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Monday, September 30, 2013

Ind. Courts - "Supreme declines to suspend Marion County Judge"

Tim Evans is reporting for the Indianapolis Star:

The Indiana Supreme Court declined a request to immediately suspend a Marion County judge facing misconduct allegations.

In an order dated Sept. 27 and made public today [ILB: but not available online, see below] , the court also appointed a three-judge panel to review the allegations against Marion Superior Judge Kimberly J. Brown.

The call for an interim suspension came when the Indiana Commission on Judicial Qualification filed a complaint in August alleging 45 counts of misconduct against Brown, a Democrat who has served since 2009.

The commission's call for the interim suspension is an "extraordinary measure" in cases involving complaints against sitting judges, according to charging documents. An interim suspension, attorneys for the commission said in the petition, "is merited in this situation, as (Brown) has engaged in a continuing course of conduct which has led to multiple defendants being wrongfully deprived of their liberty, multiple defendants being denied the right to be heard in a timely fashion, and numerous individuals suffering other detrimental consequences."

This was only the second time since 2009 that the commission has moved to suspend a judge while charges are pending.

“After careful consideration of the parties’ submissions and due deliberation, the Court declines to grant the verified petition for interim suspension,” the Supreme Court order said.

The court also ordered the misconduct case be “heard on an expedited basis” and named three judges to hear the case. Retired Monroe County Judge Viola J. Taliaferro will head the panel. The two other members are Boone Superior Judge Rebecca S. McClure and Lake Superior Judge Sheila M. Moss.

The order requests the “masters,” as the judges are called, to establish a schedule that allows for completion of hearings in the case by Nov. 26 and a final recommendation on any potential disciplinary action by Dec. 30.

The Supreme Court will review the masters’ recommendation, but has the final say in disciplinary action.

ILB: Here, from the docket:
PURSUANT TO ADMISSION AND DISCIPLINE RULE 25(VIII)(I), THE
COURT APPOINTS THE FOLLOWING MASTERS TO HEAR AND TAKE EVIDENCE
CONCERNING THE CHARGES FILED UNDER THIS CAUSE NUMBER:
THE HONORABLE VIOLA J. TALIAFERRO, JUDGE (RETIRED);
THE HONORABLE REBECCA S. MCCLURE, JUDGE, BOONE SUPERIOR COURT;
THE HONORABLE SHEILA M. MOSS, JUDGE, LAKE SUPERIOR COURT.
JUDGE TALIAFERRO IS DESIGNATED TO SERVE AS THE PRESIDING
MASTER. WITHIN FIFTEEN (15) DAYS OF THE DATE OF THIS ORDER,
THE MASTERS ARE ASKED TO SUBMIT A SCHEDULE THAT ANTICIPATES:
(A) COMPLETION OF A HEARING IN THIS MATTER BY NOVEMBER 26, 2013;
AND (B) SUBMISSION OF THE MASTERS' REPORT OF HEARING AND THE
TRANSCRIPT OF THE HEARING BY DECEMBER 30, 2013. THE SCHEDULE
SHALL BE SENT TO THE SUPREME COURT ADMINISTRATOR, WHO WILL HAVE
IT FILED.
BRENT E. DICKSON, CHIEF JUSTICE
ALL JUSTICES CONCUR.
(ORDER REC'D 9/27/13 @ 5:00 P.M.) ENTERED ON 09/28/13 RB

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - The Good Wife Gets Basic Indiana Appellate Procedure Doubly Wrong

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

Last night’s season premiere of The Good Wife (CBS, Sundays 9:00 p.m.) sent the show’s Chicago lawyers to South Bend, Indiana, to help a fictitious Indiana death row inmate on the verge of execution. (Where else would Chicago lawyers go when Illinois, Wisconsin, and Michigan have no death penalty?)

Here’s how a post on TVLine describes the whirlwind of legal drama [Spoiler alert]:

CHEATING DEATH (ROW) | The week’s central court case is an intense one — and it begins with Diane and Alicia attending an execution that’s held up for 2 hours and 20 minutes while the on-call nurse tries to locate a suitable vein in the prisoner (a terrific Malik Yoba). By the time the guy’s arm starts dripping blood, Diane is doing what she does best, shutting s*** down by informing the warden, “This is the definition of torture!” Lockhart-Gardner piggybacks the innocent man’s case with a class-action suit fighting the death pentalty [sic] — arguing that Eddie is “evidence” regarding torture that must be “preserved.” Ultimately, with the unexpected/not-entirely-willing help of ADA Pine (who has history with the case), Diane and Will are able to refute the testimony of a jailhouse snitch who bought information on the case from a state typist moonlighting as a “prison broker.” When the judge (Jeffrey Tambor) reluctantly refuses to overturn, Will makes a final “Hail Mary” play — calling in the DEA to stop the execution on the grounds that the lethal injection was transported illegally via U.S. Postal Service. It works — and . . . the Indiana governor (where the case is occurrin’) suspends the sentence, thinking that “third time’s the charm” shouldn’t apply to sending a man to his death.
Far-fetched? Others can debate that.

My complaint is an error at about the 6:12 point in the episode that even a tiny bit of research would have prevented. Viewers are shown an opinion from the “3rd District” of the Indiana Court of Appeals in this capital case.

The problem(s)? Death penalty appeals are and have always been heard by the Indiana Supreme Court. The “Appellate Process” page on the Court’s website begins: “The Indiana Supreme Court is the exclusive interpreter of disputed cases brought to appeal in criminal appeals involving the sentence of death . . . .” Appellate Rule 4(a)(1) is the governing rule.

Moreover, even if the case were to have run through the Court of Appeals ten years ago, the opinion would not reference the Third District. Captions no longer include districts, and the three-judge panels who are assigned from the various districts “have statewide jurisdiction and rotate three times per year.”

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Schumm - Commentary

Ind. Decisions - Transfer list for week ending Sept. 27, 2013 [Updated]

[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, Sept. 27, 2013. It is two pages (and 25 cases) long.

Two transfers were granted last week:

[Updated 10/1/13] Dan Carden of the NWI Times has a story today headed "Ind. high court to consider timing of civil lawsuit in Meux case" that reports:
The Indiana Supreme Court has agreed to decide whether a civil lawsuit can proceed against a Lakes of the Four Seasons man accused in the fatal hit-and-run of a Lake County corrections officer while his criminal trial is pending. Jason R. Cozmanoff faces a criminal trial in December on multiple felony charges relating to a March 6, 2012, incident on 93rd Avenue in Crown Point where he allegedly struck and killed Britney Meux, 25, and seriously injured three other corrections officers as they jogged along the side of the road. A Lake County judge last July agreed to postpone discovery in a civil lawsuit filed against Cozmanoff by Meux's estate in order to preserve Cozmanoff's Fifth Amendment right against self-incrimination. The Indiana Court of Appeals, in a 3-0 decision, overruled the lower court in May and declared that in the interest of justice the civil depositions, discovery and trial can move forward, even if Conzmanoff's criminal trial is unresolved. The decision by the state's high court to review the appeals court's ruling may make the entire issue moot. Barring an unexpected delay, Cozmanoff's criminal trial likely will be concluded before the Supreme Court hears arguments in the dispute over the timing of the civil lawsuit and issues its ruling, which regularly takes up to six months or more.

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 8 today (and 6 NFP)

For publication opinions today (8):

In Joseph M. Guinn v. Applied Composites Engineering, Inc., a 33-page opinion, Judge Brown writes:

Joseph M. Guinn appeals the trial court’s summary judgment ruling in favor of Applied Composites Engineering, Inc. (“ACE”) as to Guinn’s claim for tortious interference with a contract. Guinn raises one issue, which we revise and restate as whether the court erred in granting summary judgment in favor of ACE. We reverse and remand.
In Amy Palmer v. Margaret Sales and Unique Insurance Company, a 20-page, 2-1 opinion, Judge Crone writes:
On appeal, Palmer argues that the small claims court erred by denying her request for a change of judge and request for a jury trial. She also argues that the amount of damages was excessive. We agree that the small claims court erred by finding that her request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date. Because the request for a change of judge should have been granted, the small claims court was deprived of jurisdiction, and the judgment must be reversed. Therefore, we will not address Palmer’s claim that the amount of damages was excessive. However, because the issue will recur on remand, we will address Palmer’s arguments concerning her request for a jury trial. We conclude that the affidavit that Palmer submitted in support of her request met the level of specificity required by the applicable statute. Therefore, we reverse and remand with instructions to grant Palmer’s request for a change of judge, to implement the procedure for selection of a new judge, and to transfer the case to the plenary docket. * * *

Reversed and remanded.
RILEY, J., concurs.
BAILEY, J., concurs in part and dissents in part with opinion. [who writes in part, beginning on p. 14 of 20] I concur in the result of the majority’s opinion to the extent it concludes that Palmer properly moved for a jury trial, and thus orders the trial court on remand to transfer the case to the plenary docket. In light of that instruction, however, I think it is unnecessary even to address Palmer’s motion for a change of judge, and I do not think we should do so. Yet because of the criticism by the majority of the opinion I authored in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008), I write separately to explain my disagreement.

In William A. Asher v. Stephanie J. Coomler, an 8-page opinion, Judge Riley concludes:
However, Mother argues that Father knew that Magistrate Mattingly would preside as early as October 12, 2012 and therefore waived his objection to the magistrate presiding. Because Father objected to Magistrate Mattingly presiding over the case at the first hearing, no further objections were required. See Smith v. Lake Cty., 807 N.E.2d 53, 58 (Ind. Ct. App. 2004). Therefore, the Order is without legal effect. See id. Accordingly, we reverse and remand with instructions to the trial court to permit the parties to select a successor special judge in accordance with the procedures specified in T.R. 79(I)(1).

CONCLUSION. Based on the foregoing, we conclude that Father was denied a special judge to preside over the proceedings. We therefore reverse and remand with instructions to the trial court to permit the parties to select a special judge pursuant to T.R. 79(I)(1). Reversed and remanded with instructions.

In Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter, an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Tom Trisler (Trisler), d/b/a Canal House Antiques (Canal), appeals the trial court’s order which required Trisler to issue a refund to the Appellee-Plaintiff, Clayton L. Carter (Carter). We reverse. * * *

Trisler contends that the trial court erred in entering judgment against him and in favor of Carter because there was no express or implied warranty requiring him to refund the purchase price. Trisler argues that “[t]the fact that the store owner had posted no signs regarding refunds or exchanges created no express or implied warranty either.” (Appellant’s Br. p. 4). Trisler further contends that his willingness to allow Carter to exchange and return the item for store credit did not give rise to a right to refuse store credit and demand a cash refund instead. * * *

Here, Trisler argues that because there was no return policy, Carter was not entitled to a refund. Trisler’s argument relies on Caveat Emptor, which literally means, buyer beware. * * *

We find that the application of the common law principle appears to be diminishing and our courts seem to be slowly abandoning this principle. Here, the sale was in respect to personal property and not real property, and in this regard, we find that the Indiana Uniform Commercial Code (U.C.C.) would be more appropriate to determine the issue before us. As revealed by the record, the sale of the chest of drawers constituted a contract of sale by definition under the U.C.C. * * *

The fact that Carter was able to discover the defect upon opening the drawers of the chest while cleaning it belies the difficulty of discovering the non-conformity and there is no allegation that Trisler in any way kept Carter from inspecting the chest of drawers prior to his purchase of it. Therefore, I.C. § 26-1-2-608(1)(b) also does not apply to allow Carter to revoke his acceptance of the chest of drawers. Failing a legitimate reason to revoke his acceptance, the timeliness of Carter’s attempted revocation pursuant to I.C. § 26-1-2-608(2) is not at issue. Therefore, we conclude that the trial court erred in entering judgment for Trisler and we reverse its decision. * * *

Based on the foregoing, we conclude that the trial court erred in ordering Trisler to reimburse Carter the purchase price of the chest of drawers.

David M. Green v. State of Indiana

Gary Oswalt v. State of Indiana

Jeffrey Archer v. State of Indiana

Paul J. Livers II, v. State of Indiana

NFP civil opinions today (4):

In the Matter of the Termination of the Parent-Child Relationship of K.C., R.C., and B.C., Minor Children and R.C., Father v. Indiana Department of Child Services (NFP)

Joseph A. Taylor v. Dr. William H. Wolfe, in his Individual Capacity as an Employee of Corizon and Medical Director at the Pendleton Correctional Facility, Corizon, Inc., and Pharma Corr, (NFP)

In the Matter of; H.B., G.M., P.M., and A.C. (Minors), C.M. (Mother) v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)

Gerald W. Staton v. Dawn M. Dobyns-Gross, Indiana Family Social Services Administration, Tippecanoe County, Indiana and Tippecanoe County Prosecutor (NFP)

NFP criminal opinions today (2):

Brandon Stewart v. State of Indiana (NFP)

Mark Burkett v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on "Lawyer Charged in Own Shooting; Authorities Say He Staged Apparent Attack for Unknown Reason"

Updating this ILB entry from July 19, 2012, WBIW 1340 AM is reporting: "Bloomington Lawyer Pleads Guilty After Making Up Story Of Being Shot." From the story:

(SPENCER). - A Bloomington lawyer pleaded guilty to a misdemeanor charge of false informing in Owen Circuit Court after conservation officers discovered 44-year-old Peter Raventos shot himself but reported to police he was shot by an unknown suspect.

Owen Circuit Court Judge Lori Thatcher Quillen dropped the felony charge of obstruction of justice.

Raventos was arrested after he told police he was shot at McCormick's Creek State Park in June of 2012.

Judge Quillen sentenced Raventos to 365 days probation, 24 hours of community service, 180 days in jail suspended with 1 day served, appropriate counseling, and $168.00 in court costs. He is also banned from any DNR property.

More from the long story:
Conservation Officers suspected early in their investigation that something was awry in Raventos' story.

They later discovered that Raventos shot himself in the back by securing and firing a shotgun from some distance away.

Raventos was taken to IU Health Methodist Hospital in Indianapolis where he was treated and later released for 22 separate shotgun pellets found under his skin.

Indiana conservation officers did an extensive investigation and discovered the following:

The morning of June 25th Raventos was in a Lawrence County court hearing until 11 a.m. He then went to Bedford's Ace Pawnshop and paid $85.60 for a 20-gauge shotgun.

Ninety minutes later, he was at Lowes in Bloomington, buying plywood and a Mt. Dew soft drink. From there, he went to nearby MC Sports and purchased a box of shells for the shotgun.

Then Raventos drove to Walmart on Ind. 45 to buy bungee cords. And at 2:50 p.m., he drove into the state park gate. From 6 to 8 p.m., he watched his son play baseball at Ellettsville's ballpark, then said he was returning to the park to jog, something he had not done in a long time.

At 10:05 p.m., Raventos called 911 from his cell phone reporting he had been shot. * * *

Indiana Conservation Officer scuba divers searched the nearby White River and located a loaded shotgun shell casing, a spent shotgun shell casing, and a 20 gauge shotgun that was later linked to Raventos.

Indiana Conservation Officers obtained search warrants for the home, smart phone, and vehicle of. Raventos, finding additional evidence.

The man's ex-wife told police Raventos was facing foreclosure on his home near Ellettsville and repossession of his white Jeep. He was to appear in court three days after the shooting because he was behind in child support payments.

The Indiana Roll of Attorneys lists Raventos as "suspended" as of 6/27/13.

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Law

Law - "Birth Control and a Boss’s Religious Views"

Updating a long list of earlier ILB entries, the NY Times has this editorial today, headed "Birth Control and a Boss’s Religious Views." Some quotes:

The Obama administration’s rule requiring employer health plans to cover birth control without a co-payment has given rise to a slew of lawsuits by private companies claiming the mandate attacks religious freedom. Three federal appeals courts have ruled on the issue, with two correctly rejecting that view as without legal foundation. Given the conflicting rulings, it is a good bet the Supreme Court will agree to address this issue in the next term.

Under the Affordable Care Act, employers with more than 50 workers that provide insurance plans must include contraceptives coverage or face fines of up to $100 a day for each employee. The administration’s rule, issued in June, goes to great lengths to respect the concerns of religious institutions while preserving a worker’s right not to conform to the religious beliefs of her employer.

The rule has an exemption for houses of worship and accommodates other nonprofit religious and church-affiliated organizations, like hospitals, universities and charities, that object by letting them avoid paying for contraception for employees. In those cases, insurance companies or third-party administrators would arrange separate no-payment plans for contraceptive services. Quite properly, there is no exemption for owners of private for-profit businesses who simply don’t want to comply with a general law because of their personal views.

Three circuits' ruings are detailed:
On Sept. 19, the Conestoga Wood Specialties Corporation, owned by a devout Mennonite family, asked the Supreme Court to review a July ruling by the United States Court of Appeals for the Third Circuit that rejected the company’s argument that requiring contraception coverage in employee health plans violates the First Amendment’s free exercise clause and a federal law, the Religious Freedom Restoration Act.

On the same day, the administration filed a separate petition to the Supreme Court seeking review of a decision by the 10th Circuit Court of Appeals that prevented the birth control mandate from applying to a craft-store chain, Hobby Lobby, whose owners raised religious objections on grounds that the mandate likely violates the restoration act.

Just days before, the appeals court in the Sixth Circuit, siding with the Third Circuit’s reasoning, ruled against the owners of a manufacturing company that said it should not be required to provide contraceptive coverage because it offended the religious beliefs of the owners.

Two cases are awaiting decision by the 7th Circuit: Grote Industries v. Sebelius and Korte v. Sebelius.

Michael Kirkland, UPI Senior Legal Affairs Writer, noted yesterday in a lengthy, comprehensive story: "More than 40 suits have been filed so far against the mandate across the country by for-profit businesses whose owners say they can't support contraception."

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to General Law Related

Ind. Gov't. - More on urban chickens: "Lafayette behind on national trend, backyard coop fans say"

Dave Bangert, columnist for the Lafayette Journal Courier, writes at length about a new effort - some quotes:

... to build some slow momentum to take the word “chicken” out of a Lafayette city code that makes it illegal to “own, keep or breed” certain livestock. The goal is to give urban dwellers and suburbanites access to their own fresh eggs and be part of a sustainability movement that has caught on across the country. * * *

This go-round in the name of backyard chickens will be different than the last one, said [Ben] Alkire, an organizer of a group called Neighbor Hens. In 2009, after city inspectors fielded complaints about a family in Lafayette’s Highland Park neighborhood with four hens, the city council’s Public Health Welfare and Safety Committee held some crowded hearings but ultimately declined to change the livestock ordinance.

“The past brush-up at city hall several years ago hardened the stance of many of the common council and public. I try not to dwell on that,” said Alkire, who led the first informational meeting of the Lafayette Poultry Project on Monday. “The plan is to go slowly, using a persuasive soft sell.” * * *

Rick Walker, West Lafayette’s Neighborhood Resource Team supervisor, said the city views chickens as it would any other pet: Nuisance ordinances apply. John King, an animal control officer, said he can recall one complaint about backyard chickens, and that involved a noisy rooster. He said the owner got rid of it.

Because there are no permits needed to keep a chicken in West Lafayette, there’s no firm count on the number in the city. But [Hilary Mark] Nelson rattled off several neighbors who had them in a two-block area.

“That I know of,” he said.

The first persuasive line of attack: If egg-laying hens are fine for the seven college communities Greater Lafayette is supposed to be comparing itself to in the 2012 “From Good to Great: Making Greater Lafayette a Community of Choice” report, why not here?

Actually, the Lafayette Poultry Project doesn’t need to go all the way to Madison, Wis., Ann Arbor, Mich., or Eugene, Ore., to make a case.

Try the college community across the Wabash River.

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Government

Ind. Gov't. - "$1.1 million David Camm trial strapping Floyd County budget"

That is the headline to this new Louisville Courier Journal story by Grace Schneider. Some quotes from the lengthy story:

Midway through David Camm’s third murder trial, Floyd County officials are fretting about the estimated $1.1 million it will cost a community already struggling with depleted county coffers.

“We’re in dire straits,” said Dana Fendley, vice president of the county council, who added that officials may have to arrange a loan to avoid sinking into the red before the year ends.

In all, the county’s tally for all Camm-related trials and expenses since 2000 will exceed $4.4 million by the end of 2013, based on an analysis of records and estimates of final trial expenses calculated by county auditor Scott Clark. * * *

Camm has been convicted twice in the deaths of his wife Kim, 35, son Brad, 7, and daughter Jill, 5, but both times the convictions were overturned. The combined cost of both trials was $1.9 million

The trial of Charles Boney, a New Albany man now serving 225 years in the killings, cost about $80,100. Camm’s and Boney’s appeals have run up the tab.

So far this year, the county has spent more than $970,000 on Camm’s third trial, with three-quarters of that going to his defense.

The bills include security provided by the sheriff’s office, juror’s pay and lunches, expert witnesses and hotel rooms for the defense and prosecution teams in Boone County, where the trial was moved to ensure an untainted jury.

Floyd County Sheriff Darrell Mills, who has had to send deputies to Boone County to provide security at the trial, said many residents question why its Floyd’s responsibility. “It’s our trial,” Mills said. “It’s not Boone County’s just because it’s been moved there.”

The prosecution tab has been inflated because Camm’s defense team — led now by Indianapolis-based lawyer Richard Kammen — succeeding in getting Floyd County Prosecutor Keith Henderson kicked off the case.

The Indiana Court of Appeals ruled in late 2011 that Henderson’s decision to forge a book deal on the case while Camm’s second conviction was still under appeal posed a conflict of interest that warranted his removal.

Evansville’s Stan Levco, the former Vanderburgh County prosecutor, was appointed last year as special prosecutor. Floyd would not have had to pay for Henderson and his office to handle the case, but the county must now pay special prosecutor fees.

Levco has been paid $105,012 since he took over last year. Henderson said through a spokeswoman Friday that he won’t comment about the Camm case while the third trial is under way. He has said in the past that he disagreed with his removal from the case and has been frustrated by the resulting additional expense for Floyd County.

The largest amount paid this year — $724,747 — has gone to Camm lawyers Kammen and Stacy Uliana — and the consultants and contractors they’ve hired to help them present their case.

Of the payments to six forensic experts and laboratories enlisted by the defense, the largest chunk, $257,533, has gone to Netherlands-based Independent Forensics Services. Its owner and lead scientist Richard Eikelenboom testified at a pre-trial hearing Aug. 1 that his firm had found skin cells from Boney on Kim Camm’s underwear and at other locations at the murder scene.

The new evidence wasn’t included in previous trials because of advances in DNA recovery methods, and it could bolster Camm’s lawyers’ assertion that Boney was the sole killer.

Eikelenboom’s bill submitted to Floyd in April for $101,710 includes $87,900 for work on DNA samples. Additional billings are expected for travel and the scientist’s time on the witness stand.

The county also has paid $56,000 to Austin, Texas-based criminologist Darcy Kim Rossmo, whom the defense hired to review police and Boney’s depositions. A bill Aug. 2 details a “reference list on thinking errors in criminal investigations” prepared for defense lawyers.

The prosecution’s costs so far this year have been $143,794. But Clark said he expects more claims from Levco. Among recent payments for the prosecution was $16,600 to University of Louisville forensic pathologists for conducting a new examination of autopsies performed after the killings.

Clark, the auditor, said that based on the prior billings, he’s estimated $183,993 in additional expenses for finishing the trial, but that doesn’t include the cost of preparing a trial transcript.

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "Carroll County project brings newspaper history into digital age"

Emily Campion's long Sept. 27th Lafayette Journal Courier story reports:

In a blend of old and new technology, a Carroll County group is digitizing newspapers dating from the early 1800s so current and future generations can search articles by keyword in the comfort of their own homes.

The newspaper digitalization project is a boon to anyone curious about the county’s history. The project began last year when Bonnie Maxwell, Carroll County historian and author, met with Kelly Currie, director of Delphi Public Library, and Melissa Bishop, director of Flora-Monroe Township Public Library, and outlined a plan to convert almost 300 reels of microfilm into an online database.

That was spring 2012. By July 2012 they had sent out 12 microfilm reels of the Camden newspapers, spanning 1880 to 1917, to Heritage Archives in Iowa. There, the newspaper pages are electronically scanned and stored in digital format on a computer. * * *

The Camden papers were just the beginning. The group has plans to digitize the Delphi Journal, Carroll County Citizen, Carroll County Citizen-Times, the Delphi Citizen, the Delphi Times, the Hoosier Democrat, the Delphi Journal-Citizen and the Carroll County Comet. All but the Comet have ceased publication.

The process isn’t cheap. The group has obtained funding from North Central Health Services through the Tippecanoe Arts Federation, Carroll County Community Foundation, the REMC Operation Roundup grants program, Duke Energy Foundation, NIPSCO’s Community Investment Program and private donations.

They have spent $18,955.75 and have less than $700 remaining from grants; $2,500 has been pledged. * * *

Historians and genealogists crave such finds. But poring over reels of microfilm in a dimly lit room can be tedious.

“If you have volumes on microfilm, you have to go through them sequentially ... scroll through many years to find things,” Maxwell said.

Maxwell loves the idea of browsing articles at home.

“It’s much more ergonomically pleasant,” she said. “The real treasure of a digital file is that it’s searchable. It’s not perfect, because if a newspaper wasn’t in good shape when microfilmed, the optical characteristics are not perfect. But if you’re lucky, there’s enough there you can retrieve something.”

Currie and Bishop think the project will be complete in mid-2014, given they obtain $9,350.75 to finish. By the end they will have more than 193,600 pages available to view and search online for free.

“It’s such unique information,” Currie said. “There are things in the newspaper that aren’t anywhere else.”

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Government

Ind. Gov't. - "Indiana BMV admits it overcharged on more fees, will issue credits"

Updating this ILB entry from July 13th, headed "Suit claims BMV Indiana overcharged millions of Hoosiers for driver's licenses", Jon Murray reported in the Indianapolis Star this weekend:

Over the summer, the Indiana Bureau of Motor Vehicles sheepishly admitted that for years it had been charging millions of Hoosiers $3.50 too much for driver’s licenses.

Turns out, that overcharge was just the tip of the iceberg.

On Friday afternoon, the BMV quietly announced through a news release that it has identified many other fees that were set higher than allowed by state law. So it is lowering those fees and issuing credits that can be claimed the next time customers do business with the agency.

Customers also were undercharged for some services, but the state said it would not attempt to recoup that money.

The BMV overcharged customers 70 cents for new passenger vehicle and motorcycle registrations, $3 for personalized plates and $3 for six-year motorcycle endorsements on their licenses.

That’s not all. In many cases, new registrations for trucks, trailers, semitrailer trucks, tractors and buses were supposed to be $1 less than what was charged. BMV Commissioner R. Scott Waddell blamed the errors on misapplying complex state laws governing more than 300 fees for various BMV services. He said Gov. Mike Pence ordered all fees to be reviewed after the overcharges on driver’s licenses were pointed out in a lawsuit.

The BMV’s statement didn’t detail how many fees it had overcharged, or for how long.

The Indianapolis Star compared old and new fee charts to pinpoint dozens of fees that had been overcharged in 15 of 22 current categories. Some categories include arrays of fees based on gross weight, registration date and registration type, and often those had a mix of correct and incorrect fees.

Most overcharges were by $1 to $3, The Star found.

A BMV spokesman said the corrections on customers’ accounts would reflect overcharges going back six years, the statute of limitations. * * *

Indianapolis law firm Barnes and Thornburg conducted the review of all fees following the BMV’s acknowledgment of the driver’s license overcharges.

“That review showed just how complex the statutes that govern fees are, and we found several errors that have led to both undercharges and overcharges on a number of fees,” Waddell said in the news release. “The BMV has taken immediate steps to address any overcharges by crediting affected motorists’ accounts and has corrected all overcharged fees going forward.”

Gillespie declined The Star’s request for a copy of Barnes and Thornburg’s fee study, saying it was protected by attorney-client privilege.

[ILB thoughts] Really, the BMV had to hire B&T to explain its laws to its staff? What about the Office of the Attorney General, or its own internal counsel? And now the memo explaining the BMV law is "confidential"?

The BMV has a long history of misinterpreting/misapplying its laws. Recall recent stories re specialty plates, habitual traffic offender issues, proof-of-insurance issues, etc.

And what of the class action lawsuit that initiated the current fee review. The Star story says:

The credit policy means customers will recoup the extra charges the next time they renew or do other business with the BMV. But old customers who no longer live in Indiana likely are out of luck.

That same approach drew criticism in July when the BMV said it would issue credits for the overcharged driver’s license fees rather than cutting checks to customers. At that time, the agency then was enmeshed in a class-action lawsuit over standard operator’s license fees.

Irwin Levin, the attorney behind that suit, said at the time that he was concerned some previous customers, including out-of-state college students, wouldn’t get repaid.

He also pointed out that the BMV wasn’t paying anyone interest.

“If the BMV wants to give people gifts,” Levin said, “they can do that, but it doesn’t affect the claims. ... Now the people who have cheated us at least since 2007 are saying, ‘Trust us.’ ”

Efforts to reach Levin on Friday were unsuccessful.

A review of the case docket in the suit, Tammy Raab vs. R Scott Waddell, et. al.(49D12-1303-PL-008769) includes an 8/21/2013 item: "PRELIMINARY APPROVAL TO CLASS ACTION SETTLEMENT AGREEMENT WITH R. SCOTT WADDELL AND INDIANA BUREAU OF MOTOR VEHICLES". Nov. 12, 2013 is scheduled for "Final Approval of Settlement Agreement."

Posted by Marcia Oddi on Monday, September 30, 2013
Posted to Indiana Government

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

From Sunday, September 29, 2013:

From Saturday, September 28, 2013:

From Friday afternoon, September 27, 2013:

Posted by Marcia Oddi on Monday, September 30, 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 10/3/13):

Thursday, October 3

Next week's oral arguments before the Supreme Court (week of 10/7/13):

Thursday, October 10th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/30/13):

Next week's oral arguments before the Court of Appeals (week of 10/7/13):

Monday, October 7th

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, September 30, 2013
Posted to Upcoming Oral Arguments

Sunday, September 29, 2013

Ind. Courts - "La Porte County Judge Boklund says he won’t seek fourth term on the bench"

Tim Moran's long Sept. 26th story in the Michigan City News Dispatch begins:

MICHIGAN CITY — Judge William Boklund will not seek a fourth term as Judge of La Porte Superior Court 4 in Michigan City. Boklund, who has served as a judge for nearly two decades, announced his decision Wednesday.

“It has been an honor to serve the people of La Porte County and the State of Indiana,” Boklund said, noting that choosing not to run was “a very difficult decision to make.”

Before taking the bench at La Porte Superior Court 4 on Dec. 13, 1993, Boklund practiced law for 15 years. As judge, he has presided over a number of different types of cases.

“As odd as it sounds, very little in the practice of law prepared me for this job. I have seen things, and had to decide things, that no one could make up,” he said.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Courts

Ind. Courts - "Judiciary to Remain Open If Government Shuts Down"

A notice on the SD Ind. website reads:

In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Courts

Ind. Courts - More on "Lawsuit over Greensburg short-hair rule may be a long shot"

That was the heading of this Jan. 5, 2011 ILB post. The suit was filed Dec. 27, 2010 in Indiana's Southern District. The post included a link to the complaint in Hayden v. Greensburg Community School Board Members.

The docket shows that judgment was entered against plaintiffs by Judge Richard Young on March 13, 2013. Here is the 22-page opinion.

The 7th Circuit weekly calendar shows that 13-1757; Hayden v. Greensburg School, is scheduled on Oct. 2 for 10 min.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Courts

Ind. Courts - Unexplainable disparities in sentencing between twins convicted of same crime?

Lydia Sheaks of the Elkhart Truth had this report this weekend. Some quotes [emphasis by ILB]:

ELKHART — A former Elkhart teacher who received a 32-year sentence for dealing methamphetamine in 2009 is a free woman this week, after serving just 14 months in prison and three years on probation.

Maria Stancati was released from probation on Tuesday, Sept. 24, and her case was closed, according to her case file.

Stancati and her twin sister, Michelle Stancati, both former special education teachers for Elkhart Community Schools, were arrested in November 2008 in connection with a meth fire at their home in South Bend. The women were fired from their jobs the next month. Both sisters later pleaded guilty to dealing meth within 1,000 feet of a school, a crime with maximum penalty of 50 years in prison.

At the end of the story we learn:
Michelle Stancati, Maria’s twin sister, was sentenced to 20 years in prison and 20 years on probation.
She remains incarcerated. Also from the story we learn:
Jessica McBrier, director of media relations and special projects for the St. Joseph County Prosecutor’s office, explained Friday that Maria Stancati requested a reduction in her probation three times. Each time the state opposed the reduction, but her request was granted by the judge.

McBrier said that the state opposed a probation reduction for Maria Stancati because if she was convicted of another offense, the state would have to start over with her sentencing.

“Should Stancati commit any other offense, the state would not be able to impose any of the 32-year sentence, since she has been released from probation,” McBrier said.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Courts

Ind. Law - "Don't tinker with Indiana Constitution"

Two more editorials this weekend against amending the Indiana Constitution to ban same-sex marriage: NWI Times, and the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Law

Ind. Law - "A new tack on school gun laws: Stand your schoolhouse ground?"

From the Fort Wayne Journal Gazette "Furthermore..." column on Saturday, this item:

Stand your schoolhouse ground? That’s the idea an Indiana lawmaker floated this week. Rep. Kevin Mahan, R-Hartford City, told the Times of Munster that he might support extending the state’s castle doctrine to schools. The law gives legal protection to a person who uses deadly force to prevent an attack in their own home.

Mahan said he doesn’t want to require schools to have armed personnel in each building but would consider changing the law to protect someone who did use a firearm in a school attack.

“Let’s look at the possibility of rather than this person going and retreating into a bathroom and allowing someone to barge down the hallways and start shooting, maybe it is possible we could add that to the castle doctrine to give them the ability to possibly take action to stop any kind of intrusion like that,” said Mahan, who served two years as Blackford County sheriff.

Of course, the sad history of school attacks hasn’t revealed any evidence of armed teachers or staff hiding in a bathroom for fear of prosecution if they stop an attacker. On the contrary, the stories have been of heroic efforts to protect students without regard for the personal safety of the teacher or administrator.

The castle doctrine proposal was offered to the School Safety Study Committee by Guy Relford, a Carmel gun-rights attorney whose practice focuses on the Second Amendment and Indiana gun laws.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Law

Ind. Decisions - "Supreme Court won't hear drainage case"

The $$ Vincennes Sun-Commercial posted this "teaser" today:

The Indiana Supreme Court will not hear the case involving a Knox County man who disagreed with a decision by the county drainage board that allows neighbors to pump water into Snapp Ditch west of Oaktown.

Chief Justice Brent E. Dickson informed the parties that the court wouldn't hear the case, thereby upholding a local court's decision letting the drainage board's ruling stand.

The remainder of the article is available only to subscribers.

A little research reveals that transfer was denied 5-0 on Sept. 26th in the case of Richard J. Bond v. Knox County Drainage Board. The April 25, 2013 NFP Court of Appeals opinion, however, is interesting. Judge Riley writes, re Count I:

Referencing this statute [IC 36-9-27-17], Bond asserted that Vermillion and the Drainage Board violated the statute because (1) the Cardinals did not submit the required specifications and (2) Vermillion did not make a determination that Snapp Ditch was adequate to handle the additional flow of water.

As pointed out by the trial court—and we agree—IC 36-9-27-17 lists the requirements a county surveyor must adhere to when a landowner wants to connect his private drain to a regulated drain; the statute does not require any action from the Drainage Board. As such, Count I is not available for judicial review pursuant to IC 36-9-27-106(a) because the Drainage Board did not issue a final order and determinations from the county surveyor are not available for judicial review.

The dissent by Judge Baker concludes:
I cannot agree with the bald assertion that determinations from a county surveyor are not available for judicial review.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - Better addressing the legal needs of the unrepresented

A judge in a northern Indiana county has called the ILB's attention to this post from Richard Zorza's Access to Justice Blog (via a post by Judge Kevin Burke, a Minneapolis trial judge) that begins:

One of the great — and too little explored — potentials of having integrated access services is the potential of much better linkages with broader help gateways. A recent report on such an approach in the Minnesota Twin Cities area between Call for Justice and the United Way shows just how dramatic the results can be — for both sides of the partnership. The key components seem to be meetings between information providers and trainings for the 211 staff and others. The Projects annual budget is $175,000, which came from the foundation arms of the Hennepin and Ramsey County Bar Associations, the Saint Paul and Bigelow Foundations, and 29 Twin Cities law firms — again a great collaborative model. Given how dramatic the results shown below are, I can not see how any state legal access website can justify not exploring such a relationship with the 211 system.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Courts in general

Ind. Courts - Historian writes tribute to Indiana Courthouses

"In walls of justice, Hoosier spirit lives" is the heading to the long Sunday Centerpiece article written for the Fort Wayne Journal Gazette by Eric Sandweiss, Carmony Chair of History at Indiana University-Bloomington and editor of the Indiana Magazine of History. The article is accompanied by many photographs, such as this one of the "meticulously restored rotunda of the Allen County Courthouse." Here is a sample:

Today, even as our small towns struggle and our suburbs sprawl, the Indiana county courthouse remains a persistent symbol of the self-governing pride that took root under the Constitution Elm at Corydon. The imposing courthouse – set apart in the heart of town, its pediment or dome visible above the cornices of surrounding business blocks – stands testament to a time when finely crafted details of brick, iron and stone seemed an appropriate offering to Hoosier civic spirit.

For many Indiana counties – consider Lockridge’s make-believe Raintree, or my own Monroe – the grand edifice that seems now like it must have arisen from Precambrian bedrock is itself a latecomer, the brash replacement for some earlier effort that did not clear the high bar of aesthetic ambition and civic hubris set by our Progressive Era forebears.

So it’s no surprise to see the same impulse at work in our own time – even if today’s rebuilding campaign is more often driven by a desire to add parking or improve ventilation than it is to elevate the dignity of the common citizen. If you think the survival of the old county courthouse is something to take for granted, I advise a day trip to Anderson or Muncie [or Indianapolis]. And while I can’t say that some future generation of Madison or Delaware County citizens might not bless their ancestors for erecting today’s concrete-and-glass monoliths, the case for maintaining our surviving golden-age courthouses seems, from our perspective, almost too strong to bear arguing. Are these not symbols of the ambitions that earlier Hoosiers challenged us to realize? And are we not up for the challenge?

ILB: The Marion County Courthouse, replaced by the City-County Building, is pictured in this 2009 post at HistoricIndianapolis.com. There is both a small photo of a postcard of the courthouse in its prime, and another of the partially demolished building, contrasting with its replacement.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Indiana Courts | Indiana Government

Ind. Decisions - More on: Supreme Court vacates transfer grant in Indiana Newspapers

Supplementing this ILB post from Sept. 27th, John Russell of the Indianapolis Star reports this weekend:

The Indiana Supreme Court has changed its mind and decided not to get involved in a long-running fight over whether The Indianapolis Star must reveal the identity of an anonymous commenter on the newspaper’s website.

The decision, handed down Friday, lets stand a Marion Superior Court judge’s ruling last year ordering The Star to provide the commenter’s identity.

The Supreme Court did not say why it changed its mind in taking up the case, just one day after hearing oral arguments in the matter.

“After further review ... the Court determined that it should not assume jurisdiction over this appeal,” the one-page order said. * * *

The Star [had] appealed the trial court’s ruling, but the Indiana Court of Appeals dismissed the appeal, saying it lacked jurisdiction.

ILB: An unsettled procedural issue remains unresolved by the Supreme Court's decision not to grant transfer. The Indianapolis Bar Association filed an amicus brief in the case urging "the Indiana Supreme Court to accept transfer and resolve an unsettled question of appellate procedure regarding whether a discovery order compelling a non-party to produce documents or information is appealable as a matter of right." From the conclusion to the brief:
Litigators and appellate litigators in Indiana are uncertain if orders compelling non-parties to produce documents or information are appealable as of right under the Indiana Rules of Appellate Procedure. This uncertainty is exacerbated by the court of appeals' inconsistent treatment of the issue. In some instances, the randomness of the appellate panel make-up determines whether a non-party can immediately appeal or not. The Court should accept transfer and provide much-needed guidance for the lower courts, lndiana's appellate litigators and their clients.

Posted by Marcia Oddi on Sunday, September 29, 2013
Posted to Ind. Sup.Ct. Decisions

Friday, September 27, 2013

Ind. Gov't. - "A Guide to the New Exchanges For Health Insurance", and Kentucky's decision

Tara Siegel Bernard, personal finance reporter for the NY Times, has a long, useful Q & A today about how the new insurance exchanges will actually work. (Remember, if you are on Medcare (likely 65 or over) this does not affect you; and if you have insurance at work, it is not likely to affect you, but read the column to be sure.)

