« September 2013 | Main | November 2013 »

Thursday, October 31, 2013

Ind. Decisions - "In same-sex couple dispute, COA calls for lawmakers to refine definition of 'parent'"

A good story this evening from Tim Evans of the Indianapolis Star on today's COA decision in A.C. v. N.J. (see the ILB's earlier analysis here). Some quotes from the beginning of the long story:

What, exactly, constitutes a parent?

Is parenthood determined solely by a biological tie, or can it be defined by a commitment to bring a child into the world and raise that child as your own?

There are no clear answers in Indiana law — and that, legal experts say, is leaving a growing number of Hoosier children in limbo.

The Indiana Court of Appeals, in a decision issued Thursday in a same-sex couple’s child custody dispute, echoed that sentiment by renewing a nearly decade-old call for direction from lawmakers.

“What began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time,” Judge Ezra H. Friedlander wrote in the opinion.

“They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived.”

Without clear direction from the legislature, legal experts say, courts have struggled and will continue to struggle to resolve an influx of visitation, custody and support cases involving children from same-sex and other non-traditional families.

In some cases, including the one that prompted the appellate decision, local judges have ruled that they do not have the latitude to even take a child’s best interest into account. The rulings in effect can suddenly cut a child off from one caring “parent” when the biological parent ends a relationship.

Indiana’s law barring same-sex marriage and the recognition of such marriages and civil unions from other states contributes to the lack of clarity.

The Court of Appeals made a similar plea for direction in a 2004 ruling: “We encourage the Indiana legislature to help us address this current social reality by enacting laws to protect children, who, through no choice of their own, find themselves born into unconventional familial settings.”

More from the story:
Friedlander’s opinion — which was affirmed by the court’s newly named chief judge, Nancy Vaidik, and judge John Baker — said “the existing statutory framework” does not address or contemplate the growing use of assisted reproductive technologies.

“Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures,” Friedlander wrote.

“Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago.”

ILB: The leadership of our upcoming General Assembly has publicly committed to passing for a second time and placing on the 2014 ballot HJR 6 (see also this post from 8/25), which would add a new Section 31 to Article 1 of the Indiana Constitution. Article 1 is the State's Bill of Rights. The new section would read:
Section 38. Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
So, some might say, be careful what you ask for -- although social change is creating more and more issues that do not fit within the current statutory framework, our General Assembly, were it to take up the problems outlined by these decisions, at present appears unwilling or unable to work to adapt our laws to take into account the "current social reality" and changing "social mores and sensibilities."

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides a second Indiana case today, a 2-1 opinion re "judicial districts" under the FDCPA

In MARK SUESZ, individually and on behalf of a class v. MED‐1 SOLUTIONS, LLC (SD Ind., Lawrence), a 25-page, 2-1 opinion with the dissent beginning on p. 16, Judge Flaum writes:

Defendant‐appellee Med‐1 Solutions bought the medical debt of Mark Suesz and filed a collection action in the Marion County Small Claims Court for Pike Township. Med‐1 obtained a favorable judgment, but Suesz then filed suit in federal district court seeking damages under the Fair Debt Collection Practices Act. The FDCPA contains a venue provision requiring debt collectors to bring suit in the “judicial district” where the contract was signed or where the consumer resides. Suesz asserts that Med‐1 violated this provision because he lives in a neighboring county and the debt was incurred in a township other than Pike. The district court dismissed Suesz’s claim after finding Marion County Small Claims Courts were not judicial districts for the purposes of the FDCPA. We agree, and affirm the dismissal of Suesz’s complaint. * * *

At any rate, we see no reason to depart from our existing approach in § 1692i cases. That requires us to undertake a detailed examination of the structure of Indiana’s judiciary before we can determine what units are FDCPA judicial districts.

B. The Indiana court system [from p. 6-8 the opinion outlines the structure of the Indiana court system] * * *

The Indiana General Assembly established not just township and city courts by statute, but also the superior courts. It would be an absurd result if the superior court were considered a separate judicial district from the circuit court, as the superior courts are the handmaiden to the circuit court, together creating the trial court of general jurisdiction in the counties. We thus decline Suesz’s invitation to look to the origins of the court as a dispositive factor in our FDCPA analysis.

As we have seen, the township courts are not FDCPA judicial districts, either in form or in function. We therefore AFFIRM the district court’s dismissal of Suesz’s complaint.

POSNER, Circuit Judge, dissenting.
The panel majority, in affirming the dismissal of this suit, understandably relies heavily on Newsom v. Friedman, 76 F.3d 813 (7th Cir. 1996). But Newsom is unsound and should be overruled. It interpreted the same provision of the Fair Debt Collection Practices Act that we’re asked to interpret in this case, but, like this case, it did so without reference to the Act’s purpose. It treated statutory interpretation as a purely semantic activity— as it can be when the statutory language is extremely clear; but when it is not, the purpose of the statute can’t be ignored, as it was in Newsom and is again today. Echoing Newsom, the opinion in the present case says that it “simply construe[s the term ‘judicial district’] according to its common meaning,” consistent with the principle that “Congress intends to adopt the common law definition of statutory terms.” But there is no “common meaning” of judicial district, let alone a “common law meaning.” And why would Congress want to give a statutory term a common law meaning, anyway?

