indiana (NFP)

Terry Chandler v. State of Indiana (NFP)

Michael S. Parker v. State of Indiana (NFP)

Jesus Cruz v. State of Indiana (NFP)

James E. Sizemore v. State of Indiana (NFP)

Thomas E. Stevens v. State of Indiana (NFP)

Sheldon C. McAuley v. State of Indiana (NFP)

Javier Maldonado v. State of Indiana (NFP)

Kelvin Lee Heyen v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Behind the bench: Q&A with Missouri Supreme Court Justice Mary Rhodes Russell"

Thanks to How Appealing, here is an interview with Missouri Supreme Court Justice Mary Rhodes Russell in the Missouri Times.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Catch-up

Ind. Law - "Bullying legislation worries Valparaiso School Board"

Some quotes from a story by Amy Lavalley in the Gary Post-Tribune:

VALPARAISO — New state legislation that dictates how school corporations handle bullying — including outside the school setting — drew some concern during Monday’s Valparaiso School Board discussion session.

Board members wondered how realistic it was to expect school staff to handle incidents of bullying that occurred off school grounds or via social media sites outside of school hours.

“It really is taking on more of the responsibility of the community,” said board member Paul Knauff, who is a retired Thomas Jefferson Middle School principal.

Board member James Sarkisian agreed.

“Schools have ventured out into a climate beyond just the four corners of our buildings,” he said. “It’s just another step.”

The school corporation already is struggling with the definition of bullying, said board attorney David Hollenbeck, let alone having to be “the bullying police” in the community.

With technology, bullying via social media can take place any time of day and, once someone within the school corporation becomes aware of it, they have to take action, said Interim Superintendent Michael Berta.

“This is one more responsibility, and it’s a big one, that detracts from the teacher/learning process,” Berta said.

Among other requirements, the law also requires disciplining of school employees who fail to comply with the law.

“What is the punishment if we don’t report it, if we don’t think it rises to the level of bullying?” asked Sarkisian, who also wondered if students saying bad things about each other online was bullying.

The state Department of Education is helping formulate guidelines for how school corporations should proceed, Hollenbeck said.

ILB: Here is the new law, HEA 1423.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Indiana Law

Environment - "Neighbors blame water woes on new well at Indianapolis cricket park"

Recalling recent stories about water wells drying up in Benton County from nearby crop irrigation, Jon Murray reports today for the Indianapolis Star is a story that begins:

The sight of workers drilling a water well late last month was the latest aspect of a new Indianapolis park for international sports that intrigued Brenda Limbach and other neighbors on the Far Eastside.

But that quickly turned to frustration as the city began pumping the new well. Limbach said her faucets ran dry. As the water level dropped quickly, she said, her own well’s pump burned out.

At least two other neighbors with private wells on Prospect Street, east of Post Road, experienced similar problems about the same time.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Environment

Courts - "I am really shocked, because when I was in law school my professors were outstanding"

That is a quote from an Ohio judge concerning a 17-year divorce proceeding. Here is the story, by Kimball Perry of Cincinnati.com. The lengthy story begins:

When they married in 1986, Christo and Sharlene Lassiter vowed to create a marriage that would last in good times and bad.

Instead, the marriage lasted 10 years – seven years less than their divorce-related legal battles. That fight has been so acrimonious that it’s resulted in rare instances of judges sharply rebuking the pair. One judge noted the ex-spouses are both law professors and, by their actions in court, are teaching future lawyers how to ignore court rules and make a mockery of the legal profession.

“I am really shocked, because when I was in law school my professors were outstanding. They never would have told me that behaving the way you all have, both of you, over the past 20 years, is acceptable behavior,” Hamilton County Common Pleas Court Judge Leslie Ghiz told their attorneys in a July hearing.

Christo Lassiter, 56, is a law professor at the University of Cincinnati. Sharlene Lassiter, 52, who is remarried and now known as Sharlene Boltz, is a law professor at Northern Kentucky University’s Chase College of Law. The divorce lawsuit had an astounding 1,400-plus entries filed in it, at least 1,000 more than a typical divorce file.

“Holy cow, that is extremely rare,” Loveland attorney George Maley said of the 17 years of divorce and post-divorce suits between the former spouses.

Posted by Marcia Oddi on Tuesday, August 13, 2013
Posted to Courts in general

Monday, August 12, 2013

Ind. Courts - Indianapolis man alleged to threatened the life of a federal judge and other local officials in a series of comments posted online

From a news release this afternoon:

INDIANAPOLIS – Joseph H. Hogsett, the United States Attorney, announced today that federal charges have been filed against Delenore Lowell McTarsney, age 53, of Speedway. According to a criminal complaint unsealed this afternoon, McTarsney is alleged to threatened the life of a federal judge and other local officials in a series of comments posted online.

“We in the law enforcement community are committed to doing all within our power to ensure the safety of all those who work in or around our criminal justice system,” Hogsett said. “Due to the very real threat posed by violence and terrorism, the U.S. Attorney’s Office takes seriously all threats – whether they are made online or offline.”

The criminal complaint alleges that in June 2012, McTarsney began posting hundreds of comments in response to a YouTube video submitted by a local attorney. These comments were generally concerned with the defendant’s belief that he was the victim of a conspiracy that involved the local attorney as well as a number of other individuals associated with the Indianapolis legal community, including a current federal bankruptcy judge.

These comments were allegedly posted throughout 2012, and continued into early 2013. In January 2013, a number of these comments allegedly began referencing specific acts of violence that the defendant stated he would undertake against those he believed had conspired against him. These threats included descriptions of violent acts against the local attorney, as well as the federal judge, whose home address was included in these online threats.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

Ind. Courts - More on: “I don’t know of any other murder cases going to a third trial”

Updating this ILB post from earlier today, a reader points out another example:

Hi Marcia-

The State tried Steven Thompson three times for murder in Michigan city in the late 90’s, IIRC [= if I recall correctly]. Hung, hung, convicted. The lead prosecutor on the case was a gentleman named Steve Hale who retired from the prosecutor’s office after that final trial. Defense counsel was Hilbert Bradley of Gary, and Donald Pagos of Michigan City. I was a young DP back then and sat second chair. Memories.

Christopher Fronk,
DPA, LaPorte County

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

Ind. Decisions - "Charges related to Duke Energy ethics scandal dismissed against former Indiana utility regulator David Lott Hardy"

After many postponements, former IURC head David Lott Hardy was tried today. John Russell's Indianapolis Star story has just been posted. The judge was Superior Court Judge William Nelson. From the story:

A Marion County judge today dismissed all criminal charges against Indiana’s former top utility regulator, saying his behavior in connection with the Duke Energy ethics scandal did not amount to criminal behavior.

David Lott Hardy had been charged with four felony counts of official misconduct. He was accused of failing to disclose several secret meetings with Duke executives concerning cost overruns at the $3.3 billion Edwardsport power plant.

He also was accused of helping the agency’s top lawyer, Scott Storms, break ethics rules in seeking a job with Duke while helping oversee the Edwardsport case.

Hardy was fired in 2010 by then-Gov. Mitch Daniels after the scandal came to light.

This is confusing, but Russell writes that his story will be updated:
Judge Nelson noted that the Indiana inspector general’s office found a defect in the official misconduct statute in September 2010 — three months before Hardy was charged — and recommended that the legislature clarify and amend the law.

The Indiana General Assembly changed the law effective July 1, 2012, to require it apply to a public servant who “knowingly or intentionally commits an offense” in the performance of his duties. Hardy had not been charged with any other crime.

ILB: Here is a very long list of earlier ILB entries mentioning David Lott Hardy.

[More] Reporter Russell has added this tweet:

Following up dismissal of charges against Hardy, here is my Feb. 2011 story outlining secret meetings, emails.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Gov't. - "Education has become a political minefield"

Interesting, long, wide-ranging Politico story headed "Jeb Bush’s education legacy loses luster".

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Government

Ind. Courts - “I don’t know of any other murder cases going to a third trial”

This ILB post earlier this morning included this quote from the Indianapolis Star:

Still, the Camm case appears to be unprecedented in its repetition.

“I don’t know of any other murder cases going to a third trial,” said Larry Landis, executive director of the Indiana Public Defenders Council.

However, a reader has sent a note stating:
St. Joseph County prosecutors tried Christopher Allen three times for the 1990 homicides of three people at an Osco drug store.

First jury was hung. The second convicted, but the COA reversed. Third jury also hung.

The ILB has looked in up and sure enough, here is a Dec. 20, 2006 post quoting a story at the time that:
Prosecutors have decided that Christopher Allen will not be tried for a fourth time in connection with the 1990 robbery and triple murder at the Osco on Western Avenue.

According to special prosecutor Michael McAlexander, “there aren't a lot of surprises in this after this amount of time, the witnesses have been called at least, most of them five times under oath.

And from another 2006 story quoted:
The three trials have cost nearly $600,000. That was also a factor in Wednesday’s decision, although not the deciding factor.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending August 9, 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, August 9, 2013. It is two pages (and 20 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

Tammy Coleman v. Darryl Davis (NFP)

NFP criminal opinions today (0):

Billy Savoy v. State of Indiana (NFP)

Martin Mendoza v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "How sex crimes ruin lives and challenge our justice system"

The South Bend Tribune had a series of sex crimes stories this weekend, reported by Madeline Buckley. I have retweeted the links to them on the ILB Twitter account.

Unfortunately, the South Bend Tribune has now gone behind a paywall, limiting the number of stories one may access each month, and therefore the ILB's coverage of that part of the state.

One of the founding purposes of the ILB was to aggregate legal news from all parts of the state, to the benefit of Indiana's legal community, so that we weren't all operating in little islands (silos) and perhaps frequently reinventing the wheel. Achieving this end keeps getting more difficult.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

Ind. Courts - "Third trial of former Indiana trooper accused of killing family starts today"

Following on this ILB post from August 11th, Diana Penner has this lengthy story in this morning's Indianapolis Star. It begins:

As the third trial of former Indiana State Police Trooper David Camm begins today in Lebanon, far from his Southern Indiana home and the site where he is accused of killing his family, the taxpayers’ bill for the prosecutions is approaching $4 million.

The final figure depends partly on how long the third trial lasts, what the ruling is and whether an appeal follows.

Camm has twice been convicted of the September 2000 shooting deaths of his wife and two young children, but both judgments were overturned on appeal.

More on costs:
The known costs of the first two trials — largely for defense attorneys and expenditures — was about $2.5 million, said Scott L. Clark, Floyd County auditor. Tax money covered defense expenses but not legal fees in the second trial, but public funds are expected to cover all defense costs for the third trial because Camm’s family can no longer cover those bills.

Through late July, Scott said, actual costs for the third trial and estimated costs of housing judges, bailiffs, deputies and others in Boone County was about $1.3 million.

The amounts do not include most costs on the prosecution side, because those attorneys are “on the clock” and do not submit bills for specific cases, and much of their scientific tests are conducted at the Indiana State Police Crime Lab.

The Indiana Public Defender Commission reimburses Floyd County for 40 percent of defense costs. But the rest is paid by county taxpayers.

No one keeps an official comparison of trial costs, and the Camm prosecutions would be even more expensive if the state was seeking the death penalty. That potential sentence would have required additional defense attorneys with death penalty experience.

Still, the Camm case appears to be unprecedented in its repetition.

“I don’t know of any other murder cases going to a third trial,” said Larry Landis, executive director of the Indiana Public Defenders Council.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

About this Blog - Something I didn't expect from a fellow member of the Indiana bar.

This weekend a reader alerted me that another "blog" has appeared, calling itself Indiana Law Blog. The reader discovered it when doing a search for the "Indiana Law Blog". Here is the result of a Google search - the third result is for a law marketing site by personal injury attorney Bill Hurst, called "Indiana Law Blog":

Here is the top part of the Bill Hurst website:


According to the archives list, this marketing site has been in existence since March 2011.

The very bottom of the Hurst site states:

Copyright © 2013 • Indiana Law Blog

Law Firm Marketing by: Dreamsystemsolutions.

ILB: I am surprised and disappointed that a fellow member of the Indiana bar would make such use of the name of this blog that I have operated for more than a decade.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to About the Indiana Law Blog

Ind. Courts - "Utica group opposes ministry's plan for old school"

From the Aug. 7th Louisville Courier Journal, this story by reporter Charlie White that begins:

A group of Utica residents is asking the Indiana Court of Appeals to hear its case against township Trustee John Durbin and Jacob’s Well, the ministry leasing and renovating a former elementary school that’s owned by the township.

Old Utica School Preservation Inc. claims in the suit that the ministry’s plan to house battered women and children violates a deed restriction that was put in place when the Greater Clark County School Corp. donated the property, 605 Old Salem Road, to the township in February 2002.

Specifically, the deed states the property “shall be used by Utica Township solely for park and recreation purposes.” * * *

Special Judge Glenn Hancock, of Floyd County, dismissed the lawsuit on March 11, stating the preservation group and adjoining property owners Kenny Morrison and Scott and Pam Sanderfur, do not have standing for a judgment.

“The Plaintiffs are not a party to said contract, have not shown any demonstrable injury and have only the general interest of the public,” Hancock wrote in his ruling.

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Indiana Courts

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

From Sunday, August 11, 2013:

From Saturday, August 10, 2013:

From late Friday, August 9, 2013:

Posted by Marcia Oddi on Monday, August 12, 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 8/12/13):

Next week's oral arguments before the Supreme Court (week of 8/19/13):

Thursday, August 22nd

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/12/13):

Next week's oral arguments before the Court of Appeals (week of 8/19/13):

Tuesday, August 20th

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

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


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

Posted by Marcia Oddi on Monday, August 12, 2013
Posted to Upcoming Oral Arguments

Sunday, August 11, 2013

Environment - "Amid Pipeline Debate, Two Costly Cleanups Forever Change Towns"

Supplementing a list of ILB entries on Enbridge Energy pipelines, Dan Frosch of the NY Times has a lengthy, powerful story today. Some quotes:

MARSHALL, Mich. — As the Obama administration inches closer to a decision on whether to approve construction of the much-debated Keystone XL pipeline, costly cleanup efforts in two communities stricken by oil spills portend the potential hazards of transporting heavy Canadian crude.

It has been three years since an Enbridge Energy pipeline ruptured beneath this small western Michigan town, spewing more than 840,000 gallons of thick oil sands crude into the Kalamazoo River and Talmadge Creek, the largest oil pipeline failure in the country’s history. Last March, an Exxon Mobil pipeline burst in Mayflower, Ark., releasing thousands of gallons of oil and forcing the evacuation of 22 homes.

Both pipeline companies have spent tens of millions of dollars trying to recover the heavy crude, similar to the product Keystone XL would carry. River and floodplain ecosystems have had to be restored, and neighborhoods are still being refurbished. Legal battles are being waged, and residents’ lives have been forever changed.

“All oil spills are pretty ugly and not easy to clean up,” said Stephen K. Hamilton, a professor of aquatic ecology at Michigan State University who is advising the Environmental Protection Agency and the state on the cleanup in Marshall. “But this kind of an oil is even harder to clean up because of its tendency to stick to surfaces and its tendency to become submerged.” * * *

Larry Bell, who owns Bell’s Brewery, one of the country’s largest craft beer makers, was shocked earlier this summer to see workers clear a staging area next to his brewery near Marshall. “We’re going to be downwind of this thing,” said Mr. Bell, who filed a lawsuit last month asserting that Enbridge did not get permission from the local condominium association to build its dredge pad.

“If those airborne contaminants come in, it’s going to get into our ingredients,” Mr. Bell said. “We see that as irreparable. They can’t compensate me for taking away my business.”

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Environment

Ind. Courts - "Ind. AG files lawsuit against realtor for allegedly faking court documents"

Bryan Cohen of Legal Newsline Legal Journal reports in a story dated August 9th that begins:

INDIANAPOLIS (Legal Newsline) — Indiana Attorney General Greg Zoeller on Friday filed a licensing lawsuit against a Wabash-based real estate broker who allegedly intimidated tenants with fake court documents.

Gregory Blatz allegedly forged court documents that threatened two different tenants with court hearings and potential eviction if they failed to make their rent payments.

Blatz is the owner of B&G Real Estate Consultants LLC and Blatz’s Realty, both of which are unregistered entities operating in Indiana.

“Falsifying court documents to intimidate tenants is outrageous and a clear violation of the professional standards of practice, and is a serious violation of the authority of our courts,” Zoeller said in a statement.

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Indiana Courts

Ind. Decisions - "Judge rules DNA in Camm case is admissible"; trial begins Monday in Lebanon [Updated]

Updating many earlier David Camm posts, Charles Wilson of the AP reported Friday evening:

INDIANAPOLIS (AP) — Attorneys for a former Indiana state trooper accused of killing his wife and two young children can present DNA evidence suggesting a different man committed the killings, a judge ruled Friday.

The ruling by Special Judge Jon Dartt came three days before David Camm's third murder trial is scheduled to begin in Lebanon, 25 miles northwest of Indianapolis.