Here is one portion of the column that highlights a matter at issue here in Indiana:

Q. Am I eligible for Medicaid?

A. The health care law aimed to expand Medicaid so that everyone under age 65 would qualify if they earned up to 138 percent of the federal poverty level (that’s about $16,000 for an individual and $32,500 for a family of four in 2014). But the Supreme Court ruled in June that the decision to expand Medicaid is up to the states — and only 26 states have decided to move forward, according to Kaiser. [Indiana is not one of them]

Q. So if I’m poor but not eligible for Medicaid, can I get insurance on the exchange?

A. Yes, but unfortunately, many people in this situation won’t be able to afford it. People who don’t qualify for their state’s Medicaid program but earn too little to qualify for subsidies on the exchange will have to pay full price for the coverage offered on the exchanges. So if you can’t get Medicaid and your income is below 100 percent of the poverty level, you will not be eligible for subsidized coverage on the exchange.

(Note: there are some useful internal links in the above quotes that I have not reproduced.)

Also really interesting today from the NYT is this op-ed from the Governor of Kentucky on why "Kentucky — more quickly than almost any other state — [is] moving to implement the Affordable Care Act".

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Indiana Government

Courts - A NJ State Superior judge ruled Friday that the state must allow same-sex couples to marry [Updated]

That is the word from this NY Times story by Kate Zernike and Marc Santora.

This is a trial court ruling by Judge Mary C. Jacobson. Oral argument on the motion for summary judgment was held August 15th. The briefs and the Sept. 27th, 55-page opinion are available here.

From the NYT story:

“The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New jersey in a wide range of contexts,” she wrote.

For instance, civil union partners who are federal employees living in New Jersey are not eligible for rights in regard to the federal pension system. [ILB: NJ currently does allow civil unions, but not marriage]

It is the first time a court has struck down a state ban on same-sex marriage as a direct result of the Supreme Court’s ruling.

Judge Jacobson’s opinion, which the state may move to appeal, said that same-sex marriages would be allowed starting next month.

The opinion was provided in a summary judgment in a case brought by Garden State Equality, a gay rights advocacy group.

“Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution,” she wrote.

[Updated at 5:17 PM] Here is a useful post from Will Baude at The Volokh Conspiracy, headed "Understanding Today’s Ruling About New Jersey Civil Unions."

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court vacates transfer grant in Indiana Newspapers

Yesterday the Supreme Court hear oral argument in Indiana Newspapers, Inc. v. Jeffrey M. Miller, et al.

This afternoon it has vacated transfer and reinstated the Court of Appeals opinion. The vote was 4-1, with Justice Rush dissenting from the denial of transfer.

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Apparently no opinions today

Apparently no opinions today ...

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Ind. App.Ct. Decisions

Law - "Limited Licensing of Legal Technicians: A Good Idea?"

That is the heading of this long Sept. 21st post in eLawyering Blog about the 38-page ABA draft Report and Recommendations on the Future of Legal Education. (h/t ABA Journal)

This is the Task Force chaired by former Indiana Chief Justice Randall T. Shepard. The recommendation on p. 31 (#C-3) is of particular note:

3. Authorize Persons Other than Lawyers with J.D.’s to Provide Limited Legal Services, Whether Through Licensure Systems or Other Mechanisms Assuring Proper Education, Training, and Oversight.

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to General Law Related

Ind. Courts - More on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

In case you've lost track of the timetable, updating this ILB entry from August 5th, nominating petitions were due Sept. 19th.

Ballots and biographies of the candidates will be mailed to the home address of all Second District attorneys on Oct. 24th, and are due back by 4 PM on Nov. 19th.

At 4 PM on Nov. 19th the Clerk of the Court will count the ballots.

The winner will assume the seat now held by William E. Winingham, Esq., which expires on Dec. 31, 2013.

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Indiana Courts

Courts - Still more on "link rot" in SCOTUS opinions

Updating this ILB post from Sept. 23rd, Jacob Gershman of the $$ WSJ Law Blog wrote yesterday under the heading "Supreme Court Says It’s Resigned to ‘Linkrot’". The close:

[O]n the general issue of linkrot, Ms. Arberg [SCOTUS spokesperson] said, “The Court prefers to cite printed materials rather than materials available only on the Internet, precisely because of their transient nature. Where citation to Internet materials is unavoidable, the Court captures the page and includes it in the case file within the Clerk’s Office.”

The case file isn’t available online. But at least you can still literally link to the cited material — albeit via an Amtrak train to Washington, D.C.

ILB: So I guess the "linked" video(s) is/are also in The Case File, for those who'd care to make the trip.

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Courts in general

Environment - "Fight Over Energy Finds a New Front in a Corner of Idaho"

Fascinating lengthy story in yesterday's NY Times, reported by Kirk Johnson, makes important point. Some quotes [ILB emphasis]:

LAPWAI, Idaho — In this remote corner of the Northwest, most people think of gas as something coming from a pump, not a well. But when it comes to energy, remote isn’t what it used to be.

The Nez Perce Indians, who have called these empty spaces and rushing rivers home for thousands of years, were drawn into the national brawl over the future of energy last month when they tried to stop a giant load of oil-processing equipment from coming through their lands.

The setting was U.S. Highway 12, a winding, mostly two-lane ribbon of blacktop that bisects the tribal homeland here in North Central Idaho.

That road, a hauling company said in getting a permit for transit last month from the state, is essential for transporting enormous loads of oil-processing equipment bound for the Canadian tar sands oil fields in Alberta.

When the hauler’s giant load arrived one night in early August, more than 200 feet long and escorted by the police under glaring lights, the tribe tried to halt the vehicle, with leaders and tribe members barricading the road, willingly facing arrest. Tribal lawyers argued that the river corridor, much of it beyond the reservation, was protected by federal law, and by old, rarely tested treaty rights. * * *

The dispute spilled into Federal District Court in Boise, where the Nez Perce, working alongside an environmental group, Idaho Rivers United, carried the day. Chief Judge B. Lynn Winmill, in a decision this month, halted further transports until the tribe, working in consultation with the United States Forest Service, could study their potential effect on the environment and the tribe’s culture.

The pattern, energy and lands experts said, is clear even if the final outcome here is not: What happens in oil country no longer stays in oil country.

“For the longest time in North America, you had very defined, specific areas where you had oil and gas production,” said Bobby McEnaney, a senior lands analyst at the Natural Resources Defense Council. A band stretching up from the Gulf of Mexico into the Rocky Mountains was about all there was.

But now, Mr. McEnaney said, the infrastructure of transport and industrial-scale production, not to mention the development of hydraulic fracturing energy recovery techniques, and the proposed Keystone XL pipeline from Canada, are affecting more and more places.

Posted by Marcia Oddi on Friday, September 27, 2013
Posted to Environment

Thursday, September 26, 2013

Ind. Courts - "Supreme Court will hear appeal of Hammond man convicted of murder "

Ruth Ann Krause of the Gary Post-Tribune reports on the upcoming Supreme Court oral argument next week in Ernesto Ramirez v. State of Indiana. Some quotes from the story:

During Ramirez’ trial last year, one of the jurors wrote a note to the judge indicating that one of her neighbors heard gunshots and sounds of someone running while the juror was across the street at a restaurant. A neighbor called the juror on her cell phone and also informed police that the individual was a juror. The neighbor saw the car pull into the parking lot, drive around and leave. The juror also called police while she was at the restaurant, and one of the individuals with her noticed a car in the parking lot, which was there for about 20 minutes without anyone getting out.

The judge questioned the juror, who said she had made other jurors aware of the issue. The juror told other jurors she has a young child living with her and was scared. The juror told other jurors that police who investigated gunshots and a possible break-in had told her to get off the jury. The judge released the juror, then questioned the remaining panel members individually.

Defense attorney John Cantrell, who sought a mistrial, argued that extraneous information brought to the jury by the excused juror contaminated the panel because of the high likelihood in the gang-related prosecution that jurors would believe the gunshots and attempted break-in were somehow related to the defendant.

In his filing, Gonzalez noted that the appeals court failed to take into consideration a 1990 Indiana Supreme Court decision, Kelly v. State, which provides the authority for granting a new trial when improper extraneous influences brought by a juror to the other jurors make it “highly probable” their impartiality was compromised.

Here is the now-vacated NFP Court of Appeals opinion.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Indiana Courts

Courts - "As recently as two weeks ago, Bopp was planning to argue the case."

Tony Mauro of The Blog of Legal Times is reporting that:

The plaintiffs in McCutcheon v. Federal Election Commission, the next major Supreme Court case attacking campaign finance regulation, have hired Erin Murphy, a protege of former solicitor general Paul Clement, to argue before the court on October 8.

Murphy, counsel at the Bancroft firm in D.C., and Clement, a partner at the firm, confirmed this morning that Alabama businessman Shaun McCutcheon and the Republican National Committee had picked Bancroft for the high-profile argument.

"In a case like this with multiple parties, there were multiple options. At the end of the day, rather than flipping a coin, they decided go with Bancroft, and we're delighted," said Clement. The other possible advocates were longtime foe of campaign finance regulation James Bopp Jr., who was counsel of record for the Republican National Committee, and Michael Morley, a New Jersey practitioner who was counsel of record for McCutcheon. As recently as two weeks ago, Bopp was planning to argue the case. Clement said Bopp remains part of the legal team even though he will not be arguing.

"We have a great legal team and are looking forward to presenting our case to the Court in October" said John Phillippe, chief counsel to the Republican National Committee in a statement, when asked why the committee went with Murphy.

Later in the story:
This is not the first time that Bopp has been left at the altar in major campaign finance litigation once it arrives at the Supreme Court. In the controversial Citizens United v. FEC case in 2010, Bopp was the lead lawyer in lower courts, but Citizens United founder David Bossie hired Gibson, Dunn & Crutcher veteran Theodore Olson to argue at the high court. "When you change battlefields, you change generals," Bossie was quoted as saying in the recent book The Roberts Court, by NLJ chief Washington correspondent Marcia Coyle. Olson redirected the arguments and won the case. Similarly, in McConnell v. FEC in 2003, Bopp was crowded out by former solicitor general Kenneth Starr and others.

Nonetheless, Bopp has argued five cases before the high court, including Wisconsin Right to Life v. FEC and Republican Party of Minnesota v. White, both of which he won. Bopp did not immediately respond to a request for comment.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Courts in general

Courts - "There are good reasons not to call an opponent’s argument 'ridiculous'”

This 3-page, Sept. 24th 6th Circuit opinion in Bennett, et al. v. State Farm Mutual Auto. Ins. begins:

KETHLEDGE, Circuit Judge. There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.
Thanks to How Appealing and Al Kamen's "In the Loop" column in the Washington Post.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Courts in general

Ind. Decisions - A second opinion today from Supreme Court

In Courtney L. Schwartz v. Jodi S. Heeter, a 7-page, 5-0 opinion, Justice Rush writes:

Irregular income—bonuses, commissions, and the like—can make applying the Child Support Rules and Guidelines challenging. Practitioners and courts have worked to craft suitable solutions, and we certainly encourage parents to negotiate creative agreements that accurately account for irregular income, avoid litigation, and adequately provide for children. Here, in an effort to craft a workable solution, Mother and Father made a seemingly simple agreement: to recalculate their support obligation annually using the Guidelines.

But despite their best-laid plans, their agreement went awry. Its terms are silent about which version of the Guidelines applies. As required by law, this Court has reviewed and amended the Guidelines four times in the last 24 years—most recently in 2010, the year after Mother and Father’s agreement was finalized. And the 2010 changes significantly increased support obligations for high-income parents like Father.

We therefore face a question of contract interpretation: Does the Agreement incorporate the version of the Guidelines in effect at the time the Agreement was made, or the one in effect for each particular year’s income? The trial court interpreted the Agreement as incorporating the version that applied to a particular year’s income, and we agree. Since the Guidelines are regularly amended to fit changing economic conditions, we hold that this Agreement anticipates and incorporates those future changes, because it does not specify otherwise. * * *

This lack of specificity became a problem during the second year the Agreement was in force. Effective January 1, 2010, this Court amended the Guidelines, increasing the child support obligation for high-income parents. Ind. Child Support Guideline 1, Commentary (2010). When Father calculated his 2010 Distribution Clause payment (the only year at issue on transfer) using the 2009 Guidelines, he determined he owed the Children $6,344. Mother did the same calcu-lations using the 2010 Guidelines and determined he owed the Children $44,720.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Dagmar Enid Breeden v. James Breeden (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from Supreme Court

In M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank, a 24-page, 5-0 opinion, Justice David writes:

Before a parcel of real property can be sold at a tax sale, the Indiana Code requires the county auditor to mail notice of the pending sale to any mortgagee holding a mortgage on the property—provided, however, that the mortgagee has first affirmatively requested such notice by submitting a form to the auditor. Is such a procedure permissible under the Due Process Clause of the Fourteenth Amendment? The answer, we said over two decades ago, is “Yes.”

But in this case a bank failed to submit the required form to the Bartholomew County auditor and therefore was not notified that one of its mortgaged properties was tax-delinquent until after the property had been sold and the buyer requested a tax deed. The bank objected, challenging the constitutionality of this statutory scheme in light of a more recent case from the U.S. Supreme Court. The trial court below agreed with the bank and refused to issue the tax deed, but we remain firm that the answer to the constitutional question is still “Yes,” and therefore reverse. * * *

The requirement found in Indiana Code § 6-1.1-24-3(b), that a mortgagee annually request, by certified mail, a copy of notice that a parcel of real property is eligible for sale under the tax sale statutes, does not violate the Fourteenth Amendment’s Due Process Clause. We therefore reverse the trial court and remand.

ILB: Be sure to read footnote 12, beginning on p. 23.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Re "an effort to amend the state constitution to include the quite innocent-sounding 'right to hunt, fish and farm.'”

Matthew Tully's long column, here in the Lafayette Journal Courier on Sept. 24th, is headed "Don't be fooled - this is just a pig farm with lipstick." Some quotes:

It’s never too early to start worrying about the next Indiana General Assembly session, and for anyone who cares about clean air and clean water, there is already plenty of reason to be concerned about the session that begins in a few months.

Come January, some lawmakers likely will resurrect an effort to amend the state constitution to include the quite innocent-sounding “right to hunt, fish and farm.” It’s all a ruse, of course, one apparently based on the hope that most voters will blindly sign off on an amendment that sounds harmless and reasonable.

The farming portion of the measure is the least mentioned but most concerning, as it would diminish the already weak system of environmental protections guarding Hoosiers, particularly those in rural areas. Environmentalists are rightly alarmed by the measure, noting that it would give communities and residents even fewer ways to control the emergence of massive meat-producing operations such as hog or chicken farms.

All this in a state where the regulations and laws are already tilted way too far in the wrong direction.

“Industrial livestock interests have enormous clout at the state and local level,” said Jesse Kharbanda, who heads the Hoosier Environmental Council. “At the state legislative level, they have defeated virtually every effort to strengthen environmental safeguards. At the state regulatory level, they have defeated efforts to create new safeguards. At the local level, they have succeeded in advancing their interests.”

For evidence of that, just consider the depressing story of Camp Tecumseh, a lovely outdoor camp for children near Lafayette. This summer, over strong objections, local commissioners approved the construction of a combined animal feeding operation (CAFO) that ultimately could house more than 9,000 hogs just a half-mile from the camp.

Mega-farms do fine in Indiana, you see. But they want more. They always want more.

Backed by organizations such as Indiana Farm Bureau, and by several lawmakers with financial ties to the industry, advocates pushed the proposed amendment through the legislature in 2011. If they can do so again in 2014, it will go to the voters for ratification. All you have to do to figure out how the public vote would go is read the proposed ballot language, which asks Hoosiers to affirm “that the people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry or dairy products.” * * *

The measure (Senate Joint Resolution 7) stalled in the House last year after the Senate passed it overwhelmingly. There’s hope that the House will do the right thing again next year. But the power of big-dollar corporate farming is strong at the Statehouse; to understand that, you just need to look at the proliferation of such mega-farms in recent years.

Sen. Brent Steele, R-Bedford, the sponsor of the proposed amendment, did not return a phone call. That’s OK. We know the story. For environmentalists, it’s always an uphill fight in Indiana. And when an amendment like this one gets branded as something that it’s not, something warm and fuzzy, it’s even harder.

ILB: Here is a list of earlier ILB entries on the proposed constitutional amendment.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Indiana Law

Law - "Lawyering in the Shadow of Data"

The $$ WSJ Law Blog highlighted a paper by Drury D. Stevenson and Nicholas J. Wagoner, in a story headed "Should Lawyers Fear Big Data, or Embrace It?" From the abstract:

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior --- including their willingness to negotiate a settlement --- based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases.

Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools that are facilitating this paradigm shift, and examine how lawyers are using them to forecast litigation outcomes and reduce bargaining costs. We also explore some of the risks associated with lawyering in the shadow of data and offer guidance to lawyers for leveraging these tools to improve their practice.

Our discussion pushes beyond the cartoonish image of big data as a mechanical fortuneteller that tells lawyers who will win or lose a case, supposedly eliminating research or deliberation. We also debunk the alarmist clichés about newfangled technologies eliminating jobs. Demand for lawyers capable of effectively practicing law in the shadow of data will continue to increase, as the legal profession catches up to the data-centric approach found in other industries. Ultimately, this Article paints a portrait of what big data really means for attorneys, and provides a framework for exploring the theoretical implications of practicing law in the era of big data.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to General Law Related

Ind. Gov't. - "AG Zoeller steps into debate over mandatory drug testing for pregnant women" [Updated]

Barb Berggoetz of the Indianapolis Star had a long story Sept. 24th that began:

Indiana Attorney General Greg Zoeller says he merely wanted to draw attention to the growing problem of babies being born with symptoms of prescription drug withdrawal.

What he actually did was spark a debate, mostly in cyberspace, about whether drug testing for pregnant women should be mandatory.

Two nationally-based groups, MoveOn, and RH Reality Check, are circulating an online petition calling on Zoeller to apologize for asking state lawmakers to approve mandatory drug testing and to stop inciting disrespect for pregnant women’s civil liberties. The petition has more than 3,500 signatures.

Zoeller says he has never called for mandatory testing. * * *

Zoeller said Monday that he regretted his comments were misinterpreted and have taken the focus away from reaching solutions. * * *

It’s a problem that concerns Sen. Patricia Miller, R-Indianapolis, who chairs the Commission on Mental Health and Addiction. The commission is also studying the problem and plans to make recommendations to the legislature.

“I think there is merit in testing, but the bigger question is if women test positive, then what do we do?” Miller said.

She said doctors have told her not enough drug addiction treatment programs are available and some don’t accept pregnant women. But, she said, the commission is meeting Tuesday to further discuss the problem.

Zoeller said his task force also intends to make recommendations to the legislature. The task force consists of about 80 doctors, law enforcement officials, legislators, attorneys general and health department representatives.

“Physicians are the ones who should really lead this,” Zoeller said. “It’s certainly not the role for a lawyer. I’m not really one to tell the doctors in the task force what to recommend.”

[Updated] See also this post from Jim Shella's Blog, that begins:
Attorney General Greg Zoeller is under fire for suggesting that the state could save big money by drug testing pregnant women. Zoeller says he was misunderstood..

Or just maybe he was floating a trial balloon. Either way, Greg Zoeller wants everyone to know that he is not calling for mandatory drug testing for pregnant women in Indiana.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Indiana Government

Ind. Courts - More on "Disbarred lawyer charged with forgery"

Updating this ILB post from May 7, 2012, quoting a South Bend Tribune story that began "A disbarred attorney faces criminal charges for forging names on legal documents and filing fraudulent tax returns while he was under suspension", today Madeline Buckley reports, also in the SBT, in a story that begins:

A jury found a former attorney guilty of forging the names of other lawyers in his building on court documents in order to continue his practice while he was suspended.

The jury today convicted Rod Sniadecki, 47, on three counts of felony Class C forgery, which each carry a maximum sentence of eight years in prison.

The disbarred attorney sat motionless in the Mishawaka courtroom when the verdict was read, as shocked and tearful family members looked on, some hustling out of the room.

The three-day trial before St. Joseph Circuit Court Magistrate Larry Ambler centered on whether Sniadecki ordered the forgeries that his legal assistant signed during his six-month suspension from practicing law in 2007 and 2008.

“If there was a puppeteer and puppets, who was who?” Deputy Prosecutor Mark Roule asked the jury rhetorically during his closing arguments today.

Posted by Marcia Oddi on Thursday, September 26, 2013
Posted to Indiana Courts

Wednesday, September 25, 2013

Ind. Courts - Supreme Court advertises job opening with CJ Dickson

Here is the announcement:

The Indiana Supreme Court is seeking applicants for a new position which will provide counsel to the Chief Justice in fiscal and operational matters and assist the Chief Justice in various administrative duties. A job description can be found at http://www.in.gov/judiciary/4151.htm which gives details as to the expected duties and responsibilities.

Minimum qualifications are admission to legal practice and good standing, with at least 5 years of Indiana law practice. Due to the financial and business responsibilities, preference will be given to candidates who are also a CPA, have an MBA, or significant business experience.

Essential skills for the position include good communication skills and experience, strong working knowledge of Microsoft Word, PowerPoint, and Outlook products, and ability to create and manipulate spreadsheets, database programs, and work with numbers and financial calculations.

This is an unclassified executive position; the salary will range from $85,000.00 to $110,000.00, depending on experience and strengths. General state benefits apply.

The deadline for applying for this position is October 31, 2013. To apply, send a resume and cover letter, and an additional copy of the same, by mail or delivery to

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

Questions about the position or process may be directed to Brenda Rodeheffer at Brenda.rodeheffer@courts.in.gov.

ILB: Sounds like a nice job for the right person.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Indiana Courts

Law - "A Call for New Laws in New York to Fight High-Tech Crime"

Peter Lattman reports in the NYT DealBook today in a story that begins:

New York State, failing to keep pace with technological change and increasingly sophisticated economic crimes, needs to update its laws to help authorities prosecute white-collar wrongdoing, according to a report released on Tuesday by the Manhattan district attorney, Cyrus R. Vance Jr.

In the 112-page report, a white-collar crime task force made a number of proposals, including strengthening the laws against identity theft and the stealing of computer code.

New York’s penal laws have changed little since 1965, Mr. Vance said, leaving laws against electronic crimes outmoded. Mr. Vance and federal prosecutors in Manhattan have made the prosecution of corporate espionage and high-tech theft a top priority.

“The Internet has become our 21st-century crime scene,” Mr. Vance said at the Center for the Administration of Criminal Law at New York University, where he unveiled the report. “Serious computer and related crimes are not today treated according to the gravity and breadth of the harm caused.”

And here is a long news release from the NY County District Attorney's Office, headed "New York State White Collar Crime Task Force Issues Sweeping Recommendations for Modernizing Antiquated Fraud and Corruption Laws." Here is the 113-page Report.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to General Law Related

Ind. Decisions - "Sheriff’s sale will end legal fight for Paula’s"

Although on May 31st the Supreme Court heard oral argument in the case of Wells Fargo Bank, N.A. v. Neal A. Summers, et al., a week later the Supreme Court issued an order vacating its grant of transfer and reinstating the Court of Appeals opinion, ending the appeal.

Today Rebecca S. Greene of the Fort Wayne Journal Gazette reports on what comes next for Paula's Diner. Although the headline is "Sheriff’s sale will end legal fight for Paula’s," it turns out:

Though it sounds strange that a business owner would be cheering for a sheriff’s sale, for Phillips it means that she has a nearly $500,000 head start on any bid anyone would want to make on the building.

“Paula will finally own her own building,” said her attorney Jeremy Grogg, a partner at Burt, Blee, Dixon, Sutton & Bloom, LLP. “It’s the right thing. The judgment is as it should be.”

Earlier in the long story:
FORT WAYNE – After about a dozen years, the battle between the owners of a well-known west-end restaurant and one of the country’s biggest banks is nearing an end.

With a court order to set a date for a sheriff’s sale for the building housing Paula’s on Main soon to be issued, it’s likely that within a few months Paula Phillips will have full control of the building at 1732 W. Main St., as well as the meals served inside.

“It’s been a long road,” Phillips said. “I’m glad it’s over.”

The complicated case pitted Phillips and her partners Frank Casagrande and Tom Sokolik against Wells Fargo Bank, so the comparisons by Casagrande and Phillips to David and Goliath were probably not too far off.

“We’re on third base and heading for home,” Casagrande said.

The case has been argued at the Indiana Court of Appeals three times and before the state’s Supreme Court twice.

The recent agreement hammered out with the bank came after the state’s highest court upheld an appellate court ruling giving Phillips what amounts to a lien on the property.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court creates Commission to Expand Access to Civil Legal Services

The Supreme Court has posted this 4-page order, filed Sept. 23rd: In the Matter of the Creation of the Commission to Expand Access to Civil Legal Services. It begins:

A group of Indiana stakeholders has approached the Indiana Supreme Court and urged the Court to create a broad-based commission to work toward a goal of expanding the availability and provision of civil legal services to Indiana residents with limited financial resources. In existence in more than half of the states, similar commissions are commonly called "access to justice" commissions. The work of these commissions is encouraged by the Conference of Chief Justices, and the Conference of State COUli Administrators, and the American Bar Association. The initial Indiana proposal was supported by the Indiana Bar Foundation, the Indiana State Bar Association and several providers of civil legal services to the poor. In response, the Indiana Supreme Court underwrote an educational session about such commissions for Indiana's stakeholders and invited recommendations from the participants. Following review of the resulting recommendations, and after further review and consideration of parallel initiatives in other jurisdictions, the Indiana Supreme Court has elected to establish an entity to further explore, advise, and advance such interests.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

Steven Harper and Rose Harper as Co-Personal Representatives of the Estate of Steven Harper, Deceased v. Gerry Hippensteel, M.D., a 14-page opinion by Judge Bradford, looks at an Indiana Collaborative Practice Agreement for Prescriptive Authority (“CPA”) in which Dr. Hippensteel agreed to be available to Nurse Practitioner Vories for consultation:

The Harpers contend that the trial court erred in granting summary judgment in favor of Dr. Hippensteel because Dr. Hippensteel breached a duty owed to Harper, Jr. In making this claim, the Harpers concede that Dr. Hippensteel did not provide treatment to or participate in the care or treatment of Harper, Jr. The Harpers argue, however, that Dr. Hippensteel nevertheless engaged in a physician-patient relationship with Harper, Jr. because he entered into a CPA with NP Vories. Dr. Hippensteel argues on appeal that he had no duty to Harper, Jr. because he did not participate in Harper, Jr.’s care or treatment, and also because the CPA that he entered into with NP Vories did not create a physician-patient relationship between himself and any of NP Vories’s patients. * * *

[p. 8] In determining whether Dr. Hippensteel could be found to have engaged in a physician-patient relationship with Harper, Jr. by way of the CPA entered into between Dr. Hippensteel and NP Vories, we find it helpful to provide an overview of Indiana law relating to the practice of advanced practice nurses and nurse practitioners in Indiana. * * *

Because the CPA explicitly states that its terms do not place any increased liability on Dr. Hippensteel for decisions made by NP Vories, and indicates that NP Vories had the independent authority to treat patients as she saw fit, we cannot conclude that Dr. Hippensteel entered into a physician-patient relationship with each of NP Vories’s patients merely because he entered into a CPA with NP Vories. Accordingly, because the CPA did not increase Dr. Hippensteel’s liability, Dr. Hippensteel could only be found to have entered into a physician-patient relationship and, as a result, acquired a duty to NP Vories’s patients, if he performed any affirmative act with regard to the patient. See Miller, 754 N.E.2d at 46; Dixon, 661 N.E.2d at 607. Again, the record in the instant matter indicates that Dr. Hippensteel did not do so with regard to Harper, Jr.

In sum, we conclude that Dr. Hippensteel did not owe a duty to Harper, Jr. because he did not, at any time, enter into a physician-patient relationship with Harper, Jr. As such, we conclude that Dr. Hippensteel was entitled to summary judgment. The judgment of the trial court is affirmed.

In Robert Fechtman, as Guardian of the Estate of Roberto Hernandez v. United States Steel Corporation, Zurich North America, a 15-page opinion, Judge Mathias writes:
Roberto Hernandez (“Hernandez”) filed a complaint in Lake Circuit Court against United States Steel Corp. (“U.S. Steel”) seeking to recover for injuries Hernandez sustained while working on U.S. Steel property for an independent contractor hired by U.S. Steel.1 The jury found in favor of Hernandez but apportioned five percent of the fault to Hernandez, fifteen percent to U.S. Steel, and eighty percent to Hernandez’s employer, the non-party Roger & Sons. Based on the jury’s finding of damages in the amount of $4,657,792.87, the trial court entered judgment against U.S. Steel in the amount of $698,668.93. Hernandez appeals and claims that the trial court erred in refusing an instruction tendered by Hernandez regarding strict liability for the conduct of an abnormally dangerous activity. Zurich North America (“Zurich”), the worker’s compensation carrier, crossappeals and claims that the trial court erred in instructing the jury on how to consider the worker’s compensation benefits received by Hernandez in arriving at its verdict. Concluding that the trial court did not abuse its discretion in refusing Hernandez’s tendered instruction, and concluding that the question presented by Zurich is moot, we affirm. * * *

The trial court did not err in refusing Hernandez’s tendered instruction because U.S. Steel’s act of dumping the dust catcher was not an abnormally dangerous activity subject to strict liability. We decline to consider the question presented by Zurich because it is moot.

In Involuntary Term. of the Parent-Child Rel. of D.P., Minor Child, and her Father, D.P.; D.P. v. Indiana Dept. of Child Services and Child Advocates, Inc. , an 8-page opinion, Judge Bradford writes:
On February 20, 2013, the juvenile court issued an order terminating Appellant-Respondent D.P.’s (“Father”) parental rights to his minor child. The order contained factual findings and conclusions thereon that were recommended to the juvenile court by a magistrate.[1] The magistrate who made and reported the recommended factual findings and conclusions thereon to the juvenile court was not the same magistrate who conducted the evidentiary hearing. The magistrate who conducted the evidentiary hearing resigned from her position as magistrate before making any recommended factual findings or conclusions thereon.

On appeal, Father contends that the juvenile court erred in terminating his parental rights. In challenging the termination of his parental rights, Father raises numerous issues, one of which we find dispositive. This issue is whether the replacement magistrate could make recommended factual determinations when the replacement magistrate did not hear the evidence or observe the witnesses during the evidentiary hearing. Because we conclude that the replacement magistrate could not make recommended findings of fact and conclusions thereon to the juvenile court, we reverse the judgment of the juvenile court and remand to the juvenile court for a new evidentiary hearing.

____________
[1] Indiana law provides that a magistrate may conduct an evidentiary hearing. Ind. Code § 33-23-5-5(11). The magistrate who conducts an evidentiary hearing shall report the magistrate’s findings to the court, which shall enter the final order. Ind. Code § 33-23-5-9.

NFP civil opinions today (1):

In Re The Marriage of: David L. Fendley v. Misty L. Converse f/k/a Misty L. Fendley (NFP)

NFP criminal opinions today (2):

Brian L. Marchand v. State of Indiana (NFP)

Brian McGill v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - State Constitutional Twilight Zone: Judges and Prosecutors are Arguing Statutes are Unconstitutional

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

Appointed counsel in criminal appeals frequently challenge the constitutionality statutes — and, on rare occasion, succeed. Such challenges offer all sorts of opportunity for creativity — and are far more interesting than a mundane challenge to the sufficiency of the evidence.

But the bar to success in challenging the constitutionality of a statute is a very high one. As the Indiana Supreme Court recently reiterated in finding the school voucher statute constitutional:

"When a party claims that a statute is unconstitutional on its face, the claimant assumes the burden of demonstrating that there are no set of circumstances under which the statute can be constitutionally applied." Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999). Moreover, in reviewing the constitutionality of a statute, "every statute stands before us clothed with the presumption of constitutionality unless clearly overcome by a contrary showing." Id. at 338; see also State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992) ("The burden is on the party challenging the constitutionality of the statute, and all doubts are resolved against that party.")
I’ve been especially surprised in the past few months to see those who are usually stalwarts of the constitutionality of statutes to be arguing otherwise.

First, the judges in Lake County declared on their own, without any arguments from counsel in a case, that the statute prohibiting the transfer of a non-merit-selected judge to a vacancy created by the departure of a merit-selected judge was unconstitutional.* It took the Indiana Supreme Court little time to hold otherwise in a per curiam (usually used for pretty basic matters) opinion:
The Indiana Constitution gives the Legislature the power to create superior courts. Monford,[sic] 723 N.E.2d at 410; see Ind. Const. art. 7, § 1 (“The judicial power of the State shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the General Assembly may establish.”). The Judges identify no authority precluding the Legislature from also providing a method for selection of the judges for the courts it creates.
Now, it appears State of Indiana (through the Morgan County Prosecutor’s office) is joining the unconstitutional statute bandwagon. Last week I read a response to a defendant’s petition to expunge a criminal record that requested the motion be denied because the expungement statute is unconstitutional. The State asserts the statute violates Article 1, Section 24 (“obligation of contracts”) and Article 1, Section 13(a) (“victims of crimes”) of the Indiana Constitution.

The Indiana Supreme Court recently held in a sex offender registry case that "'the State is the State,' whether it acts through a deputy prosecutor or through the Department of Correction." The Attorney General, the State official charged with defending the constitutionality of state statutes, cannot be too pleased that the State (through a deputy prosecutor) is alleging a statute unconstitutional. What is more, the argument is not a strong one. Yes, a plea agreement is a contract, but I have never seen a plea agreement that says anything about expungement. Since the Indiana Supreme Court’s 2008 opinion in Creech v. State, many plea agreements [such as this one in a 2008 opinion] include terms prohibiting a defendant from challenging a sentence on appeal, for example. If the agreement does not include a provision prohibiting a later expungement petition, though, how is the statute interfering with a contract?** Under the prosecutor’s rationale the Governor would violate a contract if he grants a pardon after a plea agreement.

If judges and prosecutors are so easily convinced that statutes are unconstitutional, we might expect a spike in challenges from criminal defendants and others who usually raise the challenges.
______________
*Earlier this month a Lake County judge found the right-to-work statute unconstitutional. At least parties had initiated a lawsuit in that case, although declaring victory for the plaintiffs in response to a defendant’s motion to dismiss is unusual.

**I am not suggesting such a plea term would be enforceable. As the court reiterated in Creech: “Provisions in plea agreements that waive a defendant’s right to seek post-conviction relief remain void and unenforceable. See Majors v. State, 568 N.E.2d 1065 (Ind. Ct. App. 1991).”

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Schumm - Commentary

Ind. Gov't. - "Porter county tax appeal board rules Ogden Dunes resident entitled to homestead deduction even though husband receiving same type of tax break on home in Florida"

That from a story today by Bob Kasarda of the NWI Times. More:

Attorney and state Sen. Karen Tallian, D-Ogden Dunes, who represented Kurtz, argued that state law speaks about Indiana alone when it limits these tax breaks to one primary residence.

This was made explicitly clear in 2011, though was intended in years prior, said Tallian, who has served as a state lawmaker since 2005. The Kurtz appeal focused on the period of 2008 to 2010.

Attorney Jon Schmaltz, who represented the county auditor's office during Tuesday's hearing, disagreed and argued the state law limits homestead deductions to one primary residence, no matter how many states are involved.

"I don't think it's ambiguous," he said.

Porter County Auditor Bob Wichlinski, who has led a crackdown on homestead deduction violators, said he regrets that unlike the petitioner in these cases, he does not have the option of appealing the local decision to the state.

"It is not their job to interpret the law," he said of the three-member Porter County Property Tax Assessment Board of Appeals. "This is a serious misinterpretation of what their responsibility is."

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Indiana Government

Ind. Law - "Lawmakers consider licensing for court reporters"

Lesley Weidenbener, editor of the $$ StatehouseFile, has a report today on yesterday's discussion at the Commission on Courts on licensing court reporters:

Lawmakers are considering whether to create a licensing system for the state’s 500 or so court reporters to try to bring standards to an occupation that is currently unregulated in Indiana.

Advocates for licensing say it’s necessary to ensure that the judicial system has accurate records of proceedings – including those that take place inside and outside the courtroom – so that justice can be served.

They pointed to a death row sentence that was overturned in 2003 because the appellate court found the record of the trial was too filled with errors to proceed. And they offered other examples of problems in Florida and Marion County.

“The public has a right to feel there is a level playing field and the court staff is capable, competent and committed,” said Tom Richardson, past president of the Indiana Shorthand Reporters Association. “Court reporters are an integral part of our system of justice and when we as a profession fail, the results can be catastrophic.”

Twenty-eight states already require court reporters to be licensed or certified, some under state law and others through judicial rules. Nine other states seek voluntary certification of court reporters, Richardson said. And the federal courts impose their own certification standards.

In Indiana, there are no rules, although many court reporters have certifications from one of three national organizations. In many cases, states accept those certifications – which also require continuing education – as criteria for licensing.

“We are not proposing to replace any existing court reporters but instead to arm them with the tools needed to meet recognized minimum standards in the field,” Richardson said.

Richardson presented his case Tuesday to the Commission on Courts, a group of lawmakers and judicial officials who make recommendations to the General Assembly. The group’s chairman, Sen. Brent Steele, an attorney from Bedford, told the committee his goal “is to try to see if we have a problem and if we have a problem to try to correct it.”

Sen. Lonnie Randolph, D-East Chicago, told the committee Tuesday he’d seen no evidence that Indiana was facing a problem that could be fixed with licensing. He called the examples “isolated” and said local judges should be able to choose the court reporters they find to best qualified.

But Sen. Greg Taylor, a Democrat and attorney in Indianapolis, said he proposed legislation earlier this year to require court reporter licensing because of a problem he had with the record of a deposition.

Taylor said there’s no way to know that a court reporter isn’t competent “until you have a problem with a transcript. Then it’s too late to have it resolved.”

“This is a very important issue,” Taylor said. “We all agree we need competent court reporters.”

Indiana Chief Justice Brent Dickson, who serves on the courts commission, said implementing a statewide system that serves all 92 counties – where local judges essentially run their own courts – could be difficult.

But advocates of licensing said they are flexible about the type of changes implemented – as long as they provide some accountability for court reporters.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Indiana Law

Ind. Courts - "Debate swells over Lake judicial selection" - Questions about nominating commission's makeup [Updated]

Bill Dolan reports today in the NWI Times:

CROWN POINT | A St. John lawyer is challenging how Lake County picks its judges just as Gov. Mike Pence contemplates who he will name as the newest member of the county's judiciary.

Joe Hero, a Republican who has taken on politicians of all stripes, now is confronting the Lake County Judicial Nominating Commission, saying the nine-member body that has been screening judicial applicants for 40 years doesn't have enough female and Republican members.

"The whole commission isn't made up right," Hero said. "The law says there have to be two women lawyers, a black or Hispanic lawyer, and there isn't. There has to be two Republicans and two Democrats for the (non-lawyer) members, and there isn't." Hero called on Gov. Michael Pence and the Indiana Supreme Court to review the law's constitutionality and, if found to be invalid, restart the process of finding the county's next judge.

Indiana Supreme Court Justice Robert Rucker is defending the composition of the current judicial nominating commission, saying it meets the legal requirements, which have become confused by legislative and judicial changes. * * *

Most judges in Indiana are popularly elected, but Lake has selected judges through non-partisan appointments since 1973.

The law, designed to shield its judiciary from political influences, permits the governor to name new Lake judges from among any its 1,600 resident attorneys who pass inspection from the judicial nominating commission.

The commission consists of one member of the Indiana Supreme Court, four lawyers elected only by the county's lawyers and four lay members appointed by the Lake County Board of Commissioners.

The state legislature introduced racial, gender and political affiliation quotas on judicial nomination commission members in 1995 to ensure a more diverse judiciary.

These required two commission lawyers and two lay members to be female, at least one lawyer and lay member to be minority and that no more than two lay members can belong to the same political party.

However, a federal judge struck down the quota in 1996 as improper, and the current judicial nominating commission consists of four white male attorneys. Three of the four lay members are Democrats.

Hero insists the the federal judge's ruling cannot be treated as permanent and the quotas, which still remain on the books, should be followed until the state legislature clarifies the situation.

Kathryn Dolan, public information officer for the state Supreme Court, said Justice Rucker commented Thursday that even attorneys versed in the law haven't always followed all the twists and turns of the commission's membership qualifications, but the quotas remain banned until the legislature acts again.

[Updated at 9:48 AM] Here is the 1996 opinion. It is Back v. Carter (ND Ind.), written by Judge Lozano.

Posted by Marcia Oddi on Wednesday, September 25, 2013
Posted to Indiana Courts

Tuesday, September 24, 2013

Ind. Law - "Laws that carry automatic loss of license under review"

Maureen Hayden, CNHI Statehouse Bureau, has this story in the Sept. 23rd Kokomo Tribune. The long story begins:

INDIANAPOLIS — The legislative study committee that proposed the massive rewrite of Indiana’s felony code will soon take on another tough issue: The automatic penalty that causes thousands of Hoosiers to lose their driving privileges for committing transgressions ranging from unpaid parking tickets to drunk driving.