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

Ind. Decisions - Tax Court rules again in Garwood jeopardy tax assessments case

In Garwood v. Ind. Dept. Revenue, an 11-page opinion, Sr. Judge Fisher writes:

Virginia Garwood has filed her second appeal with this Court. The Indiana Department of State Revenue has moved to dismiss her appeal, claiming that the Court lacks subject matter jurisdiction and that the same action is pending in the Harrison Circuit Court. The Court, finding the subject matter jurisdiction issue dispositive, denies the Department’s Motion to Dismiss.[1]
* * *

On August 19, 2011, this Court affirmed its holding in Garwood I and determined that the jeopardy assessments were void as a matter of law because they were not issued in accordance with Indiana Code § 6-8.1-5-3.3 See Garwood v. Indiana Dep’t of State Revenue, 953 N.E.2d 682, 683 n.3, 687-90 (Ind. Tax Ct. 2011) (Garwood II), review denied. Nonetheless, the Court noted that the Department could still pursue other tax collection methods with respect to Garwood’s purported tax liability. * * *

On August 29, 2011, Garwood filed a one-page written document with the Department requesting a refund of $122,684.50. * * *

On August 27, 2012, Garwood filed her second appeal with this Court, claiming that the Department has failed to rule on the claim that she filed with the Department on August 29, 2011. On June 13, 2013, the Department filed a Motion to Dismiss, which this order addresses. The Court held a hearing on September 26, 2013. Additional facts will be supplied as necessary. * * *

Subject matter jurisdiction, the power of a court to hear and determine a particular class of cases, can only be conferred upon a court by the Indiana Constitution or by statute. See K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006); State v. Sproles, 672 N.E.2d 1353, 1356 (Ind. 1996). The Tax Court has exclusive subject matter jurisdiction over “original tax appeals” and its territorial jurisdiction spans the entire state. IND. CODE §§ 33-26-3-1, -3 (2013); Ind. Tax Court Rule 13.

A case is an original tax appeal if it: 1) “arises under the tax laws of Indiana” and 2) “is an initial appeal of a final determination” made by the Department. I.C. § 33-26-3-1. * * *

The Court, having found that Garwood’s case satisfies the jurisdictional prerequisites of Indiana Code § 33-26-3-1, DENIES the Department’s Motion to Dismiss in its entirety. Accordingly, the Court now LIFTS the stay granted on August 2, 2013.
__________________
[1] The Department has designated certain evidence as confidential; therefore, the Court’s order will provide only that information necessary for the reader to understand its disposition of the issues presented. See generally Ind. Administrative Rule 9.

[ILB: It is an incidental point, but the ILB is interested in knowing how the Dept. of Revenue can, without more, simply "designate certain evidence as confidential" under Rule 9.]

For more on the earlier Garwood case, start with this June 4, 2012 ILB entry.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - COA writes today of the rights to joint custody by a same sex, non-birth mother when the relationship has ended

The case today, out of the Elkhart Superior Court, is A.C. v. N.J, a 21-page opinion by Judge Friedlander.

First, a little history. On Nov. 24, 2004, the COA decided the case of A.B. v. S.B. The opinion was written by Judge Friedlander. See the ILB summary at the end of this 2004 post, prefaced by:

[Note: This is a significant decision concerning the rights of domestic partners with respect to a child conceived by artificial insemination. I have posted it as an easier-to-read PDF document, accessible via the link above. It also may be of significance that Judge Friedlander is on the panel that heard oral arguments in Morrison v. Sadler, concerning same-sex marriage, on Jan. 12, 2004, now more than ten months ago -- see this ILB entry from 9/16/04.]*
_______
*[Note from 10/31/13] Morrison v. Sadler was not decided by the COA until Jan. 20, 2005. J. Friedlander wrote a concurring opinion.
On Nov. 23, 2005, our Supreme Court ruled in A.B., now referenced as Dawn King v. S.B. (In re Parentage of A.B.). Justice Sullivan wrote the 4-page opinion, vacating the COA decision:
Dawn King seeks a judicial declaration that she is entitled to parenting time rights, child support obligations, and certain other parental rights and responsibilities with respect to a now six-year-old child, A.B. The trial court dismissed the lawsuit under the authority of Indiana Trial Rule 12(B)(6) for “failure to state a claim upon which relief may be granted.” The Court of Appeals reversed, holding that by virtue of her agreement with A.B.’s mother, King is a “legal parent.” In re Parentage of A.B., 818 N.E.2d 126, 132 (Ind. Ct. App. 2004). We grant transfer and thereby vacate the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). * * *

As previously mentioned, we grant transfer, vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We also reverse the trial court’s dismissal of King’s complaint and remand this case to the trial court for further proceedings.

Boehm and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion. Dickson, J., dissents with separate opinion.

Justice Dickson wrote an 8-page dissent - some quotes from the beginning and end:
The majority opinion today permits a declaratory judgment action to be pursued by a woman seeking to establish her “co-parentage” of a minor child conceived by artificial insemination and born to another woman during the two women’s relationship as domestic partners. I dissent, believing that the plaintiff’s action fails to state any claim upon which relief can be granted. Indiana Trial Rule 12(B)(6). I reach this conclusion for several reasons, chiefly the following: (1) permitting this proceeding to continue disregards Indiana’s adoption laws, particularly the statutory requirement for the mother’s consent to an adoption; (2) reinstating this declaratory judgment action raises grave questions regarding whether such device may be used by various other people, who are not natural parents of a child, to bypass our adoption laws and to intrude upon the lawful parental rights of others; and (3) advancing special policy interests that have not become well-established changes in society exceeds an appropriate exercise of common law jurisprudence. * * *

Because I believe that the plaintiff’s action is precluded by existing statutes governing adoption, and that the judiciary serves best when it refrains from intruding into the legislature’s prerogative to determine public policy on social issues, I respectfully dissent.