DNA expert Richard Eikelenboom, testifying on behalf of Camm at a pretrial hearing last week, said that DNA from Charles Boney was found on the shirt of Camm's wife, Kimberly, on two places on her underwear and on the torso of 5-year-old Jill Camm. * * *

Eikelenboom's testimony seemed to support the defense team's argument that Boney, who was released from prison about three months before the slayings, was the killer.

Boney is serving a 225-year sentence for murder and conspiracy in the 2000 slayings at the Camm home near Georgetown, about 15 miles west of Louisville. Prosecutors said Boney had helped Camm but that he did not commit the slayings.

Another expert, Indiana State Police DNA supervisor Carl Sobieralski, testified for the prosecution last week that Eikelenboom's results weren't reliable because his lab isn't accredited and he didn't follow several accepted protocols in processing the evidence.

Dartt ruled that the prosecution's arguments were aimed more toward how much weight the results should be given, not whether they are admissible. He said the defense would have to have Eikelenboom provide all statistical data.

"The court will give the state considerable leeway in rebutting said evidence with its own witnesses and/or evidence," Dartt wrote in his ruling.

Both sides have placed Boney on their witness list for Camm's third trial.

[More] This story from WHAS11 includes video and a link to Judge Dartt's 9-page ruling.

[Updated] Charles Wilson of the AP reports today:

A third trial will begin Monday to determine whether [David] Camm is guilty of shooting and killing Kimberly Camm, his 7-year-old son Bradley and 5-year-old daughter Jill at the Camms' southern Indiana home. There's a new prosecutor, a different judge and a new trial venue.

The 49-year-old Camm insists he was wrongly convicted, and this trial is another chance to clear his name. For the Renns, this is another shot at closure.

"What does it take to get this over with?" Frank Renn asked.

The Camm slayings are one of Indiana's longest-running murder cases, following a tangled legal path riddled with missing murder weapons, allegations of affairs and child abuse, the emergence of a second suspect and a prosecutor's removal over a book deal.

For years, a debate has raged over whether Camm is a villain or a victim, with both sides taking to websites, books and national television to argue their points. A petition on change.org seeking to have him freed has collected hundreds of signatures.

Prosecutors have moved the trial to Lebanon, Ind. — more than 100 miles from the Louisville, Ky., suburbs where the slayings occurred — in hopes of finding jurors who haven't already made up their minds about Camm's guilt or innocence. But in the digital era, that's a tall order. * * *

[After both prior trials of Camm], appellate courts ruled that prosecutors had deliberately inflamed the jury, in the first trial by calling a dozen women who testified they had extramarital affairs with Camm, and in the second by suggesting he had molested his daughter without any evidence to back up those statements.

"I think people just think moral judgments about the defendant," Boyne said.

The third trial is expected to last at least six weeks amid heightened security at the Boone County Courthouse, about 25 miles northwest of Indianapolis. It isn't yet clear whether jurors will be sequestered.

Floyd County Prosecutor Keith Henderson, who won the second murder conviction against Camm, won't be there. He was removed after signing a book deal regarding Camm's case, though he said the deal later was dropped.

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Court of Appeals [was] right to place safety of public above right to weaponry"

So wrote the Bloomington Herald-Times Saturday in an opinion piece ($$) about the Aug. 6th COA decision in Robert E. Redington v. State of Indiana. Some quotes:

Under a state law called the “Laird Law,” a person who is diagnosed with mental illness or who is thought to be a danger to himself or others can be stopped from owning guns. Monroe Circuit Court Judge Mary Ellen Diekhoff ruled that way, and two of three appellate judges agreed with her.

In dissent, Judge Patricia Riley wrote “it is undisputed that Redington broke no law, committed no violent act, responded peacefully when confronted by police officers and did not threaten to harm himself or anyone else. His comments to the police, though alarming, erratic and delusional, do not evince violence or emotional instability.”

The fact he was scoping out — literally — people coming and going from a bar; that his comments were “alarming, erratic and delusional”; and that police said he seemed obsessed with Spierer and her case should be reasons enough to keep him from possessing firearms. And they do “evince emotional instability.”

Even those who otherwise staunchly support the Second Amendment have suggested more must be more done to address mental health issues that can lead to violence. This is an example of that happening.

The judges were right to interpret Indiana law in this case as protecting the well-being of other citizens over Redington’s individual right to have access to an arsenal.

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Ind. App.Ct. Decisions

Environment - More on: Groundwater "dries up in Benton County: Irrigator may be liable if town's residents have to dig deeper for water, state official says"

Updating this ILB entry from July 17th, Chris Morisse Vizza of the Lafayette Journal Courier reports today:

TEMPLETON — The fortunes of residents in this Benton County town continue to ride with the volume of nearby crop irrigation and the fluctuating water table that supplies their wells.

Another residential well went dry last week, this time at Steve Munsey’s house at 5585 E. Indiana 352. * * *

The Indiana Department of Natural Resources determined that an irrigation system operated by crop producer Bill Brost was lowering the water level and running nearby residential wells dry.

Indiana law requires property owners to replace or repair their own wells, then submit the bills to the state, which notifies the responsible party — in this case, Brost — how much it must reimburse the residents.

Benton County Commissioner Kevin Leuck has said the county will pay for the work, then forward the invoices to the state. That’s so residents don’t have to dip into cash reserves or, lacking those, borrow money.

Munsey’s water was restored within a few hours, but he and other townspeople are left with one looming question.

“How long is it going to be before he runs us out again?” Munsey asked.

The DNR Division of Water is trying to find the answer.

Monitoring water levels over time, and under different conditions, is part of the solution, said Mark Basch, the water rights and use section head.

“We’ve been up there to take measurements several times,” Basch said. “We want to see how the aquifer rebounds.” * * *

“In another week or two we should have enough data to start seeing some trends,” Basch said.

And then what?

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Environment

Ind. Gov't. - "State government’s dark side: Media spotlights hidden dealings in several places"

Tom LoBianco, the AP reporter who broke the Daniels' academic freedom story and the Bennett grade-charge story, has this analysis article today. Some quotes:

INDIANAPOLIS – More and more, the internal workings of Indiana government are being shown and the political pageantry stripped away in a reminder that the trappings of power are rarely trumpeted in news conferences, aired in campaign ads or otherwise pushed out to the public.

The shock over former school Superintendent Tony Bennett’s grade-changing scandal might have had the biggest impact, costing a national education rock star his job as Florida education commissioner. But many other stories have been unearthed by Indiana media recently, showing a government that often operates more in private than public. * * *

Bennett, in particular, has maintained that nothing wrong happened behind the scenes in his office. Instead, he has said the news coverage of his grade-changing scandal “cheapened” all his other efforts at education overhaul.

A few changes have made it easier to discover how elected officials are earning their public salaries. Gov. Mike Pence and Republican lawmakers, including Sen. Mike Delph, R-Carmel, teamed up during the legislative session to make it easier to see how the IEDC is spending tax dollars.

But an effort by House Democrats to require the state say how much it spends to buy private land for transportation projects went nowhere, despite media reports that the Indiana Department of Transportation’s chief of staff’s family made three times their land’s assessed value in sales to the state.

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to Indiana Government

Law - Mauer Professor Craig Bradley 1945 — 2013

From the Indiana University remembrance page:

[Mauer School of Law] Professor Craig Bradley passed away on Wednesday, August 7. A member of the faculty for more than 30 years, he was a highly respected teacher and scholar in criminal law and procedure.
My nephew, a 2004 Mauer graduate, sent me this note:
I never had him, but I knew him. He taught a number of the criminal law classes. He was another one of the big time professors when I was there, and a legend to many students. When Chief Justice Rehnquist died, he was one of the pallbearers.

My understanding is that he had been ill for some time, and his health was generally not good. When he died news circulated through the alumni ranks via email only a few hours after it occurred--amazing how quickly the news traveled among my classmates.

There are several professors/administrators that my class was particularly close with and remember (and still discuss) their experiences with. This marks the 3rd one out of that small group to die in far too short a time. Professor Pat Baude was first, then Dean Leonard Fromm, and now Professor Craig Bradley. The law school is hosting a memorial for Dean Fromm in September and all the alumni have been invited. I suspect one for Bradley will follow after that. I guess these things do come in 3s after all ... :(

Posted by Marcia Oddi on Sunday, August 11, 2013
Posted to General Law Related

Friday, August 09, 2013

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

In THOMAS H. HURLOW v. UNITED STATES OF AMERICA (SD Ind., Lawrence), an 18-page opinion, Judge Bauer writes:

Thomas Hurlow pleaded guilty to multiple drug and firearm offenses after law enforcement officials discovered drugs and a firearm in the home Hurlow shared with his fiancée. In a written plea agreement, Hurlow waived his right to challenge his conviction under 28 U.S.C. § 2255. He has done just that, though, alleging in a § 2255 petition that he advised his trial counsel of events that suggested that the search of his home was in violation of Georgia v. Randolph, 547 U.S. 103 (2006), but that counsel failed to investigate those events and instead persuaded Hurlow to plead guilty. The district court denied Hurlow’s request for an evidentiary hearing and concluded that his § 2255 motion was barred by the waiver in his plea agreement. Because the § 2255 waiver in his plea agreement does not bar his claim that his trial counsel was ineffective in negotiating the plea agreement, we remand the matter to the district court for an evidentiary hearing on that claim.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court issues one today

In Miller Pipeline Corporation v. Indiana Dept. of State Revenue, a 10-page opinion, Sr. Judge Fisher writes:

Miller Pipeline Corporation appeals the Indiana Department of State Revenue’s final determination denying its claim for refund of gross retail (sales) and use tax paid between 2005 and 2007. The matter is currently before the Court on Miller Pipeline’s motion for partial summary judgment (Motion), which the Court denies. * * *

Miller Pipeline’s Motion presents the Court with ten different issues, each asserting one reason or another as to why it believes the Department erroneously denied its refund claim. (See Pet’r Br. Supp. Mot. Partial Summ. J. (“Pet’r Br.”) at 6-20.) Pursuant to Trial Rule 56(C), Miller Pipeline also designated the evidence upon which it premised each of its issues. Specifically, Miller Pipeline provided the Court with 15 documents – labeled Exhibits 13 through 27 – to show that there were no genuine issues of material fact. (See Pet’r Des’g Evid.; Pet’r Br., Exs. 13-27.) Given the numerous infirmities with that designated evidence, however, the Court will not be granting Miller Pipeline’s Motion.

In order to address the infirmities with Miller Pipeline’s designated evidence – yet conserve judicial resources – the Court’s opinion today will speak only to two of Miller Pipeline’s issues. Indeed, the exhibits specifically designated by Miller Pipeline with respect to those two issues suffer from particular problems that permeate all of Miller Pipeline’s designated evidence. * * *

The evidence Miller Pipeline submitted to support its Motion has not been properly designated and is inadmissible. Accordingly, Miller Pipeline’s motion for partial summary judgment is hereby DENIED in its entirety.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Ind. Tax Ct. Decisions

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

In PAUL HESTER v. INDIANA STATE DEPARTMENT OF HEALTH (SD Ind., Magnus-Stinson), a 16-page opinion, Judge Wood writes:

Until mid-2009, Paul Hester was employed by the Indiana State Department of Health (the Department). The Department was not satisfied with Hester’s work, however, and so it terminated his employment. Hester believes that this action was motivated by his gender, race, or age. Initially, he sued the Department in Indiana state court, alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, and Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e17, but the Department removed the action to federal court. The district court granted summary judgment for the Department on all claims. It concluded that Indiana was immune from liability for private damages under the ADEA, and it found that Hester had failed to identify enough evidence to permit a trier of fact to find that the Department discharged Hester because of a protected characteristic.

We agree with the district court that Hester’s evidence could not support a finding that the Department’s action was motivated by race or gender. Hester conceded at oral argument in this court that the record contains no more evidence of age discrimination than of race or gender bias. His age-based claim has thus dropped out of the case. This means that we have no occasion to delve into the interesting questions of sovereign immunity that have occupied the parties in their briefing, although we outline them briefly. * * *

These cases raise a number of interesting questions: is it correct to distinguish between immunity from suit and immunity from a forum? May a state court, consistently with Testa v. Katt, 330 U.S. 386 (1947), refuse to entertain a case based on federal law when the state has an analogous statute that differs only in the remedies afforded? Are the rules different when the state freely chooses the federal forum by removing? What if the state not only removes, but it files a counterclaim? To the extent that Hester might have been seeking injunctive relief, did the district court act too hastily in assuming that Indiana’s sovereign immunity would also bar that aspect of his case, despite Ex parte Young, 209 U.S. 123 (1908)? Rather than plunge into those delicate topics in a case where the answers ultimately do not matter, we are content to save them for another day.

We AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Eddie Spalding v. State of Indiana, a 12-page opinion, Judge Barnes writes:

Spalding argues that the trial court improperly denied his motion to dismiss and discharge because the time limit for trying him has passed. * * *

Spalding contends that, of the 470 days from the date he was charged until the date he filed his second motion to dismiss and discharge, only seventy-five days were attributable to him. According to Spalding, the State failed to timely bring him to trial in violation of Indiana Criminal Rule 4(C)

The State responds by arguing, “because Defendant was in a foreign jurisdiction for several months following his arrest and the filing of charges against him in Indiana, Criminal Rule 4(C) does not apply to those time periods when he was outside the jurisdiction.” Effectively, however, the State asks us to apply Criminal Rule 4(C) and attribute the time Spalding was incarcerated out of state to him. According to the State, when considering the time Spalding was in federal custody outside of Indiana, only 181 days are attributable to the Criminal Rule 4(C) time limit and, therefore, the motion to dismiss and discharge was properly denied. * * *

Because Criminal Rule 4(C) did not apply while Spalding was not in the exclusive control of Indiana, he has not shown that the trial court erroneously denied his motion to dismiss and discharge.

In Thomas W. Oster, II v. State of Indiana , a 17-page, 2-1 opinion, Judge Bradford concludes:
We conclude that the State produced sufficient evidence to sustain Oster’s Class C felony burglary conviction and the finding that he is a habitual offender. We also conclude that the trial court did not commit fundamental error in instructing the jury. We agree, however, that Oster’s conviction for Class A misdemeanor criminal mischief violates constitutional prohibitions against double jeopardy. We therefore remand with instructions to vacate Oster’s conviction and sentence for criminal mischief. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

BROWN, J., concurs.
RILEY, J., dissents with opinion. [which begins at p. 14 and which concludes] Although the evidence in this case might well support the conclusion that Oster “intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or illegal act[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting Gebhart v. State, 531 N.E.2d 211, 212 (Ind. 1988)). Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.

NFP civil opinions today (2):

In the Matter of S.K., A Child in Need of Services; and A.R. v. The Indiana Dept. of Child Services (NFP)

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

NFP criminal opinions today (2):

Andrew Wright, Jr. v. State of Indiana (NFP)

Tranell Nash v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Beyond Bennett, Democrats demand investigation of more state scandals"

Dan Carden has this story today in the NWI Times. The story includes a link to the Pelath/Lanane letter to inspector general.

Matt Mikus of the Gary Post-Tribune also has a story today, headed "Democrats call for state ethics investigation."

Here is the Inspector General's website. Interestingly, it does not appear to include a link to the authorizing statute, although it does link, not to the actual rules which the IG has adopted under authority of IC 4-2-6, but to descriptions of the rules.

The Indiana inspector general statute, setting out the powers and authority of the office, is located at IC 4-2-7.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Indiana Government

Ind Gov't. - "Zoeller, Obama unlikely allies in government prayer lawsuit" [Updated]

Dan Carden points out today in the NWI Times:

INDIANAPOLIS | It's often said that politics makes strange bedfellows, and it doesn't get much stranger than the powers coming together defending the ability of governments to open their meetings with prayer.

The Obama administration has joined a chorus of 23 mostly Republican state attorneys general, including Indiana's Greg Zoeller, asking the U.S. Supreme Court to overturn an appellate court ruling that prohibited a New York town from beginning its monthly council meetings with a consistently Christian prayer.

Carden's story links to both the amicus briefs. You can find all the filings in the case, Town of Greece v. Galloway, here on the SCOTUSblog case page. Lyle Denniston of SCOTUSblog has an Aug. 7th report.

The ILB had a number of earlier posts under the heading "SCOTUS Takes Case on Prayer at Town Board Meetings."

[Updated at 11:58 AM]
See also this story today by Niki Kelly of the Fort Wayne Journal Gazette, headed: "On boards in area, prayer debate met with silence: As high court joins in, some officials say it’s not an issue." Some quotes:

Zoeller and others are pushing for the court to determine that even sectarian prayer is constitutional.

“It is an insult to individual expression and religious exercise to permit prayers only by those who agree to pray in the government-ordered fashion,” Zoeller’s brief said.

The court is expected to hear the case later this fall or early next spring.

Ken Falk, legal director for the Indiana Civil Liberties Union of Indiana, said the speech becomes unconstitutional if it sends a message of non-inclusion.

“The Supreme Court has never ruled directly on the question when the prayers get more overt. How far can they go? That is the question in this case,” he said.

In 2005, Falk had a similar case when he challenged prayers offered to begin each day’s session in the Indiana House. The American Civil Liberties Union of Indiana sued on behalf of several Hoosiers alleging that many of the prayers crossed the line into proselytizing for Christianity.