Some members of the committee are advocating that fewer crimes carry the automatic penalty of a suspended driver’s license, to allow judges to have more discretion over how the punishment is doled out.

Among the remedies for which they’re advocating: Allow judges to suspend a driver’s license with conditions that include the use of technology — such GPS tracking and interlock ignition devices — to monitor in real-time when a driver get behind a wheel.

Republican State Rep. Jud McMillin, a former prosecutor from Brookville who supports the change, said the legislature has imposed the automatic driver’s license penalty on scores of offenses to be “tough on crime.”

“We didn’t have the technology advances available to us to do it in a really smart way, so we did it the only way we could, in a really tough way,” McMillin said. “I have no problem with doing it the tough way but now that we’re able to use these technological advances, we can combine being tough and being smart. I think that would be beneficial to everybody.”

McMillin is a member of the Criminal Law and Sentencing Policy Study Committee, whose members represent prosecutors, public defenders, probation officers, judges and lawmakers. The committee is scheduled to take up the issue of the automatic driver’s license suspension penalty at its Thursday meeting at the Indiana Statehouse.

ILB: As it turns out, Thursday's agenda has been revised and will now look in depth at "Recidivism and Sentencing Reform." But this story remains relevant.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending September 20, 2013

No word yet, there may not have been a conference last week.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - "Same sex marriage ban opponents tout new poll showing Indiana voters split on issue"

The subhead to Jon Murray's new IndyStar story: "Opposition grows when respondents are told amendment also would ban civil unions." Some quotes:

On the same day GOP legislators are set to meet privately to discuss Indiana’s proposed constitutional gay marriage ban, an anti-amendment coalition today released a poll showing voters are split on the issue.

Freedom Indiana’s poll of 800 registered voters found 46 percent opposed amending the state constitution to define marriage as between a man and a woman, while 43 percent said they would vote for it. That lead by opponents is within the poll’s margin of error of plus or minus 3.5 percentage points. Including those leaning toward voting one way or the other, 48 percent were opposed and 45 percent were in favor of the amendment.

The margin widened significantly, however, when respondents were asked a more detailed question that indicated the amendment would also ban civil unions as well as domestic partnership benefits. (Some amendment supporters dispute that benefits are in jeopardy.)

On that question, 52 percent said they would vote no on the amendment, and 33 percent said they would vote yes. Including leaners, the split was 54 percent opposed to 35 percent in favor.

Freedom Indiana campaign manager Megan Robertson said the poll, conducted by Bellwether Research, shows Hoosiers are uncomfortable amending the constitution.

“Hoosiers do not want our Constitution amended, and we hope lawmakers will hear that message and make the right decision during the legislative session to either let this amendment die or vote it down,” she said in a news release. “We're working every day to reach out across the state and let folks know that this amendment will rewrite our Constitution to remove protections for certain Hoosiers and send the wrong message about our state.”

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Government

Law - "Nearly half of U.S. jobs could be done by computers"

From Cameron Scott at Singularity Hub, a story that begins:

A recent study out of Oxford University found that almost half of U.S. jobs are vulnerable to being taken over by computers as artificial intelligence continues to improve.

The study, based on 702 detailed job listings, found that computers could already replace many workers in transportation and logistics, production labor and administrative support.

But computers, armed with the ability to find patterns in big data sets, are also increasingly qualified to perform “non-routine cognitive tasks.”

“While computerization has been historically confined to routine tasks involving explicit rule-based activities, algorithms for big data are now rapidly entering domains reliant upon pattern recognition and can readily substitute for labor in a wide range of non-routine cognitive tasks,” write study authors Carl Benedikt Frey and Michael Osborne.

Software already provides medical diagnoses and does legal research, for example.

Here is the 73-page Oxford study.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to General Law Related

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

Updating this ILB entry from June 16th of this year, Harold J. Adams reports today in the $$ Louisville Courier Journal:

A Jefferson Circuit Court Judge ruled Monday that while heterosexual spouses can’t be forced to testify against each other, the law does not apply to a same-sex couple that entered into a civil union in Vermont nine years ago.

The ruling came in the case of Bobbie Jo Clary, who is charged with murdering and robbing a man in 2011. The Jefferson County Commonwealth’s Attorney’s office subpoenaed Geneva Case, aimed at getting her to testify that Clary told her about the killing and that Case saw Clary clean blood out of the man's van and abandon it in Southern Indiana.

Clary claimed that Case should not have to testify, but Judge Susan Schultz Gibson ruled that Kentucky’s ban on same sex marriage and on recognizing same sex unions from other states means the privilege does not apply. * * *

In invoking the marital privilege and filing a motion to quash the state’s subpoena, Clary and Case argued that their Vermont civil union affords them the rights, benefits and responsibilities of a married couple. They also point to Vermont’s 2009 approval of same-sex marriage.

Kentucky’s refusal to recognize the marital rights of same sex couples violates the constitutions of the United States and Kentucky, the pair says.

Gibson, however, said in her ruling that “It is abundantly clear” that same-sex marriages or civil unions entered into in states that permit them “will not be recognized as valid marriages or unions within this state.”

Gibson ruled that she was not required to weigh the constitutionality of Kentucky’s law because Clary and Case are not married. She noted that there was no evidence that the couple took advantage of Vermont's 2009 decision to allow same-sex couples to convert earlier civil unions to marriages.

“At a minimum,” Kentucky’s marital privilege “would require that the parties be actually married. Ms”. Case and the defendant are not," the judge wrote.

Gibson noted that in 2004, the same year Clary and Case entered a civil union, Kentucky voters approved a state constitutional amendment providing that “only a marriage between one man and one woman shall be valid or recognized as a marriage” in the state.

The story includes video, but it is of the June hearing.

[Updated at 3:12 PM]
Will Baude writes about the case on The Volokh Conspiracy, in a post headed "Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions."

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Jerome Milian v. State of Indiana, a 14-page opinion, Judge Kirsch writes:

Jerome Milian (“Milian”) appeals the trial court’s denial of his pro se motion to withdraw his guilty plea contending that the trial court abused its discretion by allowing him to proceed pro se in arguing the motion and denying his motion to withdraw his guilty plea. We affirm. * * *

Milian received multiple advisements and admonishments from the trial court regarding his rights, and in particular, his right to representation by counsel. Milian has failed to meet his burden of establishing that the trial court abused its discretion. Consequently, we find no error here.

NFP civil opinions today (7):

Indiana Commissioner of Insurance Stephen W. Robertson, on Behalf of the Indiana Patient's Compensation Fund v. Kimi Clark, Personal Representative of the Estate of William Troy Clark, Deceased (NFP)

In the Matter of the Supervised Estate of Violet Whitaker, Deceased, Stephen Whitaker and Damian Whitaker v. Ferdinand Clervi, Personal Representative (NFP)

Reverse Mortgage Solutions, Inc., v. The Supervised Estate of Richard C. Holman (NFP)

In the Matter of A.S.G., A.M.G., S.T.B., and A.G.B., Children Alleged to be Children in Need of Services, B.G., Mother, and S.B., Father v. Indiana Department of Child Services (NFP)

Angela R. Reed v. Sally L. Ashcraft (NFP)

Nancy Harney v. Denny's Restaurant, Inc., B.R. Associates, Inc., and Citizens Bank of Michigan City Indiana (NFP)

John Aikman v. City of Indianapolis (NFP)

NFP criminal opinions today (7):

Ervin McClung v. State of Indiana (NFP)

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

Kevin Cortez Brown v. State of Indiana (NFP)

Dillon Grissell v. State of Indiana (NFP)

Joseph Prewitt v. State of Indiana (NFP)

John E. Wall v. State of Indiana (NFP)

Shawn Rigsby v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Summer Indiana Bar Exam results

Here is the list.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Courts

Ind. Courts - Licensing of court reporters on Commission on Courts agenda today

Licensing of court reporters is on the Commission on Courts agenda today, also the question:

Should courts have the flexibility to appoint psychologists, psychiatrists, or physicians in insanity defense cases without regard to a specific ratio of qualified mental health professionals?
The meeting, which is webcast (Room 3), begins at 10 am.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Courts

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

Updating this expansive ILB post from August 30th, which included this quote from a FWJG story:

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.”

Yesterday the Pension Management Oversight Committee held its second meeting of the interim. From a story by Dan Carden of the NWI Times:

INDIANAPOLIS | A plan to privatize a portion of state and local government employee retirement benefits got a skeptical second look Monday by the General Assembly's Pension Management Oversight Committee.

Trustees of the Indiana Public Retirement System, also known as INPRS, agreed in July to eliminate by July 1, 2014, the state-managed retirement annuity option for new retirees, and require them to turn over their lump-sum annuity savings account to a private financial company if they want an additional lifetime monthly benefit.

INPRS believes longer life expectancies and a promised 7.5 percent interest rate makes the state-managed annuity unsustainable in the long run. The change does not affect the modest defined benefit also paid to retired public employees.

State Sen. Karen Tallian, D-Ogden Dunes, said there's no need to privatize the annuity option.

She said INPRS should just adjust the state-run annuity program to ensure solvency and avoid putting retirees at the mercy of for-profit financial companies that are liable to charge higher fees while reducing payments to beneficiaries.

"We don't see any reason or necessity why we need to privatize this," Tallian said. "We have other options."

Tallian said she will recommend the committee's final report to the Legislature and urge INPRS to reconsider its privatization decision.

She hinted if INPRS stands by its plan, the General Assembly could override that decision before it takes effect with new laws during the 2014 legislative session that begins in January.

Niki Kelly of the Fort Wayne Journal Gazette has an entirely different look at the meeting in this long story today - some quotes:
A legislative pension oversight panel was on the verge Monday of approving a nonbinding recommendation to the state pension system to back off plans to privatize annuity savings accounts.

A member made a motion, it was seconded and there was ample discussion on the topic. Sentiment on the committee appeared to favor the recommendation.

Then just before calling for a vote, a Senate staffer whispered in the ear of Sen. Phil Boots’ – chairman of the Pension Management Oversight Commission – and he quickly announced he would hold the vote until the next meeting.

At issue is a contentious pension cut for soon-to-be retired teachers and public employees.

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 savings account and cash out for a lump sum or annuitize it with the Indiana Public Retirement System to receive monthly annuity payments calculated with an automatic 7.5 percent interest rate.

About 50 percent of retirees take the annuity option.

The topic arose during the last few days of the legislative session in April, but the provision was removed from the budget [to allow an opportunity] for public vetting.

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

The board making the change said it didn’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.

But instead of modestly dropping the rate, the panel decided 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.

Here is the webpage for the Pension Management Oversight Commission. A webcast of its August meeting is archived, so one may expect the same for yesterday's meeting in a few days.

Posted by Marcia Oddi on Tuesday, September 24, 2013
Posted to Indiana Government

Monday, September 23, 2013

Ind. Decisions - Tax Court decides one today

In Shelby County Assessor v. CVS Pharmacy, Inc. #6637-02, an 8-page opinion, Sr. Judge Fisher writes:

The Shelby County Assessor challenges the Indiana Board of Tax Review’s final determination upholding the 2007 and 2008 real property assessments of CVS Pharmacy, Inc. #6637-02 (CVS). The Court, finding the final determination proper, affirms. * * *

In its final determination, the Indiana Board found that the Assessor’s evidence was not probative in establishing that her original assessments of the subject property were incorrect. The Assessor has, on appeal, essentially asked the Court to reweigh her evidence; the Court may not do so. See Kerasotes, 955 N.E.2d at 880. The Indiana Board’s final determination in this matter is therefore AFFIRMED.

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Ind. Tax Ct. Decisions

Courts - More on "link rot" in SCOTUS opinions

The ILB posted on July 10th about this article by Raizel Liebler & June Liebert in 15 YALE J.L. & TECH. 273 (2013).

This May 20, 2011 post links to another article, on LLRX.com, titled "'Link Rot' and Legal Resources on the Web: A 2011 Analysis by the Chesapeake Digital Preservation Group."

Today, Adam Liptak, in his NY Times "Sidebar" column, writes of "In Supreme Court Opinions, Clicks That Lead Nowhere." He reports on a third "link rot" study, apparently out today, titled "Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations," by Joathan Zittrain and Kendra Albert.

Today's Liptak column concludes:

The Supreme Court has taken modest steps to address the matter. Its opinions note the date each site was last visited, and its clerk keeps a hard copy of those materials. In an interview, Ms. Liebler [of the Yale article] said the court should do more.

“It’s a half measure to put a piece of paper in a court file,” she said. “This is the Supreme Court, and it’s their responsibility to make these things available.”

The United States Court of Appeals for the Ninth Circuit, in San Francisco, could serve as a model. It maintains an electronic archive of what it calls “webcites” in the PDF format.

Professor Zittrain and his colleagues are at work on a more ambitious solution, Perma.cc, a platform built and run by a consortium of law libraries. It allows writers and editors to capture and fix transient information on the Web with a new, permanent link.

The project is initially focused on legal scholarship. And there is no reason, Professor Zittrain said, why it could not also work for the Supreme Court.

ILB: I agree with the Liebler/9th Circuit approach. And I believe it should be followed here in Indiana by our Supreme Court/Clerk of the Courts. (Administrative law might serve as an example, if an agency adopts rules incorporating documents by reference, it has a responsibility to keep those documents readily available for perusal - and all this can be made much simpler digitally.)

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In C. Subah Packer v. The Indiana Department of Workforce Development, a 10-page opinion, Judge Najam writes:

C. Subah Packer appeals the decision of the liability administrative law judge (“LALJ”), following a hearing, determining that Packer owes unemployment insurance for 2008, 2009, 2010, and 2011, plus interest and penalties. Packer raises a single issue for review, namely, whether her employees at Boone Ridge Stables performed non-agricultural work and, therefore, whether she owes unemployment insurance tax contributions for the years audited. * * *

Packer contends that she is not liable for unemployment compensation tax “as a matter of law” because the nature of her employees’ labor was strictly agricultural. In essence, Packer challenges the determinations that some of the horses at the stable are not agricultural commodities, that any part of her employees’ work is non-agricultural, and, therefore, that all of their wages are subject to taxation under the Act. We consider each point in turn. * * *

It is an employer’s responsibility to maintain adequate employment records. But Packer “did not maintain records to establish the amount of wages paid to individuals for services performed in non-agricultural labor.” Thus, the LALJ could not make an evidence-based determination of which employees and how many hours were attributable to agricultural and non-agricultural labor, and the Department could not calculate the amount of unemployment compensation taxes owed solely for non-agricultural labor. Under that circumstance, the LALJ determined that Packer owed unemployment compensation taxes on the entire amount paid to her employees for the years in question. To conclude otherwise would have allowed Packer to escape liability for taxes owed for non-agricultural labor. We cannot say that the LALJ’s factual determination is arbitrary, unreasonable, against the evidence, or contrary to law. As such, we affirm the LALJ’s determination that Packer is liable for unemployment insurance taxes for the audited years.

In Antrooine A. Manning, Jr. v. State of Indiana, an 11-page opinion, Sr. Judge Darden writes:
Antrooine Manning, Jr., appeals the denial of his petition for post-conviction relief. We affirm.

Manning raises several issues, which we consolidate and restate as whether the post-conviction court erred by denying relief. * * *

Manning’s post-conviction claims do not provide any basis for relief, much less present an extraordinary circumstance such as where this Court’s decision in his direct appeal was clearly erroneous and would work a manifest injustice. The post-conviction court therefore properly found his claims barred by res judicata.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Terry Rexing v. State of Indiana (NFP)

Jimmie Jones v. State of Indiana (NFP)

Jerry Downs v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: HEA 1006, the revised criminal code, under review

This ILB entry from Sept. 22nd, after reviewing an excellent story Maureen Hayden, CNHI Statehouse Bureau, ended:

Note: Some prosecutors object to the reductions in penalties - see this letter headed "New law needs tougher penalties" in the South Bend Tribune, from Michael A. Dvorak, prosecuting attorney for St. Joseph County, and David R. Holmes, prosecuting attorney for Marshall County.
Now today, Karen E. Richards, the prosecuting attorney for Allen County, has a nearly identical letter in the Fort Wayne Journal Gazette. Hmmm.

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Indiana Law

Ind. Law - "Lawmakers get pressure from conservative group on same-sex marriage ban"

In more legislative news today, the Indianapolis Star has a long front-page story by Barb Berggoetz that begins:

More than three months before the 2014 Indiana legislative session begins, pressure is building for lawmakers to stake their ground — again — in the fight over putting a same-sex marriage ban in the state constitution.

Advance America, a prominent conservative interest group supporting the proposed amendment, has asked legislators to answer a survey about their voting intentions by Wednesday. * * *

Within the Senate Republican caucus, the discussion Tuesday could be different than it was in 2011, when the proposed amendment easily cleared the legislature.

Some lawmakers are keeping an eye on changing public attitudes toward same-sex ­couples.

“I think the times have changed, as have people’s attitudes toward it,” said Sen. Thomas Wyss, R-Fort Wayne, who voted for the amendment in 2011.

While he feels strongly that marriage should be between a man and a woman, Wyss said he is “uncomfortable” with a provision in the proposed amendment that also would ban civil unions.

“This time, I’ll just go through the same (thinking) process,” said Wyss, who is not running for re-election next year. “If I still feel that ­strongly, I will vote that way again. If it’s amended, that gives me more credence.”

He said his Advance Ameri­ca poll “went into the trash” like most surveys he receives. * * *

Interest groups polling legislators about their views on upcoming topics is not unusual, especially before an election. But some legislators say they routinely don’t answer such polls — even if they support the issue in question — because their answers can be misinterpreted and wrongly used against them. They say a bill might end up being worded differently or amended in a way that would change their stance. * * *

Advance America, which identifies itself as pro-family, pro-church, pro-tax reform and pro-private and home school organization, says it has 45,000 families, 3,700 churches and 1,500 businesses as supporters.

The newly formed Freedom Indiana coalition working against the amendment — buoyed with twin $100,000 checks from Eli Lilly and Co. and Cummins Inc. — isn’t planning to formally poll legislators, said campaign manager Megan Robertson.

She said the group’s focus is on “making sure constituents who support our efforts know how to contact legislators and have the right information, ­resources and tools to talk to them about how this amendment will negatively affect their lives, families, friends, businesses and the state.”

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Indiana Law

Ind. Law - "Ag-gag resurfaces"

The Fort Wayne Journal Gazette reports in an editorial today:

The infamous ag-gag bill, which was allowed to die in the last hours of the last legislative session, is being resurrected at the Interim Study Committee on Economic Development. The committee meets Wednesday in Indianapolis.

The purported issue of “Trespassing for the purpose of harming a business and making video images of a business with the intent to falsely portray the operations of a business” was assigned to the Indiana General Assembly committee in the spring. Hoosiers should expect a rehash of many of the arguments raised in the last session during debate over S.B. 373 sponsored by Sen. Travis Holdman, R-Markle, and Rep. Bill Friend, R-Macy.

“Obviously, the concern is there really is no need for a bill like this, which will, in effect, chill any journalistic investigation or animal welfare interests,” said Kim Ferraro, staff attorney and director of water and agricultural policy at the Hoosier Environmental Council. “There are already laws in place to address the concerns of livestock operators.”

She correctly points out that the state already has laws to address all the concerns representatives of the confined animal feeding operation industry are raising. Those laws already protect agricultural business owners from people who gain access to their property without permission, or who may try to use distorted pictures or video to damage the reputation of the business.

Opponents of ag-gag legislation reasonably fear that it obstructs First Amendment rights. Such legislation also protects illegal and unethical practices while punishing whistleblowers.

“Really, this is just about criminalizing these activities to keep the public in the dark,” Ferraro said. “I know there is a large coalition of interested groups that will be there, including the HEC.”

Here is the agenda for the Wed., Sept. 25th meeting. The item is listed as:
Trespassing for the purpose of harming a business and making video images of a business with the intent to falsely portray the operation of a business.
As noted on the agenda, the meeting will be videocast.

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Indiana Law

Ind. Courts - "Appellate Clerk Cracking Down on Single-Spacing in Briefs and Motions"

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

The Appellate Rules detail a number of requirements for appellate briefs, including acceptable fonts, page numbering, colors of covers, and so on. Non-conforming briefs are marked “received” instead of filed, and counsel is given an opportunity to remedy the error along with a helpful check-box form.

In the past week or so, though, experienced appellate lawyers who have long filed appellate briefs that single-spaced their Statement of Issues or single-spaced a bullet-pointed list of items in a brief or motion (such as other work that necessitated an extension of time) were surprised to have their briefs rejected. Even single-spacing of point headings led to the initial rejection of a brief, although that brief was accepted later in the day.

Appellate Rule 43(E) provides: “Spacing. All printing in the text shall be double-spaced except lengthy quotes and footnotes shall be single-spaced. Single-spaced lines shall be separated by at least 4-point spaces.” Rule 34(G)(1) requires motions to conform to the requirements of Rule 43 (B)-(G).

I have never single-spaced my Statement of the Issues but have occasionally included bullet-pointed items that were single-spaced.* I cannot quarrel with the Clerk Office’s view that a fair reading of Rule 43(E) requires double-spacing of both. But I am at a loss to understand why a practice that seems to have been acceptable since the adoption of the current Appellate Rules more than a decade ago suddenly became grounds to reject a brief in September 2013—with no advance notice to the appellate bar. Because no notice of the change in practice was provided, lawyers have been required to have briefs reprinted and motions recopied. In appointed counsel cases, that means taxpayer money for the lawyer’s time (if paid hourly) and the expense of brief-binding (which can easily be a $100 or more for one case).

My point in writing this post, though, is primarily to give notice to lawyers who have not filed a brief in the past week or two of this change in practice so they can avoid the need and expense of re-doing a brief or motion. My understanding is that briefs may single-space point headings. And, of course, Rule 43 expressly requires the single-spacing of long quotations (blocked and indented) and footnotes. Otherwise, and if doubt, DOUBLE-SPACE.

But what about charts or tables? I had planned to include this single-spaced chart in an Appellate Clinic brief that was due Friday. After running it by the Clerk, however, we instead filed this silly-looking double-spaced chart. I think it’s fair to read Rule 43(E) to require double-spacing, but I have never seen a double-spaced chart in a brief. Consider, for example:

I was not able to find a double-spaced chart in a brief. Perhaps mine will be the first.**

I hope it will also be one of the last. I hope the Rules Committee and ultimately the Indiana Supreme Court will amend the rule to allow charts or tables to be single-spaced. I suspect judges would rather see the information on one-page rather than being required to flip between two pages.
_______________

*Some Court of Appeals’ opinions single-space the issues, such as this recent opinion from Judge Friedlander and this one from Judge Barnes. Judge May appears to double-space the issues presented.

**Another approach would have been to attempt to file the brief with the single-spaced TABLE. Would the counter clerk look through each of the fourteen pages to ensure compliance with the double-spacing mandate of Rule 43(E)? I did not want to take a chance. Others may take a different approach and can debate whether it is a good use of staff time to look through every page of a brief (some of which are thirty or forty pages) to ensure compliance with the rules.

[ILB note at 1:01 PM] Minor changes made to reflect that both briefs and motions are included in the requirements.

Posted by Marcia Oddi on Monday, September 23, 2013
Posted to Schumm - Commentary

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

From Sunday, September 22, 2013:

From Saturday, September 21, 2013:

Posted by Marcia Oddi on Monday, September 23, 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 9/23/13):

Thursday, September 26

Next week's oral arguments before the Supreme Court (week of 10/3/13):

Thursday, October 3

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/23/13):

Tuesday, September 24th

Next week's oral arguments before the Court of Appeals (week of 9/30/13):

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, September 23, 2013
Posted to Upcoming Oral Arguments

Sunday, September 22, 2013

Environment - "Lake Michigan water use regulations coming in 2014"

Lauri Harvey Keagle reports today in the NWI Times:

PORTER | Users withdrawing water from the Lake Michigan basin may be required to comply with conservation and efficiency rules beginning in mid-2014.

Chris Smith, deputy director of the Indiana Department of Natural Resources, explained the temporary rule to the Environmental Quality Service Council at the legislative committee's meeting in Porter last week.

Smith said a temporary rule for permitting water withdrawals exceeding the maximum threshold took effect in November 2012. Public hearings on the rule will begin in January in a few locations around the state which have yet to be determined, Smith said.

Public comments are currently being collected and the new rule will take effect in June, he said.

As part of the rule, voluntary water conservation and efficiency programs for users already covered by the compact will go into effect next year as well. Smith said any user who maintains current water level usage or less will be able to participate in the voluntary program.

If a current user exceeds the current level or if a new user receives a permit, they will be required to adopt conservation and efficiency programs, Smith said.

The rule falls under the state's oversight of the issue under the Great Lakes Compact. The compact is an agreement established in 2008 between the Great Lakes states and Canadian provinces regulating movement of water outside of the Great Lakes basin.

The purpose of the compact, Smith said, is "to provide effective, consistent water resource management to prohibit Great Lakes water resources from drastically leaving the area."

"As a state, we are pretty blessed with our water availability but there are some areas to the south that need to be worked on," Smith said.

Smith said irrigation is the main use of water in the Lake Michigan basin and throughout Indiana. Overall, Indiana facilities are withdrawing less than capacity throughout the state.

For more on the Great Lakes Compact, see these ILB posts, and including this one from Feb. 20, 2008, headed "Governor signs Great Lakes Compact."

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to Environment

Ind. Gov't. - "History lessons escaped Bennett" writes FWJG [Updated]

Karen Francisco, editorial page editor of the Fort Wayne Journal Gazette, has a long editorial in Sunday's paper, recalling the plight of a former Superintendent of Public Instruction:

The year was 1985 and Republicans ruled the Statehouse. They held the governor’s office, as well as majorities in both the House and Senate. Republican Harold Negley had been superintendent of public instruction since 1973.

But Negley’s tight hold on the office was revealed to have as much to do with political machinations as with public support for his school policies. A grand jury investigation of ghost employment charges in the Indiana Department of Education resulted in the indictment of a top education adviser to Gov. Robert Orr and an education department auditor. Paul Krohne, the assistant to Orr, was indicted on two counts of ghost employment and one of conspiracy to commit ghost employment. The indictment alleged that as Negley’s deputy superintendent, Krohne assigned department employees to work during state time on the superintendent’s re-election campaign.

Negley resigned and pleaded guilty to conspiracy, ghost employment and official misconduct charges. He was fined $1,000 and ordered to perform 200 hours of community service. Marion County Prosecutor Stephen Goldsmith, a Republican, handled the prosecution.

The editorial continues:
The checks and balances that revealed wrongdoing in Negley’s administration now appear to have failed Hoosiers in Bennett’s administration. It required another important check – the ballot box – to remove Bennett and reveal that campaign work was almost certainly being done with state resources by the superintendent and other top members of his staff.

Bennett’s defenders have worked furiously to spin the story to their advantage. They seized on a legislative review of the Christel House grade-change episode, claiming it vindicated the former superintendent. They charged that his successor, Glenda Ritz, leaked the emails to Associated Press reporter Tom LoBianco. A former Bennett aide-turned-lobbyist, Cam Savage, even questioned the reporter’s work.

“Is this distinguished journalism or just the by-product of old-school political leaking?” Savage wrote in a column for the Howey Political Report, suggesting that misconduct is somehow excused if it is uncovered by a whistleblower.

But then came another round of emails – this one detailing political activities done on taxpayer time and with state resources. The latest disclosures reveal efforts eerily similar to the history lesson Bennett and his staff ignored.

The editorial continues with examples of Bennett administration political activities on taxpayer time, with state resources.

Which caused me to search for, and locate, this story from the Dec. 3, 2012 issue of Education News - some quotes:

Of all the outcomes from this November’s elections, none proved to be a bigger shock to education reform advocates than the defeat of Indiana Superintendent of Public Instruction Tony Bennett. Bennett lost his bid for re-election to Democratic challenger Glenda Ritz, a Washington Township library science media specialist.

This week, while speaking at the meeting of the Foundation for Excellence in Education – a group focused on education reform founded by former Florida governor Jeb Bush – Indiana Governor Mitch Daniels claimed that the surprise loss was achieved through dirty politics by the unions opposed to Bennett’s reform ideas.

During his speech, Daniels accused teachers of using public resources for campaigning, including sending out emails during work hours and talking about the election and about Bennett during parent-teacher conferences.

[Updated at 3:15 PM] See also this NWI Times editorial from Doug Ross, editorial page editor, headed "Feds should launch Bennett investigation." Some quotes:
The latest allegations against former Superintendent of Public Instruction Tony Bennett — that state computers and possibly staff were used for his campaign fundraising — sound like something that might have happened in Lake County.

In fact, that's what Lake County Surveyor George Van Til is accused of doing. U.S. Attorney David Capp said in announcing the indictment last May that Van Til paid an employee $100 to swap out a hard drive on a county computer to cover his tracks.

Van Til, a Democrat, pleaded not guilty in Hammond federal court to six counts of wire fraud and two counts of obstruction of justice. We'll have to wait for the verdict after Van Til's trial to see whether he is guilty as charged.

We'll have to wait months, presumably, to see whether Bennett, a Republican, or any of his staff will face charges of campaigning on the state's time and using the state's equipment.

But the examination of emails — which are public records — by the Associated Press found evidence that Bennett's staff had access to a detailed, coveted database of top GOP donors on the Department of Education's computer server. * * *

Bennett's actions should be investigated as thoroughly as if he were a Democrat in Lake County. * * *

If he and his staff are exonerated, fine. But if prosecution is warranted, don't assume that Lake County is the only place where this can happen.

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to Indiana Government

Law - State Bar of Michigan under attack for its position on judicial campaign finance

Michigan has an integrated or mandatory bar. Indiana has a voluntary bar association. Here is an interesting post from Saturday in the State Bar of Michigan Blog, which (incidentally) discusses the differences:

Michigan has been a mandatory bar since 1935 and has a proud history of great service to the public and our members. A mandatory bar association provides benefits for both the state and lawyers, which is why the majority of states require practicing lawyers to be members of a state bar. The alternative is a state licensing structure and separate bar association. A mandatory bar association is considered more cost-effective for both the state and members of the bar to provide regulation, promote the quality of the profession, and protect the public. The rationale for this unique licensing for lawyers is that unlike other professionals, lawyers are also officers of the court. From the moment they are sworn in as members of the bar they have a governmental role and responsibility.
The State Bar of Michigan is under attack from
... The Michigan Freedom Fund (MFF), a nonprofit organization supporting Michigan's right-to-work law, [that] announced its intent today to put the State Bar of Michigan out of existence. MFF's head, Greg McNeilly, told Gongwer News [that] part of the motivation was the State Bar’s "recent move to propose requiring disclosure of all spending in judicial campaign races, even if those ads do not expressly advocate for the election or defeat of a candidate for the court."Republicans, he said, "have been furious about the move by the State Bar."
See the post for more.

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to General Law Related

Ind. law - "Starting Tuesday, only subscribers will be able to view our exclusive and in-depth stories"

Bad news from the Evansville paper. Apparently not even a 5 or 10-page per month allowance, which will mean a big void in legal news from the SW part of the state. This may leave only the NWI Times and the Fort Wayne Journal Gazette as major Indiana newspapers that haven't been siloed.

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to Indiana Law

Ind. Law - HEA 1006, the revised criminal code, under review

Maureen Hayden, CNHI Statehouse Bureau, reported Saturday:

Earlier this year, Indiana lawmakers passed major sentencing reform legislation that rewrote the felony portion of the state’s criminal code, but left unanswered questions about its fiscal impact on local communities and the state prison system.

Now, two independent, state-funded studies are underway to provide more information to lawmakers as they move ahead with an ambitious effort to divert more low-level offenders out of the state’s Department of Correction and into community-based programs.

One study — being done by Georgia-based Applied Research Services — looks at whether the state’s new felony sentencing structure will reverse the historical trend of a rising prison population, or, as some fear, escalate it dramatically.

The other study underway, done by Indiana University criminal-justice researcher Roger Jarjoura, is looking at the fractured system of local treatment programs aimed at reducing recidivism to determine their costs and benefits.

The studies are being done at the request of the legislature’s Criminal Law and Sentencing Policy Study Committee. Its members have spent nearly four years reviewing and revising the state’s criminal code, which was last overhauled in 1977.

“We knew this was a big task, and we’ve gotten a lot of work done so far,” said State Rep. Greg Steuerwald, a Republican from Avon and former committee chairman. “I don’t think we realized the enormity of it, though.”

ILB: Notice that this Committee is the rare exception, in that it has its thorough minutes online, as well as archived webcasts of past meetings.

More from Hayden's story:

During the 2013 session, the General Assembly passed a 450-page bill, House Enrolled Act 1006, that rewrites the felony portion of the state’s criminal code. Authors of the bill, including Steuerwald, set out with several goals in mind: They wanted to reserve prison for the most serious offenders, ensure proportional penalties for different crimes, create like sentences for like crimes and increase the certainty on the length of prison sentences.

The new law expands the state’s four levels of felonies to six and it requires offenders to serve at least 75 percent of their prison terms, instead of the current 50 percent. It also reduces penalties for drug crimes — Indiana has some of the harshest in the nation — and it gives judges much more discretion to let low-level offenders serve their time in community-based correction programs.

But the law doesn’t go into effect until July. The bill’s authors fashioned it that way to give themselves time to figure out how much additional funding is needed to implement the law.

In late March, as the bill was being considered, officials with Department of Correction said the legislation would blow up the prison population. The DOC said several provisions in the bill — including tougher sentences for violent and sex crimes and the reduction in “credit time” that offenders could earn for good behavior and educational courses — would increase the state’s prison population by 70 percent in 20 years.

The DOC’s fiscal analysis caught lawmakers by surprise, since it conflicted with an analysis by the Legislative Services Agency — the nonpartisan research arm of General Assembly — that says the bill would lead to a small increase in prison population before significantly dropping off.

The bill also faced significant opposition from local court and criminal-justice officials, who supported the larger goal of sentencing reform, but feared the new law would just result in cost-shifting from the state to local communities.[ILB: But see note below.]

Indiana spends about $720 million a year on prisons. But the new law came with no funding for the local jails, community corrections programs and probation departments to absorb the low-level offenders that are supposed to be diverted from the state prisons under the new law. And it came with no additional funding for the critical mental health and substance-abuse treatment programs that are seen by judges, prosecutors and defense attorneys alike as critical to reducing recidivism.

About 40 percent of offenders who come out of the DOC commit another crime within three years.

Larry Landis, head of the Indiana Public Defender Council and a member of the study committee, said studies have shown about 80 percent of incarcerated offenders have drug or alcohol addictions or other mental health problems.

“You can’t just put someone on the probation rolls and hope for the best,” Landis said.

He worries that it may be tough politically to get more funding for treatment programs, since supporters of alternatives to prison can be seen as “soft on crime.” But he also believes it critical and hopes legislators see it that way too.

“We’ve got to stop spending all our resources on punishment, and ask ‘How do we reduce recidivism?’ Because if we can reduce that, we reduce crime and then we all win.’"

The excellent story concludes:
Steuerwald is confident that the two current studies will help lawmakers move forward.

“There are a number of states that have already done sentencing reform, and have found that it not only reduced costs but reduced crime rates and reduced recidivism,” he said. “So that’s the goal. I think almost everybody in the criminal justice system understands that, but it’s just a matter of getting right.”

The two studies aren’t expected to be completed until later this year, which required the legislative study committee to get permission from legislative leaders to extend their deadline until the year’s end for completing their work. Legislative study committees typically have until late October to complete their work.

Note: Some prosecutors object to the reductions in penalties - see this letter headed "New law needs tougher penalties" in the South Bend Tribune, from Michael A. Dvorak, prosecuting attorney for St. Joseph County, and David R. Holmes, prosecuting attorney for Marshall County.

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to Indiana Law

Ind. Gov't. - "Starke Commissioners Discuss Drafted Golf Cart Ordinance"

From K99.3 FM, "The Voice of the Valley", Ben Haut reported Sept. 20th:

After receiving a number of complaints from various lake associations, like the Bass Lake Property Owners Association, the Koontz Lake Association and the Boa Shores Association, the Starke County Commissioners this week held a public hearing for an ordinance regulating the use of golf carts in the county. Commissioner Kathy Norem explained during the hearing that the associations around Koontz and Bass lakes requested that the commissioners consider an ordinance regulating golf carts around the lakes, and with the sheriff’s input and help from the county attorney and highway superintendent, Norem said they now have a drafted ordinance that should suit the needs of the county.

Because the ordinance allows for penalties for violations, Norem said the commissioners must hold hearings before it can become official. She said the ordinance regulates golf carts and other four-wheeled utility vehicles – or Gators – but does not regulate mopeds or scooters. The ordinance calls for registration and inspection of the vehicles by the sheriff’s department, and they can only be operated in areas with speed limits of 35 mph or less.

Further, they cannot be operated on sidewalks and they cannot tow other vehicles or objects. There is an annual $25 fee associated with registering golf carts, and a curfew of 11 p.m. is enforced. Golf carts that do not have headlights can only be operated from dawn til dusk.

The vehicles must have rearview mirrors, serial numbers, brakes, and brake lights, and can only be operated by licensed drivers. The vehicles cannot be operated on state highways.

Fines for violations of the ordinance can be as steep as $250.

The commissioners took the matter under advisement and will hold another hearing in the future.

Posted by Marcia Oddi on Sunday, September 22, 2013
Posted to Indiana Government

Saturday, September 21, 2013

Ind. Decisions - "Settlement reached in Muncie Central rape suit"

Douglas Walker reports in the Muncie Star-Press today:

MUNCIE — A lawsuit over a 2010 sexual assault at Central High School has been resolved.

Court documents reflect the victim of the attack, and her mother, have “amicably settled” their claims against defendants Muncie Community Schools, ex-MCS Supt. Eric King and former Central principal Chris Smith.

The terms of that out-of-court settlement were not detailed in the documents. Indianapolis attorney Cari L. Sheehan, who represented the assault victim and her mother, said Friday the terms of the deal were “confidential.”

Delaware Circuit Court 1 Judge Marianne Vorhees, meanwhile, has granted a motion for summary judgment against the lawsuit’s fourth defendant, Steven B. Moore, the Central student who assaulted the girl, then 16, in a bathroom at the high school on Nov. 9, 2010.

The request for summary judgment noted that Moore had pleaded guilty to criminal confinement and sexual battery. The Muncie man, now 19, received a four-year prison term, and has since been released.

The judge has scheduled an Oct. 9 hearing at which she will determine what damages should be assessed against Moore.

In the lawsuit, filed in July 2011, the victim’s mother alleged after he daughter reported to Central administrators that she had just been sexually assaulted in a school bathroom, then-principal Smith failed to immediately notify police, including off-duty officers working that day as Central security guards. Moore, meanwhile, was allowed to leave the school. * * *

In March 2012, Delaware Circuit Court 4 Judge Thomas Cannon Jr. found Smith guilty of a misdemeanor, failing to immediately report child abuse or neglect.

Last January, however, the Indiana Court of Appeals overturned Smith’s conviction. The Indiana Supreme Court next month is set to hear arguments on a request by the state Attorney General’s office to reinstate the principal’s conviction.

For more information, see this March 8, 2013 ILB post, headed "State AG wants Smith conviction reinstated," which includes details of the 2-1 COA ruling, where the dissent writes that the verdict "undermines Indiana’s child-abuse reporting statute."

Here is the link to the upcoming, Oct. 31st, Supreme Court oral argument.

Posted by Marcia Oddi on Saturday, September 21, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Say it isn't so! "Danville upholds ordinance prohibiting chickens"; Muncie woman battles similar prohibition

Although many cities and town in Indiana permit chickens, some do not.

From the Hendricks County Fever, this story dated Sept. 18 by Devan Strebling:

DANVILLE- The work/study, portion of the Danville Town Council meeting resulted in a discussion on the topic of farm animals in town limits. An ordinance passed in the 1970s prohibited chickens from being raised in the town limits, but many residents were apparently unaware of such an ordinance.

Council members said they have been hearing complaints from residents about the chickens, mostly in regards to the noise nuisance they present.

There are residents in Danville who own chickens that have now started a petition to change or eliminate the ordinance and to allow the chickens in town.

The petitioners say the noise coming from dogs in the town is much louder than their chickens have ever been. * * *

"We have had the chickens for 4 1/2 year and none of the neighbors have a problem with them," one petitioner said. We have seven chickens and we consider them our pets."

town council member Marcia Lynch said the chickens could attract predators such as coyotes and foxes into the town.

"My fear is that the chickens would attract these predators, creating danger to the kids in town," Lynch said. * * *

The town council also said that property values are an issue. If someone wanted to buy a home that happened to be located next to a home with chickens, they fear the buyers would back out.