In today's opinion, 8 years later, Judge Friedlander writes, beginning at p. 6:
Nearly a decade ago, this court first addressed the issue of whether two women in a same-sex domestic partnership who agree to bear and raise a child together by artificial insemination of one of the partners with donor semen are both the legal parents of the resulting child. In re A.B., 818 N.E.2d 126 (Ind. Ct. App. 2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind. 2005). In that case, King and Benham lived together in a same-sex domestic relationship for nearly nine years. The couple participated in a commitment ceremony and held themselves out to their families, friends, and communities as being committed domestic partners. Several years later, the couple decided to raise a child together and agreed that Benham would be inseminated with semen donated by King’s brother. All parties involved intended for King and Benham to be the co-parents of the resulting child. King was present for and participated in A.B.’s birth, and subsequently acted as A.B.’s second parent. Additionally, King filed a petition to adopt A.B. with Benham’s consent, but when the couple briefly separated prior to the completion of the adoption, Benham withdrew her consent. The couple subsequently reconciled, but did not pursue the adoption further. King and Benham ended their relationship in January 2002, and King thereafter paid monthly support and had regular and liberal visitation with A.B. until July 2003, when Benham unilaterally terminated visitation and began rejecting support payments.


Thereafter, King filed a declaratory judgment action seeking to be recognized as A.B.’s legal parent, with all the rights and obligations attendant to that status. Alternatively, the complaint asserted that even if King was not A.B.’s legal parent, she was nonetheless entitled to continued visitation because she had acted in loco parentis and in a custodial capacity. Benham filed a motion to dismiss the complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to state a claim on which relief may be granted, which the trial court granted. This court reversed, reasoning as follows:

[W]e agree with [King] that “no [legitimate] reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination.” As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.
“[O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children’s financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.”
We encourage the Indiana legislature to help us address this current social reality by enacting laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings. Until the legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. We, therefore, hold that when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child. [Emphasis in the original]
Were it still good law, In re A.B. might be dispositive. Our Supreme Court, however, granted transfer, vacating our opinion in full. * * *

Justice Dickson dissented, raising a number of concerns related to the majority’s holding, which he characterized as “permit[ting] a declaratory judgment action to be pursued by a woman seeking to establish her ‘co-parentage’ of a minor child conceived by artificial insemination and born to another woman during the two women’s relationship as domestic partners.” * * *

Justice Dickson also expressed concerns that the majority’s holding would “open a veritable Pandora’s Box of troublesome questions regarding” who might be permitted to seek parental rights notwithstanding opposition by the child’s biological parent, and opined that extending such rights to only former same-sex partners “would raise grave questions” under article 1, section 23 of the Indiana Constitution. * * *

He further contended that “[t]he common law should not, in my opinion, be used to provide non-statutory privileges arising out of same-sex domestic relationships when, as here, not only is Indiana public opinion deeply fractured, but also a significant majority of Indiana citizens favor a public policy that does not promote same-sex families.” In support of this assertion, Justice Dickson cited Indiana’s statutory prohibition against same-sex marriage, as well as the General Assembly’s adoption of a resolution calling for a constitutional amendment prohibiting same-sex marriage. * * *

Since King, the status of the law surrounding a lesbian partner’s right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain. When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been
forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived. * * *

In the absence of a legislative directive, if full parental rights are to be recognized in a former same-sex partner under the circumstances presented here, that recognition must come from our Supreme Court.

After the discussion of parenthood ("we cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be Child’s parent as well"), and a denial of joint custody ("we cannot conclude that the trial court erred in declining to enforce the agreement between Mother and Partner that Partner would be Child’s parent as well."), the Court today looks at the question of whether Partner has standing to to seek visitation with Child, and concludes:
We believe the Court’s decision in King v. S.B. signaled its amenability to expanding the class of petitioners with standing to seek third-party visitation to include individuals situated similarly to Partner. Thus, in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances—it must still be established that visitation is in the child’s best interests. We therefore reverse the trial court’s conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner’s request for visitation under the standard set forth in our third-party visitation cases.

Affirmed in part, reversed in part, and remanded with instructions.

BAKER, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Judge Kimberly Brown's trial set for Nov. 4th through 8th

For those following this case, the docket has now been updated with the results of Oct. 23rd telephonic prehearing conference. The docket entry is dated Nov. 30th.

The ILB is hearing that there will be no taping, no webcast and no cameras permitted during the trial in the Supreme Court courtroom. Don't know about tweeting ...

Each side apparently has quite a long list of witnesses.

According to the docket, a respondent's request to take an evidentiary deposition of the Hon Barbara Collins (retired) is denied:

THE RESPONDENT MAY RAISE THE ISSUE AGAIN, IF NECESSARY, DURING THE COURT OF THE HEARING IN THIS MATTER. JUDGE COLLINS' TESTIMONY WILL BE HEARD DURING THE SCHEDULE HEARING TIME AND THE PARTIES HAVE AGREED TO TAKE HER TESTIMONY OUT OF ORDER IF NECESSARY CONSIDERING JUDGE COLLINS' SCHEDULING REQUIREMENTS.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Indiana Courts

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

In KATHERINE CERAJESKI, Guardian for Walter Cerajeski v. GREG ZOELLER, Attorney General of the State of Indiana, et al (SD Ind., Magnus-Stinson), a 12-page opinion, Judge Posner writes:

The plaintiff appeals from the dismissal of her suit challenging the constitutionality of part of the Indiana Unclaimed Property Act, Ind. Code §§ 32‐34‐1‐1 et seq. (Indiana’s version of the Uniform Unclaimed Property Act), on the ground that it authorizes the state to confiscate private property without any compensation—let alone just compensation—to the owner.

The Act states that “property” is “presumed abandoned if the owner or apparent owner has not communicated in writing with the holder concerning the property or has not otherwise given an indication of interest in the property” within a specified period that varies according to the type of property. § 32‐34‐1‐20(c). * * * The owner, by filing a valid claim to his property (which he can do on the website), can reclaim the property from the state at any time up to 25 years after it was delivered to the attorney general. § 32‐34‐1‐36. At that point if still unclaimed it escheats to—that is, becomes owned by—the state.