A U.S. District Court judge agreed and issued an injunction barring the speaker of the House from permitting sectarian prayers. The order also said the prayers should not use Christ’s name or title or any other denominational appeal.

But in 2007, the 7th Circuit U.S. Court of Appeals tossed the case on procedural grounds – choosing not to rule on the merits of the case.

The Indiana House and Senate continue to open sessions with prayers of all kind, though they no longer air them online.

The Indianapolis City-County Council was one of the few legislative bodies The Journal Gazette could find that still prays before each meeting.

Sometimes a clergy member is invited to give the prayer, and other times a member of the council does.

Recent prayers there have invoked “the very precious name of Jesus” and asked blessings “in the name of your son Jesus Christ.”

Erik Weber, city attorney for Auburn, said the city council conducts an organized moment of silence before each meeting as well as reciting the Pledge of Allegiance.

“It’s a long-held tradition, and it has been my advice so people can reflect or pray if they choose to,” he said.

Ligonier Clerk-Treasurer Barb Hawn said the idea of praying before meetings has never come up in her three years. She did say newer council members requested the body recite the pledge.

“That good ol’ separation of church and state,” she said.

Allen County Council President Darren Vogt said the council observes a moment of silence and that no one has requested a prayer.

“I’m OK with whatever the council wants to do,” he said. “I have no problem with a prayer before the public meeting. I say amen. But there are different faiths in the community. It’s important to respect everyone.”

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Indiana Government

Ind. Courts - "Former Richmond attorney arrested on 26 counts of theft"

From a brief story in the Richmond Palladium-Item:

Former Richmond attorney Charles "Chuck" Hyde Jr. was arrested Wednesday morning on 26 counts of theft after being formally charged in June by the Wayne County Prosecutor’s Office.

Hyde was freed that same morning after posting bond, according to officials at the Wayne County Jail.

He is accused of taking money from 14 clients who were seeking to file bankruptcy or failing to render legal services, Wayne County Prosecutor Mike Shipman said.

A 1973 Richmond High School graduate, Hyde resigned from the practice of law with the Indiana bar on May 25, 2012, in a filing with the Indiana Supreme Court. Hyde's resignation was submitted to the bar pursuant to Indiana Admission and Discipline Rule 23(17), the filing said.

That rule states, "An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may resign as a member of the bar of this Court, or may consent to discipline ... ".

According to the filing, Hyde cannot petition for reinstatement to practice law in Indiana for five years after his resignation.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Indiana Courts

Ind. Courts - Ex-Muncie city clerk sentenced for embezzlement

Douglas Walker's story in the Muncie Star-Press begins:

MUNCIE — A former city employee accused of embezzling more than $11,000 from the Muncie city clerk’s office was sentenced Wednesday to time already served in the Delaware County jail.

Misty D. Buck, 31, was also placed on probation for three years by Circuit Court 4 Judge John Feick.

The Muncie woman on June 20 had pleaded guilty to theft, a Class D felony carrying a standard 18-month sentence.

An investigation began in February 2012 after Muncie City Court Judge Dianna Bennington noticed “discrepancies in the account of fines paid to the court,’ according to an Indiana State Police press release.

A later State Board of Accounts audit alleged that Buck, at the time a deputy clerk, stole $11,459.50 between July 2011 and February 2012, when she was fired.

Authorities said some citizens who paid traffic-related fines “erroneously had their licenses suspended” when their money was not property deposited, and records reflected they had never submitted payments.

Buck on Wednesday received a three-year sentence, but with all but 50 days, already served, suspended.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Indiana Courts

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

Updating this ILB entry from July 25th, Ruth Ann Krause of the Gary Post-Tribune reports today:

The Lake County Judicial Nominating Commission selected three applicants from a field of 11 who are seeking the post of Lake Superior Court judge of the criminal division.

Samuel Cappas, Timothy Ormes and Michael Pagano are the nominees who will be submitted by Indiana Supreme Court Justice Robert Rucker to Gov. Mike Pence on Monday or Tuesday.

The nine-member commission spent a full day Thursday conducting interviews with the candidates, then voted for five. Because of a tie, there were six nominees whose qualifications were discussed further before the final vote that narrowed the selection to three.

Questions posed by the commission ranged from the reason they wanted the position to ways to improve efficiency, reign in costs and address the heavy caseload that has clogged the dockets with the transfer of Class D felonies to the criminal division.

Cappas, who was the top vote-getter, has been both a deputy prosecutor and a criminal defense attorney. He also has served as a judge pro tem, including for lengthy periods.

Ormes also has experience prosecuting and defending criminals and is a Lake County public defender while maintaining a private practice.

Pagano, a magistrate in Lake Superior Court county division, had a private practice before he took the bench 10 years ago.

Posted by Marcia Oddi on Friday, August 09, 2013
Posted to Indiana Courts

Thursday, August 08, 2013

Ind. Decisions - Supreme Court decides one today, reversing trial court

In Mary Alice Manley, and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C., a 7-page, 5-0 opinion, Chief Justice Dickson writes:

In this medical malpractice action the plaintiffs, Mary Alice Manley and Gary Manley, appeal from a grant of summary judgment in favor of the defendants, Dr. Ryan Sherer and Sherer Family Medicine, P.C. We reverse.

On November 27, 2006, Mary Manley was involved in a head-on automobile collision with Kimberly Zehr. At the scene of the accident, Ms. Manley overheard Ms. Zehr say that "she not be driving because of her medical condition." At an unspecified later date, Ms. Manley learned of an undated letter from Ms. Zehr's physician, Dr. Sherer, to the Orange County Prosecuting Attorney reporting that Ms. Zehr had several medical conditions that, combined with medications she had been prescribed by Dr. Sherer, may have contributed to the automobile accident.

The plaintiffs sued Ms. Zehr alleging that, as a result of the collision, Ms. Manley suffered permanent, debilitating injuries that required extensive hospitalization and Mr. Manley suffered a loss of spousal consortium. That case settled for an undisclosed sum. On November 25, 2008, the plaintiffs filed a proposed complaint with the Indiana Department of Insurance against Dr. Sherer and his medical group alleging medical negligence in failing to warn Ms. Zehr not to drive while she was taking her medication. On July 30, 2010, the defendants filed a motion for preliminary determination of law and for summary judgment contending that the plaintiffs failed to timely file their complaint. The trial court granted summary judgment in favor of the defend-ants, the plaintiffs appealed, and the Court of Appeals reversed. Manley v. Sherer, 960 N.E.2d 815, 818 (Ind. Ct. App. 2011). We granted transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). * * *

Finding genuine issues of material fact (1) as to when the plaintiffs either, (a) knew of the alleged malpractice, or (b) learned of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and resulting injury; and (2) as to the absence of the ele-ment of causation necessary to establish liability, we conclude that the defendants' motion for summary judgment should have been denied. The judgment of the trial court is therefore reversed and this cause remanded for further proceedings.

Posted by Marcia Oddi on Thursday, August 08, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In In Re: The Carroll County 2012 Tax Sale Twin Lakes Regional Sewer District v. Steven E. Hruska, Virginia Hanna & Equity Trust Co. FBO#80677 & Carroll Cnty, Indiana, by & through Carroll Cnty Auditor, a 10-page opinion, Judge Baker writes:

The primary issue in this case is whether the trial court erred in interpreting Indiana Code section 13-26-14-4, which prohibits real property from being sold at a tax sale when the only lien against the property was for unpaid sewer bills. The appellees-petitioners Steven Hruska, Virginia Hanna, and Equity Trust Company (collectively, the petitioners) successfully petitioned the trial court to have their respective properties removed from the county tax sale list when it was determined that unpaid sewage bills were the only liens on the parcels.

The appellant-intervenor, Twin Lakes Regional Sewer District (TLRSD), appeals that determination, alleging that the trial court misinterpreted the provisions of Indiana Code section 13-26-14-4 regarding the removal of the properties from the tax sale list. We conclude that the trial court properly determined that the statute prohibits foreclosure on the property at a tax sale when an unpaid sewer bill is the only lien that exists on the property. Thus, we affirm the judgment of the trial court.

NFP civil opinions today (0):

NFP criminal opinions today (9):

Jeffrey G. Tourney v. State of Indiana (NFP)

Mickey L. Whitlock v. State of Indiana (NFP)

Reginald D. Baker v. State of Indiana (NFP)

Timothy R. Thacker v. State of Indiana (NFP)

Anthony J. Gipson v. State of Indiana (NFP)

Tamera Richards v. State of Indiana (NFP)

Jeffrey Alan Davis v. State of Indiana (NFP)

Kenneth Frye v. State of Indiana (NFP)

Zachariah Brownie v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - Going back in history and changing appellate opinions?

Yesterday the ILB posted an entry headed "[T]he expungement statute does not transmute a once-true fact into a falsehood", linking to this post from the SBM Blog.

A reader last evening pointed me to provision found in the new expungement law at IC 35-38-9-6, and specifically to subsection (c) of the provision, relating to opinions of the Indiana Supreme Court and Court of Appeals:

(c) If a petition to expunge conviction records is granted under sections 2 through 3 of this chapter with respect to the records of a person who is named in an opinion or memorandum decision by the Supreme Court or the Court of Appeals, the Court shall:
(1) redact the opinion or memorandum decision as it appears on the computer gateway administered by the office of technology so that it does not include the petitioner's name (in the same manner that opinions involving juveniles are redacted); and

(2) provide a redacted copy of the opinion to any publisher or organization to whom the opinion or memorandum decision is provided after the date of the order of expungement.

The Supreme Court and Court of Appeals are not required to destroy or otherwise dispose of any existing copy of an opinion or memorandum decision that includes the petitioner's name.

An administrative nightmare?

Posted by Marcia Oddi on Thursday, August 08, 2013
Posted to Indiana Law

Ind. Law - Still more on new expungement law and the value of waiting

Updating this worth-reviewing again August 1st ILB entry, as well as this July 18th ILB entry, The Statehouse File has a long story today by Megan Banta, headed "Hundreds turn up to learn how to have criminal records expunged under new state law." Some quotes:

INDIANAPOLIS – Hoosiers crowded into a conference room at the Julia Carson Center on Wednesday night in Indianapolis to learn more about a new state law that allows individuals to petition courts to have old criminal offenses removed from their records.

People waited up to an hour in a line that stretched around the building to get through security so they could ask legal experts questions about Indiana’s expungement law, which took effect July 1 * * *

Radio personality Amos Brown, who moderated the forum, said Hoosiers in attendance should do their research and get all their information together before they try to petition any court. * * *

[O]nce any offense is expunged from someone’s record, employers cannot hold that offense against the person.

In fact, [State Sen. Greg Taylor, a Democrat from Indianapolis who co-sponsored the legislation] said, employers likely will never find out about that offense because the law also changes what employers can ask for in an application.

He said employers now must ask if a potential employee has been convicted of a felony or a crime that has not been expunged.

“Anyone who has never been convicted of a crime would answer the same way as someone who had their crime expunged,” he said.

If an employer does find out about an expunged crime and holds it against a person applying for a job, that person can then sue the employer.

Brown encouraged Hoosiers to wait to apply, because even though the law has several potential benefits, it has only been in effect for 38 days and is “going to have bugs.”

“I know a lot of you want to have this done today,” Brown said. “But I don’t want to be the one to hear from you saying, ‘I was the first one down there, and they were the first to throw my petition out.’”

[Tracy Bennett, a 31-year-old from Indianapolis] said he, at least, plans to wait. He said he still has questions about the law, especially about public agencies that will still be able to access sealed and expunged records and about how long the process will take.

Also today, Kaarin Lueck of the Indiana Juvenile Justice Blog has a useful post titled "Expunging a Juvenile Record." A few quotes:
In Indiana, it has long been possible to expunge a juvenile delinquency record. However, like so much in juvenile court, there is geographic disparity. The number of requests for expungement vary widely from county-to-county according to anecdotal accounts. In some counties, such as Marion County, there is a formal process where children are reminded of their ability to expunge the juvenile court records and public defenders are assigned to handle the procedure. Many other counties have no such processes in place. * * *

An expungement removes the court files, any law enforcement files, and the files of any person who provided services to a child under a court order that are related to the juvenile court case. IC 31-39-8-2. Any expunged records may be destroyed or given to the person to whom the records pertain. IC 31-39-8-6. * * *

This procedure is different than the law that went into effect July 1, 2013, which allows a person to expunge a criminal record under certain circumstances.

See also this post on sealing certain juvenile records held by the Indiana State Police.

Finally, there is no way to “seal” a juvenile court record in Indiana.

Posted by Marcia Oddi on Thursday, August 08, 2013
Posted to Indiana Law

Wednesday, August 07, 2013

Courts - "Unusual Law Clerk Hire for D.C. Circuit Judge Janice Rogers Brown"

That is the heading of this post today at The Blog of Legal Times by Tony Mauro. It begins:

Shon Hopwood's unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.
ILB readers may recognize the name - the ILB has had two earlier entries on Hopwood:

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Courts in general

Ind. Gov't. - More on: Mayor Ballard seeks early appeal of redistricting ruling won by Democrats

Updating this ILB entry from August 6th, here is the Plaintiffs’ brief in opposition to the Mayor’s Motion to Certify for Interlocutory Appeal, as filed today with the trial panel.

Here is the July 17, 23-page, 3-2 opinion of the 5-judge trial panel in Lewis v. Sullivan.

The ILB also would be pleased to post the Mayor's documents...

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Indiana Government

Courts - "[t]he expungement statute does not transmute a once-true fact into a falsehood"

Valuable post and links from the SMB Blog.

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Courts in general

Ind. Decisions - Yet more on "WellPoint, Inc. Agrees to Pay $90 Million to Settle Class Action Suit"

Updating this ILB entry from Oct. 31, 2012 (you can follow the links back to all the stories, including the settlement document), which began, quoting from an IndyStar story:

Thousands of former Indiana policyholders in Anthem insurance soon will be getting checks in the mail.

About 660,000 former policyholders of the Indianapolis insurer will share in a $90 million settlement approved last week by a federal judge.

Payments to most people will range from $19 to $425, according to court documents. Most live in Indiana, Ohio, Kentucky and Connecticut.

Anthem's parent, Indianapolis health benefits company WellPoint, agreed to the settlement in June, ending seven years of litigation against it by its former policyholders.

Today, as a member of the class, I received in the mail a settlement check from the Anthem Litigation Net Settlement Fund that fell within the above range. "The Plaintiffs in this class action case are over 700,000 former mutual company members who received cash in exchange for their interests in the demutualization of Anthem Insurance Companies."

Re attorney's fees, class counsel were awarded $30,000,000, plus $6,243,278 in expenses. Class Representative Mary E. Ormond and Kevin Heekin were each awarded $25,000 as case contribution awards. (Case No. 1:05-cv-01908 Doc. #724)

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - "Diaper deal that gave $2.73M to lawyers, one-box refund to customers is nixed by 6th Circuit"

From the ABA Journal blog, this interesting report. Referencing an opinion from the Cincinnati-based 6th U.S. Circuit Court of Appeals:

The 6th Circuit opinion cited a need for courts to be particularly vigilant for subtle signs that the settlement negotiations have been affected by the lawyers’ pursuit of their own self-interests and by the interests of certain class members.

“The signs are not particularly subtle here,” the court said. “On the one hand, the settlement agreement awards class counsel a fee of $2.73 million—this, in a case where counsel did not take a single deposition, serve a single request for written discovery, or even file a response to P&G’s motion to dismiss. On the other hand, the agreement provides unnamed class members a medley of injunctive relief.”

Scrutinizing that relief, the court noted the refund requirements for original receipts, in some instances for diapers purchased as long ago as August 2008. An objecting party “sensibly asks who does this sort of thing. We have no answer. Neither do the parties—or more precisely they have offered none.”

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Courts in general

Ind. Decisions - "Court: Police can keep 51 guns from Spierer-obsessed man"

That is the headline to this Bloomington Herald-Times story today ($$$), reported by Abby Tonsing, about yesterday's COA opinion in Robert E. Redington v. State of Indiana. Some quotes:

The Indiana Court of Appeals has affirmed a Monroe County court order that will allow Bloomington police to keep the 51 shotguns, rifles and pistols they confiscated from an Indianapolis man last fall.

In a split 2-1 decision Tuesday, two judges determined Robert Redington to be dangerous as defined by state law and that police can retain his guns. * * *

Under Indiana’s “Laird Law,” people diagnosed with mental illness or people who are determined to be a danger to themselves or others can be prohibited from owning guns.

In September, Monroe Circuit Judge Mary Ellen Diekhoff ruled that Redington was dangerous and should not be allowed to possess or use guns, despite his rights under the Second Amendment of the U.S. Constitution. She also revoked his license to carry a handgun.

Redington and Carmel-based attorney Guy Relford, whose practice focuses on Second Amendment legal issues, took Diekhoff’s ruling to the Indiana Court of Appeals. Redington v. State was presented to the three judges on June 18.

Judges Elaine Brown and Cale Bradford agreed that Redington presents a danger and Bloomington police have a right under Indiana law to retain his guns.