After some discussion, town council members decided to uphold the ordinance prohibiting chickens from being raised in town limits, saying the majority of the residents here are against it. They gave the petitioners 30 days to find new homes for their chickens.

From today's Muncie Star Press, a long story by Jordan Kartholl headed "Urban farmer launches battle to keep chickens in downtown Muncie."

Posted by Marcia Oddi on Saturday, September 21, 2013
Posted to Indiana Government

Friday, September 20, 2013

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

For publication opinions today (2):

In Walter E. Lunsford v. Deutsche Bank Trust Company Americas as Trustee, a 13-page opinion, Judge Baker writes:

In this case, we find the old adage “first in time is first in right,”1 to be as instructive as it has been throughout 200 hundred years of property and debt collection jurisprudence. Appellant-defendant Walter E. Lunsford entered into a land contract with Elizabeth Cottler; however, it was not recorded until almost six years later. In the meantime, Cottler executed a promissory note secured by a mortgage to a financial institution, which promptly recorded its security interest before Lunsford’s interest was recorded.

Cottler defaulted on the loan, and the financial institution, appellee-plaintiff Deutsche Bank Trust Company Americas as Trustee (Deutsche Bank), which had been assigned the promissory note and the mortgage, initiated foreclosure proceedings against Cottler. Lunsford was joined as a defendant to assert any interest he might have by reason of his land contract.

Deutsche Bank filed a motion for summary judgment, which was granted following a hearing. The trial court entered a decree of foreclosure, thereby foreclosing Lunsford’s land contract and ordered a sheriff’s sale.

Lunsford appeals pro se, raising numerous arguments, including that Deutsche Bank does not exist, that it refused Lunsford’s attempts to tender payment, that it failed to join an indispensable party, namely, the trust, and that Deutsche Bank failed to produce the original loan documents. Finding no merit in Lunsford’s arguments and that Deutsche Bank was the holder of the promissory note and mortgage and had the authority to enforce these documents, we affirm the trial court’s order granting summary judgment in favor of Deutsche Bank. * * *

In the instant case, the mortgage was recorded on August 25, 2005, by the Recorder of Hancock County. Lunsford’s Land Contract was recorded on March 8, 2006, which was over six months after the mortgage was recorded and perfected. Consequently, the mortgage is senior in priority to Lunsford’s Land Contract. Moreover, because Lunsford was made a party to Deutsche Bank’s foreclosure action and given the opportunity to assert his junior interest in the Real Estate, the judgment is conclusive on him. See Mid-West Fed. Sav. Bank v. Kerlin, 672 N.E.2d 82, 85 (Ind. Ct. App. 1996). Thus, we affirm the trial court’s order granting Deutsche Bank’s motion for summary judgment.

In Linda M. Neese v. State of Indiana, a 9-page opinion, Judge Crone writes:
Linda M. Neese appeals her conviction for one count of class A misdemeanor check deception. Neese asserts that the State presented insufficient evidence to support her conviction. Neese also asserts that the State presented insufficient evidence to rebut her statutory affirmative defense beyond a reasonable doubt. Finding the evidence sufficient to support the conviction and that Neese failed to meet her initial burden to establish her affirmative defense by a preponderance of the evidence, we affirm.
NFP civil opinions today (1):

In Re the Term. of the Parent-Child Relationship of F.L. and B.L., Minor Children, and their Mother, B.L. and their Father D.L., B.L. and D.L. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

William Temple v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 20, 2013
Posted to Ind. App.Ct. Decisions

Courts - Justice Ginsburg celebrates 20 years on the SCOTUS with a speaking tour around county

Beckley Law has a lengthy story by Susan Gluss headed "US Supreme Court Justice Ginsburg Captivates Berkeley Law." It begins:

U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, considered the “Thurgood Marshall” of the women’s rights movement, addressed a packed house of Berkeley Law students, faculty, and staff this week. As the diminutive Justice walked to the podium, the crowd erupted into thunderous applause. The event was held just blocks from the law school at the First Congregational Church to accommodate the capacity crowd of 600.

Ginsburg’s visit coincided with a personal milestone: 20 years on the High Court. During the past two decades of the Court’s conservative dominance, she’s become a leading dissenter. She talked about some of the more contested rulings of the 2012-2013 session, among others, often quoting from her own dissents.

Ginsburg discussed affirmative action, voting rights, employment discrimination, and same-sex marriage (the Justice was the first to officiate a same-sex wedding in Washington, D.C. a few weeks ago).

During this term, the Court struck down a key section of the 1965 Voting Rights Act. It was a decision Ginsburg called “profoundly misguided.” She noted that, in 2006, Congress voted to re-authorize the act by an overwhelming majority, giving “voice to every voter in our democracy.”

Ginsburg criticized the Court, citing subtler modern-day forms of voter discrimination, such as newly restrictive polling hours and inconvenient locations. She quoted civil rights leader Martin Luther King, Jr., in her dissent:

“The great man who led the march from Selma to Montgomery, and there called for the passage of the Voting Rights Act, foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”

Clearly frustrated, Ginsburg leaned toward her microphone asked the rapt crowd, “What has become of the Court’s usual restraint?”

The story also describes Ginsburg's visits to the two civil procedure classes taught separately by two of her former clerks.

Today at Philly.com, Chris Mondics reports in a story that begins:

With her tortoiseshell glasses, gentle demeanor, and quavering voice, Ruth Bader Ginsburg projects the quintessence of judicial demeanor and focused academic intensity.

Yet when she slowly, and it seemed carefully, entered the second-floor auditorium of the National Constitution Center on Sept. 6 for a talk about the modern Supreme Court and its discontents, the 800 or more spectators in attendance greeted her like a rock star.

They whooped with shouts of approval and encouragement as she took the stage - an infrequent reception for a cloistered and composed associate justice of the U.S. Supreme Court.

Posted by Marcia Oddi on Friday, September 20, 2013
Posted to Courts in general

Law - More on: GPO posts massive analysis of constitutional cases decided by the SCOTUS

Yesterday I wrote about massive volume available for download from the GPO, "The Constitution of the United States: Analysis and Interpretation, Centennial Edition," current to June 26, 2013.

Today I write to note that this 3,000-page "Constitution Annotated" is also available as an app.

I've just installed it on my iPad, to check it out before recommending it, as I thought it might be clunky. But it is nice, although I don't see a way to send selections to a printer.

Posted by Marcia Oddi on Friday, September 20, 2013
Posted to General Law Related

Thursday, September 19, 2013

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

For publication opinions today (4):

In Beneficial Financial 1 Inc., Successor in Interest to Beneficial Mortgage Co. of Indiana v. Sharon Hatton, a/k/a Sharon J. Hatton, First Select, Inc., Calvary SPV, II, LLC, and Discover Bank, an 11-page opinion, Judge Friedlander writes:

In this mortgage foreclosure action, Beneficial Financial I, Inc. (Beneficial), successor in interest to Beneficial Mortgage Company of Indiana, appeals an order of the trial court dismissing its amended complaint, pursuant to Indiana Trial Rule 12(B)(6), against, among others, Sharon J. Hatton. Beneficial presents the following restated issues for review: 1. Did the trial court err in dismissing with prejudice Beneficial’s amended complaint pursuant to T.R 12(B)(6)? 2. Did Beneficial state a claim upon which relief can be granted in alleging that it was entitled to enforce the promissory note and mortgage security instrument by virtue of the merger of Beneficial Mortgage Co. of Indiana into the surviving entity, Beneficial Financial I, Inc.? We reverse and remand. * * *

In summary, Beneficial’s complaint, complete with its attached materials, was sufficient to state a claim, thus rendering dismissal under T.R. 12(B)(6) erroneous. Moreover, Beneficial’s proof of status as surviving entity in its merger with Beneficial Mortgage Company of Indiana was sufficient to establish its standing to pursue an action to foreclose the security interest set out in the mortgage. This cause is remanded with instructions to reinstate Beneficial’s complaint for damages.

In In Re: the Paternity of: N.C.G., B.G., v. N.G., a 9-page opinion, Judge Baker writes:
In the instant case, after appellant-respondent B.G. (Father) established paternity over his son, he and appellee-petitioner N.G. (Mother), through mediation, agreed on almost every issue except N.C.G.’s surname, which was fervently contested. The issue of N.C.G.’s surname was deferred until Father filed a verified petition to change his name. After a hearing on the petition, the trial court entered findings of fact, essentially determining that the parents were in equipoise but denying Father’s petition because the child had been known by Mother’s surname for about two and one-half years, which was the approximate time that the issue had been under some form of mediation between the contentious parties.

An examination of our evolving caselaw indicates that so long as a father pays child support, exercises parenting time, and actively participates in the child’s life, then the best interests of the child may be served by giving the child the father’s surname to reinforce the bond between father and his nonmarital child, particularly if father is the noncustodial parent. Because Father has paid child support, exercised parenting time, actively participated in N.C.G’s life, and demonstrated that he wants his son to have his name to solidify the bond that Father has with his noncustodial son, we reverse the judgment of the trial court.

In Justine D. Maurer v. Crystal Cobb-Maurer, a 12-page opinion, Chief Judge Robb writes:
Justin Maurer appeals the trial court’s issuance of an Order for Protection against him in favor of Crystal Cobb-Maurer. Justin raises the following issue for our review: whether there was sufficient evidence to support the issuance of the protective order. Concluding there was not sufficient evidence for the trial court to issue the protective order, we reverse. * * *

After a review of the record, we are left with the firm conviction that there was not sufficient probative evidence presented at the hearing to support a finding that the contacts in evidence would cause a reasonable person and in fact caused Crystal to feel terrorized, frightened, intimidated, or threatened. Therefore, there was not sufficient evidence to support the trial court’s issuance of a protective order.

In Lily, Inc. d/b/a Weinbach Cafeteria and Fernando Tudela v. Silco, LLC., a 34-page, 2-1 opinion in a case involving a commercial lease, Judge Brown concludes:
For the foregoing reasons, we affirm in part the trial court’s order granting summary judgment to Silco, and reverse and remand for consideration of the issues related to attorney fees, mitigation of damages, and accounting. Affirmed in part, reversed in part, and remanded.

BRADFORD, J., concurs.
RILEY, J., concurs and dissents with separate opinion.

NFP civil opinions today (1):

In Re The Adoption of K.T.; J.T. v. A.A.B. (NFP)

NFP criminal opinions today (8):

Richard Reese v. State of Indiana (NFP)

Ronald Pearson v. State of Indiana (NFP)

James R. Dieterle v. State of Indiana (NFP)

Ivan Luis Vazquez v. State of Indiana (NFP)

J.D.M. v. State of Indiana (NFP)

Miles Toran v. State of Indiana (NFP)

Curtis F. Sample, Jr., v. State of Indiana (NFP)

Gregory Allen v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to Ind. App.Ct. Decisions

Courts - "We are not amused ..." - Supreme Court of New Jersey

See this post from How Appealing that begins "In this appeal the Court considers whether a part-time municipal court judge may also pursue a parallel acting and comedy career."

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to Courts in general

Ind. Courts - Keeping up with David Camm trial [Updated]

The third murder trial of David Camm, which began August 22nd (following a jury selection process that began August 12th), continues in the Boone County Courthouse in Lebannon Indiana. Perhaps to best way to keep up is to use this Google search, designed to produce all news stories mentioning "David Camm," most recent first.

To locate ILB entries, try this search.

[Updated] A reader points to two Louisville stations (which, unlike the LCJ, don't require a $$ subscription) for Camm coverage: 84WHAS.com, and WAVE3.com (not need to search, simply scroll down the page for results).

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to Indiana Courts

Ind. Courts - LaPorte County is developing veterans court

Matt Fritz's long story today in the Herald Argus begins:

La PORTE — Veterans ending up in the La Porte County criminal justice system over service related issues may soon have a second chance at turning their lives around.

That's because a team in La Porte County is developing a Veterans Treatment Court to help treat the underlying issues behind their crimes. And it's looking for veteran mentors.

On Tuesday, program team members, including La Porte County Superior Court Judge Jennifer Koethe, La Porte County Prosecuting Attorney Robert Szilagyi, attorney Kurt Earnst, La Porte County Veterans Service Officer George Watkins, and others, met with veterans at La Porte Superior Court 3 to discuss the reasoning behind the court and the recruitment needs for veteran mentors.

Koethe said this special court is designed to help veterans in the criminal justice system who suffer from alcoholism, substance abuse, anger management, mental illness, post traumatic stress disorder and other issues resulting from their tours of service.

She said crimes related to military service experience is only getting worse.

"I know there's a need because I see it in the defendants coming through court," she said, "and it's going to get worse with men coming back from tours in Iraq and Afghanistan."

She said team members are in the process of filling out a notice of intent with the Indiana Judicial Center, and hope to implement the court by April 1, 2014. A specific plan for the court, including who qualifies, is still under development. She said the team has been awarded a $40,000 grant from the Indiana Supreme Court to develop the program.

The program requires offenders to plead guilty to the crime and agree to undergo a 12 to 18 month treatment program, which will be designed around their individual needs. Veterans who are successful will have their charges reduced or dismissed. Those who are not successful will face a sentence based on their plea.

But Koethe said the mentoring portion is what makes the program unique. The program will assign each veteran one or more veteran mentors who understand what they are going through and can help them succeed in the treatment process.

"After they return (from service) veterans deal with isolation issues," she said, "secluding themselves from friends, family and society. Their mentor can be a friend they lean on for help to get them through this process."

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to Indiana Courts

About this Blog - ILB editor/publisher named the recipient of the ITLA's Journalist of the Year Award

I received notice earlier this week from Mark C. Ladendorf, President of the Indiana Trial Lawyers Association, that I have been named the recipient of the ITLA Journalist of the Year Award. Thank you very much to the ITLA, I am honored to receive this award! Thank you also for recognizing that a law blog can be a journalistic endeavor.

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to About the Indiana Law Blog

Ind. Law - Doing Indiana Legislative History, some tools and pointers

Yesterday I received this question from a long-time ILB supporter:

Hi Marcia:

I am trying to find a noncode provision that relates to the applicability of a change made in the law via P.L. 119-2008, section 8. I have no idea how to find it through Lexis.

Any advice?

My response:
I don't use Lexis, or West. Use this: The Indiana Law Blog's Legislative Research Shortcuts.

First convert the PL to bill number. Then look up under 2008 bills. Any noncode provisions should be at the end of the enrolled act.

Some additional notes to those unfamiliar with Indiana bills. "SECTION" is different from "Sec." "SECTION" refers to the sections of the bill, "Sec." refers to sections of the Indiana Code. In this case, you will find SECTION 8 on p. 8 of the Senate Enrolled Act. Its lead-in reads:
SECTION 8. IC 11-8-8-19, AS AMENDED BY P.L.216-2007, SECTION 27, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 19. * * *

The noncode SECTIONS are traditionally located at the end of the bill. In this there are two, SECTIONS 20 and 21. Here is SECTION 21:

SECTION 21. [EFFECTIVE JULY 1, 2008] IC 35-38-1-7.1, as amended by this act, and IC 35-42-4-12 and IC 35-52-4-13, both as added by this act, apply only to crimes committed after June 30, 2008.
Notice the difference, as this non-code SECTION does not amend the Indiana Code and the only place you will find it is in the enrolled act. But it is still law.

After a brouhaha a few years back, the General Assembly for the most part has stopped using this drafting technique and places such language in the Indiana Code. But it still exists with respect to older laws, and occasionally recent laws.

For another, more complex example of researching legislative history, see this ILB post from Feb. 21, 2009.

Posted by Marcia Oddi on Thursday, September 19, 2013
Posted to A teaching moment | Indiana Law

Wednesday, September 18, 2013

Environment - More on "Permit For Largest Surface Coal Mine in Eastern U.S. Invalidated"

Well, not exactly...

Today at mid-morning the ILB posted a news release from the Sierra Club, commenting on, and linking to, a 21-page ruling from the Indiana Office of Environmental Adjudication, dated a week ago, Sept. 11th. The Sierra Club news release was headed "Permit For Largest Surface Coal Mine in Eastern U.S. Invalidated."

Late this afternoon the ILB received a copy of the 4:04 PM news release issued by IDEM, who is the respondent, along with the permittee, Peabody Midwest Mining LLC, in this administrative permit challenge:

IDEM is pleased with the ruling in the Bear Run Mine matter. The Environmental Law Judge granted summary judgment for IDEM on five of the Sierra Club’s six claims, ruling that the Sierra Club failed to present sufficient evidence to show that the discharges from the mine “would contribute to violations of water quality standards” and that Sierra Club “failed to present sufficient evidence to justify an individual permit.” Order at 1-2.

Specifically, the Judge granted summary judgment in favor of IDEM on Sierra Club’s claims that IDEM failed to ensure that the mine’s discharges would comply with water quality standards (Order at 14); that IDEM failed to “assess the existing beneficial uses of the receiving waters” for the discharges (Order at 15); that IDEM’s “failure to issue an individual permit to Peabody was arbitrary, capricious and an abuse of discretion” (Order at 18); that the permit is not an enforceable NPDES permit “because it does not contain specific effluent limits, nor identifies best management practices” (Order at 19); and that the permit “does not require adequate monitoring of discharges and receiving waters” (Order at 20).

While the Judge remanded the modification “to conduct an antidegradation review” (Order at 17), she did not invalidate the permit. Thus, Peabody will have the opportunity to “demonstrate that the Discharges will not degrade the waters or that degradation is necessary for economic or social factors.” Id.

ILB: I read this to mean that Peabody will be able to continue to operate under the permit during any appeal of this ELJ ruling, plus during IDEM's antidegradation review and any subsequent challenge.

Here, from the ruling itself, is Environmental Law Judge Catherine Gibbs' summary:

Sierra Club moves for summary judgment alleging that the Indiana Department of Environmental Management (the IDEM) erred in issuing a modification to Peabody Midwest Mining LLC’s NPDES permit (Peabody) because the IDEM failed to perform certain analyses to ensure that the storm Water discharges from the Bear Run Mine (the Mine) would comply with the Clean Water Actl (CWA). Sierra Club requested that the IDEM be ordered to issue an individual permit for the Mine. The modification was issued under 327 IAC 15-7 (referred to as “Rule 7”), which sets out the requirements for storm Water discharges from coal mines. The ELJ concludes that Rule 7 is a properly promulgated regulation and that compliance with Rule 7 ensures compliance with the CWA. Sierra Club failed to present sufficient evidence to show that the specilic discharges from this Mine would contribute to violations of Water quality standards so that the requirements of Rule 7 were insufficient to ensure compliance with these standards. Further, Sierra Club failed to present sufficient evidence to justify an individual permit or that Peabody’s submission of its NOI did not Comply with all requirements of the General Permit and Rule 7 requirements, Summary judgment in favor of the IDEM and Peabody is appropriate on Counts l, 2, 4, 5 and 6.

Summary judgment is entered in favor of Sierra Club on Count 3. The IDEM failed to perform a Tier II antidegradation review as required by the rules in effect in 2010 when this modification was issued. It Was Peabody’s burden to make an affirmative demonstration that degradation of the receiving Waters was justified by economic or social factors and would not cause violations of Water quality. Peabody failed to do so at the time of the application for the Modification. The Modification is remanded to the IDEM to conduct a Tier II antidegradation review.

Finally, this evening at 5:42 PM, the ILB received this message:
Meg Gallagher, Peabody Energy

Hello Ms. Joddi: Per your blog entry, please note Peabody Energy's statement on this matter. We also offer the Indiana Star's story for reference, which reports on the ruling accurately. Please feel free to attribute this statement to a spokesperson at Peabody Energy.

Today's ruling reaffirms Bear Run's general permit as appropriate to the operation, and we will continue to review any additional steps to maintain compliance.
The message links to this story posted on the IndyStar website this afternoon, reported by Ryan Sabalow that begins:
An Indiana environmental judge has ruled that the largest surface-coal mine east of the Mississippi River did not adequately study or justify how much waste it is dumping into state waterways.

But Bear Run Mine in southwest Indiana withstood all other legal challenges related to its permitting requirements — a major point of contention among the state’s environmental groups, who argued Indiana should require the mine to obtain an individual permit to operate just as most other similarly sized mines do around the country.

Re "Peabody Energy's statement on this matter," the ILB has not seen this document.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Environment

Ind. Courts - IndyBar Assoc. is compiling wiki-style bios of Indiana's judiciary

Check them out here.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Courts

Ind. Law - Indiana's newest law school, Indiana Tech, has opening ceremony

Elie Mystal of Above the Law has a long post on the event, that begins:

Dean Of New Law School Gets Emotional, Mangles Shakespeare, Doesn’t Mention Tuition

Indiana Tech, a new law school in Indiana, had its opening ceremonies the other day. Chief Judge Frank Easterbrook of the Seventh Circuit was there. Indiana Attorney General Greg Zoeller was there. And of course new law dean Peter Alexander was there.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Anonymous, M.D. and Life Care Centers of America, Inc., d/b/a Lane House v. Evelyn Hendricks , a 14-page opinion, Judge Barnes writes:

Anonymous, M.D., and Life Care Centers of America, Inc., d/b/a Lane House (collectively “Lane House”) appeal the trial court’s denial of their motion to compel arbitration in a lawsuit filed by Evelyn Hendricks. We reverse and remand.

The reordered and restated issues before us are: I. whether an arbitration agreement signed by Hendricks’s health care representative, Marjorie Benge, binds Hendricks; and II. whether the arbitration agreement is still effective despite the unavailability of the arbitrator named in the agreement. * * *

Benge’s signature on the arbitration agreement is binding upon Hendricks under the undisputed facts of this case, and that agreement is not rendered impossible to perform and invalid because of NAF’s unavailability to conduct the arbitration. We reverse and remand for further proceedings consistent with this opinion.

In Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation, a 12-page opinion, Judge Pyle writes:
Lifeline Youth & Family Services (“Lifeline”) appeals the trial court’s denial of its motion to correct error following a jury verdict and award of damages entered in favor of Lifeline and against Installed Building Products, Inc. d/b/a Momper Insulation (“Momper”). We affirm. * * *

As noted above, we do not have a transcript of the jury trial because Lifeline did not request transcription of the trial. Therefore, we have no specific information regarding the evidence presented to support the jury’s damages verdict, any discussions or objections surrounding the trial court’s jury instructions on damages, or the procedural events surrounding the jury’s verdict awarding damages.

Lifeline’s failure to submit a transcript of the jury trial is in contravention of Indiana Appellate Rule 9(F)(5), which provides that an appellant’s Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.”

Our Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that “‘[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.’” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992)). Because Lifeline relies on the evidence presented during the jury trial in support of its argument challenging the amount of the jury’s damages verdict, we must conclude that Lifeline has waived any such damages argument and has failed to prove that the trial court abused its discretion by denying its motion to correct error.

In Brenda Hall v. Dallman Contractors, LLC, Shook, LLC and AT&T Services, Inc., a 13-page opinion, Judge Barnes writes:
Brenda Hall appeals the grant of summary judgment in favor of AT&T Services, Inc., (“AT&T Services”). We reverse and remand.

The dispositive issue is whether the designated evidence establishes that Hall’s negligence claim against AT&T Services is barred by the exclusive remedy provision of the Worker’s Compensation Act (“the Act”). * * *

Because there are genuine issues of material fact regarding whether AT&T Services was Hall’s employer or a joint employer, AT&T Services has not established that Hall’s negligence claim against it was barred by the exclusive remedy provision of the Act. Thus, summary judgment for AT&T Services was improper. We reverse and remand.

In Mario A. Allen v. State of Indiana, a 15-page opinion, Judge Riley writes:
Appellant-Defendant, Mario A. Allen (Allen), appeals his conviction for Count I, attempted robbery, a Class B felony, Ind. Code §§ 35-42-5-1; -41-5-1; Count II, robbery, a Class B felony, I.C. § 35-42-5-1; and his adjudication as an habitual offender, I.C. § 35-50-2-8. We affirm. * * *

Based on the foregoing, we conclude that (1) the trial court properly admitted and excluded certain evidence; (2) the State presented sufficient evidence beyond a reasonable doubt to sustain Allen’s conviction; and (3) the trial court did not violate Allen’s right to a speedy trial.

NFP civil opinions today (1):

Certain Properties Being Sold for Delinquent Taxes; Tax Sale Certificate #3910192 Parcel #39-0-17-114-024.000-007; Norman Eggers v. MLP Services, LLP and Jefferson County, IN. Auditor, et al. (NFP)

NFP criminal opinions today (7):

Anthony Michael Davis v. State of Indiana (NFP)

David Barbee v. State of Indiana (NFP)

Billye D. Gaulden v. State of Indiana (NFP)

Carlos Lamonte Minor v. State of Indiana (NFP)

Jennifer Barber v. State of Indiana (NFP)

Sanders Johnson v. State of Indiana (NFP)

Ryan Schonabaum v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Where are the Minutes from the Legislative Committee Meetings?"

The ILB loves it when it is not the only complainer. Just posted by the Indiana Juvenile Justice blog:

During the summer, several legislative committees have been meeting to discuss children’s issues, but many have not posted minutes from those meetings. The website for all of the interim and statutory committees is here. Examples of missing meeting minutes include:

The Child Services Oversight Committee for meeting on July 31, 2013.

The Indiana Commission on Developmental Disabilities for meeting on August 27, 2013.

School Safety Interim Study Committee for meeting on August 29, 2013.

At this time, the Commission on Improving the Status of Children in Indiana is not listed as a standing committee, and no notice, agendas, or minutes are posted on the Indiana General Assembly website. That Commission met on August 21, 2013, for the first time.

In addition, the ILB would like to see all interim committee meetings videocast, and the videocasts archived so that people throughout the State can review them.

[More] Some comments from the ILB on August 22nd on the first meeting on the Commission on the Status of Children, which was not videocast:

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.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Government

Environment - "Permit For Largest Surface Coal Mine in Eastern U.S. Invalidated"

That is the heading of a news release today from the Sierra Club, reporting on a 21-page ruling dated Sept. 11th by the Indiana Office of Environmental Adjudication. From the release:

INDIANAPOLIS - The State of Indiana has failed to comply with the Clean Water Act by allowing the Bear Run coal mine in Sullivan County to discharge toxic water pollution without first determining that local waterways would not be degraded, an environmental law judge has ruled.

The Bear Run mine is the largest surface coal mine in the eastern United States, producing between 8 and 12 million tons of coal annually. Environmental Law Judge Catherine Gibbs of the Indiana Office of Environmental Adjudication issued the ruling earlier this week in a case brought by the Environmental Law & Policy Center (ELPC), Hoosier Environmental Council, and the Sierra Club.

Gibbs sent the permit back to IDEM to conduct the required “anti-degradation” review, which must ensure there are adequate protections for existing uses of local waterways. In their challenge, ELPC, Hoosier Environmental Council, and the Sierra Club cited significant deficiencies in the state’s permitting process for the coal mine. “The Bear Run Mine is one of the least regulated coal mines of its size in the nation,” ELPC staff attorney Jessica Dexter said. IDEM's general permit rule failed to ensure that significant pollution threats are not unduly increased. “The one-size-fits-all approach ignores that this mine and this watershed has its own set of potential pollution issues that need to be addressed,” Dexter said.

"If you’re digging the largest surface mine east of the Mississippi River, Judge Gibbs recognizes that you must protect local waterways for the use of residents and wildlife. It's time for IDEM to start doing its job and protect the waters of Indiana from coal mine pollution, as the Clean Water Act requires," said Jodi Perras, Indiana representative for Sierra Club's Beyond Coal campaign.

“Indiana’s state environmental agency has rubber-stamped the Bear Run Mine using weak rules that aren’t on par with what we expect from other industries.” Dexter said. “IDEM needs to fix this broken permit program now.”

The environmental groups contend that the mine should have to fulfill its obligation to operate safely, including a thorough study of the mine’s wastewater and analysis of nearby waterways. Clean Water Act permits are intended to set meaningful limits on all pollutants that facilities discharge -- including toxic pollutants discharged by coal mines. An individual permit -- like the ones issued to other large mines in the United States -- would require Bear Run owners, Peabody Midwest Mining, LLC, to study the mine's wastewater, analyze nearby waterways, determine the threat of toxic contamination, and obtain a permit that sets pollution limits based on the waterways’ ability to handle the wastewater. The permit would also require regular water quality testing and reporting.

"IDEM's job is to protect the environment. There is simply no good reason for the agency to allow one of the largest coal mines in the country to get a pass in having to control its pollution discharges to the same extent required of other large industries." HEC staff attorney Kim Ferraro said.

Surface coal mining destroys local environments by bulldozing away earth and dredging waterways to extract coal buried near the surface. Surface coal mines like Bear Run pollute local waterways with toxic pollutants that can destroy habitats for fish and wildlife, and discharge toxic heavy metals that can contaminate surrounding waterways. Some of the toxic pollutants often found at surface coal mines include arsenic, lead, and mercury, which have been linked to serious health threats but are not required to be monitored under IDEM’s general permit.

ILB readers may remember that the Indianapolis Star on Jan. 8, 2012, ran a lengthy front-page story on Bear Run that continued on to a full inside page (now in the Star's paid archive, but here is a snippet). This Jan. 10, 2012 ILB post includes several additional links re Bear Run.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Environment

Law - GPO posts massive analysis of constitutional cases decided by the SCOTUS

This is been an ongoing U.S. Senate project, sometimes published with updates. But here, current to June 26, 2013, is "The Constitution of the United States: Analysis and Interpretation, Centennial Edition."

It is a nearly 15MB PDF document. From this GPO page, you can download or view it whole, or by sections. I'd recommend starting with the "Introduction to the 2012 Centennial Edition," which begins:

The need for a comprehensive treatise on the Constitution was apparent to Congress from early in the 20th century. In 1911, the Senate Manual (a compilation of the Senate’s parliamentary procedures) included the United States Constitution and amendments with citations to U.S. Supreme Court constitutional decisions. A century later, the field of constitutional law has expanded exponentially. As a result, this present iteration of that early publication exceeds 2300 hundred pages, and references almost 6000 cases. Consistent with its publication in the 21st Century, this volume is available at the website of the Government Printing Office and will be updated regularly as Supreme Court cases are decided. * * *

This brief survey is primarily a suggestive review of the Court’s treatment of the doctrines of constitutional law over the last sixty years, with a closer focus on issues that have arisen since the last volume of this treatise was published ten years ago. For instance, in previous editions we noted the rise of federalism concerns, but only in the last two decade has the strength of the Court’s deference toward states become apparent. Conversely, in this treatise as well as in previous ones, we note the rise of the equal protection clause as a central concept of constitutional jurisprudence in the period 1952–1982. Although that rise has somewhat abated in recent years, the clause remains one of the predominant sources of constitutional constraints upon the Federal Government and the States. Similarly, the due process clauses of the Fifth and Fourteenth Amendments, recently slowed in their expansion, remain significant both in terms of procedural protections for civil and criminal litigants and in terms of the application of substantive due process to personal liberties.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to General Law Related

Ind. Law - Upcoming battle over marriage equality in Indiana creates odd political pairings, and confusion

Tom LoBianco of the AP has a long story today (apparently much shortened by some local outlets) on "battle over amending the Indiana Constitution to ban gay marriage." Here is a section of the story that caught my eye:

When opponents of the amendment launched their campaign last month, they tapped a veteran Republican operative, Megan Robertson, to lead the charge. They then announced this week they had hired the director of the Democratic Party's field operations, Peter Hanscom.

Supporters, meanwhile, are counting on a base of conservative and rural Democrats to bolster their already strong position among legislative Republicans.

"This isn't an issue that's divided on party lines so much," said Robertson, campaign manager of Freedom Indiana, the group leading the fight against the amendment.

"It's a different kind of issue than what you see typically being discussed at the Statehouse. It's something where people can really come together regardless of what party they're from," she said.

Indiana already limits marriage to being between one man and one woman. But supporters are fearful a judge could overturn the state law, in part relying on this past summer's U.S. Supreme Court decision.

ILB: But having a ban in the Indiana Constitution rather than just in statute would make no difference in such a case. If Indiana's restricting marriage between same-sex couples were found to violate the U.S. Constitution, it wouldn't matter what the Indiana Constitution said on the issue.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Law

Ind. Courts - Report on local bar survey of St. Joseph Superior Court judges

Today Madeline Buckley of the South Bend Tribune reports on what looks like a useful survey by St. Joseph County Bar Association’s Board of Governors. Some quotes:

Attorneys who practice in the courthouse believe most St. Joseph Superior Court judges are performing well, as all but one judge received average or above average scores in all categories, according to the results of a survey that asked lawyers to rate judges on their legal abilities, efficiency, professionalism and integrity.

The St. Joseph County Bar Association’s Board of Governors executes the survey each year as an instrument to evaluate the judges who are not popularly elected.

The survey polls local attorneys on whether they believe the judges act fairly and impartially, keep their emotions in check, begin court on time, understand the law and issue rulings in a timely manner, among other things.

It asked attorneys to rate each judge on a scale of one through five in each of these categories — one being unacceptable; two, below average; three, average; four, above average; and five, exceptional.

The results were then analyzed by taking the average of the scores.

“It gives the judges feedback from the lawyers who appear before them on what they do well and how they can improve,” Joseph Fullenkamp, chair of the county bar association, said. “It also gives people who are never in court information to help them decide whether they will vote to retain or not retain a judge.”

The idea is to offer a tool to evaluate the judges who don’t launch public campaigns, so the Probate Court judge and Circuit Court judge are not included.

“Probate and Circuit Court judges may face opponents in contested elections, rather than a yes or no vote,” Fullenkamp said. “People can get information to decide how to vote from the candidates’ campaigns.”

On average, all the judges included in the survey received average or above average ratings (three or higher) in all categories except St. Joseph Superior Court Judge Jerome Frese.

Frese, who did not comment for this article, scored above average in some areas such as legal reasoning and understanding of the law, but attorneys rated him below average in all five categories relating to administrative capability and efficiency in the courtroom.

Frese also scored below average for “acts in a dignified manner” and “acts with patience and self-control.”

Attorneys evaluated Frese’s performance as below average in several categories last year as well, according to Tribune archives. * * *

Pitts Manier, who handles mostly civil cases in the Mishawaka courthouse, consistently scored the highest in all categories, as her ratings in each category averaged out to above average or higher.

Most judges on average scored in the range of 3.5 to 4.5 in each category.

Included with the story are links to the scoring documents for each of the judges.

This ILB entry
from Oct. 31, 2012 links to an earlier survey.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Courts

Ind. Courts - COA holds oral argument at Franklin College

And Lesley Weidenbener, executive editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students, was there and filed a long story, including a photo of Judges Baker and Brown. Judge Bradford was the third panel member. Some quotes:

An administrative law judge overstepped her boundaries by suspending an educator’s license on the grounds that the woman is unfit to teach, an attorney told the Indiana Court of Appeals on Tuesday.

Instead, the Department of Education’s administrative judge needed to have determined that Patricia Terkosky – who was a special needs teacher at an elementary school – either acted immorally or committed misconduct for actions taken against her students, said her attorney, Eric Hylton.

Those are two of the terms used in the state law that permits revocations and suspensions, he said. The administrative judge “used the wrong standard,” Hylton said. “She used unfit to teach, which is not” part of Indiana law.

But Deputy Attorney General Kyle Hunter said that the totality of Terkosky’s actions led the administrative judge to order the suspension. The teacher is accused of hitting two special needs students, grabbing one so hard she left a bruise and putting a cover over one’s head, which led to her firing from the Greene-Sullivan Special Education Cooperative where she taught for 23 years.

“She showed a level of immorality that fits under the definition in Indiana law,” Hunter said. * * *

At issue in part is whether the administrative law judge appropriately used California case law to determine that Terkosky’s actions made her unfit to teach. That out-of-state case dealt specifically with definitions of immorality, something that has not been addressed by Indiana cases in situations involving license revocations.

However, in a different context, an Indiana appeals court found that an educator’s conduct “is immoral if it is offensive to the morals of the community has a negative impact on the teacher’s students,” according to court documents.

Appellate Judge Cale Bradford said in this case, the administrative law judge made no such specific finding of immorality. Bradford asked the attorneys if the appeals court could simply send the case back to the Department of Education where an administrative law judge could make that determination. Hunter, the attorney for the state, said yes.

But Hylton, the attorney for the teacher, said that would be inappropriate and would invite the administrative judge to try to “put magic words in there” so that the decision would withstand appellate scrutiny.

Hylton asked the judges to set aside the two-year license suspension – even though Terkosky already has served it – to clear her name and enable her to find a new job.

“There’s still harm that can be undone,” Hylton said. The suspension will “hang on her the rest of her life.”

Hylton also argued that the administrative law judge did not have the authority to yank Terkosky’s license for two years because the state superintendent of public instruction had only requested it be revoked, not suspended.

But Hunter said superintendent is only recommending specific action and the administrative judge can choose the best option.

The oral argument was in the case of Patricia Terkosky vs. Indiana Department of Education.

Posted by Marcia Oddi on Wednesday, September 18, 2013
Posted to Indiana Courts

Tuesday, September 17, 2013

Environment - "Asian carp found in lake near Lake Michigan - 53 inches, 82 pounds"

Geez, it's bigger than my Golden Retriever!

From a brief AP story in the Lafayette Journal Courier this afternoon:

TRAVERSE CITY, MICH. — Members of Congress say the recent discovery of a large Asian carp near Lake Michigan underscores the need to separate the Great Lakes and Mississippi River watersheds in the Chicago area.

John Goss of the White House Council on Environmental Quality reported the find last week during a Great Lakes gathering in Milwaukee. He says the 53-inch, 82-pound fish was caught about a month ago in Flatfoot Lake on the Illinois-Indiana state line.

The lake is landlocked but very close to the Calumet River, which flows into Lake Michigan.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Environment

Ind. Decisions - "Court denies grandmother’s appeal in beating death"

Dellia Castile v. State of Indiana (NFP), decided today by the COA, is the subject of a brief story by the AP, and an equally brief story in the South Bend Tribune.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Wilk successfully petitions court to seal case records under new state law"

Madeline Buckley reported Monday in the South Bend Tribune:

A judge today sealed the records in a highly publicized child neglect case during which the mother of two young boys stood trial twice in connection with their deaths.

The petition to seal the records fell under a new state law that allows arrest records to be sealed if the arrest doesn't result in a conviction.

The law, which took effect this July, also allows for the expungement of certain felony convictions.

A grand jury indicted Jacqueline Wilk, 25, in May 2012 on two counts of neglect of a dependent, Class A felonies, in the deaths of Isaac Dunner, 2, and Dominick Wilk, 4.

But Wilk stood trial twice, and both times, the jury hung, which yielded two mistrials.

While playing a game, the boys locked themselves in the trunk of Wilk's car and died of overheating in June 2011.

The state dismissed the charges this June, more than a year after police arrested Wilk and two years after the boys died.

Under the statute, a judge must seal an arrest record if it did not yield a conviction, a year has passed since the arrest and the individual has no pending criminal charges.

With these criteria undisputed, St. Joseph Superior Court Judge John Marnocha sealed the case record, adding that he does not have discretion to do otherwise.

The law does not allow the judge to consider any other circumstances under this part of the legislation.

Wilk’s petition was an early application of a new law that has wrought some confusion throughout the state, as individuals rushed to go before judges seeking to sanitize their pasts while officials tried to work through the complicated legislation, which has several tiers of criteria for when a judge can and must seal or expunge records.

“I will say, this is somewhat of an odd situation,” Marnocha commented during the proceeding, noting that local media vigorously covered both trials as well as many pre-trial events.

A Google search turns up news reports that detail nearly every aspect of the case.

The judge also pointed out the irony of sealing records at a public hearing attended by members of the media and that portions of the new legislation seem to be at odds with Indiana public access laws.

“But I’m not a legislator. I’m a judge,” Marnocha said.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Indiana Law

Ind. Gov't. - "Kouts suspends action on new parking ordinance"

Phil Wieland reports in the NWI Times:

KOUTS | An ordinance that spent about five months on the drawing board before it finally was approved in August by the council is back on the drawing board again.

About 20 residents came to Monday's council meeting to protest the new requirement that all motorized vehicles in a residential area be parked on a hard surface, either pavement, concrete or gravel, and all nonmotorized vehicles be parked behind the front building line of the home.

Most said they were unaware of the months of discussion about the ordinance, but word quickly spread after several people were issued warnings from police that they needed to comply with the parking restrictions after it passed.

Several said the ordinance is too vague and they wondered why it restricts driveways to a maximum of 24 feet wide. Council President Tim Jones said, although it had taken months to finally come up with a wording the council could agree on, "I'd like to scrap it and start again."

Several in the audience "seconded" that motion. Council members said the ordinance was drafted because of complaints about a handful of properties parking several vehicles in their front yard, detracting from the overall appeal of the neighborhood, especially for those trying to sell their homes.