But here’s the rub that has given rise to this lawsuit: the owner who files a valid claim to property is entitled only to his principal, and not to any interest earned on it. The plaintiff contends that the state’s retention of the interest is a taking that violates the takings (just‐compensation) clause in the Constitution because the owner is paid nothing for his lost interest. [ILB emphasis] * * *

Correctly believing that the state wouldn’t pay interest if she filed a claim, she filed this lawsuit instead, seeking a declaration that she is entitled (on behalf of her ward) to the interest; if she obtains the declaration, the claim will follow. * * *

The state is certainly entitled to charge a fee for its services in taking custody of unclaimed property and trying to locate the owner. The statute, however, authorizes it to deduct from the value of the property only a very limited set of costs, see § 32‐34‐1‐36(g), none of which appears to be relevant to Cerajeski’s bank account. The uniform act on which the Indiana law is modeled allows for reasonable service charges and other fees for custodianship, Uniform Unclaimed Property Act of 1995 § 13(b), but for unexplained reasons Indiana has not enacted that section of the uniform act. And the state has made no effort to show that the amount of interest in Cerajeski’s bank account bears any relation to the cost of the services that the state has performed in relation to the account.

The confiscation of the interest on Cerajeski’s principal was therefore a taking of a part of his property (remember that the Indiana statute makes a bank account “property” under Indiana law). * * *

Even if by some magic the cost to the state of its custodianship of Cerajeski’s bank account and related services equaled the confiscated interest, the confiscation would be a taking within the meaning of the takings clause. * * *

The judgment is reversed and the case remanded for further proceedings consistent with this opinion. The plaintiff is entitled to just compensation from the state when she files her claim to Cerajeski’s account, but the amount of that just compensation has yet to be determined. The plaintiff has also sought an injunction—why we don’t know; and injunctive relief may well be unavailable in this case. “Equitable relief is not available to enjoin an alleged taking of private property for a public use.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984). The availability and propriety of injunctive relief are other issues to be resolved by the district judge in the first instance.

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

Ind. Gov't. - "Trustee removed from office for first time in Indiana history, officials say"

Kara Kenney of WRTV 6 is reporting this morning in a story that begins:

MARTINSVILLE, Ind. - For what appears to be the first time in Indiana history, a judge has removed a public official from office for failing to do her job.

Ashland Township Trustee Sandra Norman admitted Wednesday she failed to file annual reports as required by law.

The court accepted her admission and issued an order removing her from office.

Norman's removal from office comes after efforts from Paul Joyce, deputy examiner from the State Board of Accounts, and County Prosecutor Steve Sonnega, to hold public officials more accountable for how they spend tax dollars .

"I give Steve Sonnega a lot of credit for following through with this and holding this public official accountable," Paul Joyce told Call 6 Investigator Kara Kenney Thursday. "I think it creates a good blue print for other prosecutors to follow for public officials who aren't doing the job they're elected to do."

Under Indiana law, a public official who fails to keep financial books can be removed from office.

However, Joyce said this is the first time it's actually happened since the law went into effect in 1909.

Last year, the Call 6 Investigators found two thirds of public officials accused of misusing tax dollars are never criminally prosecuted and many keep their jobs even after facing criminal charges.

Kenney's story links to a one-page order by Judge Thomas Gray, Morgan Superior Court 1, ordering that Norman forfeit her office, pursuant to IC 5-11-1-10.

The ILB has had several other posts on this story, including this one from July 15th headed "Maybe not so 'one-of-a-kind' after all." It quotes of South Bend Tribune story where the trustee resigns, but that resignation is related to a felony conviction:

A township trustee who used a township ATM card to withdraw taxpayer funds at casinos in Indiana and Michigan will avoid prison but must resign his post.

St. Joseph Circuit Court Judge Michael Gotsch sentenced Olive Township trustee John Michalski, a Democrat, to one year but suspended the sentence, meaning the 72-year-old man will serve his punishment on probation.

The judge also ordered that Michalski resign as a trustee within 30 days. He cannot hold elected office for eight years as well, according to the terms of the sentence.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 7 today (and 18 NFP)

For publication opinions today (7):

In Richard Prancik, b/n/f, Renee Prancik v. Oak Hill United School Corporation, an 11-page opinion, Judge Barnes writes:

The issue before us is whether Oak Hill was entitled to summary judgment on Prancik’s claim that Oak Hill breached a duty to him when a fellow student assaulted him. * * *

Here, Nolan was acting in accordance with reasonable protocol for supervising students at the time of the incident, neither she nor the school were on any kind of notice that K.M. could be violent, either generally or towards Prancik specifically, and he and Prancik were left unsupervised at most for a mere matter of minutes. These undisputed facts lead us to the conclusion that as a matter of law, Oak Hill did not breach its duty to reasonably supervise the students in its care.

A.C. v. N.J. - [ILB: see extended post on this opinion here]

In Gary Tibbs v. State of Indiana, a 6-page opinion, Judge May writes:

Gary Tibbs appeals his convictions of two counts of Class A felony child molesting, three counts of Class B felony child molesting,2 one count of Class D felony intimidation, and one count of Class D felony child solicitation. He claims the State committed prosecutorial misconduct when it commented during closing argument on the truthfulness of his testimony. * * *

Tibbs argues the State committed prosecutorial misconduct when “the deputy prosecutor created the false impression that Tibbs was lying when he testified truthfully that he had been incarcerated during part of the time he was alleged to have molested D.J.” * * *

We cannot say that the prosecutor’s actions amounted to fundamental error. The comment was merely a comment upon the evidence, which is permitted during closing argument.