“The trial court also seems to have given great weight to the ample other evidence relating to Redington’s unstable mental state and behavior, his seemingly unhealthy obsession with the Spierer disappearance, the trial court’s observations of Redington, and the lack of seemingly credible evidence that Redington was complying with the treatment plan established by the mental health professionals treating him,” Bradford wrote in his own opinion.

Judge Patricia Riley disagreed and wrote in a separate opinion that she did not find Redington dangerous as defined by state law.

“However, the State’s evidence, though demonstrating that Redington has a mental illness and possesses numerous firearms, does not give rise to a reasonable belief that he has a propensity for violent or emotionally unstable conduct. It is undisputed that Redington broke no law, committed no violent act, responded peacefully when confronted by police officers, and did not threaten to harm himself or anyone else. His comments to the police, though alarming, erratic, and delusional, do not evince violence or emotional instability,” Riley wrote.

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Westminster Presbyterian Church of Muncie, an Indiana Non-Profit Corporation v. Yonghong Cheng and Hongjun Niu, Husband and Wife, as parents of Matthew Cheng, deceased, a 20-page opinion, Judge Vaidik writes:

After the death of their four-month-old son while under the care of a babysitter recommended by a pastor at their church, Yonghong Cheng and Hongjun Niu (“June”) (collectively, “the Chengs”) brought suit against Westminster Presbyterian Church (“Westminster”) for wrongful death, invasion of privacy, and intentional infliction of emotional distress. Westminster moved for summary judgment on all counts; the trial court denied the motion in regards to the wrongful death and invasion of privacy claims, but it granted the motion in regard to the intentional infliction of emotional distress claim. Westminster appeals, and the Chengs cross-appeal.

Under a Webb v. Jarvis analysis, we find that there was no duty of care as a matter of law in this case, when a pastor recommended a babysitter to a parishioner and the child died while in the babysitter’s care. We also find that when the church issued a press release about the death that included the family and child’s names, there was no invasion of privacy because the church did not intrude upon the family’s physical seclusion or profit off of the family’s name, and no intentional infliction of emotional distress because the conduct did not rise to the level of outrageous. We therefore affirm in part, reverse in part, and remand with instructions for the trial court to enter summary judgment in favor of Westminster on all counts.

NFP civil opinions today (2):

Centurion Federal Credit Union v. Michael Trible (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of J.M., Minor child, and J.M. and Z.W. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

Dominique L. White v. State of Indiana (NFP) (541)

Dominique L. White v. State of Indiana (NFP) (651)

Dale R. Davidson v. State of Indiana (NFP)

Carlos Ramos v. State of Indiana (NFP)

John Jorman, Jr., v. State of Indiana (NFP)

Daniel Aguilar,III v. State of Indiana (NFP)

Cody Steele v. State of Indiana (NFP)

Shirley Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Newton County: "Legal fees mount as mandate stalls"

That is the headline to this snippet from a story by Cindy Brandenburg in the $$$ Newton County Enterprise. Newton County is an area of the state the ILB can no longer follow re court and government news because of a paywall. The snippet:

Newton County Superior Court Judge Daniel J. Molter is still waiting for resolution on his amended order for the mandate of funds, filed Feb. 25, against the county council.

Molter’s original order called for the council to increase the pay of his court administrator to match that of the circuit court’s administrator. When the council didn’t immediately rectify the discrepancy at his request, Molter then filed the amended order to compensate his administrator for back pay to the time when the circuit court administrator’s pay was raised in 2010. He has also mandated a pay increase to reflect seniority in years of service.

Read the full story in the print edition or by subscribing online to the e-edition.

Newton County has two judges.

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Indiana Courts

Ind. Courts - "Allen County attorney gets 100 days on house arrest"

Jeff Wiehe has this story today in the Fort Wayne Journal Gazette. The story begins:

FORT WAYNE – For years as an attorney and public defender, Mitchell W. Hicks has had to argue cases that sometimes seemed impossible to defend.

Tuesday morning, he made no defense for his own actions.

Hicks, who earlier this year pleaded guilty to misdemeanor charges of operating a vehicle while intoxicated and carrying a handgun without a license, appeared before an Allen County Superior Court judge to learn his sentence.

He also admitted he had violated the conditions that allowed him to remain free until that sentence was handed down. Namely, he had tasted alcohol, something he was forbidden to do.

“I screwed up,” he said.

Judge Fran Gull sentenced Hicks to serve a total of 100 days in the Allen County Community Corrections program, which means the attorney will be on house arrest and probably fitted with an ankle bracelet to track his whereabouts.

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Indiana Courts

Ind. Courts - "LaGrange Co Commissioners hear of need for courthouse repair"

From the WTHD 105.5 website, this August 6th item:

LAGRANGE - LaGrange County Commissioners heard some cost estimates on repairs to the exterior of the historic county courthouse this morning.

Maintenance Supervisor Gary Mast told commissioners he’s talked with the Iowa company that did restoration work on the Noble County Courthouse recently. Their inspection of the LaGrange Courthouse revealed more than 300 defective bricks, crumbling window sills, and damaged stones.

Mast said evidence pointing to the need for a renovation project is literally falling from the sky. "It's kind of a liability issue in my opinion. I've already found cement that big around actually fallen off the courthouse. In fact, I was standing outside by where the handicap ramp is and there was two pieces right there that fell while I was standing there. Luckily no on was around but me."

Mast said the work identified by the company would cost an estimated $120,331. But the need doesn’t end there. Flashing around the building’s four cupolas has deteriorated, causing a problem in one courtroom.

"The flashing around all the cupolas are rotted. They're just totally gone. And on the southeast corner cupola we've got leakage problem. It's still leaking in the (circuit) courtroom there. On a day that it was raining really hard I crawled up there on my hands and knees and could see where the water was coming in in the attic. You could actually see daylight."

Mast also wants to replace the large single boiler in the courthouse with two smaller and more efficient units. Industrial Piping & Maintenance of Sturgis had the lowest estimate at $23,500 but because the quotes were from the fourth quarter of last year the commissioners asked Mast to get updated quotes and report back in two weeks.

Replacing 60 windows in the courthouse could cost another $46,000.

The commissioners want to firm up the quotes and see if they exceed the threshold requiring open bids. They suggested Mast include the expected costs in his 2014 budget when he goes before county council later this month.

Posted by Marcia Oddi on Wednesday, August 07, 2013
Posted to Indiana Courts

Tuesday, August 06, 2013

Ind. Decisions - More on today's opinion in Robert E. Redington v. State of Indiana

Supplementing the ILB summary of the opinion from earlier today, the most recent ILB post on this case was in June 20th. It quoted from the Bloomington Herald Times story by Laura Lane, whose report about the oral argument began:

Should disturbing and deadly shooting sprees in movie theaters and elementary schools play a role in deciding if it’s constitutional to take away a man’s guns because of a concern he might someday use the weapons to harm others?

Indiana Court of Appeals Judge Elaine Brown’s query was the heart of a 40-minute debate before a three-judge panel Tuesday regarding the fate of Robert Redington and the 51 shotguns, rifles and pistols Bloomington police confiscated from him last fall. Appellate Court Judge Cale Bradford seemed uncomfortable with the notion of pre-emptive gun seizure unless a person is deemed mentally ill. “To decide this case on what happened in those situations runs contrary to deciding every case, and law, on its own merits,” he said as lawyers argued both sides. “Those were terrible situations, but we cannot react emotionally.”

But today, the ruling came out the way many who follow the Court might not have predicted. Judge Brown and Judge Bradford voted to uphold the trial court’s order to retain Redington's firearms, while Judge Riley dissented.

Tim Evans of the Indianapolis Star has a story here. Some quotes:

Police may keep 51 firearms seized from a suspected mentally ill man, who claimed to have premonitions about the disappearance of IU coed Lauren Spierer, the Indiana Court of Appeals ruled today in a split decision.

Robert Redington presents a danger and Bloomington Police had the right under Indiana law to seize and keep the weapons confiscated in 2012, Justices Elaine Brown and Cale Bradford ruled in upholding a Monroe Circuit Judge’s decision.

Justice Patricia Riley disagreed with the majority, writing in a separate opinion that she did not believe Redington was dangerous under the definition in Indiana law.

The three-judge appellate panel heard oral arguments in June.

Guy A. Relford, a Carmel-based lawyer known for championing Second Amendment rights, said he expects Redington will ask the Indiana Supreme Court to review the case.

“I respect the court’s opinion, but I respectfully disagree with the majority,” said Relford, who represented Redington in the appeal.

Relford said he believes Riley, in her dissenting opinion, got it right. He said Redington has never been arrested and there was no evidence of violence in his background.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Ind. App.Ct. Decisions

Law - Terry Gross interviews the actor who plays lawyer Saul Goodman on Breaking Bad

From Fresh Air with Terry Gross. The complete interview audio will be available later today.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to General Law Related

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

For publication opinions today (3):

In Robert E. Redington v. State of Indiana, a 49-page, 2-1 ruling with 3 separate opinions, Judge Brown writes for the majority in a 41-page opinion:

Robert E. Redington appeals from the trial court’s order to retain firearms. Redington raises four issues, which we consolidate and restate as: I. Whether Ind. Code § 35-47-14-1 et seq., as applied to Redington, is unconstitutional; and II. Whether the evidence is sufficient to support the order that Redington’s firearms be retained. * * *

For the foregoing reasons, we affirm the trial court’s order to retain firearms.

BRADFORD, J., concurs with separate opinion.
RILEY, J., dissents with separate opinion.

[J. Bradford's concurring opinion begins on p. 41 and continues through p. 44. Some quotes] I concur with the majority in all respects. However, I write simply to reiterate that while I have the utmost respect for the constitutionally protected right to bear arms, in the instant matter, I believe that the State met its burden of proving that Redington was “dangerous” as defined by Indiana Code section 35-47-14-1.

During the hearing, the State presented evidence establishing that Redington suffered from a schizotypal personality disorder, exhibited delusional thought patterns that continued despite the anti-psychotic medication that he was prescribed to take, and engaged in arguably unstable behavior. For example, while armed, Redington would, on numerous occasions, travel to Bloomington from Indianapolis and park in a third story parking lot where he would use a range finder to scope out the distance from the parking lot to different locations around Kilroy’s Bar-N’Grill. He did so in the hopes of seeing Lauren Spierer or communicating with spirits whom he believed could provide him with information to help him find Spierer or avenge her disappearance.

Additionally, mental health professionals opined that Redington may suffer from a delusional disorder or a paranoia disorder in addition to schizotypal personality disorder. Redington exhibited an unhealthy obsession with the Spierer disappearance and told police officers and medical professionals, among others, that he “feels the ‘negative energy’ of death all around him, believes bizarre ‘dreams’ or premonitions that he has (often involving dead people) come true or really happened.” Appellee’s Br. p. 13. In addition, Redington claimed to have suffered visual hallucinations, and Dr. Mayer indicated that there was concern that Redington could harm someone during one of his visual hallucinations. * * *

Thus, in light of the fact that Redington was found to be “dangerous” coupled with the relevant controlling State and Federal authority which demonstrates that certain attempts to regulate Article I, Section 32 and the Second Amendment have been found to be constitutional, I agree that Indiana Code section 35-47-14-1 et seq. is not unconstitutional as applied to Redington and join the majority’s conclusion that the judgment of the trial court should be affirmed.

[J. Riley's dissent begins on p. 45 and continues through p. 49. Some quotes] I respectfully dissent from the majority’s decision to affirm the trial court’s Order seizing and retaining Robert Redington’s (Redington) firearms and suspending his firearms license. Ind. Code § 35-47-14-6(b) permits the trial court to order firearms forfeiture and license suspension only if the State “has proved by clear and convincing evidence that the individual is dangerous.” “Dangerous” is defined by I.C. § 35-47-14-1, which provides two alternative tests to determine whether an individual is dangerous. The first test is based on an individual’s risk of imminent harm to himself or others; the second, on the individual’s risk of future harm to himself or others. In my view, a reasonable trier of fact could not find that Redington was dangerous under I.C. § 35-47-14-1.

In Billy L. Musgrave, Jr. and Kim A. Musgrave v. The Aluminum Company of America, Inc., and Alcoa Fuels, Inc., a 29-page opinion, Judge Najam writes:
In 2006, Bil and Kim Musgrave filed suit against The Aluminum Company of America, Inc. (“Alcoa”) and its wholly owned subsidiary, Alcoa Fuels, Inc. (“Alcoa Fuels”). According to their complaint, Bil had been exposed to Alcoa’s toxic chemicals both in the course of his work on land owned by Alcoa Fuels and his recreational use of that land, which caused Bil to develop a rare form of cancer. Before trial, the court dismissed the Musgraves’ work-related claims pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. Following a trial on the Musgraves’ recreational claims, the jury returned a general verdict in favor of Alcoa and Alcoa Fuels.

On appeal, the Musgraves raise three issues for our review, but we need only address the following two dispositive issues: 1. Whether the trial court properly dismissed the Musgraves’ work-related claims. 2. Whether the trial court erroneously instructed the jury on the statute of limitations on the Musgraves’ claims that their injuries resulted from their recreational exposure to Alcoa’s chemicals. * * *

In sum, the trial court properly dismissed the Musgraves’ work-related claims against Alcoa pursuant to Indiana Trial Rule 12(B)(1). The trial court also properly instructed the jury on the statute of limitations, and the Musgraves did not preserve their argument that the jury instruction was not supported by the evidence for appellate review. Accordingly, we affirm the trial court’s judgment and the jury’s verdict for Alcoa.

In Derek Hale v. State of Indiana, a 20-page opinion, 2-1 opinion, Judge Brown writes:
Derek Hale appeals the trial court’s order on his Verified Petition for Writ of Habeas Corpus. Hale raises two issues which we consolidate and restate as whether the court abused its discretion when it entered its order clarifying Hale’s sentence. We reverse and remand. * * *

While serving the work release portion of his sentence, Hale is entitled to credit time which is credited against his aggregate suspended term. Put another way, Hale’s sentence is not divided into executed and suspended portions, in which case the credit time accumulated while serving the executed term accrues against that portion and effects an earlier transition to the suspended portion of the sentence. Here, there is a suspended sentence only, and the court established a timeline on how that sentence is to be served. Thus, upon completion of his two years on work release, assuming Hale is not deprived of any credit time, he will have accumulated a total of four years against his ten-year suspended sentence. Hale will then transition to home detention, where he will serve one year and again will be able to earn one year of credit time. Once that portion of his sentence is complete, assuming no deprivation of credit time, Hale will have served a total of six years of his ten-year suspended sentence. He will then be placed on probation for the remainder of his sentence.

For the foregoing reasons, we reverse the court’s order on Hale’s Verified Petition for Writ of Habeas Corpus, and we remand with instructions that the court enter an order instructing the Fulton County Sheriff to administer Hale’s sentence consistent with this opinion.

RILEY, J., concurs in result.
BRADFORD, J., dissents with separate opinion. [which begins at p. 15 of 20] Because I believe that Hale met his burden of proof of showing that he is being illegally detained in the Fulton County work release program (“the work release program”) and, as a result, is entitled to immediate release, I respectfully dissent. * * *

In the instant matter, Hale’s verified petition stated that he had been confined in the work release program for more than one year and that he had earned one day of credit time for each day served. The confining authority did not present a return containing any evidence that would disprove the statements contained in Hale’s verified petition. As such, Hale’s complaint was sufficient to make a prima facie showing that he was entitled to immediate release because he had completed his two-year term of confinement in the work release program.8 See generally Willis, 105 Ind. at 365, 5 N.E. at 9. Because Hale is entitled to immediate release from the work release program, I would conclude that the habeas court abused its discretion in denying Hale’s complaint seeking a writ of habeas corpus, and, accordingly, would reverse the judgment of habeas court.

NFP civil opinions today (2):

Indiana-American Water Company, Inc. v. Indiana Office of Utility Consumer Counselor, City of Crown Point, Indiana (NFP)

In the Matter of the Guardianship of: M.A.M.J., a minor; Diana Sullivan v. Katherine Ashley Oliver (NFP)

NFP criminal opinions today (4):

Marcus L. Wilson v. State of Indiana (NFP)

Lamar Allen Colley v. State of Indiana (NFP)

Travis Cunningham v. State of Indiana (NFP)

Cody Hoffman v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 2, 2013

There is no word yet on last week's transfer dispositions, or lack thereof. The Court generally conferences on Thursdays...

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - "Religious Objections To Health Law Multiply"

Marcia Coyle has this article in the August 5th Daily Report. It begins:

Religion-based challenges to the new health care law likely will bring the controversial reforms back to the nation's high court before the end of the coming term.

Although a recent split among the circuits increased that likelihood substantially, lawyers in one of the two divided circuits chose Wednesday to seek en banc review in the U.S. Court of Appeals for the Third Circuit instead of a swifter trip from the panel decision to the U.S. Supreme Court.

However, other splits may develop as cases in the Sixth and Seventh circuits are expected to be decided soon, said S. Kyle Duncan, general counsel of The Becket Fund for Religious Liberty.

"Those panels seemed to be leaning heavily in one direction or another," Duncan said. "We may see decisions by the end of August deepening the split."