One resident said the ordinance doesn't cover what the complaints dealt with, and asked what is there to prevent someone from complaining about him parking his boat next to his house, as required by the ordinance. Others said parking recreational vehicles next to their home would ruin lawns and cause further degradation of the area.

Chad Morris said, "I've never lived anywhere with more trash in the front of people's houses, and you're worried about where people park?"

After hearing the complaints, the council voted to suspend enforcement. Town Attorney Bob Schwerd said he's written similar ordinances for several communities and added, "You try to write it for the complaints about a few."

Schwerd and the council asked the residents for their ideas on how to write a better ordinance. The suggestions can be submitted in writing to Town Hall or residents can come to a special study session planned for 6:30 p.m. Monday at Town Hall to discuss the ordinance.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Indiana Government

Courts - "SCOTUS Weighs When Online Speech Becomes an Illegal Threat"

David Kravets reports today in WIRED in a story that begins:

The Supreme Court is being asked to decide when an online threat becomes worthy of prosecution, in what could be the first internet speech case to reach the high court’s docket for the 2013-2104 term beginning next month.

The justices are weighing whether to review the prosecution of an Iraq war veteran handed 18 months (.pdf) in prison for singing in a 2010 YouTube video that he would kill a local Tennessee judge if the judge did not grant him visitation rights to his young daughter.

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

The case comes at a time when it has become routine for adults and juveniles to be prosecuted in federal and state court for their threatening online speech

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Courts in general

Ind. Law - "Homes left wrecked by meth labs: Landlords forced to pay cleanup bills"

Archie Ingersoll's long Sunday story in the Fort Wayne Journal Gazette is definitely worth reading.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Indiana Law

Ind. Courts - "Supreme Court to decide if jury-bias claim led to murder confession"

Dan Carden reports today in the NWI Times:

The Indiana Supreme Court agreed Monday [sic.] to decide whether a Gary man voluntarily confessed to murder, or was improperly influenced by a Gary police detective who told him a black man couldn't get a fair trial in Crown Point.

On Feb. 13, 2011, Detective Edward Gonzalez questioned McLynnerd Bond Jr., now 27, about the 2007 murder of Kadmiel Mahone, 28, who was shot in the head and neck in an apartment in the 4200 block of West 23rd Place in Gary.

According to court records, Bond repeatedly denied killing Mahone during more than two hours of interrogation, and even after Gonzalez told Bond, who was under arrest on an unrelated matter, that if he confessed he'd get to see his family and said the prosecutor would reduce the charges.

Gonzalez then told Bond, who is black, that if he went to trial there'd be no one "from your part of the hood" on the jury, just 12 white or Hispanic people "from Schererville or Crown Point."

"They're not gonna put people on there who are from your neck of the woods. You know that. They're not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that," Gonzalez said. "All they’re gonna see is, oh, look at this, another young (expletive) who didn’t give a (expletive). Don’t let them see that."

Following another hour of questioning, Bond confessed to shooting Mahone.

Lake Superior Judge Diane Ross Boswell said she had "great concern" about a detective telling a suspect he couldn't receive a fair trial due to the location of the courthouse.

But she denied Bond's motion to suppress his confession, because she could find no similar case invalidating a confession based on police suggestions of possible jury bias.

The Indiana Court of Appeals ruled 2-1 in May that Bond's confession can be used when he's tried for murder because there's no evidence the confession was involuntary, even though the court said Gonzalez's comments were "inappropriate."

Appeals Judge James Kirsch was the dissenter. He said the court should have sent a strong message by suppressing the confession and explicitly condemning Gonzalez's actions.

"Each time courts allow such conduct, they implicitly sanction it and encourage the next police officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive," Kirsch said.

ILB: Here is the May 31, 2013 NFP, 2-1 COA opinion in McLynnerd Bond, Jr. v. State of Indiana.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Indiana Courts

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 Tuesday, September 17, 2013
Posted to Environment

Ind. Decisions - Supreme Court decides one today

In Kevin M. Clark v. State of Indiana, a 29-page, 4-1 opinion, Justice David writes:

When two police officers encountered three men in a self-storage facility and ordered them to the ground, the men were protected by the Fourth Amendment to the United States Constitution. When those protections were violated, the evidence obtained as a result was tainted and should have been suppressed at a subsequent trial of one of the men. Because that evidence was instead admitted after the violation of the man’s federal constitutional rights, we must now reverse his conviction and remand. * * *

Conclusion. The violation of Clark’s Fourth Amendment rights in this case was the direct jumping-off point to the discovery and seizure of all of the substantive evidence used to convict him. Because none of that evidence should have been admitted at a trial against him, the conviction cannot stand.

The State may of course retry Clark if it can introduce evidence of his guilt that was obtained in a manner not prohibited by the Fourth Amendment. We therefore reverse Clark’s conviction for attempted dealing in methamphetamine and remand for proceedings consistent with this opinion.

Dickson, C.J., Rucker and Rush, JJ., concur.
Massa, J., dissents with separate opinion.

The Court’s thoughtful and meticulous parsing of the facts and the law, in the end, leaves one overarching question unanswered: what should the police have done?

When called at midnight to a 24-hour storage facility in a high-crime area to help the owner evict a customer improperly living in a unit, should they have refused to come? I doubt it. Once there, should they have declined to investigate further and not accompanied the owner from the gate to the unit? Again, I think not. Most critically, once they entered the unit and saw Clark drop his bag, should they have looked the other way and departed?

The breadth of the Court’s opinion notwithstanding, the issue essentially boils down to whether the officers had a reasonable and articulable suspicion that justifies their decision to conduct a Terry stop. Once they saw Clark drop his bag, I would conclude they did have such a suspicion, whatever the tone of their ensuing instructions. It was Clark’s subsequent admission, as the majority notes, that led to his arrest and all that followed—most of which this Court would approve, had it not found all that fruit poisoned for want of Terry suspicion.

I would affirm the trial court as a unanimous panel of the Court of Appeals did below and thus respectfully dissent.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Bartholomew County and Bartholomew County Commissioners v. Doug Johnson and Lucretia Johnson v. C & H/M Excavating and Construction, Inc., and Christopher B. Burke Engineering, LTD., a 21-page opinion, Judge Crone writes in his case summary:

Bartholomew County and the Bartholomew County Commissioners (collectively, “the County”) contracted with two companies to design and construct a replacement bridge on a county road. After the bridge was constructed, Doug and Lucretia Johnson’s nearby property was damaged by flooding. The Johnsons filed a complaint against the County, alleging that it had negligently designed, constructed, maintained, and operated the bridge, which contributed to the flooding. The County filed a third-party complaint against the bridge’s designer and builder, alleging that they were the real parties in interest.

The County also filed a motion for summary judgment, alleging that it was entitled to immunity from liability for the acts or omissions of the designer and builder pursuant to Indiana Code Section 34-13-3-3(10), which provides that “[a] governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from … [t]he act or omission of anyone other than the governmental entity or the governmental entity’s employee.” In support of its immunity argument, the County relied on Hinshaw v. Board of Commissioners of Jay County, 611 N.E.2d 637 (Ind. 1993). The Johnsons argued that the County had a non-delegable duty to design and construct the bridge and therefore could not avoid liability by blaming the designer and builder. In support of their argument, the Johnsons relied on Shand Mining, Inc. v. Clay County Board of Commissioners, 671 N.E.2d 477 (Ind. Ct. App. 1996), trans. denied (1997), and City of Vincennes v. Reuhl, 672 N.E.2d 495 (Ind. Ct. App. 1996), trans. denied (1997), neither of which mentions Hinshaw.

The bridge designer filed a summary judgment motion asserting that the bridge was not negligently designed, which the trial court denied. The bridge builder filed a summary judgment motion asserting that the bridge was not negligently constructed, which the trial court granted. The trial court entered summary judgment for the County as to the Johnsons’ negligent construction claims but denied the County’s summary judgment motion on the issue of immunity, finding that the County had a non-delegable duty to “provide appropriate bridges” and therefore was not immune from liability for the acts or omissions of the bridge designer.

The County now appeals, arguing that Hinshaw requires reversal of the trial court’s ruling and that Shand Mining and Reuhl were wrongly decided. The Johnsons contend that the County’s appeal is frivolous and in bad faith and request an award of attorneys’ fees pursuant to Indiana Appellate Rule 66(E). We agree with the County that, pursuant to Hinshaw, it is entitled to immunity from liability from any loss resulting from the acts or omissions of the bridge designer. Under Indiana law, a principal may be liable for the negligence of its independent contractor only if the contractor was performing a non-delegable duty; Indiana Code Section 34-13-3-3(10) would be useless if it did not provide immunity to a governmental entity for a loss resulting from an independent contractor’s performance of a non-delegable duty, and we presume that the legislature did not enact a useless provision. Therefore, we reverse the trial court’s ruling on the immunity issue and respectfully disagree with Shand Mining and Reuhl to the extent that they conflict with our supreme court’s opinion in Hinshaw. Because the County’s summary judgment motion was directed only toward the negligence of third parties and the Johnsons’ negligent design and construction claims, we remand for further proceedings as to the negligent maintenance and operation claims. Because we have determined that the County’s immunity argument prevails, we deny the Johnsons’ request for attorneys’ fees.

In Evergreen Shipping Agency Corp., v. Djuric Trucking, Inc., a 6-page opinion, Judge Vaidik writes:
Evergreen Shipping Agency Corp. (“Evergreen”) appeals the award of attorney’s fees to Djuric Trucking, Inc. (“Djuric”). Evergreen contends that the award is barred by res judicata and that Djuric waived its claim to attorney’s fees. Because we conclude that the award is not barred by res judicata and Djuric has not waived its claim, we affirm.
In Nancy A. Missig v. State Farm Fire & Casualty Company, Andre M. Missig, and Autumn Missig, a 29-page opinion, Judge Baker writes:
Today we are confronted with the issue of whether the appellee-defendant State Farm Insurance Company (State Farm) had a duty to inquire about the circumstances surrounding a particular land sale transaction before issuing a homeowner’s policy to individuals who may have had an interest in the insured property. Specifically, it was contended that the appellant-plaintiff Nancy Missig’s interest in the particular real property was a matter of public record and, therefore, State Farm had sufficient notice of Nancy’s interest in the property before issuing the policy to her son and daughter-in-law, the appellees-defendants Autumn and Andre Missig. As a result, Nancy claims that State Farm was negligent in issuing the policy without naming her as an insured in the policy.

The trial court entered sixty-nine findings of fact and conclusions of law, and granted equitable relief to Nancy against Andre and Autumn for the full unpaid balance owed under a land contract plus accrued interest. The trial court also granted a lien and constructive trust in Nancy’s favor with regard to other property that Autumn had purchased with the insurance proceeds that State Farm had paid her and Andre following the loss of another residence in a fire. However, it determined that Nancy was not entitled to relief from State Farm.

Andre also cross-appealed, claiming, among other things, that State Farm was liable for failing to take any steps to recover the proceeds of the check that State Farm had issued where Autumn had forged his signature. Andre also maintained that the trial court erred in not ordering State Farm to pay Nancy for her insurable interest in the real estate because it had notice or knowledge of Nancy’s claim to the fire loss proceeds, that State Farm was negligent in issuing the homeowner’s policy, and that it breached a duty of good faith to its policy holders because it purportedly failed to inquire as to all of the insurable interests in the residence that sustained a loss in the fire. Finally, Andre asserted that he is entitled to indemnification by State Farm for an amount that is allegedly owed to Nancy for her insurable interest in the residence.

We note that Andre raises several of these issues for the first time in his brief on cross-appeal. Moreover, the circumstances properly established that Autumn and Andre were liable to Nancy, and the trial court correctly determined that State Farm had no liability to Andre for Autumn’s actions, and no evidence was presented that State Farm breached any duty of good faith and fair dealing to Andre.

Finally, the circumstances showed that Andre was under a duty to pay Nancy some of the insurance proceeds, and his failure to do so superseded any alleged wrongful conduct on State Farm’s part. As a result, we affirm the trial court’s judgment.

In Nathan K. Barker v. State of Indiana, a 15-page opinion, Judge Crone writes:
Twenty-two-month-old J.S. died shortly after he was babysat by his mother’s live-in boyfriend, Nathan K. Barker. Early in the afternoon, Barker had called J.S.’s mother (“Mother”) at work and told her that J.S. had fallen off the couch. He said that he had called for an ambulance and that the paramedics had said that the child was fine. In fact, he had never called for help. Later that night, Mother called 911, and by the next morning J.S. was on life support. J.S. died later that day, and an autopsy showed that he had suffered massive brain injuries as well as injuries to his abdomen, eyes, mouth, shoulder, thigh, buttocks, and penis.

The State charged Barker with class A felony neglect of a dependent causing death, class A felony battery causing death, and class D felony neglect of a dependent. Barker agreed to plead guilty to class A felony neglect of a dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and to cap the executed portion of his sentence at forty years. The court sentenced Barker to forty-five years, with forty years executed and the remainder suspended to probation, with 120 days to be served on home detention.

Barker now appeals, claiming that the trial court abused its discretion in designating aggravating and mitigating factors and in imposing a term that exceeded the forty-year cap on the executed portion of his sentence. He also claims that his sentence is inappropriate in light of the nature of the offense and his character. Finding that the imposition of 120 days of home detention causes the executed portion of Barker’s sentence to exceed the forty-year cap, we remand for a new sentencing order on that issue. In all other respects, we affirm his sentence.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Kenneth F. Kipp v. State of Indiana (NFP)

Eric G. Couthen v. State of Indiana (NFP)

Spiros Alatorre v. State of Indiana (NFP)

Dellia Castile v. State of Indiana (NFP)

Katherine Cervantes v. State of Indiana (NFP)

Jennifer Rose Peverly v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decided one yesterday

In United Parcel Service, Inc. v. Indiana Department of State Revenue, a 12-page opinion, Sr. Judge Fisher writes:

United Parcel Service, Inc. (UPS) challenges the Indiana Department of State Revenue’s denial of its refund claim for the 2000 tax year and its assessment of additional corporate income tax for the 2001 tax year (“the years at issue”). The matter, currently before the Court on UPS’s motion for summary judgment, presents two issues which the Court restates as: 1) whether foreign reinsurance companies must be physically present in Indiana to satisfy the statutory requirement of “doing business” under Indiana Code § 27-1-18-2; and 2) if so, whether Indiana Code § 6-3-2-2.8(4), in providing an exemption from Indiana’s corporate income tax to foreign reinsurance companies that are “doing business” in Indiana under Indiana Code § 27-1-18-2, violates the Commerce Clause of the United States Constitution. Finding that physical presence is required and that the Commerce Clause challenge is improper, the Court grants summary judgment to the Department.

Posted by Marcia Oddi on Tuesday, September 17, 2013
Posted to Ind. Tax Ct. Decisions

Monday, September 16, 2013

Ind. Courts - "Family courts trying to keep it civil"

A long story this weekend from Susan Brown of the NWI Times begins:

Nearly 15 years after the Indiana Supreme Court launched its Family Court Project, 22 counties — including Lake and Porter — are working toward a kinder, gentler, more holistic way to resolve family crises, court officials say.

"Family law cases are different than most cases," said Merrillville attorney Debra Dubovich, head of the Family Law section of the Lake County Bar Association.

"If you're hit by a drunk driver, it's an emotional thing. But when being sued by the person who promised to love, honor and cherish you your entire life, it's takes on a whole new dimension. The courtroom is never a good place to decide those issues."

A litigant may never see a drunken driving defendant again after the case is concluded, she said.

But that's not the case with families.

"If you have children, then it's for the rest of their life," Dubovich said.

More from the story:
While he was a legislator in the 1990s, now Porter Superior Court Judge William Alexa was in the vanguard of the high court's family court initiative.

Working with Porter Circuit Court Judge Mary Harper, Alexa obtained funding for the county as one of the three or four original demonstration projects.

"The purpose was to maintain contact with families that may have things going on in different courts," he said.

Today he receives at least a weekly printout listing families involved with the family court, Alexa said.

"It's important for me to know if one of my defendants is also involved in a domestic violence case," he said. "It's also important at sentencing time for a presentence report."

Alexa said the extra awareness allows him to modify an order in his court when he learns of a family's issues in another court.

But all family court initiatives are under the domain of Harper and have been since 2000.

Since then, Harper has sought to bridge the gap between the fields of adult and juvenile justice, according to a 2011 report to the high court.

In the report, the county details a comprehensive "full service court" process to collect information on families involved in family law and juvenile cases and provide an array of services.

Any family with multiple cases is eligible for family court and, when selected, all pending cases involving the family are included in family court proceedings — though the cases remain in their original courts.

Over the years, the county's family court initiatives have expanded to include a mental health diversion program and a juvenile and family drug court.

There is much more in the long story.

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Indiana Courts

Ind. Decisions - More on: ACLU of Indiana Challenge to Marion County Judicial Election System Survives Motion to Dismiss

Updating this ILB entry from Friday, including a link to the ruling, Tim Evans has just posted a story to the IndyStar, headed "Lawsuit challenging how Marion Superior Court judges are elected can move forward."

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Supreme Court requests additional briefing and invites amicus participation in pro se appeal

From the Sept. 6th transfer list, where the Supreme Court granted transfer:

Bryant E. Wilson v. State of Indiana - This was a 2-1, 6/3/13 opinion, where the majority writes:
On appeal, Wilson renews his argument that “the trial court lacked statutory authority in holding a part of his executed sentence in abeyance.” We take this to mean that the trial court allegedly lacked statutory authority to impose partially consecutive sentences. Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible.
A review of the case docket shows that Wilson represented himself in the appeal, but he did not participate in the oral argument before the COA. The COA decided the case without oral argument.

Now the Supreme Court has granted transfer, and most likely there will be oral argument. What happens now?

Here is an answer, in the form of a Supreme Court order filed Sept. 9th, but just recently posted. It is that the Court will request additional briefing and invite amicus participation. From the order:

The Supreme Court is interested in receiving additional briefing on the issue of whether the imposition of a partially consecntive sentence is error. Accordingly, the Court directs the Public Defender of Indiana to file a notice of appearance as an amicus curiae no later than September 20, 2013, and to file an amicus brief no later than October 21, 2013. In addition, the Court invites any other interested entities to participate as amici curiae. Other entities willing to prepare and fi Ie an amicus curiae brief are requested to file a motion on or before September 20, 2013, seeking leave to appear as amicus curiae. The Court encourages the submission of joint briefs. Briefs submitted by the Public Defender of Indiana and others granted amicus curiae status will be due no later than October 21, 2013. The State of Indiana shall file a single supplemental brief discussing the issue and responding to points raised by amici curiae no later than November 27, 2013. Mr. Wilson may also file a supplemental brief by November 27, 2013. * * *

The Clerk is directed to send a copy of this order to Mr. Wilson and all counsel of record.

In addition, the Clerk is directed to send a copy of this order to the Public Defender of Indiana; the Attorney General of Indiana; the Indiana Public Defender Council; the Prosecuting Attorneys Council; the Indiana Judicial Center as staff agency for the Judicial Conference of Indiana; and the Indiana State Bar Association. Those entities are encouraged to distribute a copy of this order to others as they see fit.

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Transfer list for week ending September 13, 2013 [Updated]

[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, September 13, 2013. It is two pages (and 24 cases) long. [Updated, now 25 cases long]

Two transfers were granted last week:

[Updated at 1:33 PM] The Court reports, without specifying, that it has added another case to the list. A comparison shows it is the denial at the end of p. 2: Kenneth D. Hunter v. E*Trade Bank

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - "Backyard barnyards could be banned in Oakland City"

Tabitha Waggoner reported Sept. 10th in the Princeton Daily Clarion:

Oakland City resident Lana Myers-Getto came to the Oakland City Council meeting Tuesday night worried that she would have to give up her chickens and goats due to a possible update to a missing (or non-existing) ordinance.

While City Attorney Jason Spindler explained a more simplified city nuisance ordinance, Myers-Getto waited for mention of farm animals. It didn’t come until later in the meeting, when the council considered adopting the example of another city’s ordinance restricting farm animals within the city limits.

“That’s not the city of Oakland City, yet,” Myers-Getto said.

“No, but we’re seriously considering it,” Mayor Hugh Wirth responded. “I understand that,” Myers-Getto said, then asked for permission to speak.

She has had goats and chickens for about five years and brought all her papers along with her.

“I understand that the outside of my place this year has really looked bad...I’ve been really sick,” Myers-Getto said. Her church helped her clean up her home. “The little goats aren’t bothering anybody, you know...”

She asked to be grandfathered (exempted) from the ordinance, if it is rediscovered or a new one is enforced. She said she has diabetes and that she drinks a half gallon of goat milk a day, which helps her health issues.

“I have depression. They make me get up—I have to get up and feed those babies, every day, two times a day,” she said of the goats she owns.

“They’re not hurting anybody. I’m not hurting anybody,” Myers-Getto said.

Myers-Getto also added that she suffers from a brain tumor, and then began crying after explaining that she received the animals after her brother died. Spindler said that she could probably be grandfathered from the ordinance because of her health issues. The council decided to exempt Myers-Getto from the ordinance, and she thanked them.

Hoofed animals such as bovine, cattle, sheep, goats, pigs, are restricted from being in the city limits under the proposed readopted ordinance. As long as ducks or geese with a pond are confined in a way to a person’s property, they would be tolerated.

“I have chickens in my backyard and a minihorse...are we going to be grandfathered too?” asked Bryan Grubb, who was sitting with his wife Crickett and their 2-year-old son, right next to Myers-Getto.

“I’ve got a 6 foot privacy fence in my backyard. There’s probably people in this town who don’t even know what I’ve got in my backyard. And that mini horse is my little boy’s pet. He’s out there every morning playing with it. And we get eggs from our chickens.”

They’ve also got a goat that they’ll get goat’s milk from when it’s old enough to breed.

Bryan Grubb said he’s heard no one complain about his backyard, but councilman Jerry Richardson said that there have been complaints about the Grubbs’ livestock, but that those neighbors didn’t want to be named. He said he went to city hall twice asking about chickens, but never got a clear answer, so he went ahead and got them chickens. They all have names, too, he said.

“Is there an ordinance in town that now says you cannot have chickens or goats?” Bryan Grubb asked. “I don’t want to get rid of my animals,” he said.

“We think there is, but we’re not sure,” Spindler answered with a chuckle.

“We’re pretty sure there is but we can’t come up with a copy with it right now,” Richardson said.

They believe there was an ordinance set up in the late 1950s but since it’s difficult to find, that’s why they’re working on creating an updated city ordinance.

Ms. Waggoner reports again on Sept. 12th:
Two amendments made to a 1953 ordinance banning backyard barnyards have been discovered.

The first amendment to ordinance 1953-1 (1953-1 bans horses, cows, hogs, and goats within the town’s limits) is ordinance 8-1973 and is signed by then-mayor and current council president Jerry Richardson.

It reads, “Ordinance #1953-1 is amended by deleting the word “horse” wherever it is mentioned...This ordinance shall be in full force and effect immediately after it is ordained. The foregoing ordinance was duly adopted by the Common Council of the City of Oakland City, Indiana, this 27 day of November, 1973. (Signed by) Leonard Mills, Cecil Earles, Robert Burton, Cletus Harden, William Woods, Members of the Common Council...Approved by me, Jerry Richardson, Mayor of the City of Oakland City, Indiana, this 28 day of November, 1973...”

Oakland City resident Bryan Grubb said he thinks it is ironic that Richardson signed an ordinance that allows horses and is “pushing so hard” for the banning of backyard animals. “We already have ‘em (mini horse, chickens and goat) so we’re praying for a grandfathering,” he said.

Grubb also added he’s making sure it will be standing room only at the next Oakland City board of works and city council meeting. Richardson said that he doesn’t know whether the current council will decide to uphold the amendment or not. “I don’t really know...I don’t want to speak for the council,” he said. But Richardson added, “Bryan doesn’t have the whole picture.”

Another updated ordinance passed on August 27, 1991, will also play a part in the next meeting. Ordinance 1991-3 is “An ordinance prohibiting all livestock, except horses, within the corporate limits of the city of Oakland City, Indiana.” It reads, “Whereas, the Common Council of the City of Oakland City, Indiana, deems it necessary and in the interest of the public welfare of the citizens of Oakland City, Indiana, to prohibit the keeping or quartering of livestock, except horses, within the corporate limits of the City of Oakland City, Indiana. Now therefore, be it ordained...as follow....it shall be unlawful for anyone to keep or quarter any form of livestock, except horses, within the corporate limits of the city...that any person violating any portion of this Ordinance shall upon conviction be fined in the amount of Twenty-Five Dollars ($25) and each day this ordinance is violated constitutes a separate violation...Ordinance shall be in full force and effect from and after its passage and after publication as by law required. Signed by James Deffendall, Leonard Mills, Gary Phillips, Cecil Earles, Kenneth Dickerson, members of the common council...approved by me, Everett Robertson, Mayor of the city of Oakland City, Indiana, this 27th day of August, 1991...”

Mayor Hugh Wirth said that the council’s previous decision grandfathering Lana Myers-Getto and her animals due to her medical condition will have to be looked at, along with the ordinance and amendments that have been found. “We’ll just have to take a hard look at it at the next meeting,” he said. “It’s all under review because we did find the original ordinance.”

City attorney Jason Spindler explained that grandfathering would not apply in this case since the law has been found and whether or not the law was enforced, “the law is still valid.” But Spindler noted that Myers-Getto probably shouldn’t have to return to the city council meeting to ask for a variance, but that he would probably advise that the council’s grandfathering of Myers-Getto simply be changed into a variance. “The law is not retroactive,” he explained. Variances, if given, will be given on a case-by-case basis. Spindler also confirmed that “livestock, except horses” wording in the 1991-3 ordinance includes chickens as being forbidden. Chickens are legally livestock. Spindler added that he’s not sure mini horses would be included in the excluded “horses,” though.

The next council meeting is Sept. 24 at 5:45 p.m. at the Oakland City Fire Department.

The ILB has had similar stories in the past of "lost ordinances" from other towns:

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Indiana Government

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

For publication opinions today (1):

In Larry Lyons, Jr. v. State of Indiana, a 7-page opinion, Judge Bradford writes:

A jury found Lyons guilty of Counts I and II, and the trial court merged Count II into Count I and sentenced Lyons to eight years of incarceration with two years suspended. Lyons contends that the trial court committed fundamental error in instructing the jury in the following respects: (1) failing to adequately instruct the jury that it was not to deliberate or reach any conclusions prior to the close of evidence, (2) failing to advise the alternate jurors that they were not to participate in deliberations, and (3) failing to instruct the bailiff to confiscate all electronic devices prior to deliberations. Because we conclude that no fundamental error occurred, we affirm. * * *

Lyons points to nothing in the record to rebut the presumption that the jurors followed the trial court’s instruction, even if they were still in possession of electronic communication devices. The mere possibility that a juror may have used an electronic device during deliberations is insufficient to establish fundamental error.

NFP civil opinions today (0):

NFP criminal opinions today (2):

David J. Payne v. State of Indiana (NFP)

Thomas Rayford, Jr., v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Ind. App.Ct. Decisions

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

From Sunday, September 15, 2013:

From Saturday, September 14, 2013:

From Friday afternoon, September 13, 2013:

Posted by Marcia Oddi on Monday, September 16, 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 9/16/13):

Next week's oral arguments before the Supreme Court (week of 9/23/13): Thursday, September 26

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/16/13):

Tuesday, September 17th

Next week's oral arguments before the Court of Appeals (week of 9/23/13):

Tuesday, September 24th

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

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


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

Posted by Marcia Oddi on Monday, September 16, 2013
Posted to Upcoming Oral Arguments

Sunday, September 15, 2013

Ind. Gov't. - More on: "Indiana voting rules, poll changes are criticized"

Updating this ILB entry from August 30th, the Fort Wayne Journal Gazette has an editorial this weekend headed "Myriad voting changes eroding trust in system." It begins:

Allen County Election Board members should consider the hardship some Indianapolis voters face as they review a plan to overhaul the county's voting locations.

Last week, Indianapolis radio personality Amos Brown and Trent Deckard, the Democratic co-director of the Indiana Election Division, testified to the General Assembly's Census Data Advisory Committee that an unexplained reorganization of voting locations as well as numerous other election changes are causing voters, especially minorities, to doubt the integrity of the election system. They argued Indiana's complicated voting laws and the frequent changing of polling locations could disenfranchise voters.

Indianapolis Mayor Greg Ballard, a Republican, was responsible for the redesign of voting precincts.

Brown described the changes as "willy-nilly." He pointed out that the precinct where he had voted for 20 years was a church within walking distance.

It was moved to a golf course without pedestrian access.

Deckard told the panel some poll workers who don't understand state registration requirements are also causing problems.

Committee members acknowledged that some counties don't notify voters when precincts are redrawn, which can cause voters confusion.

Posted by Marcia Oddi on Sunday, September 15, 2013
Posted to Indiana Government

Ind. courts - Two Lake County attorneys, one a legislator, one imprisoned, disciplined by Supreme Court

"High court rebukes Sen. Randolph for misconduct as attorney" is the headline to this Friday story by Bill Dolan in the NWI Times. Some quotes:

EAST CHICAGO | The Indiana Supreme Court publicly reprimanded state Sen. Lonnie Randolph recently for professional misconduct as an attorney. * * *

The high court published an order stating Randolph failed to ably represent a client, charged the client an unreasonable fee and delayed refunding part it.

The order states an unidentified man serving a prison term for drug dealing hired Randolph to file a petition to shorten the man's sentence. Randolph billed the man's family $5,000.

The court states Randolph should have known sentence modification wasn't possible in the man's case and when the man demanded a refund, Randolph refused until an appeals court ordered him to repay the man $3,500.

The court order said Randolph has agreed to the public reprimand. It privately reprimanded him earlier.

Randolph, 64, graduated from East Chicago Roosevelt High School in 1968 and received a law degree from John Marshall Law School in Chicago. He served as a state senator from 1992 to 1998, then as city judge. He ran unsuccessfully for mayor and was again elected to the state Senate in 2008.

Here is the 2-page, 5-0, Sept. 5th Supreme Court order.

"Imprisoned Gary lawyer stripped of law license" is the heading to this brief Times story - some quotes:

The Indiana Supreme Court has stripped a former Gary attorney of his law license for attempting to kill a man in a motorcycle gang feud.

The high court suspended Jerry "Angel" Peteet from the practice of law this month in a preliminary move that could result in his permanent disbarment.

Peteet, 50, who was a trial lawyer for 23 years, is serving a 23-year prison term for his conviction this spring on conspiracy and racketeering charges he attempted to murder Robert Taylor.

Taylor was shot May 28, 2009, in a parking lot outside the now-shuttered Bennigan's Grill and Tavern in Gary during wide-ranging clash between rival gangs.

Here is the 1-page, 5-0, Sept. 6th Supreme Court order. This Gary Post-Tribune story from April 24th reported that:
Another Chicago-area man — former Gary, Ind., criminal defense attorney Jerry L. Peteet — was also sentenced Tuesday to 23 years in prison for his participation in the biker gang.

Posted by Marcia Oddi on Sunday, September 15, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - "Former Gary cop gets 30 months; faked letters to judge, court finds "

Updating earlier ILB entries from Aug. 20 and Sept. 3 headed "Fake letters supporting ex-Gary cop sent to judge, prosecutors claim", Teresa Auch Schultz of the Gary Post Tribune reported Friday:

A former Gary police officer will spend 30 months in prison after a federal judge found that he played a role in sending fraudulent letters of support to the court.

“There’s no doubt in my mind that (David Finley) had some involvement with these letters,” U.S. District Judge Joseph Van Bokkelen said during Finley’s sentencing hearing Friday afternoon.

Finley pleaded guilty earlier this year to selling marijuana and lying when he bought a gun, saying it was for himself when he immediately gave it to a friend who turned out to be working for the FBI as an undercover informant. Finley resigned from the police department shortly after he was arrested a year ago.

Earlier this summer, Finley submitted more than 100 pages of letters of support, which judges consider when coming up with a sentence, from about 25 family members, friends and former co-workers. Many of the letters described Finley as a “super cop.” However, federal officials discovered at least two of the letters had been faked and another was written by Finley with a friend’s permission.

“The real travesty in that is this court relies on those letters,” Van Bokkelen said. “I’ll never again read them the same way.”

The judge added that future defendants could be harmed by this and that he might change his policy on how he handles character letters, including making the letter writers take an oath that they actually wrote them.

The story continues with more details.

Posted by Marcia Oddi on Sunday, September 15, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Petitioners ax plans to fix Brown County Courthouse"

Updating several earlier ILB entries under the heading "Some Brown County Residents Protest Courthouse Remodel Bonds", Laura Lane of the Bloomington Herald-Times reported Friday ($$):

There’s no bathroom for jurors, and the jury room is quite small. Some parts of the building are not easily accessible to people with disabilities. Anyone who needs to visit the court office must walk through the courtroom, even during trials. Reams of county records are stored a few miles away in the jail basement.

And those issues will remain at the Brown County Courthouse for now. Preliminary results from petitions show citizens have axed the plan for a $6.5 million bond issue that would have funded a courthouse renovation and expansion.

Taxpayers revolted this summer, and a remonstrance followed. The deadline for turning in petitions was Monday. By Friday, the result was clear: Brown County voters overwhelming do not support a tax increase that would cost them $22 for every $100,000 of assessed property.

County commissioner John Kennard was reeling from the thumbs-down results. “It looks like it might be 1,200 to 200, and that is really surprising,” Kennard said Friday afternoon. “I thought we got the news out about how important this is. Maybe people don’t care. I asked everyone I could to just walk through the courthouse to see the needs before deciding. It doesn’t look like many of them did.”

His disappointment was evident. “You cannot put a person in a wheelchair in our jury box area, and the courthouse bathrooms do not meet ADA (Americans with Disabilities) standards,” he said. “Here we had a chance to take care of those issues at a low interest rate and people voted it down.”

Posted by Marcia Oddi on Sunday, September 15, 2013
Posted to Indiana Government

Saturday, September 14, 2013

Courts - C-SPAN Radio today is airing historic 2010 SCOTUS argument re Indiana labor case

(H/T to SCOTUS Blog)

From C-SPAN:

C-SPAN Radio's Supreme Court Historic Oral Argument: Previewing Potus Recess Appointment Case New Process Steel v. NLRB (2010)

The new Supreme Court term starts October 7---and one of the key cases will be National Labor Relations Board v. Noel Canning — a case about the President’s power to name appointees temporarily to government posts when the Senate is in recess.

And Saturday, September 14 on C-SPAN Radio’s historic Supreme Court oral argument: A case cited in briefs for NLRB v. Canning: From 2010: New Process Steel, petitioner v. National Labor Relations Board, respondent.

In 2008, the union representing employees at a New Process Steel plant in Butler, Indiana failed to reach an agreement over a new contract with the company. The union subsequently filed unfair labor practices claims with the National Labor Relations Board arguing that New Process Steel failed to honor its collective bargaining agreement to deal with the union as the exclusive representative of employees of the plant. A two-member panel of the NLRB agreed with the union. On appeal, New Process Steel argued that the NLRB's decision was invalid because a provision of the NLRB act requires that three members of the five member national labor relations board shall "at all times" constitute a quorum. The U.S. Court of Appeals for the Seventh Circuit disagreed and affirmed the judgment of the board. The case eventually was accepted by the U.S. Supreme Court.

Links are thanks to SCOTUSblog. Here is their case page for New Process Steel, including the 7th Circuit opinion.

ILB: Apparently the audio is available "on Demand", as I can listen to it right now.

Posted by Marcia Oddi on Saturday, September 14, 2013
Posted to Courts in general

Friday, September 13, 2013

Ind. Decisions - ACLU of Indiana Challenge to Marion County Judicial Election System Survives Motion to Dismiss

Updating this Jan. 7th ILB entry, which includes a link to the amended complaint, here is federal Judge Richard Young's 21-page Sept. 6th order, which begins:

Plaintiff, Common Cause of Indiana, is a non-profit, non-partisan public interest group that advocates for a number of causes, including the elimination of barriers to voting. Common Cause, whose membership in Marion County is approximately 250, raises a First Amendment challenge under 42 U.S.C. § 1983 to the constitutionality of the unique process by which judges are elected to the Marion Superior Court, as provided in Indiana Code Section 33-33-49-13. Defendants, the Indiana Secretary of State, in her official capacity; the individual members of the Indiana Election Commission, in their official capacities; and the Governor of the State of Indiana, in his official capacity, move to dismiss Plaintiff’s Amended Complaint under Rules 12(b)(1) for lack of standing and Eleventh Amendment immunity, and under 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. For the reasons explained below, the court DENIES Defendants’ motion. * * *

Lastly, in light of the Supreme Court’s decision in New York State Board of Elections v. Lopez-Torres, Defendants argue Common Cause’s Amended Complaint should be dismissed for failure to state a claim upon which relief can be granted. 552 U.S. 196 (2008). Common Cause disagrees. * * *

Thus, the potential for independent and third-party candidates to appear on the ballot does not alleviate the burden imposed by Indiana’s electoral scheme: when a person proceeds to the ballot box on Election Day, he or she must be afforded an opportunity to vote for the judge who will fill Marion Superior Court # 1, the judge who will fill Marion Superior Court # 2, and so forth. Indiana law does not permit this. The New York law at issue in Lopez-Torres did. Accordingly, the Defendants reliance on Lopez-Torres decision does not persuade the court to rule in their favor. * * *

Common Cause alleges that the challenged election statute severely burdens the rights of its own members and those eligible to vote in Marion County. For example, if one is a registered Republican, he or she has “absolutely no opportunity to cast a meaningful vote for half the seats on the Marion Superior Court.” If one is not affiliated with the Republican or Democratic Parties, such that he or she cannot vote in the primary, he or she has “absolutely no opportunity to cast a meaningful vote for the Marion Superior Court.” Common Cause also alleges that “[t]here is no justification for the impingement on the right to cast a meaningful ballot that Indiana Code § 33-33-49-13 creates.” Common Cause’s allegations are sufficient to state a plausible claim for relief. Defendants’ 12(b)(6) challenge is therefore DENIED.

For the reasons set forth above, the court finds Common Cause has Article III and prudential standing to bring its claim; the Defendants are not immune from suit under the Eleventh Amendment; and Common Cause states a plausible claim for relief. Accordingly, Defendants’ Motion to Dismiss Pursuant to Rules 12(b)(1) and 12 (b)(6) is DENIED.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "The Term ‘Illegal Alien’ Is Going Out Of Style"

Esther Yu-Hsi Lee wrote this story, which appeared in ThinkProgress on June 19, 2013 and began:

A Pew research study released this week found that the use of the phrase “illegal alien” has declined in 2013 compared to its usage during other periods of time when immigration-relevant legislation was in the news.

Overall the use of the term “illegal alien” diminished to five percent of all news articles surveyed by Pew in 2013 as compared to 2007 when it accounted for 21 percent of terms used. The alternative term “undocumented immigrant,” one favored by immigration advocates, has increased to 14 percent in 2013. Pew has studied the use of such terms in 1996, 2002, 2007, and 2013– four major periods of American history in which immigration legislation was being considered.

Here is the Pew article, where Emily Guskin wrote:
The use of “illegal alien,” a term considered insensitive by many, reached its low point in 2013, dropping to 5% of terms used. It had consistently been in double digits in the other periods studied, peaking at 21% in 2007.
The specific periods looked at in the study did not include 2009, which was the date of Martinsville attorney Joseph B. Barker’s letter for which he was suspended for 30 days last week by the Supreme Court in In re Barker.

Notably, a Westlaw search shows "illegal alien" used 57 times in Indiana cases. Some within recent months: Supreme Court (June 25, 2013, ftnote on p. 10); Court of Appeals (July 30, 2013, p. 8).

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Indiana Law

Ind. Courts - 7th Circuit hears oral argument in Right-to-Work challenge

Yesterday the 7th Circuit heard oral argument in the federal version of the Indiana right-to-work case, Sweeney v. Daniels (now Pence) (Case No. 13-1264). A reader writes:

Diane Wood was especially interested in what effect, if any, the Lake County decision declaring right-to-work unconstitutional, might or should have on the 7th's decision -- or whether the 7th should wait for more results from the Lake County case.
Listen for yourself, here.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Tax Court to hold full hour of oral argument Tuesday on whether online travel sites are subject to sales tax and on what basis

Here are some quotes from the lengthy lead story in the September 16th issue of Indiana Legislative Insight ($$$, used with permission):

The Indiana Tax Court has scheduled a full hour of oral argument Tuesday afternoon on a request from on-line travel broker Orbitz, LLC to prohibit public access to information in the court record in Orbitz, LLC v. Indiana Dep’t of State Revenue, No. 49T10-0903-TA-10.