In Michael R. Houston v. State of Indiana, a 7-page opinion, Judge Kirsch writes:
Michael R. Houston (“Houston”) was convicted after a jury trial of possession of cocaine1 as a Class D felony. He appeals raising the following restated issue: whether the State presented sufficient evidence to support his conviction. We reverse. * * *

Because Houston did not have direct physical control over the cocaine found in the car, the State had to prove that he had constructive possession of it.

In order to prove constructive possession of drugs, the State must show that the defendant has both: (1) the intent to maintain dominion and control over the drugs; and (2) the capability to maintain dominion and control over the drugs. * * *

The only evidence of constructive possession that the State points to is the statement by Houston regarding the vial of yellow-tinted liquid found in the center console area. The State contends that this statement was evidence that Houston was aware of items in and around the console area. Such evidence fails because there was no showing that the vial was connected to the cocaine in any way. Indeed, the evidence established that the vial was in plain view in the console of the vehicle, not in the crevice where the cocaine was found. In addition, the evidence failed to show that Houston even knew what was in the vial because he incorrectly identified the contents of the vial as urine, and Green testified that the vial actually contained anointing oil used in his church. Id. at 145. We conclude that the evidence presented at trial was not sufficient to prove the intent prong of constructive possession. We, therefore, reverse Houston’s conviction for possession of cocaine.

In Tin Thang v. State of Indiana, a 7-age opinion, Judge Crone writes:
Tin Thang was arrested at an Indianapolis gas station and charged with class B misdemeanor public intoxication. The trial court subsequently convicted him as charged. Thang now appeals, challenging the sufficiency of evidence to support his conviction. Finding that the evidence is insufficient to establish that the intoxicated Thang alarmed another person within the mean of the statute or endangered either his life or another person’s life, we reverse.
In Courtney Glenn v. State of Indiana, an 8-page opinion, Judge May writes:
Courtney Glenn appeals her convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. She presents the following issues for our review: 1. Whether there was sufficient evidence to sustain Glenn’s convictions; and 2. Whether Glenn’s convictions subjected her to double jeopardy. We affirm. * * *

The State presented sufficient evidence to convict Glenn of resisting law enforcement and disorderly conduct, and Glenn has not demonstrated her convictions rested on identical facts in violation of Indiana’s double jeopardy provision.

In David Wise v. State of Indiana, a 5-paage opinion, Judge Mathias writes:
David C. Wise (“Wise”) brings this interlocutory appeal from the order of the Marion Superior Court denying his pre-trial motion in limine which sought to exclude evidence regarding video recordings of video files found on Wise’s mobile phone. Concluding sua sponte that Wise’s motion to certify the trial court’s order for interlocutory appeal was deemed denied by operation of Indiana Appellate Rule 14(B)(1)(e), we dismiss. * * *

Here, our review of the record reveals that Wise’s motion to certify the trial court’s order for interlocutory appeal was deemed denied. Without proper certification, we have no jurisdiction to entertain an interlocutory appeal. Wesley v. State, 696 N.E.2d 882, 883 (Ind. Ct. App. 1998). Thus, our earlier decision to accept jurisdiction was improper, and we accordingly dismiss this appeal. Dismissed.

NFP civil opinions today (5):

In Re The Marriage of Brian C. Dickerson v. Shannon Dickerson (NFP)

Sharon Jasinski v. Mirian Brown (NFP)

Lyle B. Steele v. Asbury Glen Homes (NFP)

In the Matter of A.G.(Minor Child), A Child Alleged to be a Child in Need of Services J.G.(Mother) v. Indiana Department of Child Services (NFP)

In the Matter of Custody of: L.T. and A.B., minor children, R.L. and P.L. v. A.B. and R.B. (NFP)

NFP criminal opinions today (13):

In Re the Contempt of Dorothy Davis v. State of Indiana (NFP)

George Small v. State of Indiana (NFP)

James Tinzley v. State of Indiana (NFP)

Gerald M. Joyce v. State of Indiana (NFP)

Andre C. Greene v. State of Indiana (NFP)

Bryce Leighton v. State of Indiana (NFP)

Charles L. Hubbell v. State of Indiana (NFP)

Kevin James Porter v. State of Indiana (NFP)

James Averitte v. State of Indiana (NFP)

Steven Wilson v. State of Indiana (NFP)

Steven L. O'Bryant v. State of Indiana (NFP)

Jeffrey E. Howell v. State of Indiana (NFP)

George Abel v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today, on a rehearing petition

In Robert Bowen v. State of Indiana, in a 2-page per curiam opinion on a petition for rehearing, the Court writes:

Bowen again requests that the case be remanded with instructions for imposition of concurrent sentences. We again reject that request, but expand our remand instructions as follows:
On remand for a new sentencing order that responds to concerns raised by the Supreme Court, the trial court may discharge this responsibility by (1) issuing a new sentencing order without taking any further action, (2) ordering additional briefing on the sentencing issue and then issuing a new order without holding a new sentencing hearing, or (3) ordering a new sentencing hearing at which additional factual submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties.
Taylor v. State, 840 N.E.2d 324 (Ind. 2006).

Accordingly, we grant rehearing for the limited purpose of modifying the remand instructions, and otherwise deny the rehearing petition.

Here is the June 14th opinion in Bowen v. State.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Ruling of SD Ind. on filings under seal

Updating this ILB entry from Oct. 16th, Tom LoBiancno of the AP reports today:

INDIANAPOLIS — Attorney General Greg Zoeller asked a federal judge on Wednesday to uphold a law that would shut down Lafayette’s only abortion clinic.