The ILB has been following this issue because of two cases before the 7th Circuit, Grote Industries v. Sebelius and Korte v. Sebelius.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Troubling, Unanswered Questions for Terry Curry about Bei Bei Shuai Prosecution

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

Marion County Prosecutor Terry Curry’s decision Friday to offer a plea agreement for a Class B misdemeanor—one of the least serious criminal charges in Indiana— to the Chinese immigrant who swallowed rat poison while pregnant was an appropriate resolution of the case that never should have been charged as murder. But Curry’s comments and the plea offer raise three sets of troubling, unanswered questions.

Curry’s Evolving Statements

The Star’s Saturday morning story noted Curry’s plea offer was based in part on “concern that conviction of anything other than a misdemeanor could have triggered deportation efforts. Curry said no one wanted to jeopardize Shuai’s immigration status, and that he always had been open to finding a resolution that fit the ‘unique circumstances’ of the Shuai case.”

Earlier this year, though, Curry was singing a different tune. A January 6 front-page Star article quoted him as saying, “I don't have any hesitation whatsoever in filing and pursuing the prosecution. Even if there were no person or organization that agreed with what we've done, it's our responsibility to interpret the law as given to us by the legislature and apply it." He added, “We're not talking about a situation where it's some low-level offense.”

Well, several months later, we are talking about the resolution of this case as an incredibly low-level offense.

Offense Penalty
Original Charge Murder 45 to 65 years
  A Felony 20 to 50 years
  B Felony 6 to 20 years
  C Felony 2 to 8 years
  D Felony 6 months to 3 years
  A Misdemeanor 0 to 365 days
Ultimate conviction B Misdemeanor 0 to 180 days
  C Misdemeanor 0 to 60 days

More Than a Year in Jail

Curry’s decision to charge Shuai with murder, the only offense with a presumption against bail in Indiana, virtually ensured that she would sit in jail for a long time. His office contested Shuai’s request for bail at a lengthy hearing, and she was released after 435 days in custody - thanks not to Curry but to the Indiana Court of Appeals. Keeping someone in the Marion County jail for more than a year is one way to ensure they are not deported, but if Curry had planned all along to find a resolution that meets the “unique circumstances” of the case, shouldn’t his office have at least agreed to bail? Pretrial detention is generally appropriate for individuals who pose a serious threat to society and are unlikely to appear in courts. Was Shuai either of these?

Public Safety Resources

Pursuing a murder charge also cost the taxpayers of Marion County dearly. Defendants in misdemeanor cases rarely spend any time in jail, police spend little time investigating the cases, and the cases are usually resolved with only a few minutes of court and prosecutor time. In contrast, this murder case, which dragged on for more than two years, required enormous resources from prosecutors, police agencies, and the courts. The bail hearing alone spanned three days.

According to a January 26, 2013 Star story: “Curry said he'll continue to find ways to make the case work, which could draw out the length and the cost of the case. Curry's office says it does not know how much the case will end up costing taxpayers.” Hopefully someone will follow up with Curry about the number of hours spent by his staff and the resources required of other law enforcement agencies by virtue of Curry pursuing this case so forcefully for so long.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Schumm - Commentary

Courts - "Dying Lawyer Asks Judge to Free Her From Prison"

Thanks to the Sentencing Law Blog entry (with extensive quotes)for pointing out this NY Times story by Benjamin Weiser. The lede: "Lynne F. Stewart, the outspoken former defense lawyer and a polarizing figure in the criminal justice system, is fighting her final battle."

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Courts in general

Courts - "7th Circuit Denies Immediate Illinois Conceal-Carry"

The most recent relevant ILB entry on this issue is from March 15th, and includes this quote from an AP story:

SPRINGFIELD, Ill. (AP) -- Gov. Pat Quinn said Wednesday that he wants the Illinois attorney general to appeal a federal court ruling that the state's last-in-the-nation concealed carry ban is unconstitutional, a move that would take it before the U.S. Supreme Court.
But Attorney General Lisa Madigan said she prefers to wait and see whether lawmakers craft a new law this spring that would allow the concealed carry of weapons, as the federal appeals court ordered them to do.

A three-judge panel of the 7th U.S. Circuit Court of Appeals struck down Illinois' ban last year and gave lawmakers until early June to legalize the practice. Last month, the court declined Madigan's request that the full appeals court reconsider the ruling.

The Illionios General Assembly ultimnately did pass legislation. Yesterday, CBS St. Louis reported:
ST. LOUIS (AP) – A federal appeals court has refused an urgent request by gun rights advocates to let Illinois residents immediately tote firearms in public under the state’s fledgling concealed-carry law, though the panel has decided to give the matter a speedy review.

The Chicago-based 7th U.S. Circuit Court of Appeals denied the request last Thursday and said it expects both sides to submit written briefs by Aug. 14 regarding whether the months-long wait to implementing the law is unreasonable and illegal, as critics insist. No oral arguments on the matter had been scheduled as of Monday. * * *

The Illinois Legislature passed the last-in-the-nation concealed-carry law July 9 against Gov. Pat Quinn’s objections, giving Illinois State Police 180 days to set up the permit process and an additional 90 days to process applications.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Courts in general

Ind. Gov't. - Mayor Ballard seeks early appeal of redistricting ruling won by Democrats

Updating earlier entries on this case (Lewis v. Sullivan), the most recent from July 21, Jon Murray reports today:

Attorneys representing Indianapolis Mayor Greg Ballard’s office asked a Marion County court Monday to allow an early appeal of a split decision throwing out Republican-drawn City-County Council district maps.

The move could result in Indiana Supreme Court intervention before the ­local judges proceed to draw a new set of boundaries for the 25 council districts.

Ballard’s request was ex­pected after he lost the first round in court. A Marion Superior Court judicial panel on July 17 ruled 3-2 — along party lines — in favor of council Democratic leaders. The plaintiffs include council President Maggie Lewis.

Because the judges haven’t finished handling the case, Ballard is seeking their permission to appeal the ruling now.

If the panel denies the request, the mayor may have to wait until after the judges have drawn new maps and have finalized last month’s ruling. It’s unclear how soon the judges will rule on Ballard’s request. * * *

The high court ended the last council redistricting dispute in 2003 by drawing new boundaries.

Attorney Bill Groth said the council’s Democratic leaders would oppose Ballard’s motions.

He wrote in an email that the Republican mayor’s request appeared to be an attempt to avoid giving the Indiana Supreme Court “a choice between two maps, one a blatant political gerrymander drawn by a political party (the GOP) to maximize its political advantages, and the other a neutral map drawn by judges using neutral, non-political factors.”

The case will determine district assignments for voters across Marion County for the 2015 and 2019 council elections.

On Monday, the city’s legal office filed motions to certify the Marion County ruling for a quick appeal and to stay the proceedings.

Posted by Marcia Oddi on Tuesday, August 06, 2013
Posted to Indiana Government

Monday, August 05, 2013

Ind. Courts - Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

Three years ago today the ILB posted a similarly-headed entry. It began (with updates):

Today This weekend I, along with all the other members of the Indiana bar in the 2nd Judicial District who are in good standing, received this "Notice of Election" from the Clerk of the Indiana Courts.

Essentially it says that nominations are now open for the attorney member who will represent the 2nd District on the Commission for the next three years. Nominations, including a petition signed by 30 attorneys who reside in the 2nd Judicial District, are due by Sept. 10, 2010 19, 2013.

Here is the current mailing.

By now, Indiana lawyers who follow the ILB are well-aware of how important this little-known position is. The current 2nd District attorney-commissioner has participated in the selection of two Supreme Court justices and one Court of Appeals judge.

Sometime during the three-year 2nd District attorney-commissioner's term beginning Jan. 1, 2014, Chief Justice Dickson will step down. (See this May 16, 2012 story by Niki Kelly of the FWJG.) So a new justice will need to be nominated by the Commission, and the Commission will need to select a new Chief Justice. There may be vacancies on the Court of Appeals, resulting from the mandatory retire-at-75 provision. And there could be unanticipated retirements from either Court. In addition, the JNC serves as the Judicial Qualifications Commission, which means that the Commission also investigates and prosecutes disciplinary complaints against judges.

Three years ago, there was quite a spirited race for the 2nd District attorney-commissioner position, but as happens nearly always, the position was secured by a member of the civil plaintiff’s bar, who sent mass mailings such as this.

The ILB will be posting again on this upcoming race. For now, see this Sept. 28, 2010 ILB post, which includes a table of the attorney members of the JNC from 1972 to 2011. The shaded names are repeats (you cannot immediately succeed yourself). Note: There have been more repeats since the chart was completed in 2011.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Courts

Ind. Gov't. - "A to F grading system for schools doesn’t work"

Another terrific story from CNHI's Maureen Hayden, here in the New Albany News & Tribune - it begins:

INDIANAPOLIS — Last spring, a small public elementary school in the small city of Goshen, Ind., won a big award from the private Milken Foundation: It was named one of the four best schools in the nation for teaching excellence.

I thought the recognition was newsworthy so I wrote about it. Unlike elementary schools in affluent communities that are used to winning accolades, West Goshen Elementary School has a student population that few school administrators would envy: Almost 80 percent of its students come from poverty-stricken families and many of them are the children of Hispanic immigrants who speak little English.

West Goshen earned the award by embracing many of reforms put into place by Indiana’s former state schools chief Tony Bennett, who is now under a shadow of scandal. It focused resources on boosting student test scores, provided intense remediation for students falling behind, adopted a teacher-mentoring program modeled by other schools, and recruited community volunteers to provide tutoring, support and encouragement to children so easily discouraged by failure.

In talking to school principal Alan Metcalfe, I could hear urgency in his voice. He was on a mission to raise the reading levels of his third-graders because he knew the odds for students who are poor readers and who live in poverty are grim: They’re six times at greater risk of dropping out.

Yet when West Goshen Elementary School was graded by the state, under the nearly impossible to understand A-F grading system that Bennett implemented at the direction of the State Board of Education, the school got a D.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Government

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

Updating this ILB entry from July 30th, on sexual orientation and the Batson challenge, How Appealing this weekend collected several links on the 9th Circuit case. Among them is this page created by the 9th Circuit on the case, Smithkline Beecham Corporation v. Abbott Laboratories ("Sexual Orientation of Jurors"), linking to the documents.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Courts in general

Ind. Gov't. - "Paying for the Party: How College Maintains Inequality"

Fascinating book review by Tamar Lewin in the "Education Life" section of the Sunday NY Times. It begins:

IN the fall of 2004, 53 young women arriving for their first year at a public research university found that one room on their dorm floor had a sign saying, “This room is occupied by sociology researchers studying college student social life.”

From that base over the next five years, the sociologists Elizabeth A. Armstrong of the University of Michigan and Laura T. Hamilton of the University of California, Merced, tracked those women’s paths through college and beyond. In the process, they made some sobering discoveries about the party culture that dominates large flagship universities and how it reinforces differences of social class. Although only about a third of the young women were “socialites” or wannabes, everyone, they found, was affected by the party culture.

The book that grew out of their research, “Paying for the Party: How College Maintains Inequality,” identifies the university only as Midwest University, calling it typical of state flagships with big-time sports and Greek life. But close readers — following clues like the presence of a Department of Apparel Merchandising and Interior Design — quickly identified it as Indiana University, where Dr. Armstrong taught during the study. The professors originally planned to study sexuality, but based on what they saw, shifted their focus to social class.

The intro is followed by an interview with the authors. The first question:
What happened to the working-class students you studied?

On our floor, not one graduated from the university within five years. Most of the less privileged students left and went elsewhere, either to a regional branch campus or bumping down to an associate degree. Their reasons for leaving were never just one factor. They’d talk about cost, the boyfriends back home, their trouble finding a major that would lead to a good job, or wanting to get away from those rich girls. It was difficult for them to be confronted with a social world they were excluded from and didn’t have the resources to keep up with. Often, the ones who transferred out were more successful than the ones who tried to stick it out.

The story is definitely worth reading in full.

The book is available on Amazon, and includes lengthy selections from the book itself via the "look inside."

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Government

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

For publication opinions today (1):

In Brad Kroft v. State of Indiana, a 7-page opinion, Judge Vaidik writes:

Indiana Code section 9-19-6-4 requires motor vehicles to have two tail lamps that, when lighted, emit a red light plainly visible from a distance of 500 feet to the rear. In this case, a state trooper stopped Brad Kroft because one of his two working tail lamps had a dime-sized hole that let out a miniscule amount of white light. Because both tail lamps worked and the tail lamp with the tiny hole was overwhelmingly red when illuminated, we find that the state trooper did not have reasonable suspicion to stop Kroft. We therefore reverse the trial court’s denial of Kroft’s motion to suppress. * * *
___________
[4] We acknowledge our Supreme Court’s recent opinion in Sanders, in which it held that the police officer had reasonable suspicion that the tint on the windows of the defendant’s car was in violation of the Window Tint Statute “such that the initial stop was justified.” Sanders, 989 N.E.2d at 336. However, we find that this case is similar to Ransom v. State, 741 N.E.2d 419 (Ind. Ct. App. 2000), trans. denied, where the defendant did not commit an infraction and therefore the police officer did not have an objectively justifiable reason to stop him. Here, Trooper McCreary thought that it was an infraction to have a broken tail light, but the statute does not prohibit this. Rather, it requires tail lamps, when lighted, to emit a red light plainly visible from 500 feet to the rear. In addition, there was no evidence that Kroft committed the infraction of unsafe vehicle because he did not pose any danger to motorists approaching from behind.
NFP civil opinions today (2):

In Re the Guardianship of C.S. and A.S.: E.R. v. M.S. and D.S. (NFP)

Todd M. Westbrook v. Review Board of the Indiana Department of Workforce Development and Youth Opportunity Center, Inc. (NFP)

NFP criminal opinions today (1):

Zachariah Galyan v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Judges Extend High Court Same-Sex Ruling"

Ashby Jones of the WSJ has this long story today (likely $$$) - some quotes:

Just weeks after the U.S. Supreme Court struck down part of a federal law that defined marriage as a union between a man and a woman, judges in lower courts are citing and even building on the ruling in battles over state laws concerning same-sex marriage and other issues affecting gays and lesbians. * * *

"It's a pattern that's emerging—and it's striking," said David Cruz, a law professor at the University of Southern California and an expert on civil-rights law. Rather than finding ways around Windsor, he said, "judges are embracing its principles." * * *

The effect of Windsor could grow significantly in months to come, say legal experts. More than a dozen challenges to same-sex-marriage laws are pending, nine of which were filed post-Windsor, according to Jon Davidson, the legal director at Lambda Legal, which advocates on behalf of same-sex couples seeking the right to marry. Another case garnering close attention, teed up before the Supreme Court of Missouri, deals with whether gays and lesbians should be entitled to survivor's benefits, issues similar to those in Windsor.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Courts in general

Ind. Gov't. - "Medicaid expansion would reduce uninsured Hoosiers by nearly 55 percent, report says"

That was the headline to this long July 31st story by Maureen Groppe of the Star Washington bureau. It begins:

WASHINGTON — Indiana would see one of the biggest reductions among states in its uninsured population if it expands Medicaid under a full implementation of the Affordable Care Act, according to a report released Wednesday.

The number of uninsured Hoosiers would drop 54.6 percent, the eighth-largest decrease among states, according to the report by the Urban Institute for the Kaiser Commission on Medicaid and the Uninsured. That would leave about 8 percent of the state's non-elderly population without health insurance, compared with 17 percent now.

Some of the reduction in the uninsured would come from other aspects of the 2010 law, commonly known as Obamacare. Those include premium subsidies for people who are not offered insurance through an employer and the requirement that most people buy insurance starting next year or pay a penalty.

Changes within the state range from a 48.9 percent decrease in the uninsured in the Indianapolis, Speedway and Beech Grove area, to a 63.5 percent decrease in the Huntington, Bluffton and Decatur area.

Indiana has so far decided not to expand eligibility for Medicaid, the joint federal and state health care program for the poor.

From the Fort Wayne Journal Gazette today, an editorial titled "An Affordable choice," that begins:
Hospital leaders throughout Indiana have been pushing state leaders to expand Medicaid to comply with the Affordable Care Act. And a recent study gives health care industry officials even more evidence that it would be the best move for Indiana under the new law.

Indiana would see one of the largest decreases in the number of uninsured residents if it expands Medicaid, according to an Urban Institute report commissioned by the Kaiser Commission on Medicaid. The number of uninsured Hoosiers would decrease 54.6 percent throughout the state, according to the report released last week.

That represents the eighth-largest drop in the nation.

Some areas of Indiana would benefit even more. The number of uninsured citizens in Allen County would drop by 56.7 percent, and the Huntington, Bluffton and Decatur area would enjoy a 63.5 percent decline in the number of uninsured.

If Indiana leaders agreed to expand Medicaid, only 8 percent of the state’s non-elderly population would be without health care coverage, compared with the 17 percent who now go without.

Under the act, better known as Obamacare, the federal government covers the full cost of the Medicaid expansion from 2014 to 2016 and then pays 90 percent of the costs afterward.

Here is the report.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Government

Ind. Courts - "LaPorte school officials’ case moved to Fort Wayne"

Matt Fritz reported August 1st in the LaPorte Herald-Argus in a long story that begins:

La PORTE — The trial for two La Porte Community School Corp employees charged for allegedly failing to report suspicions of child abuse or neglect has been moved to Allen County.