This hearing — unusual for its length and for reviewing a procedural motion — comes as national action heats up on the underlying substantive issues involved, and as the Indiana judicial action approaches in a case being watched across the nation. * * *

As we’ve told you at various stages in the past four years, there has been a long-running dispute between the Indiana Department of Revenue and hotel booking sites including Orbitz, Expedia, Priceline, and Travelocity, over whether the on-line travel sites are subject to sales tax based upon the price paid to the companies by their customers or on the amounts that the on-line middlemen are actually charged by hotels. The Department of Revenue ruled in an administrative appeal during the first Daniels Administration term that the on-line brokers must remit taxes based upon the higher rates that consumers ultimately pay when they book their reservations through the travel broker.

Similar litigation has been ongoing in several states (at least 77 cases have been filed nationwide), and most — but by no means all — of the similar cases have been resolved in favor of the on-line booking companies (the Florida Supreme Court announced Tuesday that it accepted jurisdiction in Alachua County v. Expedia, Inc., No. SC13-838, yet another case on point).

The Orbitz case is the lead case in the six-case Indiana litigation litany, and the other five cases were stayed in 2011 pending the outcome of this action. The Orbitz matter alone involved a dispute over some $200,000 in tax revenue as of four years ago so in total, a seven-figure stake is likely at stake retroactively and going forward.

You may watch the oral argument here at 1:30 PM on Tuesday, Sept. 17th. Here is the case docket.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Upcoming Oral Arguments

Ind. Courts - Eugene Volokh on the State v. Brewington Oral Argument

Eugene Volokh posts a gracious note about his time in Indy the past few days participating in the State v. Brewington oral argument and surrounding events.

See this ILB post from Sept. 11 for more on the oral argument.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Indiana Courts

Ind. Decisions - Still more on "Comment brings suspension for lawyer"

Updating this entry from yesterday, the ILB has now obtained a copy of the 2-page, 5-0 disciplinary opinion in In re Barker, issued by the Supreme Court on September 6.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al., a 9-page opinion, Judge Kirsch concludes:

Indiana’s mechanic’s lien legislation has a “remedial purpose.” Beneficial Fin., 402 N.E.2d at 45. It is structured to give the affected homeowner notice of a potential lien early in the construction process, so the party may take measures and direct funds
accordingly. See Ind. Code § 32-28-3-1(i). Here, the property owner had notice of the potential lien early in the construction process, but failed to take appropriate measures to see that funds were properly directed.

We reverse the summary judgment entered in favor of the trust and remand with instructions to enter summary judgment in favor of Von Tobel Corporation.

Jerry A. Smith v. State of Indiana (04)

Jerry A. Smith v. State of Indiana (05)

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of Jo. B. & Ju. B.(Minor Children) and T. B.(Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Lamar Miller v. State of Indiana (NFP)

Charles Grieco v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Gay Marriage and State Taxes: States that don't recognize same-sex marriage will face a few tax complications come 2014"

Penelope Lemov, correspondent for GOVERNING, has this useful article, dated September 12th.

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Indiana Government

Ind. Courts - Judicial Technology Oversight Committee to meet Tuesday for the first time [Updated]

This session the General Assembly created the Judicial Technology Oversight Committee - JTOC [not to be confused with the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration]. The new law, HEA 1393 (now codified at IC 33-23-17), sets out the membership:

and the purposes of the new Committee:
Sec. 4. (a) The committee shall do the following:

(1) Conduct a continuous study of information technology applications for Indiana's judicial system, including an analysis of appropriate and equitable funding, automated recordkeeping fees and record perpetuation costs, and their allocation between state and local governmental entities.

(2) Develop a long range strategy for technology and automation in Indiana's judicial system, including:

(A) establishing plans for funding and implementing technology and automation;

(B) making recommendations to the division of state court administration for the establishment of a pilot program concerning electronic filing;

(C) allowing public court records to be available on the Internet;

(D) studying the appropriate use of private sector vendors that offer similar interfacing or complementary systems; and

(E) studying any other issues the committee considers appropriate.

(3) Make recommendations to the supreme court concerning the implementation of policies, standards, and rules that promote the effective use of technology and automation in Indiana courts.

(b) The committee may employ an independent consultant to assist with its study.

There is a lot there that is of great interest to lawyers and judges around the state, as well as members of the general public. The ILB last posted on this new group on June 30th, in an entry that ended:
Hopefully, the appointees to this important Committee will be announced soon and the first meeting will be scheduled. And when the Committee does meet, hopefully its meetings will be live-streamed around the state.
Alas, that is apparently not to be. This morning Indiana Courts @incourts tweeted:
Judicial Technology Oversight Committee meeting to be held Sept 17 at 9:30am at 30 S Meridian. It is open to public.
The tweet links to the General Assembly's fiscal note on HEA 1393. The Court home page contains a bit more information:
Individuals wishing to attend the meeting must check in at the security desk to identify themselves for building and Court staff.
The ILB immediately inquired about the agenda and membership, but was informed:
An agenda will be posted outside the meeting room on Tuesday, and the full membership will be announced at the meeting.
[Updated at 11:50 AM] Thanks to the Supreme Court Outreach Coordinator, who has sent this list:
Members of the Judicial Technology Oversight Committee:

Justice Massa, Chairman – Designee of the Chief Justice of Indiana

Paul Baltzell – Chief Information Officer of the Indiana Office of Technology

Senator John Broden

Senator Sue Glick

Representative Steve Braun

Representative Matt Pierce

The Honorable Terry Cody, Judge – Appointed by the Indiana Judges Association

The Honorable Julie Fox, Marshall County Clerk – Appointed by the Indiana Clerks Association

The Honorable Debra Walker, Henry County Clerk – Appointed by the Indiana Clerks Association

David Pippen, Partner at Bose McKinney & Evans, LLP – Appointed by the President of the Indiana State Bar Association

Mark Dobson, President & CEO of the Warsaw/Kosciusko County Chamber of Commerce – Appointed by the Governor

Posted by Marcia Oddi on Friday, September 13, 2013
Posted to Indiana Courts

Thursday, September 12, 2013

Ind. Decisions - More on "Comment brings suspension for lawyer"

The ILB can confirm that the Martinsville attorney mentioned earlier is Joseph Barker. The disciplinary order has not yet been posted on the Court page, although I've learned it has been passed around Morgan County this week. Hence the news story. If anyone has access to the Martinsville Reporter-Times story or better still, the opinion, which after all has already been issued, the ILB would be pleased to post one or both.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - "Massive Molasses Spill Devastates Honolulu Marine Life"

This NPR story from this morning begins:

"Everything down there is dead."

That's one stunning quote from Hawaii News Now's latest report about the devastating damage that's been done to the marine life off Honolulu's Sand Island by 233,000 gallons of molasses that were spilled into Honolulu harbor on Monday.

Gary Gill, deputy director of Hawaii's Environmental Health Division of the Health Department, tells the news station that "this is the worst environmental damage to sea life that I have come across."

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Environment

Ind. Courts - "Supreme Court Considering Blogger's Appeal"

Here is Mike Perleberg's Eagle County 99.3 FM coverage of this morning's Supreme Court oral argument in Brewington v. State. See also this post from earlier today.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Indiana Courts

Law - "Federal Statutes: A Beginner’s Guide" and more

The Library of Congress has posted this valuable "beginner's" guide.

But that is just the beginning to mastering the federal statutes. What does this mysterious statement mean:

The Code is divided into titles according to subject matter. Some are called positive law titles and the rest are called non-positive law titles.
Here is the answer:
The distinction is legally significant. Non-positive law titles are prima facie evidence of the law, but positive law titles constitute legal evidence of the law in all Federal and State courts (1 U.S.C. 204).

Having, on one hand, non-positive law titles as prima facie evidence of the law, and on the other hand, positive law titles as legal evidence of the law, means that both types of titles contain statutory text that can be presented to a Federal or State court as evidence of the wording of the law. The difference between "prima facie" and "legal" is a matter of authoritativeness.

This and more is explained in this article called "Positive Law Codification" by the Unitied States Code Office of the Law Revision Counsel.

Here is another article that was eye-opening to me when I read it the first time. "Lost Laws: What We Can’t Find in the United States Code," by Will Tress. (If it sounds familiar, I posted about it some time ago.)

Finally, "Don’t Forget Non-code Statutes" is an article in the June/July 2013 Virginia Lawyer.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to General Law Related

Ind. Decisions - "Comment brings suspension for lawyer"

That is the headline of a story by Keith Rhoades just posted by the Martinsville Reporter-Times. Unfortunately it is behind a paywall - what is available reads:

MARTINSVILLE Martinsville attorney XXXX has been suspended from practicing law for 30 days by the Indiana Supreme Court. The suspension is a result of a comment he made in ...
I've deleted the name until I can confirm this - there is no order posted yet on the Indiana Courts site.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - AG files notice of appeal in right-to-work case

Updating this ILB entry from Sept. 9th, here is the Notice of Appeal. It includes a copy of the trial court opinion.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Indiana Courts

Courts - Illinois Supreme Court rules on 2nd amendment protection outside the home

The opinion, issued today, is State of Illinois v. Aguilar. See discussion beginning on p. 7.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Gina Albright v. Review Board of the Indiana Dept. of Workforce Development and the Starke County Sheriff's Dept., a 13-page opinion, Judge Crone writes:

Gina Albright worked as a 911 dispatcher for the Starke County Sheriff’s Department (“the Department”).1 After a firecracker exploded behind her, she experienced hearing loss, vertigo, and tinnitus. She received sick leave and worker’s compensation. After her doctor determined that she was capable of returning to work, Albright did not return to work by taking sick days, vacation days, and bereavement days. After Albright failed to show up for her scheduled shift and call the Department to inform it of her absence, the Department terminated her employment.

Albright filed a claim for unemployment benefits with the Indiana Department of Workforce Development (“DWD”), which found that she was discharged for just cause and ineligible for unemployment benefits. The denial of her claim for unemployment benefits was ultimately affirmed by the DWD Review Board (“Review Board”).

Albright appeals the denial of her claim for unemployment benefits, arguing that the Review Board’s decision is contrary to law. Specifically, she contends that there was insufficient evidence to support its finding that she was discharged for just cause because she knowingly violated a reasonable and uniformly enforced rule. She also argues that the Review Board erred in failing to find that she had a medically substantiated physical disability and therefore was not subject to disqualification for unemployment benefits. We conclude that the Review Board’s denial of her claim is not contrary to law and therefore affirm.

ILB: Also on p. 1 of the opinion, a long footnote on the continuing COA issue of whether a statute/Adm Rule 9 combo requires that claimants and employers in workers comp cases be kept confidential. The upshot seems to be that the Supreme Court said "no", unless there is an affirmative request (Recker, 12/29/11, p.2 note 4 at end: "Pursuant to Administrative Rule 9(G)(1.2), in light of the absence of an affirmative request for continued confidentiality of the identities of the employee and the employing entity, we fully identify the parties."), and "yes" in J.M., 10/17/12, p.2 note 1). The COA in its footnote today cites the J.M. footnote, but then continues: "Although there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court, a different version of footnote 1 has been published in West’s Northeastern Reporter." The new, West footnote conforms to the Recker rule requiring an affirmative request for confidentiality. The version set out in West is the official version: "Thus, even though the original version of footnote 1 still exists on the supreme court’s website and no order of amendment was issued or entry of amendment appears on the docket, it would appear that we are required to follow West’s version of J.M. In light of the most recent version of footnote 1, we are using the names of the claimant and the employer in this case because the parties have not requested the use of initials." [The ILB discussed a related problem in the July 12, 2013 post, headed "Current process for dealing with corrected appellate opinions poses perils."]

In John Luttrell v. Melinda Luttrell, a 13-page opinion, Chief Judge Robb writes:

John Luttrell appeals the trial court’s awards and division of property following his divorce from Melinda Luttrell. John presents three restated issues on appeal: 1) whether the trial court properly divided the marital estate; 2) whether the trial court abused its discretion in awarding spousal maintenance to Melinda; and 3) whether the trial court abused its discretion in its award of attorney’s fees. Concluding that the trial court abused its discretion only in regards to consideration of the Luttrell’s children’s student loans, we affirm in part and remand in part. * * *

Concluding that the trial court properly excluded Melinda’s lump sum SSDI payment, improperly excluded from consideration the Luttrells’ liability on their children’s student loans, otherwise properly divided the estate, and properly awarded maintenance and attorney’s fees, we affirm in part and remand for proceedings consistent with this opinion.

In Brian Russell v. State of Indiana, an 11-page opinion with a separate concurring opinion, Judge Bradford writes:
Appellant-Defendant Brian Russell appeals his conviction for Class C misdemeanor operating a vehicle while intoxicated. LaPorte County Sherriff’s Deputy Andrew Hahn subjected Russell to an investigatory stop after concerned citizen Wayne Bogart called 911 to report Russell as a possible intoxicated driver. At trial, Appellee-Plaintiff the State of Indiana presented evidence obtained as a result of the stop, which the trial court admitted over Russell’s motion to suppress. Because Bogart provided police with specific information regarding where, when, and how Russell could be identified, and because Deputy Hahn corroborated this information with his own observations, we conclude that Bogart’s tip was sufficiently reliable to support reasonable suspicion under the Fourth Amendment. Under Article I, Section 11, we conclude that Deputy Hahn had reasonable suspicion to stop Russell because Bogart provided police with a reliable tip, Deputy Hahn’s request for Russell’s driver’s license and registration was minimally intrusive, and the need to remove intoxicated drivers from the road warranted an immediate police response. The judgment of the trial court is affirmed. * * *

Because Russell’s rights under the Fourth Amendment and Article I, Section 11 were not violated, the trial court acted within its discretion in admitting evidence obtained as a result of Deputy Hahn’s investigatory stop of Russell’s vehicle. The judgment of the trial court is affirmed.

MAY, J., concurs.
BAILEY, J., concurs in result with opinion. [that begins, at p. 10] I concur with the result of the majority; however, given Russell’s waiver of a Fourth Amendment challenge to the stop leading to his arrest, I write separately because I do not think that this Court should address the merits of that issue.

NFP civil opinions today (8):

Flora Birdsong v. Illinois Central School Bus (NFP)

Jeffrey Griebel v. Lehsa Griebel (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.M.(Minor Child) and C.M.(Mother) and R.M.(Father) v. Indiana Department of Child Services (NFP)

In Re the Termination of the Parent-Child Rel. of H.W. (Minor Child) and D.F. (Father) v. The Indiana Dept. of Child Services (NFP)

Phillip J. Troyer v. Tracy L. Troyer (NFP)

In Re the Termination of the Parent-Child Rel. of El.S. and Et.S. (Minor Children) and M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

Jeff Pierrard v. Wright Implement 1, LLC (NFP)

Thomas I. Goode v. Hendricks County Planning and Building Commission (NFP)

NFP criminal opinions today (8):

Willie Ambros Norman v. State of Indiana (NFP)

Adolfo Lopez v. State of Indiana (NFP)

Thelma Lindsey v. State of Indiana (NFP)

Darren L. Bunch v. State of Indiana (NFP)

Oscar Diaz-Flores v. State of Indiana (NFP)

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Gregory Voltaire v. State of Indiana (NFP)

Christopher D. Davies v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the Supreme Court

The Supreme Court granted transfer in the following case on August 16th. See this April 1, 2013 post for background, quoting a LCJ story: "The COA has upheld a ruling against Clark County, which was ordered to pay $865,000 for property taken by eminent domain for an airport expansion project."

Today, in Clark County Board of Aviation Commissioners, Board of Commissioners of Clark County, Indiana v. Dennis Dreyer and Margo Dreyer, as Co-Personal Reps. of the Estate of Margaret A. Dreyer, a 2-page, 5-0 opinion, Chief Justice Dickson writes:

We grant transfer in an effort to dispel confusion resulting from inartful language in one of our previous opinions. * * *

In its appellate challenge to the trial court judgment, the Board argued that the trial court lacked subject matter jurisdiction because the property owner failed to timely file exceptions to the report filed by the court-appointed appraisers. This argument was predicated on language we included in State v. Universal Outdoor, Inc., stating: "the failure to file exceptions within the articulated time frame deprives the trial court of jurisdiction to hear the issue of damages." 880 N.E.2d 1188, 1190 (Ind. 2008).

In rejecting the Board's argument in the present case, the Court of Appeals concluded that this quoted passage from Universal Outdoor "is misleading," and explained: "To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed." Dreyer, 986 N.E.2d at 291. The Court of Appeals is correct. Instead of declaring that the trial court "lacked subject matter jurisdiction," our opinion in Universal Outdoor should have expressed that the untimely filing of exemptions operated to preclude or foreclose the property owner from challenging the filed report. This was not a matter of subject matter jurisdiction.

The opinion of the Court of Appeals is summarily affirmed.

In Andrew McWhorter v. State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:
Andrew McWhorter appealed the denial of his petition for post-conviction relief arguing trial counsel rendered ineffective assistance for failing to object to a flawed voluntary manslaughter jury instruction. On review the Court of Appeals reversed the judgment of the post-conviction court and remanded this cause for retrial on reckless homicide only. On transfer, we also reverse the judgment of the post-conviction court but conclude that on remand there is no prohibition for retrial on either voluntary manslaughter or reckless homicide. * * *

We reverse the judgment of the post-conviction court, vacate McWhorter’s conviction for voluntary manslaughter, and remand this cause for retrial. However, neither the prohibition of double jeopardy nor the doctrine of collateral estoppel preclude retrial for reckless homicide or voluntary manslaughter.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Mo-ped and scooter laws in need of clarity"

From the Kokomo Tribune this morning, this strong editorial:

In February, as Kokomo mo-ped and scooter operators were registering their rides with the city ahead of spring, the rest of the state was wondering what the Indiana Senate would do with a bill that passed the House, 75-18, and set a 30 mph speed limit for mo-ped users on state roadways.

The motorized bicycles have been in a legal gray area that almost certainly would be clarified, we thought.

Senators didn’t give it a hearing.

Last summer, an Indiana Supreme Court ruling in the case of a man arrested for going 43 mph on a mo-ped upheld current state law saying a “motorized bicycle,” as mo-peds are classified, cannot have a maximum design speed over 25 mph.

The case, Michael Lock v. State of Indiana, dates back to 2009 when a state trooper pulled over the Huntington man as he was riding along a state highway.

Lock was convicted on a class D felony charge of operating a vehicle with a suspended license. As punishment, he had his driving privileges taken away for life.

Lock appealed the conviction, arguing he did not need a license to operate a “motorized bicycle.”

The Indiana Court of Appeals overturned Lock’s conviction. Current Indiana law says individuals don’t need a driver’s license to ride mo-peds and scooters, but police and prosecutors argue the restriction was meant for vehicles built to travel no faster than 25 mph. Lock’s mo-ped was traveling 43 mph, and people in law enforcement argue a vehicle capable of going that fast can’t possibly be exempt from traffic laws.

The issue is not whether mo-peds should be going 43 mph. State law already sets the maximum speed at 25.

The issue is whether a mo-ped rider is subject to the same restrictions as the operator of a car or motorcycle.

House Speaker Brian Bosma met last week with Evansville police officers to hear why they want tougher rules for operating mo-peds. Police Sgt. Jason Cullum said two-thirds of mo-ped operators involved in crashes have suspended licenses and almost all of them have no insurance, the Evansville Courier & Press reported.

The bill that passed the House last session also called for mo-ped operators to register their rides with the Bureau of Motor Vehicles.

Passage of such a bill would be welcome news to police officers and prosecutors throughout the state.

ILB: Here is some background on the Lock case, from April 20, 2012; May 3, 2012, and July 26, 2012 (including a summary of the opinion).

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Indiana Law

Ind. Courts - "An internet blogger is out of prison, but is still appealing his conviction to the Indiana Supreme Court"

Mike Perleberg of Eagle County 99.3 FM, which has covered the Daniel Brewington story from the beginning, has this story this morning about the oral argument that begins at 9 AM. See this ILB entry for further details.

Posted by Marcia Oddi on Thursday, September 12, 2013
Posted to Upcoming Oral Arguments

Wednesday, September 11, 2013

Ind. Courts - Brewington blogger/first amendment case to be argued at 9 am tomorrow before Supreme Court

See listing here in the ILB's "Upcoming Oral Arguments", which includes links to the briefs and to earlier posts.

Watch the oral argument here at 9 am, or later, archived. One hour has been set aside for this oral argument.

Tim Evans of the Indianapolis Star this afternoon posted a long, comprehensive story going into the background of the case, which started with a 2007 divorce. Evans' story begins:

The Indiana Supreme Court will hear oral arguments Thursday in the case of a blogger convicted of making online threats against a Southern Indiana judge.

Daniel Brewington, 39, Cincinnati, was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury for comments he wrote on a blog about the Dearborn County judge who presided over his contentious divorce case.

Brewington thought — and argued in court — that he was exercising his First Amendment right to criticize a public official, but authorities decided his statements crossed the line from free speech into criminal behavior.

The Indiana Court of Appeals in January upheld the most serious of his convictions.

Brewington isappealing that decision to the Supreme Court. And he has found support for his attempt to have the convictions overturned in an unlikely coalition: a mix of conservatives, liberals, academics and media advocates including The Indianapolis Star.

The groups that signed onto a friend of the court brief aren't interested in the minutiae of Brewington's divorce and custody fight. Their concern extends to a broader issue: a belief that Indiana's intimidation law — particularly as interpreted by the Court of Appeals in Brewington's case — violates the First Amendment of the U.S. Constitution.

"The Star's decision to support the request for a Supreme Court review is not an endorsement of Brewington or his actions," Star Editor Jeff Taylor explained earlier this year when the newspaper joined the group seeking a Supreme Court review.

"Our focus is on the significant First Amendment issue raised here,” Taylor said. “We're concerned that the intimidation law, as used in this case, infringes upon protected speech and could be used as a weapon to go after anyone — whether that's a journalist, a private citizen, an activist, whatever the case — who doggedly criticizes the actions of public officials or public figures."

During Thursday’s hearing, attorneys for Brewington and the coalition will square off against the Indiana attorney general. The attorney general represents prosecutors in criminal appeals.

The docket lists the following "friends of the court":
The Digital Media Law Project; The Hoosier State Press Association; The Indiana Coalition of Open Government; The James Madison Center For Free Speech; American Civil Liberties Union of Ind.
A June 17th docket entry lists the following:
AMICUS CURIAE-EAGLE FORUM, THE HOOSIER STATE PRESS ASSOCIATION, THE INDIANAPOLIS STAR, THE ASSOCIATION OF SCHOLARS, THE COALITION FOR OPEN GOVERNMENT, THE JAMES MADISON CENTER FOR FREE SPEECH, NUVO, JAMES W. BROWN, ANTHONY FARGO, AND SHEILA S. KENNEDY
Each side will have 30 minutes.

Mr. Brewington will be represented by Indianapolis attorney Michael Sutherlin, who will share 10 minutes of his time with Prof. Eugene Volokh, UCLA.

The State will be represented by Stephen Creason, Chief Counsel of Appeals, Office of the Indiana Attorney General.

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Upcoming Oral Arguments

Ind. Courts - Two articles by Alison Frankel on the 7th Circuit and class actions

Just posted, re yesterday's 7th Circuit opinion in Hughes v. Kore of Indiana, Alison Frankel writes in a long post for her Reuters blog that begins:

Reading opinions by Judge Richard Posner of the 7th Circuit Court of Appeals is like jumping waves in a calm ocean. You bob along in the buoyancy of Posner’s ideas until you turn around to face shore and wonder how you drifted so far from where you started. So it is in an 11-page ruling Tuesday, addressing whether a class of ATM users may be certified to seek statutory damages under the Electronic Funds Transfer Act for a tiny defendant’s failure to post stickers notifying users of ATM fees. As you know, these are more turbulent waters than they first appear, roiled by uncertainty about constitutional standing and appropriate classwide relief. Posner’s prose nevertheless carries you along so forcefully that you don’t even notice until you’re done that he has deposited you in a land where all the rules are Posner-made.

Okay, I’m exaggerating. But once again, the iconoclastic appellate judge has issued an important opinion on consumer class actions that reflects his vision, as an economic rationalist, of the potential efficiencies of resolving hundreds or thousands of individual claims with a single proceeding. He did it last month when, on remand from the U.S. Supreme Court, he [Posner] and two 7th Circuit colleagues recertified a class of Sears washing-machine purchasers for the purposes of determining whether Sears is liable for a design that supposedly results in a moldy odor. Sears has called the ruling “judicial fiat.” In the new opinion, Posner and his fellow 7th Circuit panelists Daniel Manion and Diane Wood urge trial judges to use common sense in deciding whether to certify a consumer class seeking statutory damages, focusing on realistic solutions and not hypothetical problems.

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: David Camm trial in Lebanon, which began August 22, continues into another week

Updating this ILB entry from Sept. 9th...

Here is Charles Wilson's Sept. 10th AP story headed "Testifying at Camm trial, Boney admits his story has changed multiple times: Acknowledges investigators fed him information."

Here is Grace Schneider's Sept. 10th story for the Louisville Courier-Journal, headed "Charles Boney concludes testimony in David Camm murder trial," and her Sept. 11th story, headed "David Camm was at scene when family shot, expert testifies."

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Indiana Courts

Ind. Courts - "Marion Superior Court Judge Kimberly Brown admits errors, but objects to suspension"

Tim Evans and Marisa Kwiatkowski of the IndyStar have the story here. The Supreme Court had set a deadline for Brown's response of noon today. Here, via the Star, is the 15-page response and accompanying memorandum, signed by Judge Brown's counsel, Aaron E. Haith.

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Indiana Courts

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

For publication opinions today (2):

In Kari Everhart v. Founders Insurance Company, an 11-page opinion, Judge Brown writes:

Kari Everhart appeals from the court’s grant of summary judgment in favor of Founders Insurance Company (“Founders”) and from the denial of Everhart’s motion to correct error. Everhart raises one issue which we revise and restate as whether the court erred in granting summary judgment. We affirm. * * *

Everhart argues that “[t]he exclusion cited by Founders is not applicable in the instant case” because “the proximate cause of her injuries and damages was negligence on the part of . . . Club Coyote” and “the exclusion relied upon . . . is for intentional acts.” Everhart argues that “[c]learly, [she] has never contended that any employee or patron of . . . Club Coyote did anything intentionally,” and she points specifically to Interrogatory No. 6 for this proposition. * * *

This case turns on whether Everhart’s version of the events of what transpired and caused her injuries, as stated in Interrogatory No. 6, was a battery, because, if so, coverage under the Policy would be excluded pursuant to the Endorsement. * * *

The Endorsement excludes coverage for batteries committed by both employees of the insured and any other persons, and, as noted by Indiana’s definition of battery, a battery results if an individual acts intending to cause harmful contact with not only the person contacted, but also a third person, and harmful contact directly or indirectly results. There is no dispute that Elson intentionally pushed the patron, a third person, that the patron came into contact with Everhart, and that Everhart was harmed as a result by breaking her arm, and accordingly, Everhart was the victim of a battery on the premises of Club Coyote. We therefore conclude that the court did not err when it granted summary judgment in favor of Founders. * * *

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Founders and its denial of Everhart’s motion to correct error.

In Donovan Johnson and Aileen Johnson v. Poindexter Transport, Inc., and Crane Service, a 14-page opinion, Judge Bradford writes:
On December 10, 2009, Appellant-Plaintiff Donovan Johnson was injured while working on a construction project in West Lafayette when a wooden form broke apart and fell from a crane that was being operated by an employee of Appellee-Defendant Poindexter Transport Inc. and Crane Service (“Poindexter”). On August 20, 2010, Donovan and his wife Aileen (collectively, “the Johnsons”) filed suit against Poindexter, alleging that Donovan was injured as a result of Poindexter’s negligence. Poindexter subsequently filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1), alleging that the trial court lacked subject matter jurisdiction because the Johnsons’ exclusive remedy was to pursue a claim for benefits under the Indiana Worker’s Compensation Act (the “Worker’s Compensation Act”).

On November 23, 2012, the trial court granted Poindexter’s motion to dismiss. The Johnsons appealed the trial court’s order. Upon review, we conclude that the trial court lacked subject matter jurisdiction to hear the Johnsons’ claims because, under the provisions set forth in the Worker’s Compensation Act, at the time of the accident, Donovan and the crane operator were co-employees. Accordingly, we affirm. * * *

The determination of whether an employer-employee relationship exists ultimately is a question of fact. Argabright, 804 N.E.2d at 1166. “In making this determination, the fact-finder must weigh a number of factors, none of which is dispositive.” Id. In Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991), the Indiana Supreme Court identified these factors as: (1) the right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries. Upon review, these factors must be weighed against each other as part of a balancing test as opposed to a mathematical formula where the majority wins. See GKN, 744 N.E.2d at 402. When applying this balancing test, the greatest weight should be given to the right of the employer to exercise control over the employee. Argabright, 804 N.E.2d at 1166 (citing GKN, 744 N.E.2d at 405-06). * * *

Balancing the Hale factors and giving considerable weight to the element of control, we conclude that there was sufficient evidence before the trial court to conclude that Creel was a borrowed employee of R.L. Turner. Accordingly, we conclude that the Johnsons are barred from bringing a claim for damages against Poindexter because their exclusive remedy is to pursue a claim for benefits under the Worker’s Compensation Act. See Argabright, 804 N.E.2d at 1168-69 (citing Ind. Code § 22-3-2-13). Consequently, we further conclude that the trial court properly granted Poindexter’s motion to dismiss pursuant to Trial Rule 12(B)(1), as it lacked subject matter jurisdiction to hear the case. The judgment of the trial court is affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jane Kleaving v. State of Indiana (NFP)

Ronald D. Hayes v. State of Indiana (NFP)

Yohau Flame v. State of Indiana (NFP)

Dewayne Perry v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - FOIA issues reported in accessing State of Michigan contracts

Two of the three State of Michigan agencies that have the authority to manage their contracts independently, Transportation (MDOT) and Economic Development (MEDC), tell the Lansing State Journal it will cost them a lot to see the contracts. From the story Sept. 7th by Kristen M. Daum:

When asked under a Freedom of Information Act request by the Lansing State Journal to review their contracts, an MEDC official said it would cost $1,700 just to allow a reporter to review the contacts. And an MDOT official said the agency would need tens of thousands of dollars before making the information available for review — information similar to what DTMB offers online.

Meanwhile, the Michigan Lottery quickly fulfilled the FOIA request, which showed the bureau manages only one agreement on its own. It has a nearly seven-year contract — worth $320 million — with GTech Corp, a Rhode Island-based company that provides the equipment retailers use to sell lottery tickets. * * *

In a written response to the State Journal’s FOIA request, MEDC officials said it would cost about $1,700 and take 48 hours for their staff to “run reports, review and examine, separate and extract information and copy the records” for the 512 contracts the agency previously told the State Journal it had with outside vendors.

MEDC officials declined to answer follow-up questions last week, including what information might need to be reviewed for redaction in public contracts already in effect. The agency said previously its contracts involved support services such as advertising and computer consulting.

Meanwhile, state transportation officials said in their written response last week that the State Journal’s request to review all of MDOT’s contracts was “exceptionally broad” — so much so that it’s “impossible to accurately estimate the amount of man hours it will take to compile all of the data,” wrote Bill Perod, MDOT’s freedom of information coordinator.

“I would easily anticipate your request to eclipse well into tens of thousands of dollars,” Perod wrote.

MDOT’s written response also came several days late, in violation of state law, and MDOT spokesman Jeff Cranson either would not or could not explain why.

Under Michigan’s FOIA, government entities must provide a written initial response within five business days of receiving a request. Perod did not provide MDOT’s written response until Sept. 4, 10 business days after the State Journal submitted its request.

MDOT has the third-largest budget of any state agency at $3.4 billion this fiscal year.

Michigan Press Association officials said the amounts MEDC and MDOT are asking for to fulfill the FOIA requests “seems excessive.”

“These are taxpayer dollars and taxpayers have a right to know where their dollars are going, without someone having to pay excessive amounts of money,” said Lisa McGraw, MPA’s public affairs manager. “Charging you for their disorganization doesn’t seem reasonable to me.”

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one more Indiana case yesterday, a reversal

[The 7th Circuit files opinions throughout the day. The ILB checks this link frequently.]

In Hughes v. Kore of Indiana (SD Ind., Magnus-Stinson), an 11-page opinion, Judge Posner writes:

The plaintiff in this class action suit seeks leave to appeal from the district judge’s decertification of the class. Fed. R. Civ. P. 23(f). We have decided to allow the appeal in order to further the development of class action law (Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (7th Cir. 1999)) regarding issues of notice in cases in which the potential damages per class member are very slight, and the suitability of class action treatment of such cases. * * *

The order decertifying the class is reversed and the case remanded for further proceedings consistent with this opinion. We hold only that the judge’s opinion decertifying the class does not provide adequate grounds for her ruling. There may be such grounds. And our extended discussion of how to distribute damages was not meant to imply that Kore must be liable in this case. For all we know, it has good defenses. REVERSED AND REMANDED.

Posted by Marcia Oddi on Wednesday, September 11, 2013
Posted to Ind. (7th Cir.) Decisions

Tuesday, September 10, 2013

Ind. Gov't. - "The State Board of Education appears to be operating with more Republican members than permitted under Indiana law"

One could sub-title this story "The more things change ...".

Yesterday Dan Carden of the NWI Times had a long story reporting that:

INDIANAPOLIS | The State Board of Education appears to be operating with more Republican members than permitted under Indiana law.

According to Indiana Code, no more than six of the 10 members on the governor-appointed board may be from the same political party. The governor's office claims six Republicans, two Democrats and two independents serve on the panel.

However, a review by The Times has determined Daniel Elsener, one of the claimed independents, is likely a Republican.

Voting records show Elsener cast a ballot in Republican primary elections nine out of 10 times since 1994. He voted in the 2000 Democratic primary.

Elsener also has donated $10,575 to Republican candidates and business groups supporting Republicans since 2001 -- and nothing to Democratic or independent groups, according to state campaign finance records.

On Wednesday, Elsener led what amounted to a board coup against its chairwoman Glenda Ritz, the Democratic state superintendent of public instruction, who defeated Republican Tony Bennett in a 2012 election. * * *

Elsener, who was first appointed to the state education board in 2005 by Republican Gov. Mitch Daniels and is president of Indianapolis' Marian University, insisted in an email responding to questions about his party ties that he is "an independent thinker" that votes for candidates "I believe would perform the best in the office."

ILB: "The more things change ..." refers to this ILB post from Oct. 18, 2005, where a similar issue came up with respect to then-Governor Daniels' appointment of Randle Pollard to the same State Board of Education, as a Democrat. According to the Star, however, "Pollard refused to say what party he belongs to, calling it 'irrelevant' -- kind of an odd answer from an attorney when asked for something that has to do with compliance with a state law."

But in 2008 Pollard ran for the nomination for the 7th congressional district special election, and did indeed run as a Democrat. (See Wikipedia entry.)

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Indiana Government

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

In UNITED STATES OF AMERICA v. CHRISTOPHER EADS (SD Ind., Pratt), a 23-page opinion decided Friday, Sept. 6, Judge Williams writes:

At the age of twenty‐six, Christopher Eads was charged with possession and distribution of child pornography and tampering with a potential witness. The district court cautioned him about the perils of self representation in a criminal trial, but he chose to represent himself anyway. Eads stipulated that the images charged in the indictment constituted child pornography, but he claimed that he was being framed and that the images belonged to someone else. So over Eads’s objection, the district court allowed the government to introduce several photographs and short video clips of the child pornography discovered on Eads’s home computer to show he knowingly possessed and distributed these images. The jury also heard several telephone calls Eads made to his wife urging her to recant her earlier statements to police and to tell them that the pornography found on his home computer was not his. After a four‐day trial, the jury convicted Eads on all counts, and the district court sentenced him to 480 months’ imprisonment.

Eads now raises a litany of challenges to his convictions and sentence on appeal, but none have any merit. He claims that the district court abused its discretion in allowing him to represent himself at trial, but the court questioned him at length before allowing him to proceed pro se. And while we agree with Eads that the district court erred in not thoroughly explaining on the record why it admitted the evidence of child pornography, the images were not unfairly prejudicial and the additional evidence of his guilt was overwhelming. The jury was also presented with sufficient evidence of Eads’s attempts to corruptly persuade his wife to testify falsely, and so we will not overturn the jury’s guilty verdict on the witness tampering charge. Eads further claims that the district court should have granted him a new trial. But the district court held an evidentiary hearing on the matter and properly found no newly discovered evidence to support a new trial. Lastly, notwithstanding Eads’s protestations to the contrary, the district court carefully considered the factors under 18 U.S.C. § 3553(a) as they applied to Eads and his overall offense conduct before sentencing him. Therefore, we affirm the district court’s judgment in all respects.

In UNITED STATES OF AMERICA v. JOHN EDWARD SCOTT (ND Ind., Springmann), a 10-page opinion decided today, Sept. 10, Judge Lee (District Judge for the United States District Court for the Northern District of Illinois, sitting by designation) writes:
While executing a search warrant, police found illegal drugs and a firearm in John Edward Scott’s home. Scott was subsequently indicted for two drug offenses and two firearms offenses. The affidavit submitted by the police to obtain the warrant described two controlled drug buys in which detectives used a confidential informant (“CI”) to purchase heroin from a Gerald Reynolds. On each occasion, after meeting with the CI, Reynolds drove alone to Scott’s house and returned to the CI with the requested heroin. The affidavit contained one sentence describing an audio recording of a conversation between Reynolds and Scott that occurred in Scott’s driveway during the first controlled buy.

Scott filed a motion to suppress the evidence seized in the search of his house, arguing that the recorded driveway conversation was obtained in violation of the Fourth Amendment and that the seized evidence constituted fruit from that poisonous tree. The district court denied the motion, and Scott pled guilty to possessing a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 120 months of imprisonment followed by eight years of supervised release. As permitted by his plea agreement, Scott now appeals the denial of his suppression motion, arguing that he had a reasonable expectation of privacy in the driveway conversation and that, without the recorded conversation, the government lacked probable cause to obtain a search warrant for his house.

For the reasons given below, we conclude that there was sufficient evidence apart from the driveway conversation to establish probable cause for the search warrant. Thus, we need not reach the issue of whether Scott had a reasonable expectation of privacy in his driveway conversation with Reynolds and affirm the district court’s denial of Scott’s motion to suppress.

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - Go back in time and watch Ruth Bader Ginsburg being nominated to the Supreme Court and her confirmation hearings

Adding to this ILB post from yesterday on Ruth Bader Ginsburg as an advocate before the SCOTUS, here is video from June 14, 1993 of President Clinton announcing Ruth Bader Ginsburg as his Supreme Court nominee. Circuit Judge Ginsburg's response begins at about 12:30.

Thanks to C-SPAN, the video of all of the Senate Judiciary Committee's confirmation hearings on Judge Ginsburg are also available.

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Courts in general

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

For publication opinions today (4):

In Myron Jay Rickman v. Sheila Rena Rickman , an 8-page opinion, Judge Brown writes:

Myron Jay Rickman, pro se, appeals the trial court’s denial of his petition for modification of visitation order and denial of his motion to correct error. Rickman raises one issue which we revise and restate as whether the court erred in denying Rickman’s petition for modification of visitation order and motion to correct error. We reverse and remand. * * *

The CCS entry related to the denial of Rickman’s petition states only that the petition was denied without a hearing and that Rickman was incarcerated on child molesting charges. That statement is factual and does not constitute a sufficient written explanation indicating why the petition was denied or whether it was denied pursuant to Ind. Code § 31-17-4-2, or whether the court considered the Parenting Time Guidelines. In either event, a factual basis and a finding as to potential endangerment of M.R.’s physical health or safety or significant impairment of his emotional development are necessary.

If on remand, the trial court determines the Guidelines to be applicable, it must then proffer an explanation for its departure from the Guidelines. Thus, the trial court must reflect upon the best interests of the child and the possible consequences of its departure from the provisions of Indiana Parenting Time Guideline I(A). Doing so would enable us to thoroughly and appropriately review the trial court’s deviation and the reasons behind it.

Under these circumstances and recognizing that Sheila did not file an appellee’s brief, we remand for the trial court to provide a written explanation for its reasons for denying the petition or to conduct other proceedings consistent with this opinion.

For the foregoing reasons, we reverse the trial court’s denial of Rickman’s petition for modification of visitation and remand for proceedings consistent with this opinion.

In Kelvin Fuller v. State of Indiana, an 8-page opinion, Judge Riley writes:
Fuller raises one issue which we restate as: Whether the trial court abused its discretion by denying his motion to discharge in accordance with Ind. Crim. Rule 4(C). * * *

It is Fuller’s burden on appeal to give us a record that supports his claims. See Delao v. State, 940 N.E.2d 849, 852 (Ind. Ct. App. 2011). At best, Fuller presented us with some evidence suggesting that Lake County sheriff’s department might have been aware of Fuller’s incarceration in Indiana. However, because the record does not show that the Lake County prosecutor or trial court were actually aware of Fuller’s return to Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012, the Crim. R. 4 (C) clock did not start until that date. Therefore, the trial court properly denied Fuller’s motion.