Zoeller made the state’s case before U.S. District Judge Jane Magnus-Stinson, who is considering a request from the American Civil Liberties Union of Indiana to block the law before it takes effect on Jan. 1. Zoeller said the law reflects the will of Indiana citizens and that the ACLU and others trying to stop it haven’t proven their case.

“We respectfully contend the plaintiffs have not met their burden and this newly passed public-health statute should remain intact and no injunction should be granted,” Zoeller said.

Indiana lawmakers approved several new requirements earlier this year for clinics that dispense the RU-486 abortion pill, including requiring such clinics to build separate recovery and surgical-procedure rooms and to widen doorways. While the law is broadly written to apply to clinics providing just the medication and not surgical abortions, it would apply only to one Planned Parenthood clinic, in Lafayette.

“The state is basically saying you have to have a surgical abortion clinic in Lafayette,” said Ken Falk, the ACLU of Indiana’s legal director. “Planned Parenthood’s position is it’s completely irrational to have something like this when we don’t perform surgery at all.”

Nine surgical abortion clinics are currently licensed in Indiana, including three run by Planned Parenthood, according to state records.

The ACLU also argued that the law was similar to other laws that federal courts have struck down.

Supporters of the law argue that it’s needed to protect women’s health from potentially fatal consequences after taking the abortion pill. Opponents have called it another attempt by the state to limit abortions.

Here is the 14-page complaint in Planned Parenthood v. Commissioner ("Complaint for Declaratory and Injunctive Relief / Notice of Challenge to Constitutionality of Indiana Statute"), filed 8/22/13. Here is the answer, filed 10/2/13 by the Attorney General.

Posted by Marcia Oddi on Thursday, October 31, 2013
Posted to Ind Fed D.Ct. Decisions

Wednesday, October 30, 2013

Law - Michigan bar passers this time are lowest in number since 1999

See this post from the SBM Blog.

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to General Law Related

Courts - "Ballot Measure on Judicial Retirement Age Is Said to Divide Cuomo and Top Judge"

This story today in the NY Times by James C. McKinley Jr., about a proposed constitutional amendment in the State of New York which would raise the mandatory retirement age of their high court judges from 70 to 80 (and also raise the age for some other state judges) is interesting outside of New York because of the discussion of the various competing interests.

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to Courts in general

Ind. Law - Indianapolis attorney Stephen Terrell featured in Muncie story

John Carlson of the Star-Press interviewed Terrell for this long story at The Cup:

... in Ball State University’s Village, two trade paperback books resting on the table before him. The son of a factory worker and a school lunchroom employee, he was ultimately drawn to the law after sitting in on the trial of a man who was accused of killing a close friend of his.

“Seeing that just solidified my plans,” said Terrell, who practices in Indianapolis and has argued cases in high courts there and in Chicago.

How long has he practiced law?

“Too long is my common answer,” he said, smiling, before specifying 33 years, time divided between working for a large firm, a smaller firm and then striking out on his own. “I’ve been really involved with the state bar association.” * * *

“Like most trial lawyers, I’m a story teller,” said the attorney, a fan of the Midwest Writers Workshops that are held in Muncie, an association that has stood him in good stead in his literary career.

Those books on the table near him are his work, and include “Stars Fall,” a hard-edged mystery, and “Visiting Hours and Other Stories from the Heart,” one of which won him a Manny Award from the MWW.

“I started writing when I was in elementary school,” said Terrell, who is now working on a sequel to “Stars Fall,” which features a black, female, breast-cancer survivor as a protagonist, noting that he wrote a 150-page novel back when he was a Bearcat.

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to Indiana Law

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

In LANCE FOSTER v. UNITED STATES OF AMERICA (ND Ind., Lozano), a 14-page opinion, Judge J.P. Stadtmueller of the ED Wis., sitting by designation, writes:

The appellant, Lance Foster, was charged with distributing crack cocaine and a separate conspiracy-to-distribute charge. Against the advice of his appointed counsel, Visvaldis Kupsis, Mr. Foster rejected two proposed plea agreements, both of which would have resulted in a sentence of close to twenty years imprisonment. Atty. Kupsis was particularly concerned with this decision, because Mr. Foster faced a possibility of a life sentence, if he was convicted of the conspiracy charge at trial. Undeterred, Mr. Foster decided to take the case to trial. Only ten days before his trial was scheduled to begin, the Government filed an information, pursuant to Title 21, Section 851, of the United States Code, stating that Mr. Foster had a prior felony drug conviction. The effect of filing this information was to increase the mandatory minimum penalty on both the distribution and conspiracy counts from 10 to 20 years. Atty. Kupsis had not anticipated that the Government would file the information, nor had he advised Mr. Foster that such was a possibility. After receiving notice of the information, Atty. Kupsis suggested to Mr. Foster that they attempt to revive one of the earlier proposed plea agreements. Mr. Foster refused, stating that “20 years is life,” apparently referring to the approximate length of imprisonment attendant in each of the prior proposed agreements. Thus, trial went forward, and—quite to his surprise— Atty. Kupsis successfully defended Mr. Foster against the conspiracy charge. The jury, however, still voted to convict him on the distribution count. The Section 851 information triggered a higher mandatory minimum penalty of 20 years on that count, and thus the district court sentenced Mr. Foster to 20 years imprisonment. This result effectively made the trial inconsequential, as it was likely that Mr. Foster would have received the same (or a slightly lower) sentence, had he agreed to plead guilty to the conspiracy charge. Thus, he filed a No. 12-1961 3 Section 2255 motion, arguing that Atty. Kupsis provided constitutionally ineffective assistance of counsel, due to his failure to anticipate and report to Mr. Foster the potential for a Section 851 information. The district court held an evidentiary hearing on Mr. Foster’s motion, and ultimately held that Mr. Foster could not establish that he was prejudiced by Atty. Kupsis’ representation, because he expressed an unwillingness to accept any of the plea agreements offered to him. Mr. Foster appealed, but this Court agrees with the district court’s assessment, and therefore affirms its denial of Mr. Foster’s motion. * * *

For all of these reasons—the lack of any credible evidence offered by Mr. Foster, and the amount of countervailing evidence against him—we conclude that the district court was correct in finding that Mr. Foster was not prejudiced by Atty. Kupsis’ failure to alert him to the possibility of a Section 851 14 No. 12-1961 information. We therefore AFFIRM the district court’s denial of Mr. Foster’s Section 2255 motion.