During a hearing Wednesday at La Porte Superior Court 3, Judge Jennifer Koethe approved the motion of La Porte Community Schools Athletic Director Ed Gilliland and former varsity volleyball coach Marybeth Lebo to have the change of venue.

The two school employees are charged with allegedly failing to report suspicions of child abuse or neglect in the case of former volleyball coach Robert Ashcraft, who had sexual relations with an underage volleyball player in the district.

In the motion for the change of venue, the defense alleged negative publicity for the defendants resulting from an online petition urging the case to trial, stories in area newspapers and statements from the prosecutors regarding possible deals. It alleges that these instances have caused significant prejudice against the defendants.

It was noted that Special Prosecuting Attorney Sonia Leerkamp, who replaced La Porte County Prosecuting Attorney Robert Szilagyi on the case in June, would not oppose a change of venue setting as long as it was in Allen County.

Koethe said Allen County has agreed to accept the case and assign a new judge. Koethe said she would not continue on as judge because of the expense to La Porte County to send her to Allen County for the two-week trial, and also pay for someone to handle her criminal calls in La Porte County while she's gone.

When asked about having the jury from Allen County sent to La Porte, she said it would be an unnecessary burden for the jury members, because they would have to be sequestered here, away from their families, for two weeks.

It was also agreed to consolidate both defendant cases into one trial.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Courts

Ind. Courts - "In one Elkhart court, child cases linger for years"

A series by Virginia Black and Madeline Buckley of the South Bend Tribune, examining justice in sex crimes, will run every Sunday in August, according to Buckley. The series is titled "Hidden Horrors: How sex crimes ruin lives and challenge our justice system"; and has a webpage.

Yesterday there were four stories. One of them is headed "In one Elkhart court, child cases linger for years." Some quotes:

GOSHEN -- After his family staged an intervention because of his cigarette and marijuana smoking, the teenager finally confessed that a 47-year-old man he knew had been forcing him to perform sex acts since the boy was 12.

Prosecutors allege that man was James Hinkle of Elkhart, who was then charged with several sex crimes — including sexual misconduct with a minor, felony child molesting and being a repeat sexual offender — on the very last day of 2008.

Court records show a trial for Hinkle — who bonded out of jail within a few weeks of being charged — has been delayed a dozen times, now scheduled for Aug. 26. * * *

Hinkle's case is set to be heard in front of Judge George Biddlecome, who presides over Elkhart County's Superior Court 3. The judge is assigned all of the county's child victim cases except murder.

Yet a glance through the docket sheet of Hinkle's case shows a pattern of these types of cases lingering four, five, even six years before going to trial. * * *

Judge Biddlecome responded by letter to a reporter's questions about the backlog in his court, particularly among the cases involving child victims. He explained that in addition to those cases, his court is also assigned all kidnapping and criminal confinement cases, half of all Class A, B and C felony controlled substance sale and possession cases, in addition to some civil cases and A felony cases not assigned to other courts.

Also, priority is set for defendants who have not bonded out of jail, he wrote.

The judge schedules multiple cases on each trial date. "As a general rule the case in which a defendant has been in custody the longest proceeds first. If that case is resolved, or continued because of exigent circumstances, the next case takes its place," Biddlecome wrote. "When it becomes apparent that a particular case will be tried on the date in question, the remainder of the cases set for trial on that date are continued due to court congestion."

Biddlecome explained the trial dates available for defendants who are "at liberty" are limited.

"Very few defendants who are charged with child molesting in this court post bond," he wrote. "Those who do are generally charged with child molesting as a Class C felony. While I certainly appreciate the gravity of any child molesting allegation, Class C felonies are the least serious of the various types of child molesting which may be charged in Indiana."

"I can assure you that each case is tried as quickly as possible given the scheduling considerations outlined above and applicable Indiana law," he concluded.

Last year, a split Indiana Supreme Court ordered a defendant in Biddlecome’s court to be released on his own recognizance because he had been arrested Aug. 7, 2009, and was still jailed, waiting for trial, when they ruled in May 2012.

Scott Logan of Nappanee was ultimately convicted of C felony child molesting in February and sentenced in March to six years in prison — with nearly three years in credit for the time he’d already spent in jail awaiting trial. * * *

Several years ago, Indiana's Supreme Court ruled that courts develop a way to file cases that would address backlogs. Each county's individual set of rules are available online.

In St. Joseph County, rules lay out a process that assigns cases randomly, and calls for a chief judge to be elected among the judges every two years to handle administrative issues such as transferring cases.

In contrast, Elkhart County defines specifically which types of cases are to go to each of its six superior courts and one circuit court, with no chief judge or other way defined to address congestion issues.

Elkhart Circuit Court Terry Shewmaker, asked what could be done about a possible backlog in another court in the county, said, "I spend my time working on my things. I'm not really responsible for watching other courts."

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Courts

Ind. Courts - "Judge banishes prominent law firm from his court, prompting more delays for many cases"

Susan Brown reports today in the NWI Times:

CROWN POINT | A Lake County judge has banned the law firm of a legendary criminal defense attorney from his courtroom, prompting the firm's cases to be delayed as they are transferred to other courts. * * *

Court officials, who are reluctant to speak publicly, say Lake Superior Court Judge Nicholas Schiralli is transferring all cases handled by the prominent law firm of Thiros & Stracci to other courts because a member of that firm was involved in having legislation passed that contributed to Schiralli not getting named to head the Lake Juvenile Court vacated last spring by Mary Beth Bonaventura. * * *

The Lake County judiciary's blistering battle over who would fill the coveted seat of former Lake Juvenile Judge Bonaventura was widely reported statewide after Gov. Mike Pence chose Bonaventura last spring to become state director of the Department of Child Services. * * *

It took the Indiana Supreme Court to ultimately settle the juvenile judge controversy in a decision that led to Schiralli's disqualification on the grounds he did not undergo merit selection as had other superior court judges.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Courts

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

Updating this ILB entry from July 26th, here is an August 2nd editorial from the NY Times that begins:

At least three dozen lawsuits have been filed by private businesses challenging, on religious grounds, the new health care law’s requirement that most company health plans provide no-cost coverage of contraceptives. The lawsuits share a basic flaw: Profit-making corporations are not human beings capable of engaging in religious exercise to begin with.

The United States Court of Appeals for the Third Circuit recognized that fundamental reality last week when it allowed the contraceptive coverage rule to apply to a Pennsylvania-based cabinetmaking company, the Conestoga Wood Specialties Corporation. Conestoga, a 950-worker company owned by a devout Mennonite family, had argued that the federal mandate violated the company’s rights under the Constitution and the Religious Freedom Restoration Act.

There is a line of Supreme Court decisions upholding corporate free speech rights. However, as the appeals court observed, there is “a total absence of case law” (before the present round of litigation) to support the notion that the “personal right” of free exercise of religion protected by the First Amendment applies to artificial creations like corporations.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Courts in general

Ind. Gov't. - "Analysis: Public records key in Tony Bennett grade-change scandal"

Tom LoBianco of the AP has an analysis piece today on Indiana's public records law. Some quotes:

Indiana’s former state superintendent Tony Bennett hid his calculations when coming up with the school-grading formula last year, working backward to make the equation fit a predetermined answer: an “A’’ for Republican donor Christel DeHaan’s charter school. His staff was quietly asked to figure out the rest.

The only reason the grade-changing scandal was unveiled was because it was detailed in emails he never deleted from his computer. * * *

In Indiana, the state protects emails as public records. Jim Corridan, state archivist and director of the Indiana Commission on Public Records, points out that substantive emails — including any dealing with policy — must be saved for three years.

For the most part, emails can be legally “destroyed” after that time frame, and not every trivial note — like if Bennett had wrote his wife to say he’d be late for dinner — must be preserved.

But actually obtaining copies of crucial emails is a tough task, as state officials often rely on the “work product” exception to argue the missives should not be released. * * *

The Lafayette Journal and Courier filed a complaint last year that the board violated the state’s open meetings law by holding an executive session at an undisclosed location in Chicago O’Hare International Airport. But the state’s public access counselor, also appointed by Daniels, determined that simply knowing the meeting would happen at the out-of-state location was open enough.

When the Indianapolis Star went looking for records of the deliberations over Daniels’ hiring, Purdue wrote back it had none, and even it did, the public couldn’t see them.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Indiana Government

Courts - "Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes."

The ILB has had many entries on civil forfeiture and its abuses. Sarah Stillman will have this long article in the upcoming, Aug. 12th issue of The New Yorker. A few quotes:

The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime. In Tulsa, Oklahoma, cops drive a Cadillac Escalade stencilled with the words “this used to be a drug dealer’s car, now it’s ours!” In Monroe, North Carolina, police recently proposed using forty-four thousand dollars in confiscated drug money to buy a surveillance drone, which might be deployed to catch fleeing suspects, conduct rescue missions, and, perhaps, seize more drug money. Hundreds of state and federal laws authorize forfeiture for cockfighting, drag racing, basement gambling, endangered-fish poaching, securities fraud, and countless other misdeeds.

In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence. * * *

But a system that proved successful at wringing profits from drug cartels and white-collar fraudsters has also given rise to corruption and violations of civil liberties. Over the past year, I spoke with more than a hundred police officers, defense attorneys, prosecutors, judges, and forfeiture plaintiffs from across the country. Many expressed concern that state laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime.

Posted by Marcia Oddi on Monday, August 05, 2013
Posted to Courts in general

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

From Sunday, August 4, 2013:

From Saturday, August 3, 2013:

From late Friday afternoon, August 2, 2013:

Posted by Marcia Oddi on Monday, August 05, 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 8/5/13):

Next week's oral arguments before the Supreme Court (week of 8/12/13):

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, August 6th

Next week's oral arguments before the Court of Appeals (week of 8/12/13):

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, August 05, 2013
Posted to Upcoming Oral Arguments

Sunday, August 04, 2013

Ind. Law - Still more on: Citizens for Responsibility and Ethics "files IRS whistleblower complaint against campaign finance lawyer James Bopp"

This marks the third post the ILB has had on this topic. The first was July 9th, the second July 10th.

The Terre Haute Tribune Star has a story this weekend by Arthur Foulkes, headed "D.C. group not happy with how Indiana handling complaint." Some quotes:

TERRE HAUTE — The Washington D.C. watchdog group that accused Terre Haute attorney Jim Bopp Jr. of improperly benefiting from a not-for-profit organization has gotten its first official response to one of its complaints — and it’s not happy.

Citizens for Responsibility and Ethics in Washington, CREW, got a letter dated July 23 from Jerold A. Bonnet, general counsel for the Indiana Secretary of State. That letter cast doubt on the Secretary of State’s office’s jurisdiction over CREW’s complaint. * * *

In his response, Bonnet questioned his office’s jurisdiction in the matter.

CREW “seems to conclude that JMCFS is ‘located’ in Terre Haute, Indiana – and therefore must be registered with the Indiana Secretary of State. Based on the exhibits provided, I have not been able to reach the same conclusion,” Bonnet wrote in the letter, which CREW provided to the Tribune-Star.

This response stunned Melanie Sloan, executive director of CREW and a former U.S. attorney for the District of Columbia and former lawyer on Capitol Hill.

“It’s literally impossible for a person to come to that determination,” Sloan said.

Federal tax forms filed by the James Madison Center indicate it is located in Terre Haute, Sloan said. And the JMCFS website also indicates the non-profit is based in Terre Haute, she said. * * *

CREW further believes that Bonnet may have a conflict of interest concerning Bopp. It points to a June 2011 article in the Northwest Indiana Times stating that Bonnet was called out at a hearing of the Indiana Recount Commission investigating whether former Secretary of State Charlie White committed voter fraud. The hearing was “briefly halted” when one of the commissioners “spotted” Bonnet “passing documents to Bopp,” who was White’s attorney, the newspaper reported.

This past association with Bopp may indicate “bias” in Bopp’s favor, CREW alleges.

Bonnet did not respond Friday to a request from the Tribune-Star for comment on this and other matters related to the CREW complaint. However, on Thursday, the Secretary of State’s office did issue a statement regarding CREW’s original complaint and Bonnet’s response.

“Complaints received by the office are reviewed by more than one staff member and are always handled in a professional manner,” stated Valerie Kroeger, communications director for the Secretary of State. “This complaint is being treated just like any other.”

Posted by Marcia Oddi on Sunday, August 04, 2013
Posted to Indiana Law

Ind. Courts - "Small claims, bigger problems: Unique rules in Marion County raise questions of fairness"

Today's long story by Marisa Kwiatkowski and Alex Campbell adds new information about the problematic operations of the Marion County small claims courts - about which stories have been accumulating now for several years, back to this July 18, 2011 report in the Wall Street Journal, headed "In Debt Collecting, Location Matters".

So much has been written or broadcast about these problem courts that it is hard to keep track of all the areas which need change and what, if anything, has been addressed to date. From the story:

The Indiana State Bar Association and a special judicial task force have criticized the small claims courts for failing to properly notify defendants and having cozy relationships and special access for large-volume plaintiffs, such as Driver Solutions.

An Indianapolis Star investigation — triggered by a local attorney’s own report — showed many of those problems persist despite efforts to fix them. It also identified a loophole in state law that allows companies in Marion County to collect far more than the $6,000 small claims limit.

Last year, the Marion County Small Claims Task Force called for the small claims courts to be moved into the Marion Superior Court system, a shift that would require legislative action. Indiana Court of Appeals [former] Chief Judge John Baker said similar calls for reform, dating back to 1998, were ignored.

“When the legislature or those responsible don’t know of a problem, they can’t be expected to fix it,” Baker said. “But when group after group makes recommendations for changes and those recommendations are ignored, that’s unforgivable.” * * *

The Indiana Supreme Court created the Marion County Small Claims Task Force in January 2012 to investigate whether people involved in small claims cases in Marion County were afforded the same access to justice as those in other Indiana counties.

The task force uncovered serious problems with the management and operation of the small claims township courts, such as creditors’ attorneys receiving special access to court facilities in some courts, issues with properly notifying defendants who have been sued, defendants who were not fully informed of their rights and township trustees who interfered in court operations.

Changes were needed to make sure everyone was treated fairly, and to ensure “large-volume case filers do not appear to have special access to the courts,” the task force said.

Rosenberg said many new rules have been put in place to fix problems identified by the township judges and task force. Rosenberg, who advises the township judges, recently instituted a number of trial rules to alter how the small claims courts operate.

“The operation today is better than it was a few years ago,” he said. “But it can still get better, and it ought to.”

Baker, who was part of the small claims task force, said the township judges are doing the best they can with the resources they have been given. He recommended the courts become part of the Superior Court system, a plan that is dependent on legislative action.

“I’m not telling them how to run the city-county government,” Baker said. “I’m just telling them that the township courts should be held to the same standards and same rules as the other 91 counties.”

Sen. Michael Young, a Republican from Indianapolis whose district covers Wayne and Decatur townships, said he hasn’t heard of any problems from his constituents.

State Rep. Ed DeLaney, an Indianapolis Democrat who serves on two committees covering court issues, said he was aware of the task force’s report, but that lawmakers didn’t have substantial discussion about it in the 2013 session.

“I don’t think we were prepared to deal with it,” DeLaney said. “We may be now.”

ILB: It appears that Marion County legislators of both parties have little interest in changing the status quo. Not even a study committee was proposed during the last session. This seems like it would have been an ideal topic for the Indiana Commission on Courts, created by IC 33-23-10, which already has had three meetings this summer. Here are the minutes of the Commission's first meeting this year, when it considered the need for a new Vanderburgh County magistrate, at the request of Rep. Gail Riecken, and the issue of pretrial release and surety bonds.

Here is the May 1, 2012 ILB entry summarizing the excellent Report of the Task Force submitted by Judge John G. Baker and Judge Betty Barteau. It sets out specific, workable recommendations to address and remedy some of the current problems.

Posted by Marcia Oddi on Sunday, August 04, 2013
Posted to Indiana Courts

Saturday, August 03, 2013

Ind. Decisions - Marion Superior Judge Sheila A. Carlisle accepts plea agreement in Bei Bei Shuai case

Here is Diane Penner's story today. Some quotes:

After a surprise plea agreement was offered Friday morning, Shuai pleaded guilty to criminal recklessness in the death of her baby in December 2010.

The murder and attempted feticide charges she faced were dropped. She was sentenced to 178 days in jail and given credit for 89 she actually spent at the Marion County Jail and for another 89 days of “good time.”

Marion Superior Judge Sheila A. Carlisle accepted the agreement worked out between Shuai’s attorney, Linda Pence, and Marion County Prosecutor Terry Curry’s office.

Shuai’s trial was scheduled to begin Sept. 3, and it was expected to attract national media attention. * * *

“From the beginning, I have been convinced that this case was not a criminal case. It should never have been filed,” said Pence, her attorney.

Curry, reached by telephone, said his decision hinged on two issues: The judge’s previous ruling that limited prosecution evidence related to the baby’s cause of death, and concern that conviction of anything other than a misdemeanor could have triggered deportation efforts.