In H.M. v. State of Indiana, a 6-page opinion, Judge Riley writes:
Appellant-Petitioner, H.M., appeals the trial court’s summary denial of his four petitions to restrict the disclosure of arrest records pursuant to Ind. Code § 35-38-5-5.5.[1] We affirm. * * *

In the case before us, H.M. was arrested but the State never filed its Information. Therefore, H.M. was not “charged” as interpreted in I.C. § 35-38-5-5.5 and is thus not eligible to restrict the disclosure of his arrest records.[2] We conclude that the trial court properly denied H.M.’s petitions.
_____________
1 We note that this statute has been repealed by Public Law 194-2013, effective July 1, 2013, and replaced by the current I.C. § 35-38-9 (2013); however, as H.M.’s petition was filed on February 15, 2013 and the trial court’s summary denial occurred on March 14, 2013, such legislative action has no effect in this case.

2 We note, however, that the revised statute with respect to the sealing of arrest records specifically includes the situation of “a person who has been arrested if: (1) the arrest did not result in a conviction or juvenile adjudication[.]” I.C. § 35-38-9-1.

In Jerome Binkley v. State of Indiana, a 9-page opinion, Judge Pyle writes:
Jerome Binkley (“Binkley”) appeals pro se from the post-conviction court’s order denying his petition for post-conviction relief. We reverse and remand. * * *

Because Binkley has pled sufficient facts to raise an issue of possible merit, we find that the trial court erred in summarily denying Binkley’s PCR petition. As a result, we remand for further proceedings on Binkley’s ineffective assistance of counsel claim and direct the post-conviction court to issue findings of fact and conclusions of law consistent with Post-Conviction Rule 1(6).

NFP civil opinions today (2):

Tim L. Godby v. James Basinger, Et Al., (NFP)

Century Surety Company v. The Ugly Monkey, LLC and Camburad, LLC, Amber Pagel, Dale Ueber a/k/a Dale Uebersetzig and Ueber Insurance Inc., (NFP)

NFP criminal opinions today (2):

Ronald Andrew Manley v. State of Indiana (NFP)

Reco Terrell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Attorney General Zoeller appeals to reinstate charges against David Lott Hardy in utility regulator case

Updating this ILB entry from yesterday, re the AG's appeal of the trial court's order to dismiss in the case against David Lott Hardy, the ILB has received some interesting research notes from a respected attorney about retroactive legislation in the civil realm.

Also of interest would be some of the cases turned up in this Google Scholar search of Indiana opinions re "remedial."

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Indiana Courts

Ind. Gov't. - More on "Call to End DCS Control of Juvenile Delinquency Funding" [Updated]

Updating this ILB post from August 26, quoting an Indiana Juvenile Justice Blog post that began:

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.

Today the Fort Wayne Journal Gazette has an editorial headed "Control at Risk." Some quotes:
When Indiana’s juvenile court officials make a recommendation for a troubled young person to be placed in a residential facility, one of five probation service consultants hired by the Department of Child Services looks at the paperwork to approve or deny the order.

The DCS consultant rules without ever hearing testimony in court; without meeting the young person affected; without speaking with the judge or probation officials who made the recommendation. In some cases, local juvenile authorities have been forced to take additional measures to ensure troubled children get the treatment they need.

“It’s time to take control of funding decisions for juvenile delinquency services away from (DCS),” writes Kaarin M. Lueck, a Wayne County public defender who writes the Indiana Juvenile Justice blog. “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.”

Lueck and other juvenile court officials and advocates want the authority for funding returned to the bench. They argue that the 2008 change in state law isn’t serving at-risk young people well. As a DCS oversight committee continues to fix problems in the state’s child protection system, it makes sense to review the agency’s role in reviewing orders in juvenile delinquency cases. * * *

Under the new leadership of former Judge Mary Beth Bonaventura, DCS operations have been undergoing welcome review. The agency’s role in juvenile delinquency cases is one she should examine.

ILB: The legislative Child Services Oversight Committee next meets Oct. 23, 2013.

According to this ILB post on the State Commission on Improving the Status of Children, "The commission's next meeting is scheduled for Oct. 16 in Indianapolis." This is a judicial commission, and the ILB does not believe it yet has a website, although there had been talk of one.

[Updated almost immediately]

The ILB has now heard from an informed reader that:

... a court just needs to enter findings [under Indiana Code § 31-34-19-6.1(e)] to overrule the consultant. Virtually every one of those cases appealed [under Appellate Rule 14.1] has then upheld the judge. I don't think DCS even bothers appealing them anymore, because they know the appellate courts will very likely side with the judge.

Here is an example.

ILB: This is not to say, however, that this area should not be clarified.

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Indiana Government

Ind. Decisions - More on "Lake Co. judge rules Indiana's right-to-work law unconstitutional "

Updating this ILB entry from last evening, here is the 7-page order by Lake County Superior Court Judge Sedia.

Here is a long story in today's Indianapolis Star, reported by Chris Sikich, that begins:

The long, hard battle over the state’s right-to-work law appears headed to the Indiana Supreme Court.

Lake Superior Court Judge John ­Sedia ruled Thursday the law violates a provision in the state constitution barring the ­delivery of services “without just compensation.” Sedia, who was ­appointed by then-Gov. Mitch Daniels in 2012, ruled the law incorrectly forces unions to represent workers who don’t pay union dues.

The Indiana attorney gen­eral’s office said it will seek to appeal the case di­rectly to the state Supreme Court.

Republican lawmakers said Monday they are confident the Supreme Court will overturn the ruling. * * *

Legal experts agree the unions’ victory likely will be short-lived. Joel Schumm, a law pro­fessor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said the constitutional clause under question historically has applied to individuals.

The Supreme Court, he said, would need to be convinced to extend that right from individuals to unions.

“Unions are not generally thought of as a ‘person,’ nor are they organizations that existed when the Indiana Constitution was ratified in 1851,” he said.

He thinks it’s unlikely the Indiana Supreme Court will redefine individuals as unions. He said the court gives significant deference to the legislature to enact state laws.

[More] Direct Supreme Court review of this decision is mandatory, per the Appellate Rules:
Rule 4. Supreme Court Jurisdiction

A. Appellate Jurisdiction.

(1) Mandatory review. The Supreme Court shall have mandatory and exclusive jurisdiction over the following cases:

* * *

(b) Appeals of Final Judgments declaring a state or federal statute unconstitutional in whole or in part.

Posted by Marcia Oddi on Tuesday, September 10, 2013
Posted to Ind. Trial Ct. Decisions

Monday, September 09, 2013

Ind. Decisions - "Lake Co. judge rules Indiana's right-to-work law unconstitutional "

Elvia Malagon reports in the NWI Times this evening:

HAMMOND | A Lake County superior court judge has ruled Indiana's right-to-work law unconstitutional but the decision doesn't mark the end of the law's legal battle.

Judge John Sedia ruled the law unconstitutional last week because the state constitution calls for just compensation for services, according to an order. The ruling stems from a lawsuit filed in February 2013 when members of the International Union of Operating Engineers Local 150 AFL-CIO, argued the law violated the constitution.

The Indiana attorney general's office said Monday in an email that the state plans to immediately appeal the decision to the state Supreme Court. The state called the judgement incorrect because the judge did dismiss four other counts in the lawsuit.

According to court records, the law makes it a criminal offense for unions to receive compensation for services the federal law requires them to provide to employees even if they aren't dues-paying members.

The portion of the constitution Sedia cites as conflicting with the law states that no one's services can be demanded without just compensation, according to the state's constitution.

Indiana was the 23rd state to pass a right-to-work law which states that no employer, labor group or person can require an individual to be part of a labor group, pay dues or fees as a condition for employment, according to the state's website.

From Christin Nance Lazerus of the Gary Post-Tribune, this story:
HAMMOND — Indiana’s “right to work” law has been declared unconstitutional by a Lake County Judge.

Lake Superior Court Civil Division Judge John Sedia issued the ruling in a lawsuit brought by Local 150 of the International Union of Operating Engineers and several of its individual members.

The union lawsuit had alleged the law was unconstitutional for five different reasons but the judge, in a ruling filed last week, agreed with them on only one: that by preventing the union from collecting fees from non-union members to cover the cost of bargaining and other services, the law violated the Indiana constitution. * * *

Unions are obligated under federal law to represent workers in their bargaining units, whether they are dues-paying members or not, the judge wrote.

“”Put simply,” Sedia wrote, the state law means that “it becomes a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.” * * *

He also noted that “there is no court which is more loathe to declare any state statute unconstitutional than this one,” but that he had “no choice but to find” that the law violates Article I, Section 21 of the Indiana Constitution.

ILB: From the Indiana Constitution:
Section 21. No person' s particular services shall be demanded, without just compensation. No person' s property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.
From these news reports, this opinion would seem to require that a union be considered a "person" under Art. 1, sec. 21 of the Indiana Constitution. In another part of the Constitution, however, the phrase "person, association or corporation" is used, implying that the Constitution's drafters intended a distinction between these entities.

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Attorney General Zoeller appeals to reinstate charges against David Lott Hardy in utility regulator case

From a news release issued this afternoon:

Representing the prosecution in appellate court, Indiana Attorney General Greg Zoeller’s office is seeking to reinstate criminal charges against a former state utility regulator by appealing a trial court’s order that dismissed the charges.

On Friday in the Indiana Court of Appeals, Zoeller’s office filed notice to appeal the August 12 ruling of the Marion County Superior Court that dismissed official misconduct charges against David Lott Hardy. The trial court found that the Legislature’s 2012 change to the official misconduct statute invalidated charges the prosecutor had brought against Hardy before that time.

The Attorney General’s Office represents the State in criminal appeals. Zoeller said that after reviewing the case and conferring with the Marion County Prosecutor’s Office, he decided to appeal the trial court’s ruling. Zoeller’s office asks the Court of Appeals to reverse the trial court’s order dismissing the charges and reinstate them, so that Hardy will again face trial.

“This is an issue of law regarding our Legislature’s intent. If the Legislature intended to make a 2012 change in the law retroactive as the trial court ruled, it would have written that into the statute, and it did not. We respect the trial court but contend its ruling is incorrect, the 2012 change is not retroactive and the defendant can and should face charges under the law in effect in 2010. We ask the Court of Appeals to reinstate the charges so that the trial can proceed and a verdict can be rendered,” Zoeller said. [Emphasis by ILB] * * *

Although the acts allegedly occurred in 2010 and the Marion County Prosecutor obtained the indictment in 2011, the Legislature changed the official misconduct law in 2012 to specify that it applied to specific criminal offenses by public officials, and not to violations of ethical or administrative rules or infractions. The trial court interpreted the 2012 change in the law as retroactive and decided the new definition meant official misconduct charges could not apply to Hardy, and so dismissed them.

For background, see the ILB entry from August 13th. Re the trial court ruling, the ILB wrote:
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...

Attached is the State’s notice of appeal, filed Friday in the Indiana Court of Appeals, as well as the trial court’s August 12 order dismissing the criminal charges.

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Indiana Courts | Indiana Government

Ind. Courts - David Camm trial in Lebanon, which began August 22, continues into another week

Updating this ILB entry from Sept. 4th...

Here is the Sept. 5th coverage of the David Camm murder retrial, by Grace Schneider of the Louisville Courier-Journal. Schneider's story was headed "David Camm's recorded police interview halted in court over molestation-related questions."

Similarly, here is the Sept. 6th coverage, headed "David Camm's defense attacks analysis of bloodstains in family's murder."

Today, Sept. 9th, the long LCJ story is headed "Charles Boney testifies that he listened outside as David Camm murdered family."

ILB coverage is constrained because the LCJ, like the other Gannett papers, is now $$$.

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending September 6, 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, September 6, 2013. It is two pages (and 25 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, September 09, 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 (1):

In the Matter of S.L., and J.L., Children Alleged to be Children In Need of Services, S.B.-L., Mother v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Jerry Williams v. State of Indiana (NFP)

Boubacarr Moussa v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Ind. App.Ct. Decisions

Courts - Go back in time and listen to women's rights advocate Ruth Bader Ginsburg arguing before the SCOTUS in the 1970s [Updated]

On Friday, September 6, 2013 the National Constitution Center presented "An Evening with Justice Ruth Bader Ginsburg," billed as "a wide-ranging conversation with the National Constitution Center’s new President and CEO Jeffrey Rosen."

Although the program was simulcast, unfortunately there currently is no on-demand version,. However, the National Constitution Center website promises one shortly. I'll add the link when it does become available. [Update - C-SPAN has the entire 90-minute interview, here.]

I was fortunate to catch the last part of the simulcast Friday evening, where Justice Ginsburg discussed at length some of the groundbreaking cases she had taken to the Supreme Court.

As I listened to Justice Ginsburg, with her unique, very slow and measured speaking style, I wondered what she had sounded like as an advocate before the SCOTUS in the 1970s.

First, what were some of her cases? This section from the Wikipedia entry discusses some of Justice Ginsburg's landmark cases:

In 1972, Ginsburg co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) and, in 1973, she became the ACLU's General Counsel. As the chief litigator for the Women's Rights Project, she briefed and argued several landmark cases in front of the Supreme Court, such as Reed v. Reed, 404 U.S. 71 (1971), wherein the Court extended the protections of the Equal Protection Clause to women for the first time. She also argued Frontiero v. Richardson, 411 U.S. 677 (1973) and Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), which supported the ultimate development and application of the intermediate scrutiny Equal Protection standard of review for legal classifications based on sex. She attained a reputation as a skilled oral advocate, and her work directly led to the end of gender discrimination in many areas of the law.

Her last case as a lawyer before the Court was 1978's Duren v. Missouri, which challenged laws and practices making jury duty voluntary for women in that state. Ginsburg viewed optional jury duty as a message that women's service was unnecessary to important government functions.

The good news, as I quickly confirmed, is one can actually listen to Justice Ginsberg making these oral arguments, via Oyez.org. Here are the links:In sum, I'd recommend the Duren audio as a good window into what kind of an advocate Justice Ginsburg was 35 years ago, shortly before she became a federal judge. Per Wikipedia, President Carter appointed Ginsburg to "the U.S. Court of Appeals for the District of Columbia Circuit on April 14, 1980, to the seat of recently deceased judge Harold Leventhal. She served there for thirteen years, until joining the Supreme Court."

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Courts in general

Ind. Gov't. - More on: Indiana secures one-year waiver for the state-run insurance program, will push 11,000 current enrollees off its rolls; Michigan moves in other direction

Updating this ILB entry from Sept. 4th, here are some quotes from Maureen Hayden's Sept. 8th CNHI column, here in the New Albany News & Tribune, headlined "State cracking under health care strain: Indiana ranks 47th in the infant mortality rate."

INDIANAPOLIS — In the war over the Affordable Care Act, Indiana Gov. Mike Pence won a policy victory when the Obama administration gave him a temporary pass to continue with the Healthy Indiana Plan, a high-deductible health insurance program that covers only 37,000 low-income Hoosiers.

The reprieve came on the condition that the state continues to consider its coverage options for another 300,000 uninsured Hoosiers — mostly the working poor — who’ve been left out in the cold by Pence’s decision not to expand traditional Medicaid coverage, as 25 other states have opted to do under the ACA.

During a press conference to announce the decision, Pence called it a “victory for Hoosiers” enrolled in the program (which has a waiting list of 55,000) as reporters questioned him about other Hoosiers without health care insurance.

Pence’s response was to say there was a “broad range of services” available to uninsured Hoosiers, from public clinics to hospital charity care.

“Let’s make sure there is a distinction in the language between health insurance and health care,” he said. “Every person in this state has the ability, if they are struggling with illness, to walk into an emergency room and receive care.”

Actually, according to the Indiana Hospital Association, about 2.7 million people walk — or otherwise enter — emergency rooms in Indiana hospitals every year, many because they have no place else to go.

Pence’s call for hospitals to step up ignores the fact they’ve already stepped up. According to the Indiana Hospital Association, Indiana’s hospitals eat about $3 billion a year delivering uncompensated care to people who can’t pay their hospital bills. About $1.7 billion of that was the “charity care” that, by Indiana law, nonprofit hospitals are required to deliver.

The hospitals don’t absorb all those lost dollars. Those of us with insurance do, said Linda White, president of Deaconess Health Systems in Southwest Indiana, where one out of every four emergency room patients can’t afford to pay their medical bills.

“Those costs are shifted to the people who can pay,” White said.

The second half of the column discusses some of the reasons behind Indiana's abysmal infant mortality rate, concluding with:
The governor’s own health commissioner, Dr. William VanNess, recently noted that an infant born in Indiana has a higher rate of dying before its first birthday than almost anywhere else in the nation. Indiana now ranks 47th out of the 50 states in infant mortality.

[Indiana Rural Health Association President Don] Kelso sees that as a signal of failure by both the health care industry and the state:

“We’re down near the bottom. We’re right down there with Mississippi and Arkansas in the number of babies that are dying. Think about that.”

Posted by Marcia Oddi on Monday, September 09, 2013
Posted to Indiana Government

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

From Sunday, September 8, 2013:

From Saturday, September 7, 2013:

From late Friday afternoon, September 6, 2013:

Posted by Marcia Oddi on Monday, September 09, 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 9/9/13):

Thursday, September 12

Next week's oral arguments before the Supreme Court (week of 9/16/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/9/13):

Tuesday, September 10th

Next week's oral arguments before the Court of Appeals (week of 9/16/13):

Tuesday, September 17th

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, September 09, 2013
Posted to Upcoming Oral Arguments

Sunday, September 08, 2013

Ind. Gov't. - "Not so fast on education reform"

Lesley Weidenbener's Sunday column in the Louisville Courier Journal takes an objective look at the report of the two "independent investigators who looked into alleged irregularities in the state’s A-F grading system for schools."

Posted by Marcia Oddi on Sunday, September 08, 2013
Posted to Indiana Government

Environment - Several recent river stories: Mercury limits for Ohio River; Cleaning the Grand Calumet; and Asian Carp in the Wabash

From the Louisville Courier Journal, a story by James Bruggers headed: "Ohio River commission may relax mercury pollution rules." Some quotes from the long story:

The eight-state commission that sets water quality standards for the Ohio River wants a two-year delay on enforcement of a more stringent mercury standard while it considers relaxing those rules.

The Ohio River Valley Water Sanitation Commission needs more time to look into the potential implications of its decision a decade ago to eliminate “mixing zones” for pollutants such as mercury that concentrate in the environment, said the commission’s executive director, Peter Tennant.

Mixing zones rely on dilution to minimize pollution’s effects.

With the improvement of sampling and analysis technology at ever smaller concentrations, the commission has found that as many as 60 industrial facilities along the river may not meet a tougher standard for mercury, he said.

And commissioners want time figure out how to handle potential variances, should they continue with the tougher standard in 2015, he said.

Environmentalists from several groups objected in a joint statement and in comments filed with the commission.

“Ten years after enacting the ban on mixing zones for these most dangerous chemicals, the commission is considering extending the deadline for all dischargers because no one has determined who may need a variance and who can comply with the limit for chemicals like mercury,” said Tim Joice, water policy director for the Kentucky Waterways Alliance, one of eight groups that signed on to a joint statement made public Thursday. “This is unacceptable and the public’s health should not be held hostage to industry’s failures.”

ILB: Compare with this 2010 story.

From the Aug. 4th Gary Post-Tribune, a lengthy, detailed story by Matt Mikis headed "Rebuilding nature: Aggressive effort removes decades of toxins from Grand Calumet." Some quotes:

The next phase of dredging out the toxins left from decades of industrial dumping and restoring the Grand Calumet River wetlands between Kennedy and Cline avenues is scheduled to begin early this month.

Cleaning a 1.8-mile section of the river is part of a partnership, costing at total of $80 million, split between federal and local revenue. The project removes PCBs, PAHs, heavy metals and pesticides by dredging over 350,000 cubic yards of sediment. * * *

Through the Great Lakes Restoration Initiative, cleaning up the east branch of the Grand Calumet has been a slow but steady process since 2009, not including a 5-mile dredging project funded by U.S. Steel in 2007.

To see the difference, an observer needs to travel only a few miles west from Cline Avenue to Roxana Marsh. Work on that section of the river was completed in 2012. Black-eyed Susans line the riverbed, and cranes are starting to return.

Between Kennedy and Cline, however, tall invasive plants called phragmites take over the land surrounding the river. Thousands of chemicals lie beneath the riverbed, seeping out into the water.

Jim Smith of the Indiana Department of Environmental Management has worked on the river since 1992. “Our vision is to have the wetlands look close to what Roxana Marsh looks like now,” Smith said.

"Asian carp invading Wabash River by leaps and bounds" is the heading to this lengthy Sunday story in the Lafayette Journal-Courier, reported by Ron Wilkins. It is accompanied by an interesting second Wilkins story, headed "How Asian carp found a home in the Midwest."

Posted by Marcia Oddi on Sunday, September 08, 2013
Posted to Environment

Courts - "Indiana Man Gets 8 Months for Lie Detector Fraud"

ABC News has this AP story by Matthew Barakat that begins:

ALEXANDRIA, Va. An Indiana man who taught federal job applicants and others how to beat lie-detector tests was sentenced to eight months in prison Friday in a case that raised questions about the right to teach people how to lie.

Chad Dixon, 34, of Marion, Ind., pleaded guilty in December to wire fraud and obstructing a government proceeding with his business, Polygraph Consultants of America.

Federal prosecutors said Dixon taught dozens of people, including applicants to be federal border guards, and he was good at his trade.

In arguing for probation, Dixon's lawyer, Nina Ginsberg, said teaching people how to lie on a polygraph was protected by the First Amendment. She said Dixon's only crime was explicitly advising prospective federal employees they should lie about having received his training.

"It may be unfortunate for federal law enforcement ... but it is protected speech to tell people how to lie on a polygraph," Ginsberg said.

Ginsberg said the case appeared to be the first of its kind in the country, and said it should be considered in the context of long-held doubts that many experts have about the reliability of lie detectors.

Assistant U.S. Attorney Anthony Phillips said teaching someone to beat a lie detector, when the instructor knows that his student wants to foil a federally administered exam, is a federal crime.

"He adopted their illegitimate ends as his own," Phillips told the judge.

Later in the story:
Ginsberg said Dixon has received a lot of unsolicited advice from lawyers across the country since entering his guilty plea that he has committed no crime and should fight the charges. Ginsberg pointed out in court papers that dozens of people who provide similar services have not yet been charged.

The sentence was less than the 21 months sought by prosecutors. District Judge Liam O'Grady acknowledged that "the gray areas regarding the First Amendment right to teach these countermeasures are real."

Posted by Marcia Oddi on Sunday, September 08, 2013
Posted to Courts in general

Ind. Courts - Kitchell suit against Logansport argued before the Supreme Court

Thursday's oral argument before the Supreme Court in the case of Julie Kitchell v. Ted Franklin, et al.(read more about it in the "Upcoming Oral Arguments" post from last Monday) was the subject this weekend of a longish story by Mitchell Kirk of the Logansport Pharos-Tribune. Some quotes:

The suit was first filed in Cass County Superior Court II in March by Julie Kitchell against Logansport Mayor Ted Franklin and City Council. It claims legislation authorizing the city to negotiate with power plant developer Pyrolyzer LLC is invalid because it was adopted out of order in a sequence defined by state statutes.

The suit alleges an ordinance authorizing the city to engage in the public-private agreement process with Pyrolyzer is invalid because it was adopted after issuing a request for proposals regarding the project.

In the suit, Brugh [ILB: Oddly, "Brugh" is never further identified in the story] cites the Indiana Code's Home Rule Act, part of which states, “If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.” He applies this law to the public-private agreement provision, concluding that the city had to first adopt the provision before issuing the request for proposals.

Posted by Marcia Oddi on Sunday, September 08, 2013
Posted to Indiana Courts

Friday, September 06, 2013

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

In UNITED STATES OF AMERICA v. CHRISTOPHER L. SPEARS (ND Ind., Lozano), a 9-page opinion, Judge Easterbrook writes:

Christopher Spears made a counterfeit handgun permit for Tirsah Payne, who was awaiting trial on a drug charge and could not obtain a legit imate permit. Payne used the fake credential—which con tained her own name and birthdate—when trying to buy a gun. The dealer was not deceived and did not sell Payne the weapon she wanted.

An investigation led to Spears’s arrest and the discovery that he had sold other fake credentials, such as drivers’ licenses. He was convicted of five felonies, including aggravated identity theft, 18 U.S.C. §1028A, and sentenced to 34 months in prison: 10 months on four of the five counts, to run concurrently, plus two years’ imprison ment under §1028A, which prescribes a mandatory consecu tive term of that length.

Spears appealed three of the five convictions. A panel affirmed two while reversing the third. 697 F.3d 592 (7th Cir. 2012). Spears then asked for rehearing en banc. Our order granting that petition vacated the panel’s opinion and judg ment, which we now reinstate with respect to the convic tions other than the one under §1028A.

Section 1028A(a)(1) provides that anyone who, in connec tion with a list of other crimes, “knowingly transfers, pos sesses, or uses, without lawful authority, a means of identifi cation of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of impris onment of 2 years.” * * *

The most one could say for the United States’ current po sition is that “another” in §1028A(a)(1) is ambiguous. If that ambiguity is not resolved by the statutory caption and the contrast between §1028 and §1028A, it must be resolved by the Rule of Lenity, under which conviction is possible only when a law declares in understandable words what is for bidden. See, e.g., Skilling v. United States, 130 S. Ct. 2896, 2932 (2010); Rewis v. United States, 401 U.S. 808, 812 (1971). Crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language. A reasonable per son reading §1028A(a)(1) would not conclude that Congress has definitely used the word “another” to specify every per son other than the defendant, as opposed to a person whose information has been misappropriated. * * *

Section 1028A, we hold, uses “another person” to refer to a person who did not consent to the use of the “means of identification”. This decision, in conjunction with the panel’s disposition of the convictions under statutes other than §1028A, mean that two of Spears’s convictions have been re versed, while three remain. The district court’s judgment is vacated, and the case is remanded for resentencing on those three convictions.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Deadline set for Marion Superior Judge Kimberly Brown to respond to petition seeking her removal"

Tim Evans of the Indianapolis Star has just posted this long story. Some quotes:

The Indiana Supreme Court today set a deadline of noon Wednesday for Marion Superior Judge Kimberly J. Brown to file a response challenging an emergency petition to remove her from the bench.

The order signed by Chief Justice Brent E. Dickson says the deadline was set because disciplinary rules do not specifically establish a deadline for responses to interim suspension petitions.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Indiana Courts

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

SCOTT WEIGLE and APRIL WEIGLE / JOHN MOORE, II and CORINNE MOORE v. SPX CORPORATION (SD Ind., McKinney), is a 33-page combined opinion. Judge Tinder writes:

This suit under the diversity jurisdiction stems from an incident in which a semi‐truck trailer fell off of its support stands and on top of Scott Weigle and John Moore, the two mechanics who were working on the trailer. Weigle and Moore each sued SPX Corporation, the designer of the support stands, asserting claims of inadequate warnings and defective design under the Indiana Product Liability Act (IPLA), Ind. Code § 34‐20‐1‐1 et seq. The district court granted summary judgment for SPX on all claims, finding that the warnings were adequate as a matter of law and that, as a result, the support stands were not defective under Indiana law. We affirm the district court’s judgments on the inadequate‐warnings claims, but we vacate the judgments on the defective‐design claims and remand for further proceedings.
Interestingly, the 7th Circuit opinion, in a footnote, strongly criticizes a footnote in a 1993 Indiana Court of Appeals opinion, Barnard v. Saturn Corp., relied on by SPX. See note 4, beginning on p. 30:
[4] In a footnote the Barnard court suggested that the term “reasonably expected use” actually means “reasonably expected permitted use” because otherwise the inclusion of a specific warning would amount to an admission that a use contrary to that warning was foreseeable. 790 N.E.2d at 1031 n.3.

We do not think the Indiana Supreme Court would so brazenly insert additional words into a statute. See State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008) (“The plain meaning of the statute … must be given effect.”); Grody v. State, 278 N.E.2d 280, 285 (Ind. 1972) (“It is not within the province of this Court to expand or contract the meaning of a statute by reading into it language which will, in the opinion of the Court, correct any supposed omissions or defects therein.” (citation omitted)).

In UNITED STATES OF AMERICA v. LARRY E. HODGE (SD Ind., Young), a 13-page opinion, Judge Tinder writes:
Larry Hodge pleaded guilty and was sentenced to 1380 months’ imprisonment for multiple child pornography offenses. During his sentencing hearing, he offered testimony in mitigation from psychiatrist Dr. Louis Cady. The district court discussed some of Cady’s findings in explaining the sentence imposed, but neglected to mention other findings, most notably Dr. Cady’s contentions that Hodge’s history of sexual and psychological abuse as a child contributed to his decision to commit his offenses and that Hodge was unlikely to reoffend. Hodge claims that the district court’s alleged failures to address adequately these arguments constitute procedural error. We disagree. * * *

Hodge’s favored approach would turn sentencing courts’ discussions of the §3553(a) factors into checklist exercises, depriving judges of their discretion in sifting through large amounts of evidence to determine which items are most relevant. The Supreme Court has cautioned against such a checklist approach, reminding reviewing courts that “[t]he sentencing judge is in a superior position to find facts and judge their import under §3553(a).” Gall, 552 U.S. at 51 (internal quotation marks omitted). Here, the district court determined that the most noteworthy aspects of Dr. Cady’s testimony for mitigation purposes were his statements that Hodge suffered from pornography addiction, childhood sexual abuse, and childhood exposure to pornography. That the district court did not also discuss Dr. Cady’s testimony concerning the effects of Hodge’s premature sexualization or his views of Hodge’s prospects for rehabilitation does not rise to the level of procedural error.

Accordingly, the district court’s sentence is AFFIRMED.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Ind. (7th Cir.) Decisions

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

Nothing new today.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Looking further into the JTAC imposition of anti-robot/CAPTCHA verification requirement on the public

The ILB has written several posts this week about the sudden imposition of CAPTCHA on public access to the Odyssey Courts Case Search system, also sometimes referred to as "MyCase". The most recent post concluded:

Put another way, JTAC created a system with public funds, allowed everyone to use it for a while to see how useful it could be, then intentionally crippled the public's access to it, making the system impossible to use for any real work.
Last evening I received this response from Kathryn Dolan, Indiana Supreme Court, Public Information Officer:
Regarding the CAPTCHA discussion: 1) The Supreme Court is absolutely not intentionally crippling the public’s access to the system and 2) It is not impossible to use the free Odyssey system. Users simply have to enter the code so we can prevent data mining. Corporate entities, like your sponsor DoxPop, can work with us to get bulk data [http://www.in.gov/judiciary/admin/2459.htm] for a fee. Those companies can then resell the information. Odyssey is designed to give court information to court officers and members of the public for free.

Your allegation of intentional sabotage is very disappointing and beyond outrageous.

The following information is being provided to our users via twitter.com/incourts and Bits and Bytes Blog: Having some problems w Odyssey case search? See this info [http://indianacourts.us/blogs/jtac/2013/09/05/information-on-using-odyssey-free-access/]

ILB: To start, I want to make two points:The ILB did a lot of research last evening on the CAPTCHA issue, and the results follow.

There actually seem to be two issues. The CAPTCHA "feature" apparently is not working right, and JTAC (it is hard to know who to refer to, I know it is not the Supreme Court that is working on these issues, so I will use the term JTAC) is working them out. There are problems with compatibility with some browers, and the CAPTCHA letters/numbers are evidently even more blurry than need be, although I'm told if you elect the "mike" function they clear up some.

But the issue the ILB has been writing about, joined by email messages from attorneys and journalists, is the sudden imposition by JTAC of the CAPTCHA requirement on every case search the public (anyone not on the court version of Odyssey) attempts.

Here I have not received any explanation from Ms. Dolan, except for assertions of "data mining."

So I turned elsewhere for answers. As it happens, one of the best-informed non-state experts on Odyssey is Ray Ontko, president of the ILB supporter, Doxpop, LLC. I sent him a note last evening, asking about data mining. The response:

The term "data mining" (http://en.wikipedia.org/wiki/Data_mining) is probably not the correct term. What they're trying to prevent is often called "web scraping" (http://en.wikipedia.org/wiki/Web_scraping), and is related to "screen scraping" and the general term "data scraping".

The judiciary is claiming that there are folks using automated programs that simulate the actions of a user to do extensive searching of the mycase.in.gov to systematically collect information. When done at top speed, it can simulate the presence of a large number of users and may cause the system to appear slow to other users.

Doxpop does NOT engage in this practice. We were the first (of perhaps very few) that use the bulk data service offered by JTAC to obtain access to the information in a way that does not degrade the performance of the system. We pay handsomely for this (over $125,000 per year).

BTW, we are not permitted to resell the information in bulk, no matter how we reformulate or enhance the information. We are only allowed to provide access to the information in response to specific queries (e.g., by name or case or date).

As an aside, the ILB remembers when the Supreme Court, by order, finally agreed to make Odyssey bulk data available to third party vendors. Until then, as I wrote in this Sept. 14, 2011 post, as "Odyssey conversion expand[ed] to additional counties, it kick[ed] offline long-time third-party information providers such as Doxpop by not allowing such providers access to the case management data generated by the new Odyssey system." The change, which took another year to implement, allows Doxpop to purchase data from Odyessy counties and add them to its own extensive network, so that Doxpop now covers 86 counties.

The ILB sent Mr. Ontko a follow-up question:

Your normal law office or reporter sits down and looks to do a number of searches at once. As for "the scrapers", do you know what kind of entity they are and what they are looking for, case info, or mailing list type info, etc? But there has to be some happy medium for the others. I'm thinking that CAPTCHA should apply per session, rather than per search, for instance. Thoughts?
Of course, this question was somewhat adverse to Mr. Ontko's company's interests, since the more difficult and time-consuming the public system is to use, the more people that may subscribe to Doxpop for their information needs. But he courteously didn't mention that and sent this answer:
I'm not sure who the scrapers are. They could be backgound checking firms that are looking up people of interest to their clients who may be interested in criminal history or driving violations. They could be web site operators that allow searching across many websites for information about a person. They could be enterprising attorneys looking for unrepresented parties in their specialty or region of practice. They could be mailing list companies building lists of addresses. People can be very creative in the use of public information.

JTAC could have implemented the CAPTCHA (http://en.wikipedia.org/wiki/CAPTCHA) mechanism for mycase.in.gov in such a way that the CAPTCHA would only apply once per session instead of once per search. But, that would also make it easier for an automated program to circumvent the CAPTCHA; one could have a human provide the answer to the CAPTCHA at the beginning of the program and then the program would run without hurdles after that. By doing it once per search, the CAPTCHA becomes a practical obstacle for web scraping under most circumstances. Unfortunately, it also creates inconvenience for ordinary human users.

The earlier ILB posts on this issue quoted some small law offices and journalists who have come to rely on Odyssey, but now are finding it a real pain to use. I don't often have a need to use it myself, my last search was during Charlie White's trial in Hamilton County. So I asked the office assistant in a one-man law firm -- "What do you use the system for?":
To check on Court dates;

To see when licenses have been (and not been) sent into the BMV for suspension so you can let the client know if he/she can drive at this point;

When potential client calls in saying what they have been charged with X (usually they are wrong);

When a potential client calls in to see if they have other cases pending (or even if they already have an attorney and are shopping or if they have a court appointed lawyer that they have "forgotten" about);

When a potential client calls in to check which Court the case has been assigned to (since, of course, we have our favorites);

To see what action the Court might have taken on a particular case (we get the paperwork, but, especially when other counties are involved, it is a little slow sometimes);

Sometimes to see what sentence has been on a similar case;

To check to make sure what has been decided in Court or by plea is what was entered into the record.

I know there are other things, but this should give you an idea.

Forgot. We also check for warrants.

I might file 3-5 appearances and continuances at a time. I fax in the request and then wait for the court to take action. Meanwhile one of the first things I do each morning is to call up these people on Odyssey (and people who did not have their license suspended yet) and see when their case is set for so I can send them notification. I do them all at once.

A person must enter the Captcha "word" first and then the case desired. If one misreads and/or mistypes, then the entire process must be repeated from the start. The same is true to locate a second case in the same county. Previously all that was needed was to just hit the back button and enter another search. However, now it is back to square one again.

ILB Conclusion. So, what is the answer? Something other than CAPTCHA, such as screening out certain IP addresses? Or adjusting CAPCHA so that it is only required each session, or maybe after a dozen searches? Or ...?

Let me know your thoughts and experiences.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Indiana Courts

Environment - "Bluegrass Pipeline developers can't use eminent domain, Kentucky officials say"

James Bruggers reports in the Louisville Courier Journal:

FRANKFORT, KY — The state’s top energy and environmental regulator said Thursday that developers of the proposed Bluegrass Pipeline have no authority to use the power of eminent domain to acquire easements.

Len Peters, secretary of the Kentucky Energy and Environment Cabinet, told a panel of state lawmakers that his agency’s attorneys “do not see how eminent domain can be invoked” for the natural-gas liquids pipeline.

His legal council, Michael Haines, said that’s in part because natural-gas liquids pipelines are not considered “common carriers” and “public utilities.”

But the attorney for the pipeline developers disagreed.

Mike McMahon, chief general counsel of Boardwalk Pipeline Partners, part of the joint venture developing the pipeline, said it is a “public service” available to other businesses, which he said would make it a common carrier. * * *

While [Tom FitzGerald, director of the Kentucky Resources Council] also argued that state law would not give the developers eminent domain powers, he said the legal dispute could only be settled by the Kentucky General Assembly.

“It’s really something that needs to be clarified,” FitzGerald said after the nearly two-hour meeting. If the legislature does not clarify the matter, then it will be up the state’s courts to do so, he said.

In the meantime, he said, the company’s threats of using eminent domain gives the developers a big advantage. Landowners will think they need to settle, he said.

“Negotiations under threat of condemnation are inherently unfair,” FitzGerald said.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Environment

Courts - New play uses 1991 SCOTUS argument to debate the pros and cons of public nudity [Updated]

And it is a case from Indiana.

From the WSJ today ($$), a story by Ellen Gamerman - some quotes:

The Public Theater is presenting work by an unlikely new playwright: the U.S. Supreme Court.

"Arguendo," starting previews this Tuesday at New York's Public Theater, is a word-for-word performance of an entire 1991 Supreme Court argument, Barnes v. Glen Theatre, a lawsuit brought by go-go dance establishments to stop enforcement of an Indiana public indecency law barring such entertainers from appearing totally nude. The case explored whether that statute violated the First Amendment's guarantee of freedom of expression.

The story relates that the play director discovered the archive of oral arguments of the SCOTUS at Oyez.org, and found the case involving exotic dancers:
It clicked for him as a play not just because of the absurd juxtaposition of robed justices and pasties and G-strings, but because the case explored accessible ideas like the limits of free speech and the meaning of performance.
ILB: Here is the Oyez page on Barnes v. Glen Theatre, including both the audio of the oral argument, and the resulting opinion. From the page:
Facts of the Case

Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute.

Question

Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee?

Conclusion

No. The Court was fractured (5-4) and there was no majority opinion. Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

[Updated at 9:30 AM] A reader writes:
I wonder how many people realize the named party in the case was Michael Barnes, then St Joseph County prosecutor and, since 2000, a judge on the Indiana Court of Appeals.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Indiana Courts

Ind. Courts - "St. Joe County's bail bond system offers little incentive to appear in court"

Meghan Schiller reports for ABC57 News:

ST. JOSEPH COUNTY, Ind. -- How many people who are out walking the streets in St. Joseph County should be behind bars? Statistics show the county has an unusually high number of people who have skipped out on their bail bond and failed to appear in court.

Get arrested for a crime in Saint Joseph County, Indiana and all you need is ten percent of your bail bond - in cash - to walk right back out of jail.

The county cuts you a break if you pay cash and returns that money if you show up for your court date and are found innocent.

One other option is to ask a bail bondsman for help.

The bonds person would post bond for you, but even if you are innocent, you would never see that money again.

"It seemed to be that there really was no advantage with one over the other for people appearing to their court hearing: whether they posted a bond for which they got none of the premium back or they posted a cash option with the court," said St. Joseph County Prosecutor Michael Dvorak.

But there are almost no bail bondsmen in St Joseph County.

They say it's because they can't beat that cash deal that the county has established.

"It's a ten percent deposit, the ninety percent remains unsecured- it's what we've come to call in our industry the 90 percent discount," said Michael Whitlock, Executive Vice President of American Surety Company.

Whitlock is in the bail bonds business.

He says using him is safer for the general public because when people skip out on him, he goes looking for them.

He says that's something the county doesn't have the resources to do.