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

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Marcus Anthony Johnson Revocable Trust and The Marion County Board of Zoning Appeals Division No. 1 v. Westchester Estates Homeowners Association, Inc., Et Al, (NFP)

Delmar P. Kuchaes v. JP Morgan Chase Bank,, N.A. (NFP)

NFP criminal opinions today (4):

Christopher Peelman v. State of Indiana (NFP)

Jose A. Bonilla v. State of Indiana (NFP)

Kendrick Atkins v. State of Indiana (NFP)

Lawrence Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge rules police emails of Bisard trial didn’t reveal anything"

An AP story today in the Fort Wayne Journal Gazette reports that:

The judge for the reckless homicide and drunken driving trial of an Indianapolis police officer has ruled that police emails with daily summaries of the proceedings didn’t reveal anything unduly prejudicial against the defense.

Allen Superior Court John Surbeck declined Tuesday to strike the testimony of a police captain who had read the emails before being called as a witness in the trial of David Bisard.

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to Indiana Courts

Ind. Courts - Even more on: Morgan County Prosecutor to challenge expungement

Updating this ILB entry from Monday, Oct. 28th, about the Morgan County prosecutor challenging the constitutionality of the new expungement law, it appears he is not the only Indiana prosecutor resisting the new law. Madeline Buckley of the South Bend Tribune reports today in a story headed " Prosecutors rip '2nd Chance Law.'" Some quotes:

In one recent hearing, St. Joseph County Deputy Prosecutor Mark Roule was in the courtroom, though his presence was more of a formality.

Jacqueline Wilk was seeking to have her arrest expunged after two high-profile trials in the deaths of her children resulted in mistrials and dismissed neglect charges.

In line with the statute, it didn't seem that he could object, Roule told the judge.

Her arrest met the criteria for expungement under a new state law that took effect in July. It didn't result in a conviction, a year had passed and she faced no pending criminal charges.

Judge John Marnocha commented that he had no discretion under the law to view the case through its specific issues. Since Wilk's arrest met the law's three requirements, the judge had to expunge it.

This prong of the law, which allows people to have arrests and certain low-level convictions expunged, has encountered some resistance, particularly from prosecutors who are left powerless under the statute.

Yet others in the local legal community say the law -- sometimes dubbed the "Second Chance Law -- is an important tool for those with old, low-level convictions who are seeking employment. * * *

St. Joseph County Prosecutor Michael Dvorak said he believes the law should allow a judge discretion when hearing all expungement petitions, which would provide prosecutors a chance to argue and give victims in the case a say.

"It ought to be done on a case-by-case basis, not one size fits all," Dvorak said.

He said the law as it reads now provides no path for due process in the proceedings that erase a legally secured conviction.

"This would simply be cured by changing the 'shall' provision to a 'may' provision," Dvorak said.

Yet others say sealing records years after a sentence is completed should be a formality for the most minor of convictions.

"For your D felonies and misdemeanors, it probably should just be shuffling paper," Carrie Gaines, a South Bend attorney, said. * * *

The author of the original bill, Jud McMillin, a state representative from the southeastern part of the state, said he also wants to see the bill tweaked, yet the "shall" provision was not among what he wants changed.

McMillin cited shortening the time frame one must wait after completing a sentence and waiving filing fees for certain applicants as points he is drafting for possible amendment.

"I am a little bit disappointed that we have folks out there involved in the criminal justice system who refuse to see the need to give people who have already paid their debt to society an opportunity," McMillin told The Tribune.

The new law debuted in July to some confusion throughout the state, as people quickly filed petitions to erase their pasts and judges and attorneys tried to brush up on the exceptionally complicated legislation.

St. Joseph County has received eight petitions for expungement under the new law, according to the clerk's office.

In Elkhart County, Superior Court Judge Evan S. Roberts has handled about five petitions so far, though none met the statutory requirements, he said.

"It's so new that a lot of people are having concerns with the new law in the sense that it's difficult to understand and it's difficult to implement," Roberts said. "Give it some time like any new law and some of us will figure it out."

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to Indiana Courts

Law - " Doctors to see new restrictions on painkiller prescriptions: Legislators part of statewide task force"

That is the headline to Maureen Hayden of CNHI's story today in the Anderson Herald Bulletin. The story begins:

INDIANAPOLIS — Indiana is joining a growing number of states adopting tighter controls on how doctors are prescribing some of the most commonly used narcotic painkillers, in an effort to curb what public health officials call an epidemic of prescription drug abuse.

Late last week, the Indiana Medical Licensing Board adopted a set of emergency rules that call for drug testing of pain-medication patients, more screening and monitoring of patients by doctors to detect drug addiction and abuse, and a mandatory “treatment agreement” between doctors and patients that’s focused on improving health and not just alleviating pain.