Curry said no one wanted to jeopardize Shuai’s immigration status, and that he always had been open to finding a resolution that fit the “unique circumstances” of the Shuai case.

But, Curry said, those circumstances also included a note she wrote before taking rat poison while pregnant, indicating she specifically wanted to kill the baby as well as herself. * * *

The case drew widespread attention because it involved at least two highly emotional and complex legal issues: the rights of women and the rights of unborn children.

Advocates for Shuai, who had planned a rally for Tuesday to support her in her legal battle, said they were thrilled about Friday’s outcome. But they acknowledged that thorny legal questions remain unanswered.

“I hope this is debriefed a lot in the public forum,” said Sue Ellen Braunlin, co-president of the Indiana Religious Coalition for Reproductive Justice.

Other women in similar circumstances — pregnant, suicidal and depressed — might fear prosecution if they take desperate actions and then consider seeking medical help, Braunlin said.

They might simply not seek help, for fear of being arrested, she said.

“Suicide attempts happen a lot, and they happen when women are pregnant,” Braunlin said.

Curry doesn’t necessarily agree with Shuai’s advocates’ legal interpretations, but he did agree that a review of Indiana laws — outside a courtroom, focused on a specific case — would be useful.

“It would be appropriate for the legislature to determine: What was their intent?” Curry said.

In Shuai’s case, he said, the defense claimed the law never was intended to apply to pregnant women, but his reading was that it did in this case, partly because Shuai’s note indicated the child’s death was part of her intent. And, Curry noted, the Indiana Court of Appeals agreed with his interpretation of the law.

From an AP story in the Huffington Post:
Curry said he decided to accept the lesser charge because a number of evidentiary rulings by the court had hurt the prosecution's case. He says he decided to accept the lesser charge rather than to appeal those decisions.

"There were evidentiary rulings that would have made our case difficult to proceed," he said. "We felt it was appropriate to resolve it with the plea and with some acknowledgement of culpability and everyone can move on." * * *

Among the rulings that hurt the prosecution's case was one in January when a judge ruled that Dr. Jolene Clouse, who performed the autopsy on newborn Angel Shuai, didn't consider other possible causes for the brain bleeding that caused her death, including a drug that Shuai received while she was in the hospital. [See this 1/23/13 ILB post]

The case drew international attention from reproductive rights advocates who contended it could set a precedent by which pregnant women could be prosecuted for smoking or other behavior that authorities deem dangerous to their unborn child. About 80 organizations have filed friend-of-the-court briefs on Shuai's behalf, and more than 10,000 people from Australia to New York have signed an online petition supporting her.

But Curry said those arguments weren't a factor in the case.

"While well-intended, those assertions have been completely incorrect from the start. There was never any intention to monitor pregnancies. As has been pointed out on more than one occasion, Indiana appellate courts have already weighed in on those issues," he said.

The plea agreement states that the two sides believe the conviction "will not trigger adverse immigration consequences," and if it does the plea agreement will be set aside.

Posted by Marcia Oddi on Saturday, August 03, 2013
Posted to Ind. Trial Ct. Decisions

Friday, August 02, 2013

Ind. Decisions - More on: Plea agreement to be filed at 5 pm in Bei Bei Shuai case

Tweet from the IndyStar:

Diana Penner (@DianaPenner)
8/2/13, 5:37 PM
Bei Bei Schuai pleads guilty to criminal recklessness (178 days, already served). Murder, feticide charges being dropped.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Plea agreement to be filed at 5 pm in Bei Bei Shuai case

Just received from the Supreme Court press office:

Judge Carlisle has been informed the parties are filing a plea agreement in State v Bei Bei Shuai. A hearing will be held in Superior Court 3 in 30 minutes, approx 5 pm TODAY. The hearing is open and the public and press can attend.

I am sorry to say the electronic devices will not be allowed because we have not yet confirmed the level of interference, even with the devices in “air plane” mode.

I'd guess that means no tweeting.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Indiana Decisions

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

In CITIZENS HEALTH CORPORATION v. KATHLEEN SEBELIUS (SD Ind., Barker), an 18-page opinion, Judge Tinder writes:

Defendant Health and Hospital Corporation of Marion County, Indiana (“Health and Hospital”) is a municipal corporation that operates a major hospital and numerous health care facilities. This appeal arises from one of those facilities, a federally funded health center that Health and Hospital operated in partnership with plaintiff Citizens Health Corporation (“Citizens”) to serve the medically underserved population in Indianapolis. The health center was funded in part by a federal grant awarded to Health and Hospital by the federal Health Resources and Services Administration (“HRSA”), which is part of the Department of Health and Human Services. In 2012, after Citizens and Health and Hospital had a falling out, Health and Hospital decided to terminate its partnership with Citizens and relinquish the federal grant, which still had several years of funding remaining.

In response, Citizens filed this suit against Health and Hospital, HRSA, and other defendants in federal district court in an effort to retain the grant funds. The district court granted summary judgment in favor of all defendants, concluding that Citizens had no contractual, statutory, or constitutionally cognizable interest in the grant, and that Health and Hospital and HRSA were free to terminate the grant without Citizens’ approval. Citizens appeals this decision, and we affirm. * * *

Because the relevant language of the contract is clear, no disputed issues of material fact precluded summary judgment in favor of Health and Hospital. Though Citizens makes a rather barebones assertion that certain affidavits in the record reveal conflicting accounts of the parties’ expectations about the grant, the relevant terms of the contract are so clear that we need not wade into such extrinsic evidence indicating the parties’ understandings of the agreement. See Louis & Karen Metro Family, LLC v. Lawrenceburg Conservancy Dist., 616 F.3d 618, 622 (7th Cir. 2010) (applying Indiana law; extrinsic evidence not admissible when contract is unambiguous). For this same reason, there was no reason for the district court to grant Citizens leave to take additional depositions. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Should Pro Bono Be Required, Publicly Reported, or Simply a Noble Thing Lawyers Do?

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

I agree wholeheartedly that Indiana should find ways to meet the unmet legal needs of its citizens. Increasing pro bono work by lawyers certainly may help with the deficit, but it cannot fill the void completely and gives rise to some concerns.

Mandatory Pro Bono

A requirement that Indiana lawyers do pro bono work would raise serious concerns under Article 1, Section 21 of the Indiana Constitution. In Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001), Justice Boehm wrote for the four-justice majority:

Because one must be licensed to engage in the practice of law, the privilege of a license arguably brings with it an obligation to provide free legal services under section 34-10-1-2. However, notwithstanding the dissent's claims to historical practice, this Court in Blythe (1853), Webb (1854) and Pollard (1899) has consistently rejected the notion that an attorney may be compelled to serve without compensation. Moreover, even after the legal profession became a highly regulated institution, this Court reiterated its view that attorneys cannot be involuntarily impressed into public service. In Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 509-10, 29 N.E.2d 405, 412 (1940), this Court explicitly addressed the dissent's "licensed profession" argument:
It is true that members of the bar feel it to be their ethical duty not to withhold their counsel ... to those who are not able to adequately pay, but such ethical obligations are voluntary and cannot be required.... In these modern times practitioners of the professions and of many arts, sciences, trades, and businesses are required to be licensed.... If a law should be enacted requiring every person licensed by the state to render services ... to paupers gratuitously, much difficulty would be found in justifying a decision holding the law unconstitutional as depriving the green grocer or the restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber, or the electrician, or the mechanical engineer of his services, without compensation, while adhering to a rule that licensed attorneys' services may be taken without compensation.
Justice Dickson dissented in Sholes, concluding:
I strongly disagree with the majority's apprehension regarding the willingness and capacity of Indiana lawyers to voluntarily meet the need for indigent legal services…. From Indiana's earliest days as a state, our laws have required its judges to appoint lawyers for indigent civil litigants, and for the lawyers appointed to do their duty without compensation. Section 21 was crafted with this understanding. Then as now, attorneys understand and agree that they are expected to "do their duty in the case" which includes to "never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." We should not undermine these principles.
Law Student Pro Bono

A recent National Journal article noted that New York requires 50 hours of pro bono work before admission to the bar, and California will soon do the same. The article cited a survey of pre-law students showing that 68% support such rules.

A pro bono requirement as a condition to securing a license to practice law in Indiana would not raise the same concerns noted in Sholes. Indeed, law students must complete specific courses, graduate from an accredited law school, and meet other requirements before admission.

Credit the Annual Registration Fee for Pro Bono Work

The concerns in Sholes could also be avoided a sizeable increase in the annual lawyer registration fee (currently $145 for those with an active license) coupled with a credit for lawyers who certify they have done a certain number of pro bono hours. Some lawyers, though, are in positions that prohibit outside legal work. Others work in practice areas without significant pro bono needs. Perhaps they should branch out into new area, although some personalities are not well-suited to a contentious domestic relations case. Finally, depending on the referral source of the pro bono case, malpractice coverage may be an issue.

Public Reporting of Hours

I share the concerns of many about the proposal to require the reporting of pro bono hours on a publicly accessible website. Lawyers should engage in pro bono work because it’s the right and noble thing to do. All lawyers do not have the same luxury of time and practice area expertise to contribute equally. When individuals of varying means put money in the offering plate at church, their contributions are not posted on a website — nor should lawyers' voluntary contributions to the profession through pro bono work.

Moreover, I wonder how such a requirement would be policed — if at all.

What Qualifies as Pro Bono?

Finally, there is not universal agreement of what qualifies as pro bono. The comment to Professional Conduct Rule 6.1 notes:

The American Bar Association House of Delegates has formally acknowledged “the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services” without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice.
The rule offers definitions of each of those terms before concluding that the following would generally not qualify as pro bono:
(a) Legal services written off as bad debts.
(b) Legal services performed for family members.
(c) Legal services performed for political organizations for election purposes.
(d) Activities that do not involve the provision of legal services, such as serving on the board of a charitable organization.
An applicant for a recent judicial vacancy classified the following as pro bono work: “As a solo practitioner . . . I advised approximately 175 individuals free of charge through no-cost initial consultations which many times answered their questions and helped resolve legal issues, including child support, parenting time, contract, and business issues.” Others would disagree.

A clearer definition would be useful as pro bono proposals move forward.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Schumm - Commentary

Law - "Illinois is 20th state to legalize medical marijuana"

From UPI yesterday, a story that begins:

CHICAGO, Aug. 1 (UPI) -- Illinois Thursday became the 20th state to legalize medical marijuana when Gov. Pat Quinn signed a bill supporters say is the strictest in the nation.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Northern Assurance Co. of America, Successor in Interest to Certain Liabilites of Employers Surplus Lines Ins. Co. v. Thomson Inc. k/n/a Technicolor, USA, Inc., Technicolor Inc.,/Technicolor Limited, a 28-page, 2-1 opinion, Judge Mathias writes:

Thomson, Inc. n/k/a Technicolor USA Inc. (“Technicolor”), sued several insurance companies, including Northern Assurance Co. of America (the successor in interest to Employers Surplus Lines Insurance Co. (“ESLIC”)), seeking insurance coverage for environmental damages at three sites owned by Technicolor. The trial court granted summary judgment in favor of Technicolor, concluding that Technicolor was entitled to coverage under the policies ESLIC had issued. On appeal, ESLIC argues that the trial court should have applied California law when interpreting the ESLIC policies and that, if California law is applied, Technicolor has no coverage under the ESLIC policies for cleanup costs at the contaminated sites because Technicolor’s cleanup costs do not constitute damages resulting from a suit brought against Technicolor. * * *

We conclude that ESLIC did not waive its choice-of-law argument. We also conclude that, under a choice-of-law analysis, California law should apply to the interpretation of the ESLIC policies because California is the state with the most significant relationship to the transaction and the parties. Finally, under California law, the ESLIC policies provide coverage only for money damages ordered by a court and do provide coverage for expenses incurred as a result of responding to the cleanup orders of administrative agencies. We therefore reverse the order of the trial court granting summary judgment in favor of Technicolor and remand with instructions to enter summary judgment in favor of ESLIC. Reversed and remanded.

MAY, J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [beginning on p. 22 of 28] concur with the majority’s conclusions that ESLIC did not waive its choice-of-law argument and that under a choice-of-law analysis, California law applies. However, I part ways with the majority’s application of California law, trusting that if our environmentally-conscious colleagues to the west were confronted with this issue, they would no longer permit their environment to go uncleansed. * * *

Returning to the earlier question of what would California’s Supreme Court do if presented with the controversy with which this Court is now presented, I cannot turn a blind eye to the fact that California is indeed a leader in environmental law. This fact coupled with Justice Chin’s recent limiting of the Foster-Gardner Rule and Justice Kennard’s firm insistence that it should be overruled entirely certainly show a weakening of a rule that never received much support from either the California Supreme Court or the country at large from its inception.

But most of all, basic common sense informs me that the Foster-Gardner Rule does not further the objectives of California law. Indeed it impedes them. By holding that a remediation order from the EPA or C-EPA is insufficient to trigger the protections of CGL policies, the California Supreme Court is discouraging the environmental cleanup of its state, which from the discussion above, is clearly something that its citizens hold in high regard. “And there comes a point where [the courts] should not be ignorant as judges of what [they] know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Accordingly, for all these reasons, I believe that if the California Supreme Court was presented with this case at this time, it would no longer permit ill-advised precedent from giving its environmental law the full and complete effect it was intended to have. Therefore, I respectfully dissent.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Rel. of M.R.; C.B. v. Indiana Department of Child Services (NFP)

Carolyn (Hansen) Miller v. Robin Mendelsohn, M.D. (NFP)

NFP criminal opinions today (3):

Jeremy Benner v. State of Indiana (NFP)

Randy Reeder v. State of Indiana (NFP)

Dwayne Kelly v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Some Highlights of the Indiana Supreme Court’s Oral Argument Calendar

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

A June 13 post noted the Indiana Supreme Court has scheduled 20 oral arguments between September 5 and December 5 — two on almost every Thursday during that three-month period. The Court has since modified its calendar with an earlier start date and expanded to three arguments on several days. The Court will hear three arguments on August 22; September 5, 12, and 26; and October 3 — and, for now, two arguments on most Thursdays in October and November.

Equal Mix of Civil and Criminal Cases

A total of 25 arguments are scheduled: 13 in civil cases and 12 in criminal cases.*

Few Pre-Transfer Arguments

Transfer has been granted in 19 (76%) of the 25 cases scheduled for argument. Earlier posts have discussed the trend of increasingly scheduling argument to decide whether to grant transfer. These statistics support Chief Justice Dickson’s comments to the ILB that pre-transfer arguments are a minor difference between the “new” and “old” court and not a major policy change.

High Profile Cases

The following cases have and will likely continue to generate public and media interest:

Sept. 5: Indiana Gas Company v. Indiana Finance Authority involves the $2.8 billion coal-gas plant in Rockport. Much of the media attention has involved whether Justice Massa will recuse.

Sept. 12: Brewington v. State concerns free speech and other claims arising from blog posts by a litigant about his child custody case. Professor Eugene Volokh filed an amicus brief on behalf of an ideological diverse collection of groups and individuals. He will be using part of the Appellant’s time. The last time a high-profile out-of-state professor argued at the Indiana Supreme Court was Laurence Tribe some fifteen years ago in Martin v. Richey — and he did a stellar job.

Sept. 26: Indiana Newspapers v. Miller involves a “discovery request for information about an anonymous defendant who posted an allegedly defamatory comment on the Indianapolis Star’s webpage.” (Disclosure note: I was part of the IBA amicus committee that filed a brief urging the Court to grant transfer to resolve the unsettled question of the appealability of discovery orders compelling non-parties to produce documents or information.)

Oct. 3: VFW Post 2953 v. City of Evansville will address Indiana Constitutional challenges to the Evansville ordinance “banning smoking in workplaces and other public places, including private clubs and taverns, but exempting riverboat casinos.” The Court of Appeals’ opinions were surprisingly not-for-publication.

Oct. 10: In Delagrange v. State the defendant “attached a video camera to his shoe and obtained images of the area beneath the skirts of female minors. . . . A divided Court of Appeals held that the phrasing of the statutes requires the child be performing the sexual conduct, and reversed the convictions . . . .”

Oct. 31: Smith v. State involves a high school principal charged with failing to immediately report “that a child may be a victim of child abuse or neglect,” Ind. Code § 31-33-5-4. After a student reported that she had been raped the principal conducted his own investigation before contacting authorities.

Forty Minutes Remains the Norm

Nearly all arguments are scheduled for 40 minutes (20 each side). The exceptions are Indiana Newspapers v. Miller and Brewington v. State. The latter case originally was scheduled for 40 minutes but later increased to 60 upon motion from the Appellant.
________________
* 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.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Schumm - Commentary | Upcoming Oral Arguments

Environment - "IDEM to hold meeting on proposed 4,800-pig CAFO"

Jennifer Decker's August 1st subscription-only story in the Kendalville Herald Republican begins:

ANGOLA — A proposed 4,800-head confined animal feeding operation for hogs has drawn concerns from miles around in the last few months.

The Indiana Department of Environmental Management is hoping to address those concerns at a public meeting from 5-8 p.m., Thursday, Aug. 22, at the Steuben Community Center, 317 S. Wayne St.