But Dvorak disagrees.

In Saint Joseph County, the names of people who skip bond are handed over to the warrant division.

"It's about the same recovery rate, which provides really no incentive to really go to that. And they're just trying to suggest they do a better job of recovering people and they don't do any better of a job recovering people," said Dvorak.

ILB: See also this July 19th ILB entry, headed "Legislative panel studies criminal court bond practices".

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Indiana Courts

Ind. Gov't. - "Kentucky officials take issue with 'misleading' Humana, Anthem insurance renewal letters"

This story is about Kentucky, but ....

Laura Ungar of the Louisville Courier-Journal reported last evening in a lengthy story that begins:

The letter Ray Brundige received from Humana spelled out two options — keep his health-insurance policy for one more year for a $279 monthly premium or choose a new one that complies with Obamacare and pay a whopping $619 a month.

But the letter also said he had to make a choice by Sept. 20, before the Oct. 1 start of Kentucky’s health benefit exchange, a program designed to let him and other Kentuckians shop for less-expensive insurance that complies with Obamacare, and possibly qualify for government subsidies to help pay for it.

State Department of Insurance officials described Brundige’s letter and 6,500 like it that Humana sent out to Kentucky policy-holders “misleading,” and they say they are “reviewing and investigating” the matter. State officials are also reviewing a letter by Anthem Blue Cross Blue Shield asking people to “call now” to lock in “today’s affordable rates.”

Both letters target people who buy insurance on their own, and who will soon be able to compare plans on the state insurance exchange. Brundige, 63, of Louisville, said it’s unfair for insurers to rush customers into decisions when they don’t know what plans — and prices — they might be able to find on the exchange.

“They are not giving people the ability to make an informed choice, because the information is not yet out there,” said Brundige. “They’re doing themselves and the community a disservice.”

U.S. Rep. John Yarmuth, D-3rd District, said the letters surprised and upset him because they “appeared to pre-empt people’s use of the exchange.”

“I would hope no one would foreclose their option to shop on the exchange,” he said.

Posted by Marcia Oddi on Friday, September 06, 2013
Posted to Indiana Government

Thursday, September 05, 2013

Law - "The Incredible Case Of The Bank Robber Who's Now A Law Clerk"

Don't miss listening to this interview I just heard on NPR. The audio will be available here at 7 PM.

It is an interview with Shon Hopwood, about whom the ILB has had a number of prior posts. But listening to the voices of Mr. Hopwood, and federal Judge Richard Kopf, the man who sent Hopwood to prison, is very moving.

Posted by Marcia Oddi on Thursday, September 05, 2013
Posted to General Law Related

Law - "N.S.A. Foils Much Internet Encryption"

This lengthy NY Times story by Nicole Perlroth, Jeff Larson, and Scott Shane, is chilling. A few quotes:

The National Security Agency is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age, according to newly disclosed documents.

The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show. * * *

Beginning in 2000, as encryption tools were gradually blanketing the Web, the N.S.A. invested billions of dollars in a clandestine campaign to preserve its ability to eavesdrop. Having lost a public battle in the 1990s to insert its own “back door” in all encryption, it set out to accomplish the same goal by stealth.

The agency, according to the documents and interviews with industry officials, deployed custom-built, superfast computers to break codes, and began collaborating with technology companies in the United States and abroad to build entry points into their products. The documents do not identify which companies have participated.

The N.S.A. hacked into target computers to snare messages before they were encrypted. And the agency used its influence as the world’s most experienced code maker to covertly introduce weaknesses into the encryption standards followed by hardware and software developers around the world.

Posted by Marcia Oddi on Thursday, September 05, 2013
Posted to General Law Related

Ind. Courts - "Controversial $2.8B Rockport deal argued before Indiana Supreme Court"

John Russell of the IndyStar reports on this morning's oral argument before the Supreme Court in the case of Indiana Gasification Company, Inc. v. Indiana Finance Authority. (For background start with this ILB post from Sept. 3rd, which includes links to the briefs. Here is a link to the now vacated Oct. 30, 2012 COA opinion.)

From the Star story:

A company that wants build a $2.8 billion plant in Rockport that would turn coal into synthetic gas urged the Indiana Supreme Court today to allow the deal to go ahead, saying legal problems with the contract have been fixed.

But opponents said the company has no right to amend the 30-year deal, which an appeals court struck down last month, without another review by state regulators.

The Supreme Court heard arguments for 45 minutes this morning in a case that could decide the outcome of the controversial plant. The proposed deal, years in the making, has pitted some of some powerful utilities and citizens groups against in the state against the developer and its supporters.

The Indiana Court of Appeals ruled last fall that the contract improperly would have forced a group of big industries to shoulder a portion of the plant’s costs or share in its benefits. That was not what lawmakers intended in 2009 when they authorized the Indiana Finance Authority to negotiate the deal, the appeals court ruled.

Attorneys for Indiana Gasification [Norman Funk] said the problems identified by the appeals court were small and have been fixed with an amended contract between the company and the Indiana Finance Authority.

The company asked the court to find the amended contract “perfectly fine,” and declare the Indiana law that held it up to be unconstitutional.

“Let the contract go forward with no impairment,” said Karl L. Mulvaney, an attorney for Indiana Gasification.

The story continues:
But Norman Funk, an attorney for Vectren Energy and other opponents of the deal, said the the parties must negotiate an “all-or-nothing contract,” and any changes need to go back to the regulatory commission for review.

He said that under the principle of separation of powers, the Supreme Court could not simply approve editing changes to the deal.

“This court cannot blue-line this kind of contract,” Funk said. “We believe that would be a usurpation of the executive branch.”

Justice Massa asked the first question of the day, whether the issues raised had been mooted by the reformation of the contract? From the story:
Funk said it wasn’t, arguing that the law governing such contracts “was no accident, an oversight or a misplaced comma.”

“Either all of it [the contract] was valid or none of it was valid,” Funk said.

ILB: Justice Rucker was the most active questioner, followed by Justice David. Chief Justice Dickson and Justice Rush each asked several questions.

Both parties filed additional authority, according to the docket, but Indiana Gasification filed additional authority as recently as yesterday. The document isn't available but from the argument it appears that it cites to the the 1995 decision in Pence v. State, which argued that non-related provisions had been included in a budget bill. Mulvaney began his argument citing that case and the separation of powers. J. Rucker noted there had been no opportunity to brief that argument.

Also argued was the dissenting opinion by Chief Judge Robb in the Court of Appeals opinion, which included:

However, if a contract contains an unauthorized provision that can be eliminated without frustrating the basic purpose of the contract, the remainder of the contract may be enforced. * * * Because the transportation customers are an easily identifiable group, I believe we could merely exclude that part of the Contract which includes transportation customers in the definition of retail end use customers without frustrating the primary purpose of the Contract. Accordingly, I would hold, with the exclusion of that part of the Contract definition of retail end use customers which applies to transportation customers, that the Contract was properly approved by the Commission.
Funk argued that the Court could not "blueline" a contract amendment which to be effective had to be approved by the IURC. He said it would be usurpation to tell IURC what it must do. The contract, to be enfoceable, said Funk, must be approved by the IURC -- not just the original version, but the amendments.

[More] A just posted AP story by Charles Wilson includes:

Legislators in April ordered the Indiana Utility Regulatory Commission to consider new ratepayer protections that were not initially in place when regulators first approved the deal if the Indiana Supreme Court voids the contract. Plant developers were appealing a Court of Appeals decision that found that part of the contract violated state law.

"This is not a run of the mill private contract," said Tom Funk, who represented the plant's critics, including natural gas utility Vectren and consumer and environmental groups.

"Everyone knows that at some point in 30 years the price of synthetic gas will exceed (the price of) natural gas," Funk said. "That cost has to be paid by somebody. And who it's paid for is by the end users of the contract."

Opponents have said the contract would cost Indiana utility customers as much as $1.1 billion in higher rates and tie 17 percent of Hoosier gas users' bills to the Rockport plant's rate.

All five justices took part in the hearing, including Justice Mark Massa, who rejected calls for him to step aside due to his friendship with a top Indiana Gasification official.

Attorney Karl Mulvaney, who argued for Indiana Gasification and the Indiana Finance Authority, questioned the authority of the court and the General Assembly to intervene in a deal involving the state's executive branch, saying that violated the constitutional separation of powers. [ILB: the GA enacted SEA 494 in 2013]

"I have never seen a case where a contract was impaired by legislation after the contract was initiated," Mulvaney said.

[Even more] Some may find interesting this post today at How Appealing.

Posted by Marcia Oddi on Thursday, September 05, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Ezekier Breaziel v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 05, 2013
Posted to Ind. App.Ct. Decisions

Ind. courts - Several interesting oral arguments this morning before our Supreme Court

They include the Rockport coal gasification plant argument (Indiana Gas), and a ratepayer's challenge to the validity of a City of Logansport ordinance and resolution (Kitchell). See this ILB post for more details. Watch the oral arguments online via this link. They start at 9 AM.

Posted by Marcia Oddi on Thursday, September 05, 2013
Posted to Indiana Courts

Wednesday, September 04, 2013

Ind. Courts - " David Camm's defense team attacks investigation of family's murders "

Here is today's coverage of the David Camm murder retrial, by Grace Schneider of the Louisville Courier-Journal. Schneider's story yesterday was headed "David Camm trial focuses on insurance money."

ILB coverage is constrained because the LCJ, like the other Gannett papers, is now $$$.

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Indiana Courts

Ind. Gov't. - "Daniels struggled with drug pardon: Family ties, contributions made ex-governor’s decision difficult"

Yes, Indiana governors have the power to grant pardons, although you won't find much in the press about it. The power to pardon is found in Art. 5, Section 17 of the Indiana Constitution: "The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, subject to such regulations as may be provided by law." Pardons are granted by Executive Order and are published, with no fanfare, in the Indiana Register.

A search of the 10-year-old ILB reveals only one other real entry on Indiana pardons; it is from April 8, 2012 and begins with this statement from the ILB:

Kudos to Niki Kelly and the Fort Wayne Journal Gazette for a long Sunday story on a little reported topic, Indiana gubernatorial pardons.
The story is worth rereading.

Last weekend the FWJG published another Kelly story about pardons. Here are a few quotes from the long story:

INDIANAPOLIS – During his eight years in office, Gov. Mitch Daniels had been downright stingy with granting pardons.

And as the days of his last term dwindled he found himself struggling with one particular case – the nephew of an old high school buddy who dealt cocaine when he was 21.

“It worked against him that I knew someone in his family. Honestly if he was someone I never heard of it would have been straightforward,” Daniels said. “I deliberated a long, long time and finally decided it was the right thing to do.

“I could have done the easy thing and said no.”

Family ties aren’t the only questionable facet about the pardon, though.

A former Cabinet member of Daniels submitted the petition and testified at the pardon hearing. And the governor had received $13,000 in campaign contributions from the pardoned man’s father, individually or through his insurance business.

The high level of the felony also was rare for Daniels, who is now president of Purdue University.

The story then reports the details of this pardon. The story concludes:
In his tenure as governor, [Daniels] gave 62 pardons – far fewer than recommended by the board. He said his office kept statistics and he had the lowest pardon percentage of any governor.

Many of the pardons he gave were for theft-related charges. Eleven of the pardons were drug-related. Out of those, eight were for possession. Only three involved selling drugs. One was [this case, the Anthony Nefouse case,] alongside another he gave in 2012.

That was for a 53-year-old man who dealt marijuana in Adams County in 1979.

“We tried to apply a high standard and this case met it in every respect,” Daniels said.

He said he didn’t want a lot of last-minute pardons, and remembers being annoyed when the pardon board got behind and sent him a large stack in the fall of 2012.

He granted 14 in November and a few weeks later in December granted three others, including Nefouse. Daniels left office in January.

“I didn’t want to answer questions like this so I considered not doing what I otherwise thought was right,” Daniels said. “We were really, really careful about this whole thing. The question is ‘are you going to penalize someone because of his name?’"

Here is Executive Order 12-19, the pardon for Anthony Nefouse.

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Indiana Government

Ind. Courts - Still more on: Indiana courts imposes anti-robot/CAPTCHA verification requirement on the public

Updating this first entry from yesterday, and this update, the ILB has received several additional emails from users:

ILB: Public access to Odyssey has been available for several years now. But it didn't include part of the Marion County court system until this year, so many Indianapolis attorneys and their staff only started using it recently. The CAPTCHA "feature" severely limiting public access was just imposed within the past few days, without any notice or explanation.

Put another way, JTAC created a system with public funds, allowed everyone to use it for a while to see how useful it could be, then intentionally crippled the public's access to it, making the system impossible to use for any real work.

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

Joshua Basey v. State of Indiana (NFP)

Zachary E. Krise v. State of Indiana (NFP)

Robert Small v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Indiana secures one-year waiver for the state-run insurance program, will push 11,000 current enrollees off its rolls; Michigan moves in other direction

That from Maureen Hayden's CNHI story today on yesterday's announcement by Governor Pence. Some quotes:

On Tuesday, Gov. Mike Pence announced the decision by the Obama administration to grant a limited extension to the state-run insurance program through the end of 2014. As part of the agreement, Indiana will lower the income level for eligibility for the program, pushing about 11,000 current enrollees off its rolls. * * *

While 25 states have opted to expand the traditional Medicaid program using federal dollars to cover their uninsured citizens, Pence has resisted doing so. On Tuesday, he repeated his opposition to expanding the Medicaid program, citing concerns about long-term costs to the state.

Pence minimized concerns about the state’s estimated 300,000 uninsured residents who won’t be eligible for HIP or to buy the subsidized private health insurance that will be available through a federal health exchange program next year.

He said the uninsured can still access health care through hospitals’ charity care programs, emergency rooms, and public and privately funded clinics that serve the poor.

“Let’s make sure there is a distinction in the language between health insurance and health care,” he said. “Every person in this state has the ability, if they are struggling with illness to walk into an emergency room and receive care.”

That remark provoked a sharp rebuke from the House Minority Leader Scott Pelath of Michigan City.

"What we're seeing today is something being trumpeted as a success, when in essence it is a complete failure," Pelath said. "The continuation of coverage for a few people does nothing to move Indiana forward, it still leaves these people uninsured." * * *

Under the deal struck with the federal government to extend the HIP program until the end of 2014, the state will lower the income eligibility for participants, from the current 200 percent of the federal poverty level down to 100 percent, which is about $23,000 for a family of four.

That change will push about 11,000 current HIP participants off the program. Family and Social Services Administration Secretary Debra Minott said those persons will receive a letter recommending hey purchase private health insurance through a federally-managed health insurance exchange that goes online next month.

Moving those people off HIP will then allow FSSA to bring another 5,000 to 7,000 people who meet the new income requirements into the program.

Rep. Ed Clere of New Albany, the Republican chairman of the House Public Health Committee, called the federal approval of the HIP extension “good news.” But he said it falls far short of what’s needed to cover the estimated 300,000 Hoosiers who won’t have access to health insurance coverage. And he said it doesn’t address The hundreds of millions of dollars that hospitals lose each year, providing uncompensated health care to poor and uninsured patients.

Niki Kelly's Fort Wayne Journal Gazette story today also has this quote:
But House Democrat Leader Scott Pelath said “the stubbornness demonstrated by this administration on the Affordable Care Act would put a mule to shame, and for no reason at all.

“They continue to be unwilling and unable to do anything to seriously discuss a plan that will assure millions of Hoosier tax dollars return to our state to make health care affordable.”

Also yesterday, the State of Michigan went in the opposite direction - some might remark, perhaps this is where the Indiana money will go ...

The Detroit Free Press today has a lengthy story by Kathleen Gray headed "Delay in Medicaid expansion to cost Michigan $7M a day in lost federal funds." Some quotes:

LANSING — After months of often-heated debate, the state House took final action Tuesday on a plan to expand Medicaid health care coverage to 470,000 low-income Michiganders, voting 75-32 to concur with changes made to the bill by the state Senate.

Final approval didn’t come without hiccups. The Senate failed to give the bill immediate effect, which means that it won’t go into effect until sometime in late March or early April. That delay will end up costing the state an estimated $7 million a day in lost federal funds for the expansion, or more than $630 million if delayed to April. * * *

The bill now goes to the Gov. Rick Snyder, who said earlier Tuesday that he’ll sign the bill when he gets back from a 10-day trade mission to China.

“I would have preferred that it would have gotten immediate effect,” Snyder said. “But this is still a victory for Michiganders.”

House Speaker Jase Bolger, R-Marshall said, “We have provided additional coverage for hundreds of thousands of additional Michiganders today. We’re looking out for their health care. Today is a good day.”

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Indiana Government

Courts - "Assassinated judge gets portrait in Kentucky Capitol"

Roger Alford of the AP has this story today in the Louisville Courier Journal. From the interesting report:

FRANKFORT, KY. — A judge assassinated while serving on Kentucky’s highest court more than a century ago has been memorialized with a portrait in the Capitol.

Judge John Elliott was gunned down in Frankfort in 1879 by “a deranged man” angry about a ruling he had written for the Court of Appeals, then Ken­tucky’s highest court.

Kentucky Supreme Court Justice Bill Cunningham said history records that Elliott, a Floyd County native, was walking from the former Capitol to the Capitol Hotel in downtown Frankfort when Thomas Buford stepped up with a loaded shotgun and fired. * * *

Cunningham said Elliott, walking alongside fellow Judge Thomas Hines, was shot just days after he wrote the opinion in Buford v. Guthrie, which dealt with the estate of Buford’s late sister, who had lost her property in a complicated land deal.

The report continues that a jury found Bulford not gulty by reason of insanity. He was ordered to a mental institution and:
Cunningham said. “Not long after he arrived, Buford escaped from the mental institution and fled to Indiana. That state refused to recognize our extradition efforts since he had not been convicted.”

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Courts in general

Ind. Decisions - Supreme Court issues order yesterday in Overstreet case [Updated]

Here is the 3-page, 5-0, September 3rd order in Overstreet v. State. Acting Chief Justice Rucker writes:

After completing a direct appeal, a post-conviction appeal, and a federal court habeas appeal, Michael Dean Overstreet remains sentenced to death for the murder of Kelly Eckart on September 26, 1997. By counsel, Overstreet has filed papers asserting that his mental illness renders him “incompetent to be executed,” and he seeks to litigate this claim at a post-conviction hearing in the state trial court where he was convicted. The State opposes Overstreet’s request and asks that a date for execution of the sentence be set. * * *

Overstreet's claim is that his mental illness and present mental state render him not currently competent to be executed under Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). * * *

To meet the threshold showing, Overstreet points to evidence about his mental illness discussed in the earlier court opinions in his case. In addition, he has tendered a report from forensic psychiatrist Dr. Rahn K. Bailey, prepared after he examined Overstreet on two occasions earlier this year. The twenty-page document discusses the background of the case and Overstreet's past and current mental condition, and concludes that in Dr. Bailey's professional opinion, Overstreet does not have, and does not have the ability to produce, a rational understanding of why the State of Indiana plans to execute him. We find this sufficient to permit Overstreet to file a successive post-conviction petition asserting the claim that he is not currently competent to be executed.

[Updated at 2 PM] Here is a story by Vic Ryckaert of the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Ind. Sup.Ct. Decisions

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 Wednesday, September 04, 2013
Posted to Environment

Ind. Courts - At the Bisard hearing in Fort Wayne ...

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

Three court rulings by Allen Superior Court Judge John Surbeck went the way of the prosecution in the drunken driving case of disgraced Indianapolis police officer David Bisard.

After a marathon hearing last week on issues related to the admissibility of evidence – including the vials of blood taken after a fatal car crash – Surbeck’s rulings Tuesday afternoon move the case closer to its month-long trial set to begin in the middle of next month.

The story ends:
Surbeck also denied the defense request to have the jury sequestered for the duration of the trial, ruling that media coverage in the Fort Wayne area has not been nearly as intense or pervasive as it has been in Indianapolis.

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Ind. Trial Ct. Decisions

Courts - "Courts Split Over Ruling on Juvenile Life Sentences "

How Appealing links here to the long WSJ story by Ashby Jones. the subhead is "Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers." A few quotes from the story:

Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man.

That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.

Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time. Inmates challenging their sentences in those cases had their appeals denied.

This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates. More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo—with few answers in sight.

An accompanying map shows "State's laws on life-without-parole sentences for juveniles committing serious crimes at the time of last year's Supreme Court ruling in Miller v. Alabama." Among midwestern states, Indiana and Kentucky are listed as "none"; Illinois, Ohio, Michigan, and Minnesota are listed as "mandatory"; Wisconsin is listed as "discretionary".

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to Courts in general

Not law - "Peeling paint dogs revived Jury Pool"

This headline from a story today in the Fort Wayne Journal Gazette gets the ILB vote for most incomprehensible headline of the day!

Posted by Marcia Oddi on Wednesday, September 04, 2013
Posted to General News

Tuesday, September 03, 2013

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

In UNITED STATES OF AMERICA v FARSHAD GHIASSI (SD Ind., Young), an 18-page opinion, Judge Rovner writes:

Farshad Ghiassi pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court ordered him to serve a prison term of 70 months. Ghiassi appeals his sentence, contending that the district court erred as a matter of fact in finding him responsible for eight or more firearms and deprived him of due process by relying, in substantial part, on his co‐defendant’s testimony at her sentencing to make that finding. Finding no error, we affirm.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Go'vt. - "Megan Robertson, a veteran of several Republican campaigns, is the new campaign manager for the Freedom Indiana coalition that is hoping to defeat a proposed constitutional ban on gay marriage"

Jon Murray of the Indianapolis Star written has a lengthy (5 "pages"), very informative story about Megan Robertson, who is heading the formal effort defeat HJR 6 in the upcoming General Assembly. A sample:

But after years of running Republican campaigns behind the scenes, the self-described conservative has stepped into the spotlight — and into a role that puts her at odds with the positions of some of her former bosses.

Robertson left her job as communications director for U.S. Rep. Luke Messer, an Indiana Republican who opposes same-sex marriage, to become the lead soldier in the fight against Indiana’s proposed constitutional amendment banning gay marriage.

As campaign manager for the new Freedom Indiana coalition, Robertson will draw on every bit of tenacity, passion and grassroots-organizing skill she has developed during a decade on the front lines of Republican politics.

It’s a role that mixes the personal with the political, and it reflects some younger Republicans’ dissent over the marriage issue.

The 31-year-old is gay. And she says she’s determined to work for Republican candidates and officials again once the fight in Indiana is over.

But something pulled at her to take a detour.

“This seemed like the right thing to do,” Robertson said, underlining that she is “still incredibly Republican.”

But when it comes to adding a gay marriage ban to Indiana’s constitution, “I think folks are just a little more emboldened and, frankly, ready to say this is not what we are as Republicans.”

The marriage amendment goes before the General Assembly for the second time early next year. If the legislature approves, the issue would go before Indiana voters in November 2014.

The story is accompanied by a 2-minute video created by Murray that is not a rehash of the story highlights, but an opportunity to see and hear Robertson talking about why this proposal to amend the constitution should be defeated.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Government

Ind. Courts - More on: Indiana courts imposes anti-robot/CAPTCHA verification requirement on the public

Updating the ILB post from earlier this afternoon, a courts/crime reporter who relies on the service just sent this to the ILB:

As someone who checks the site dozens of times throughout the week, I am beyond annoyed at the inclusion of captcha on the website. Any word on whether there was a legit reason for it? Have robots or computers demonstrated a hot need for someone's criminal record to such a degree that they make the state's website unusable?

It's really, really ridiculous. I check Odyssey in the morning and throughout the day for multiple different things. It adds obvious time to each search, which is really an issue. I have a stack of names to search and am putting it off b/c I don't want to deal with it.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Courts

Ind. Gov't. - "Indiana voting rules, poll changes are criticized"

From Charles Wilson of the AP, this Aug. 30th story - some quotes:

INDIANAPOLIS — Indiana’s complicated voting regulations and switching of polling locations frustrate voters and keep them away from ballot boxes, in what some see as an effort to suppress the vote, officials and voting rights advocates told a legislative panel Thursday.

Indianapolis radio personality Amos Brown and Trent Deckard, Democratic co-director of the Indiana Election Division, told the Census Data Advisory Committee that unexplained relocation of polling places and 52 pages of changes approved since 2012 cause voters, especially minorities, to lose faith in the system.

Brown, who is well-known for advocating on behalf of African Americans, said his polling place, which had been at a local church within walking distance for 20 years, was suddenly switched to a golf course across the White River that could be reached only by car because there weren’t any sidewalks.

“We have seen, in Marion County, instances where polling locations were just changed willy-nilly,” Brown said.

The minutes are not yet available, but here is the agenda for the August 29th meeting.

ILB: The same thing happened to me. My polling place has been within two blocks for 35 years, suddenly it is far away on East 10th Street, skipping across adjoining neighborhoods like Lockerbie that kept their polling places.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Government

Ind. Courts - Indiana courts imposes anti-robot/CAPTCHA verification requirement on the public [Updated]

Indiana Courts has added the dreaded, highly frustrating anti-robot/CAPTCHA verification requirement for each and every search in its public trial court case search system.

If they had to use it themselves, they would pitch it within a day or two in total frustration!

[Updated within a few minutes] Kathryn Dolan, the Court's spokesperson, writes:

I saw your concern about the CAPTCHA feature on the free Odyssey case information search. Unfortunately we had to add it because of data mining. Sorry. Do you know about the voice component? Just click on the speaker icon and it will ‘read’ the letters/numbers.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Peru City Police Department and City of Peru v. Gregory Martin, a 10-page opinion, Judge Bailey writes:

City of Peru Chief of Police Steve Hoover (“Chief Hoover”) recommended the termination of Gregory Martin (“Martin”) from the City of Peru police force on account of excessive force and conduct unbecoming an officer with regard to his repeated use of a Taser upon an elderly nursing home patient. The City of Peru Board of Public Works and Safety (“the Board”) conducted a hearing and terminated Martin’s employment. On appeal, the trial court entered judgment reversing the termination decision, finding the Board decision to be unsupported by substantial evidence and arbitrary and capricious. The City of Peru and the Peru City Police Department now appeal, presenting the sole issue of whether the trial court erroneously substituted its decision for that of the Board. * * *

In sum, there is substantial evidence supporting the Board’s decision. It is not “patently unreasonable.” Woods, 703 N.E.2d at 1091. The trial court disregarded evidence favorable to that decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of Martin’s training. In short, the trial court reweighed the evidence and reassessed the credibility of witnesses.

Substantial evidence supports the Board’s findings, and its decision to terminate Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and capricious. Reversed.

In Peter F. Amaya v. D. Craig Brater, M.D., In his Capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al. , a 25-page opinion, Judge Brown writes:
Peter F. Amaya was dismissed from Indiana University School of Medicine (“IUSM”) for failure to maintain acceptable professional standards by allegedly cheating on an examination. Amaya appeals the trial court’s summary judgment ruling [in favor of the school and its officials]. * * *

Based upon the summary judgment materials and designated evidence, we conclude that Amaya has not met his burden to establish that the trial court erred in finding there was no genuine issue of material fact as to Counts I and II of Amaya’s second amended verified complaint and in granting the University’s second motion for summary judgment as to those claims.

For the foregoing reasons, we affirm the trial court’s summary judgment in favor of the University.

In TP Orthodontics, Inc., Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling, Individually and derivatively on behalf of TP Orthodontics, Inc. v. Andrew C. Kesling, et al. , a 17-page opinion, Judge Vaidik writes:
In 2010, three sibling shareholders, Christopher, Adam, and Emily Kesling (“the siblings”), filed suit against their brother, Andrew Kesling, on behalf of the family business, TP Orthodontics (“TPO”). In response, TPO’s board of directors established a special litigation committee to determine whether to pursue the siblings’ derivative claims against Andrew, the president of TPO. After an investigation, the committee issued a written report in which it recommended pursuing some of the siblings’ claims but not others. If a special litigation committee rejects derivative plaintiffs’ claims, Indiana law requires that those claims be dismissed, provided that the committee was disinterested and acted in good faith in reaching its decision. In accordance with Indiana law, TPO filed a motion to dismiss the rejected claims and attached a heavily redacted copy of the committee’s report. The siblings demanded access to the unredacted report, but TPO refused to produce it. The trial court ultimately ordered TPO to produce the report, and this interlocutory appeal followed.

The issue before us is whether a corporation must give derivative plaintiffs access to the report that the corporation relies on when seeking dismissal of the plaintiffs’ claims. We conclude that the corporation’s arguments against production are outweighed by basic considerations of necessity and fairness. Derivative plaintiffs must show that the special litigation committee was not disinterested or did not act in good faith in order to survive a corporation’s motion to dismiss. The best evidence of whether the committee acted in good faith is the committee’s report explaining how it so acted. Not only do derivative plaintiffs need the report in order to challenge the committee’s good faith, our trial-court judges need this report to make informed decisions.

We acknowledge that attorney-client privilege will undoubtedly infiltrate many of these reports; indeed, it is entirely conceivable that part of any special litigation committee’s reasoning for rejecting a claim will be based on counsel’s advice that a claim is unlikely to succeed on the merits or too costly given the prospects of success. And in such a case, the very reason that the committee acted in good faith is because of an attorney’s advice. Thus, we find that where a corporation forms a special litigation committee, and the corporation later requests dismissal of derivative plaintiffs’ claims based on the findings of that committee, privilege as to the committee’s report is waived. We affirm the trial court’s order compelling production of the special litigation committee report and remand for further proceedings.

In Marion Turner v. State of Indiana, a 7-page opinion, Judge Bailey writes:
Marion Turner (“Turner”) appeals his conviction for Dealing in Cocaine, as a Class A felony. We affirm.

Turner presents two issues for review: I. Whether testimony of statements allegedly made by a confidential informant was erroneously excluded as hearsay; and II. Whether the evidence was insufficient to prove his predisposition to deal cocaine. * * *

We find no reversible error in the trial court’s exclusion of testimony that the C.I. offered an increased purchase price. The State presented sufficient evidence of Turner’s predisposition to commit the charged crime to overcome the defense of entrapment.

NFP civil opinions today (2):

Yulanda C. Petty v. John T. Petty (NFP)

In the Matter of the Termination of the Parent-Child Relationship of E.M., L.M., & G.M., and S.M. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Kem Duerson v. State of Indiana (NFP)

Ruben Mancillas, Jr. v. State of Indiana (NFP)

Dwight McPherson v. State of Indiana (NFP)

Guy Ivester v. State of Indiana (NFP)

Robert J. Winings v. State of Indiana (NFP)

Robert Small v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - No transfer list for week ending August 30, 2013

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

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - "2 suicide cases in Columbus show how police disclosure policies vary across Indiana"

The subheading to Ryan Sabalow's long story dated Sept. 2nd in the Indianapolis Star is "Under state law, departments have discretion on releasing records." Here are some quotes:

[Kathy] Scheible asked the Columbus Police Department to open its files in her daughter’s case to members of the media. But — despite the case having been closed for three years — the department refused.

The decision alarms open-government advocates who say it illuminates a larger issue for Hoosiers who seek transparency and accountability from agencies that serve the public: Widespread abuse of a state law that gives police agencies broad authority to choose what records they will and will not release to the public — even when police conduct is called into question in a years-old case.

They say such actions, taken routinely by agencies across the state, undermine the public trust. And some call for a change in the law that’s meant to protect the integrity of open police investigations, not to shield police from scrutiny when cases are closed.

“It’s just a huge hole in the law,” said Gerry Lanosga, president of the Indiana Coalition for Open Government, “and it needs to be fixed.”

Columbus Police Department officials say Scheible has nothing to worry about; their investigation was thorough and above board. “There’s nothing to hide,” Police Chief Jason Maddix told The Star. To make his point, he showed The Star two suicide notes and a log that showed the deputy never entered the house.

But Scheible is not convinced, and fueling her suspicion is the department’s refusal to release other records in the case — keeping hidden, for example, detectives’ summaries and other forensic evidence.

More from the story:
Law enforcement officials interviewed by The Star say they need discretion to seal documents to protect witnesses and confidential informants and to keep their methods hidden from criminals and disgruntled members of the public.

Plus, they say, in death investigations in which no arrests were made, there’s always a chance that new information may someday lead to a suspect, so they need to keep secret the details only a killer would know.

At least 20 states have similar provisions in their open records law, according to the Reporters Committee for Freedom of the Press.

But public records advocates say such laws are unnecessary. They note that a similar number of states and the federal government have laws requiring investigatory records be released once a case is closed. Those laws often take into account law enforcement concerns about tipping criminals off to surveillance techniques and identifying witnesses and confidential informants.

Florida is one such state that allows authorities to redact that information, though everything else must be released once a case is finalized.

There is much more in the long Star story.

ILB: Additionally, here is a March 18, 2010 ILB post that includes this quote from a FWJG story:

Except for the required daily disclosure of basic information on suspected crimes, traffic crashes and complaints, Indiana law enforcement agencies can label police reports, videos, 911 recordings and other records as “investigatory” and withhold them from public view indefinitely.

Defined simply as “information compiled in the course of the investigation of a crime,” investigatory records can be almost anything.

Finally, and this may be the most concerning, here is an April 16, 2013 post from the ILB about a bill that passed in the last session; the entry includes this quote from the new law's digest:
Public records. Allows a public agency to withhold from public disclosure records criminal intelligence information. Allows a public agency to refuse to confirm or deny the existence of investigatory records of law enforcement agencies or criminal intelligence information, if the fact of the existence of the information would: (1) impede or compromise an ongoing law enforcement investigation or endanger an individual; or (2) reveal information that would have a reasonable likelihood of threatening public safety.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Government

Environment - "Feds OK first portion of pipeline"

Gabrilelle Gonzalez reports in the LaPorte Herald Argus in a story that begins:

La PORTE — Enbridge Energy received federal approval to have a portion of its crude oil pipeline’s first segment installed in the La Porte area.

Public Affairs Adviser of Enbridge Energy Jennifer Smith said the company received approval from the U.S. Army Corps of Engineers office based out of Detroit to start working on part of the first pipeline segment.

“We are very pleased to receive approval,” Smith said.

Smith said this portion begins in Michigan, runs along the border of Michigan and Indiana through St. Joseph County in Indiana and travels west to La Porte County, just north of the city of La Porte. Smith refers to this section as the beginning of “segment 2a.”

The second part of segment 2a is from just north of La Porte, and travels west toward Griffith. The second part still needs approval by the U.S. Army Corps of Engineers office based out of Chicago. Smith said she does not know when or if Enbridge will receive approval for the second part of 2a.

Segment 2a runs about 60 miles through Indiana. The new pipe will have a 36-inch diameter rather than 30, and allow the company to ship up to 800,000 barrels of petroleum a day, although it only plans to use an initial capacity of 500,000. The current pipe has a 280,000 barrel capacity.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Environment

Environment - "Duke Energy reaches settlement with environmental groups"

Rick Callahan of the Associated Press reports in this August 31 story that begins:

Duke Energy has agreed to quit burning coal at its share of a power plant in western Indiana by June 2018 under a settlement announced Friday with environmental and citizens groups that also calls for the company to increase its investments in renewable energy.

A state administrative law judge oversaw the settlement, which was signed Wednesday by Duke Energy, the Sierra Club, Citizens Action Coalition, Valley Watch and Save the Valley.

The settlement ends the activist groups’ challenge of Duke Energy’s state air permit for its new $3.5 billion, coal-gasification plant that went online this summer. That southwestern Indiana plant was the subject of an ethical flap after Duke officials and regulators were found to be discussing the project’s rising costs.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Environment

Ind. Courts - " CAMM BLOG: Kim makes insurance policy changes before death"

WHAS11 Lousiville, has a CAMM Blog. Here is its Friday morning entry.

Here is a list of all recent entries.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Courts

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

Updating this ILB entry from August 20th, Teresa Auch Schultz had this story in the Aug. 28 Gary Post-Tribune that reports:

A federal judge delayed sentencing a former Gary police officer after hearing evidence that at least three letters written in support of the cop were faked and contained blatantly false information.

U.S. District Judge Joseph Van Bokkelen said that along with wanting to hear directly from the people who claim they did not write the letters, he also wants to hear from the man who originally told police that David Finley Jr. was dealing drugs.

Finley, of Merrillville, was set to be sentenced Wednesday morning in U.S. District Court in Hammond after pleading guilty earlier this year to one count each of dealing marijuana and lying when he said a gun he bought was for himself. He actually gave the gun to a friend, whom he also sold the pot that same day.

However, FBI Special Agent Nathan Holbrook testified at the hearing that after reading the 25 letters of support sent to the court on Finley’s behalf, he noticed that some of the letters contained the same phrasing and spelling and grammatical errors, including spelling “no” as “know.”

He started looking into the people who supposedly wrote the letters, including a Gary police officer by the name Desmond Yanders. However, the department has no one named Desmond; instead, there is an officer Demonte Yanders.

When shown the typed letter sent to the court, Yanders laughed, Holbrook said, and told officials that he had hand written a letter that he gave to Finley and that portions of that letter were in the typed letter. However, other sections that claimed Finley helped Yanders learn how to shoot in order to pass police entrance requirements, that Finley helped create the department’s crime suppression unit and that he helped get the department’s first K-9 officers not only weren’t written by Yanders but never actually happened.

At least two other letters were also faked, Holbrook said.

Gary officer Raymond Robinson also told the FBI that he did not write the letter purported to be by him. He did say that most of what it said was true except for a portion that claimed Robinson believed Finley is innocent.

Robertson also disputed a letter supposedly from the mentoring group S.O.A.R. saying Finley co-founded the group. S.O.A.R. is actually Robertson’s project and Finley had nothing to do with it, Holbrook testified.

Finally, Nona Henderson, who dated Finley about 12 years ago and is the mother of his son, told the FBI that she never wrote a letter in support of Finley that claimed he was still her best friend and that she gave him full custody of their son last year. Henderson said that along with not writing the letter, she never gave Finley custody of their son.

And there is more.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Courts

Ind. Law - "Trial lawyers giving donation from William Conour to victim fund"

Tim Evans reported Aug. 31st in the IndyStar that:

The Indiana Trial Lawyers Association is returning $30,000 donated to the group by former Indianapolis attorney William Conour, who is awaiting sentence on a federal wire fraud conviction.

U.S. District Judge Richard L. Young approved the association’s request to transfer the donation into a court fund established to help repay Conour’s victims. * * *

In August, Young approved a request from Indiana University to transfer $450,000 to the court’s restitution fund.

Conour had donated the money to the university in 2008, prompting the school to name the atrium at the IU Robert H. McKinney School of Law after him and his ex-wife. University officials decided to return the money after Conour pleaded guilty.

The $30,000 donation from Conour to the trial lawyers group was made in 2009 during a general fund raising campaign, according to court records.

“The ILTA wishes to return the transfer for use in the payment of restitution in the case,” the group wrote in its request for the court to accept the money.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Law

Ind. Gov't. - "Indiana's appeal set in IBM welfare privatization case"

Tim Evans and others from the IndyStar report today in a story that begins:

The Indiana Court of Appeals will hear oral arguments Nov. 25 in the legal battle over a $52 million judgment the state has been ordered to pay IBM over the failed attempt to privatize public welfare services under former Gov. Mitch Daniels.

The state is appealing a Marion Superior Court judge’s 2012 ruling awarding $52 million to IBM after the state canceled a contract Daniels had hailed in 2006 as the solution for fixing one of the nation’s worst welfare systems.

Instead, the project ended with the state firing IBM in 2009 after hundreds of millions of dollars were spent for a system that generated widespread complaints of delayed benefits and impersonal interactions.

The dispute ended up in court, with the state trying to recoup more than $150 million of the $437 million it had paid IBM before scrapping the deal and IBM asking for $113 million for breach of contract.

Marion Superior Court Judge David Dreyer ruled in July 2012 that IBM should get $12 million, mostly for equipment the state kept after canceling the contract, on top of the $40 million that he had ordered the state to pay IBM earlier.

The verdict was appealed and now will come before a Court of Appeals panel made up of judges John G. Baker, Ezra H. Friedlander and Nancy H. Vaidik.

A long side-bar to the story traces the history of the case and sets out the arguments.

Here is a very long list of ILB entries relating to IBM.

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Indiana Government

Law - " Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses"

Sentencing Law & Policy Blog highlights "this notable new paper by Catherine Carpenter now available via SSRN."

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to General Law Related

Catch-up: What did you miss over the l-o-n-g weekend from the ILB?

From Monday, Sept. 2, 2013:

From Sunday, Sept. 1, 2013:

From Saturday, Aug. 31, 2013:

From Friday, Aug. 30, 2013:

From Thursday, Aug. 29, 2013:

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, September 2

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

Thursday, September 12

Webcasts of Supreme Court oral arguments are available here.


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

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

Tuesday, September 10th

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

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


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

Posted by Marcia Oddi on Tuesday, September 03, 2013
Posted to Upcoming Oral Arguments