Readers will recall this July 28th story in the Lafayette Journal Courier about the proposed CAFO near Camp Tecumseh: "CAFO capable of housing up to 9,240 hogs."

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Environment

Courts - "Justice Ginsburg's dedication undimmed after 20 years on court"

USA Today published a lengthy feature with many photos yesterday on Justice Ruth Bader Ginsburg, authored by Richard Wolf.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Courts in general

Ind. Courts - Jury selection in 3rd David Camm trial to begin Aug. 12

Grace Schneider of the Louisville Courier Journal has a story today headed "Charles Boney's DNA found on key items in David Camm murder case, expert says at hearing." The story begins:

ROCKPORT, IND. — An expert hired by David Camm’s defense team testified Thursday during a pretrial hearing that recent lab tests found the DNA of convict Charles Boney on several key items found at the triple-murder scene.

Richard Eikelenboom, who owns Independent Forensic Services, said that Boney’s DNA was found near the cuff of Kimberly Camm's shirt, on the stomach area of the shirt worn by 5-year-old Jill Camm, Kimberly and David Camm’s daughter, and on two places on Kim Camm’s underwear.

The new evidence aids the defense team’s argument that Boney killed Kimberly, Jill and 7-year-old Bradley Camm.

The prosecution countered with its own expert — Carl Sobieralski, the Indiana State Police DNA supervisor — who testified that the results weren’t reliable because Eikelenboom’s lab in the United States isn’t accredited and he didn’t follow several accepted protocols in processing the evidence.

Special Judge Jon Dartt is expected to hear more testimony Friday morning and eventually rule on whether the evidence, often referred to as “touch” or “contact” DNA, can be allowed during the trial set to begin next month.

Posted by Marcia Oddi on Friday, August 02, 2013
Posted to Indiana Courts

Thursday, August 01, 2013

Ind. Gov't. - Re, Mary Beth Schneider of the Indy Star

She tweeted this afternoon:

Mary Beth Schneider ‏@marybschneider

So. What do Tony Bennett and I have in common?

For both of us, this is last day on job. I am taking a 3-month leave of absence from @indystar to care for my parents.

Odds are that even if I return it may not be to the Statehouse beat. Just covered what could be my last Statehouse news conference.

The ILB will miss reading MBS's stories and tweets. She is one of the last remaining Indianapolis Star reporters with real institutional knowledge, she has been the Statehouse reporter since Governor's Bayh's second term began.

Proving that a great reporter is great no matter what the medium, she seemingly instantly adapted to the limitations of Twitter and set the standard for its use in reporting hard news. Moreover, she was the master of hilarious running gags. Her unsurpassed skill and her dry wit will be missed! Hopefully only for three months ...

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Government

Ind. Gov't. - Minnesota: "A GOP effort to ban same-sex marriage led to a gay rights milestone"

"Thank Republicans for Gay Marriage in Minnesota" is the headline to this article by Andy Mannix published by Time today. Some quotes:

Though they couldn’t have known it at the time, when state lawmakers passed a Republican-initiated ballot referendum for a constitutional amendment to ban same-sex marriage two years ago, they set off a series of events that led to this landmark day for gay rights. * * *

Mobilized by their opposition to the gay marriage ban and a presidential election, Democratic voters turned out in droves, particularly in crucial suburban districts. They voted not only against the bill, but threw out many Republicans, too, costing the party their majorities in both the state House and state Senate. An amendment born of the party’s control of government led directly to its loss of it.

“They misinterpreted, I think, how this issue would energize young people and liberals more so than it would mobilize the conservatives,” says David Schultz, a professor of law and government at Hamline University. “It turned out to be a counter mobilization.”

After the election, Minnesota Democrats found themselves in an unexpected position of opportunity. For the first time in more than 20 years, they controlled the House, Senate and governor’s office. After some inner-party debate on how to move forward, legislators introduced bills to legalize gay marriage. With significant support from Minnesotans United, which restructured as a lobbyist group in late 2012 to push for gay marriage, the measures passed and were signed into law on May 14th.

“It’s one of the great ironies, I think, of the whole legalization of gay marriage,” says Larry Jacobs, a political science professor and elections expert at the University of Minnesota, “because it probably would never have happened if it wasn’t for Republicans.”

From Wikipedia:
On November 6, 2012, a proposed constitutional ban on same-sex marriage, passed by the legislature in 2011, was rejected by 52.6% of voters.[7] Minnesota became the second state to reject such a ban through popular referendum. On May 9, 2013, the House of Representatives passed a bill to legalize same-sex marriage on a vote of 75 to 59.[8] On May 13, 2013, the Senate passed the bill on a vote of 37-30.[9] Governor Mark Dayton signed the bill into law on May 14, and the legalization of same-sex marriages took effect on August 1, 2013.[10]

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Government

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

In ANTHONY WEDDINGTON v. DUSHAN ZATECKY, Superintendent (SD Ind., Pratt), an 18-page opinion, Judge Tinder writes:

Anthony Weddington was convicted in Indiana state court in two separate trials of a total of four counts of rape, two counts of criminal confinement, one count of criminal deviate conduct, and one count of robbery. He was sentenced to a total of 133 years’ imprisonment. He petitioned for a writ of habeas corpus, claiming that he was denied effective assistance of trial and appellate counsel in his second trial. The district court concluded that the petition was barred by the statute of limitations, that Weddington procedurally defaulted his claims, and that he was not entitled to relief; therefore, the court denied his petition. For the reasons that follow, we vacate the dismissal of the petition and remand to the district court for further proceedings. * * *

[ILB: The issue that occupies the first 11 pages is whether Judge Pratt should have recused herself, since she heard the case twice, first in Marion County court, and then later in federal district court.]

[p. 11] As explained below, this case has to be remanded for further proceedings. Thus, unlike our cases in which it was too late to remedy an appearance of bias because the district judge was done with the case * * * the appearance of bias can be remedied here before further proceedings are conducted in the district court. A simple application of our Circuit Rule 36 will assure that this case will be assigned to a different district judge on remand. * * *

[1.] Limitations Period] The record presents factual issues that must be resolved before a decision can be made regarding equitable tolling, and it appears that an evidentiary hearing is necessary to resolve the fact issues. The district court erred in failing to consider whether the limitations period was equitably tolled by the state’s alleged confiscation of Weddington’s legal papers.

[2. Exhaustion] As with equitable tolling, further findings are necessary to determine whether Weddington can overcome his procedural default. Therefore, we must remand for further findings, including an evidentiary hearing, if necessary.

III. Conclusion. We accordingly VACATE the denial of Weddington’s habeas petition and remand for further proceedings consistent with this opinion. Circuit Rule 36 shall apply on remand.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on new expungement law and the value of waiting

Here is a long list of earlier ILB entries about expungement.

Adding to this, here is a useful infographic produced by a local law firm.

In addition, the Indiana Senate Democrats' staff has posted this information: "Expungement: What You Need to Know," including:

In order to have the records expunged, you must file a petition to expunge in the county in which the conviction was entered. If you are seeking to expunge multiple convictions in the same county you must do so in the same petition. If you wish to expunge convictions in separate counties you must file a petition in each county in which a conviction was entered.

The law requires payment of a $141 state court civil filing fee and forbids fee waivers for expungement requests. The exception to this is a petition for expungement of arrest records which has no filing fee. If the prosecuting attorney objects to the petition to expunge the court shall hold a hearing on the merits of the petition.

You may only petition for expungement once in your lifetime, so you must seek to have all of your convictions expunged at the same time (or within a 1 year period for convictions in separate counties). If a petition for expungement is denied you must wait 3 years before filing another petition to expunge.

Do I need an attorney to get records expunged?

Due to the complexity of the law and the fact that you may only petition to expunge once in your lifetime, it is highly recommended that you do so with the help of an attorney. The Indiana Division of State Court Administration is working on forms for petitions to expunge records and hopes to have them available on the state court website by mid-August.

Problems:

(1) The forms are not yet available.

(2) Many of the counties have not worked out precisely how the petitions are to be handled.

The law, HEA 1482, went into effect July 1st. Read again this July 18th ILB post.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Courts | Indiana Law

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

For publication opinions today (1):

NFP civil opinions today (0):

In Luxury Townhomes, LLC/LP XXIV, LLC, et al. v. McKinley Properties, Inc. and Kenneth Polsinelli, a 15-page opinion, Judge Bradford writes:

This case arises from a foreclosure action and concerns about the court-appointed receiver’s maintenance of the collateral during the proceedings. Plaintiff PNC Bank1 (“PNC”) filed foreclosure proceedings against Appellants-Defendants Luxury Townhomes, LLC and LP XXIV, LLC (collectively, “Luxury”) after Luxury failed to make scheduled payments as set forth in the relevant mortgage documents. PNC requested that a receiver be appointed to oversee the collateral during the pendency of the foreclosure proceedings. The trial court subsequently appointed Appellee-Non-party Kenneth Polsinelli of McKinley Properties, Inc. (“McKinley”) as receiver.

Luxury and PNC eventually settled and jointly moved to dismiss the foreclosure proceedings. Shortly thereafter, Polsinelli, acting in his capacity as receiver, filed his final report concerning the receivership estate. Luxury objected to the report and requested permission to assert claims against Polsinelli and McKinley. The parties requested an evidentiary hearing. Following the conclusion of the evidentiary hearing, the trial court accepted Polsinelli’s final report, discharged Polsinelli, and closed the receivership estate. Luxury’s subsequently filed motion to correct error was denied by the trial court. On appeal, the parties raise numerous issues, one of which we find dispositive. Concluding that the subsequent claims which Luxury seeks to bring against Polsinelli or McKinley are barred by the doctrine of res judicata, we affirm the trial court’s order denying Luxury’s motion to correct error.

NFP criminal opinions today (2):

Keith Ellis v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Don Marsh wins $2.17M in supermarket counter-claim"

"A federal judge called the behavior of Don Marsh, second from left, 'cavalier, irresponsible, greedy, and deceitful.' But an employment contract takes precedence, she ruled." That is the heading under the great photo in this July 30th story in the Indianapolis Star business section, reported by Jeff Swiatek. Some quotes from the story:

Although a federal judge admitted she found Don Marsh’s behavior at Marsh Supermarkets “deceitful,” she has awarded the former CEO $2.17 million in severance benefits in his counterclaim against the supermarket chain he once ran.

The award is almost equal to the $2.2 million judgment the company won against the former CEO for its claims that Don Marsh misspent millions in company money on personal trips and gifts.

U.S. District Court Judge Sarah Evans Barker said her decision on Marsh’s counterclaim “takes the shine off the company’s trial victory” in February.

She said she agreed with his contention that Marsh Supermarkets breached Marsh’s employment contract when it cut off his severance benefits, including five years’ salary, after firing him as CEO in 2006.

The company contended it was within its rights to cut off his benefits once it found out he ran up millions of dollars in questionable spending on personal trips and gifts for himself, family members, friends and several mistresses.

The company wanted Marsh to repay the more than $2 million it had already paid him in severance money from 2006 to 2008.

Barker rejected the company’s argument, saying it fired Marsh “without cause,” which entitles him to the rich package of severance benefits called for in his employment contract, and that his conduct as CEO has no bearing on the dispute over his benefits.

But the judge made it clear in her decision that she wasn’t condoning the numerous examples of unsavory behavior that came to light in the two-week civil trial.

“Mr. Marsh’s behavior as president and CEO of the company was, by our assessment, cavalier, irresponsible, greedy, and deceitful. We have no doubt that the abundant evidence of his misconduct offends the sensibilities of those who have a familiarity with them,” the judge wrote.

“The sense that one who has misled others should not benefit when all is said and done hovers over this litigation. Here, however, both parties must answer for their own regrettable behavior. Mr. Marsh’s missteps have become public knowledge, but the board members charged with supervising him undoubtedly fell asleep at the wheel.”

Here is the 34-page "Order on Post-Trial Claims."

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Ind Fed D.Ct. Decisions

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

Updating this ILB entry from yesterday, Dave Stafford of the Indiana Lawyer has posted comprehensive coverage of Tuesday's hearing.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Courts

Courts - "Ex-NCAA athletes can sue Electronic Arts over video game likenesses"

How Appealing has collected a number of stories on the ruling in this post. Among the stories, see this except from Joe Palazzolo's story in the $$ WSJ:

The lawsuits are part of a broader legal campaign that, if successful, could force the National Collegiate Athletic Association to tweak its longstanding rule that college athletes can't profit from their celebrity. Electronic Arts pays the Collegiate Licensing Co., the NCAA's licensing arm, to use school and team names, uniforms and even fight songs. But the company doesn't compensate college players.

The NCAA declined to comment. It is facing antitrust claims by college athletes over the use of their names and likenesses. The association has denied any wrongdoing. It announced in July that it won't renew its contract with EA due to the "current business climate and costs of litigation."

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Courts in general

Courts - "Kentucky officials justify withholding details of child-abuse cases"

The Louisville Courier Journal has had continuing coverage of the child abuse and neglect issue in its state, which leads the nation in child abuse deaths. See this "Special Report" page, linking to many earlier stories.

(Unfortunately, at least one of the linked stories, at the bottom of the page, "Confidentiality exceeds law's requirements in Kentucky", from 2009, is not available or the link is bad. However, the ILB has linked or excepted from a number of the Kentucky stories over the past few years - see this list.)

Today Jessie Halladay reports in the LCJ in a lengthy story:

The hearing in Frankfort Circuit Court was the latest in an on-going legal battle between the Cabinet, which has fought releasing the case files, and the state’s two largest newspapers. The Courier-Journal and the Lexington Herald Leader both filed open-records requests seeking the files of those children killed or severely injured by abuse or neglect.

The Cabinet denied the records and the case ended up in court. Last year, the Cabinet began releasing files, but redacted information officials argue protects the privacy of those involved, including in some cases people charged criminally or found to have perpetrated abuse.

Since Monday, Cabinet officials have argued that protecting the children and families involved in the case should be the primary concern.

“These aren’t just cases,” said Teresa James, commissioner of the Department of Community Based Services, which oversees abuse investigations. “These are little bitty vulnerable people.”

James explained that the Cabinet developed a protocol on what to take out of files released to the public and applied it to each of the 140 cases involved in the lawsuit. Those redactions include the names of all children mentioned, all adults who were not involved in the abuse, all unsubstantiated prior reports of abuse and other details.

In many cases, the files contain documents, such as court records, newspaper articles, and police reports, that are available to the public. Attorneys for the newspapers argued that since information is already out there in the public, they should not be protected by the Cabinet.

Jon Fleischaker, an attorney for The Courier-Journal, said he believes that the newspapers illustrated their point in the three-day hearing and feel confident Judge Phillip Shepherd understands that the files were “severely over-redacted.”

Fleischaker said the newspapers want to ensure that “there is enough information made public so that the public can make a determination on what went wrong ... where we could do better” in protecting children.

Throughout the hearing Judge Phillip Shepherd, who had previously ordered the Cabinet to release the records, asked questions of the Cabinet, asking officials how they strike a balance between protecting children and the public’s right to know what a public agency is doing in response to abuse.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Courts in general

Ind. Gov't. - "Former Chicago Mayor Lends A Hand To Ailing Gary, Ind."

Cheryl Corley of NPR reported last evening (from the intro to the 6 min. story):

After more than 20 years as Chicago's Mayor, Richard Daley is working with the new Mayor of Gary, Ind., to try to revitalize that rust belt city. Daley is a senior fellow at the University of Chicago and his students are also helping in the transformation effort.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Government

Ind. Gov't. - "Bonaventura tackles tough tasks at child services agency"

Dan Carden reports in the NWI Times:

INDIANAPOLIS | Mary Beth Bonaventura revealed to a new state oversight panel Wednesday that she intends to be a transformational director of the Indiana Department of Child Services.

Even with just four months on the job, Bonaventura said she's set her sights on reforming three of DCS' most significant and complicated duties: collecting and distributing child support, mitigating child abuse trauma and retaining staff.

The former Lake County juvenile court judge explained during the first meeting of the Child Services Oversight Committee that DCS processes more than $1 billion in child support every year — money she said thousands of Hoosier children rely on for their quality of life.

Bonaventura said DCS needs a better computer system to track and account for those funds as they come in and go back out. To that end, the agency has begun a multiyear project to implement a new child support information system, she said.

For children DCS encounters through abuse or neglect reports, Bonaventura said the department must do a better job reducing the trauma children experience due to and on removal from an abusive home.

She said DCS is beginning to work with health care and other service providers to prepare those children for new, safe and permanent homes.

"Our goal is to assess each and every child that's removed from the home within 30 days to make sure we can identify what that trauma is," Bonaventura said. "Then, within a short period of time thereafter, to provide them with services that will address the trauma."

She noted the trauma of encountering abuse is not limited to the affected children; DCS staff also suffer as a result of their work aiding those children.

That's why Bonaventura said DCS is developing systems and processes that will encourage staff to remain in their jobs and continue helping children. The agency is using pay raises, departmental recognition and other services geared toward promoting retaining employees, she said.

Here is the agenda for yesterday's meeting, along with the membership list. Aalthough the meeting was videocast, I'm not finding it archived anywhere.

Posted by Marcia Oddi on Thursday, August 01, 2013
Posted to Indiana Government