The new rules – which serve as the basis for permanent rules to come — were adopted the same week that the federal Food and Drug Administration recommended tougher restrictions for the most widely abused prescription drugs that contain the narcotic hydrocodone, such a Vicodin, Lortab and their generic equivalents. The FDA restrictions, if passed, would reduce the number of refills patients could get before going back to see their doctor and would require patients to take a prescription to a pharmacy, rather than have their doctor call it in.

“These are big first steps, but we still have a long way to go controlling access to some very dangerous drugs,” said Republican state Sen. Ron Grooms, a retired Jeffersonville pharmacist who sponsored the legislation that led to the new state rules.

Grooms and members of a statewide drug abuse prevention task force that helped craft the new restrictions expect pushback from patients and doctors who’ve grown accustomed to relatively easy access to the commonly prescribed medications used to treat pain from arthritis, injuries, dental extractions and other problems.

But it’s grief they’re willing to take, given the explosion of people dependent on painkillers and the rise in overdose deaths.

“We knew if we didn’t get ahold of this problem now, it was going to be one of those things that we’d never get ahold of,” said Dr. Deborah McMahan, the Allen County health commissioner and chair of a statewide task force of medical and legal experts who helped craft the new prescribing rules. * * *

Grooms sponsored what’s known as the “pill mill” that gives Indiana Attorney General Greg Zoeller new authority to crack down on pain-management clinics around the state. It gives the attorney general’s office more access to medical records maintained by pain clinics and requires every pain management clinic in Indiana be owned and operated by someone who holds a valid registration to prescribe controlled substances.

But the law also called for the state Medical Licensing Board to put new protocols in place for prescribing opioid-based drugs. Dr. Amy LaHood, an Indianapolis family physician who helped write the rules, said they were needed to target doctors “used to writing out ‘scrips and just walking out the door.”

Related is this this hour-long Diane Rehm Show yesterday, titled "Debate Over Prescription Painkiller Regulations." Here is the introduction:
Last week, the FDA recommended tightening the way narcotic painkillers are regulated. The proposed changes on drugs containing hydrocodone are expected to go into effect next year. The move comes following a rapid spike in painkiller prescription as well as what many public health experts believe is an epidemic of abuse. It’s estimated that 100,000 people have died from overdoses in the last decade. But for patients struggling with pain, and for some doctors on the frontlines, the proposed restrictions go too far. Diane and her guests discuss the use and abuse of prescription painkillers.

Posted by Marcia Oddi on Wednesday, October 30, 2013
Posted to General Law Related

Tuesday, October 29, 2013

Ind. Courts - More on: Judge Kimberly Brown's trial set for Nov. 4th through 8th

Updating this ILB entry from Oct. 25th, and this one from Oct. 16th, the docket now shows that, despite respondent's objection to the commission's Oct. 15th motion to add additional changes, the motion has been granted. The Oct. 25th order continues:

THE MASTERS, RECOGNIZING THAT THE TRIAL WILL BE UNDERWAY BEFORE RESPONDENT'S ANSWER TO THE COMMISSION'S AMENDED STATEMENT OF CHARGES IS DUE, NOW SHORTENS THE TIME OF RESPONDENT'S ANSWER TO OCTOBER 30, 2013.
HON. VIOLA J. TALIAFERRO, PRESIDING MASTER
ENTERED ON 10/29/13 MS
The ILB has received a number of reader inquiries about the upcoming disciplinary trial - but only has an answer to the first:

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Indiana Courts

Ind. Decisions - "Jury recommends death for William Clyde Gibson"

Updating this ILB post from Oct. 26th, the New Albany News & Tribune reports this afternoon that:

[William Clyde] Gibson was convicted Friday of killing Christine Whitis, Clarksville, and the jury heard sentencing testimony Monday and today, before deliberating for about four minutes and coming back with the death penalty opinion.
There may be additional trials; Gibson faces charges in two other murders.

A Floyd County commenter to the N&T story posted:

Here we go again, this will be the same as camm, we will be paying for more trials. Just as well move to a different county. Aren't you tired of your tax dollar paying for murderers trial????? We the people have a right to expect some use from taxes besides paying for trials.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Heather N. Kesling v. Hubler Nissan, Inc., an 11-page, 5-0 opinion in which the oral argument was heard May 16, 2013, Justice Rush writes:

An auto dealership’s advertisement of an inexpensive used car as a “Sporty Car at a Great Value Price,” is textbook puffery—not actionable as deception or fraud, because a reasonable buyer could not take it as a warranty about the car’s performance or safety characteristics. But when the dealer has inspected the car and should know it has serious problems, answering a buyer’s question about why it idled roughly by claiming that it “would just need a tune-up” may be actionable as fraud. We therefore hold that the buyer’s fraud claim survives summary judgment, even though her deception claims cannot. * * *

Mere “puffing” is a statement of opinion, not a representation of fact, and thus cannot be the basis of deception or fraud claims. But stating that a car “would just need a tune-up,” in the face of actual or constructive knowledge that it had far more serious problems, does represent a fact—and therefore may be the basis of a fraud claim when a seller gives it as a knowingly incom-plete answer to a buyer’s specific question. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Hubler as to Kesling’s Deceptive Consumer Sales Act and Crime Victim’s Relief Act claims; reverse its grant of summary judgment as to Kesling’s fraud claim; and remand to the trial court for further proceedings not inconsistent with this opinion.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Who Has The Right To Know Where Your Phone Has Been?"

Larry Abramson had this 4-minute story on this morning's NPR's Morning Edition. It begins:

You probably know, or should know, that your cellphone is tracking your location everywhere you go. But whether law enforcement officials should have access to that data is at the center of a constitutional debate.
In addition to this text at this link, also see the transcript of the panel.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to General Law Related

Courts - IU Maurer law professor Dawn Johnsen on "the demise of originalism"

IU Maurer Law Professor Dawn Johnsen, about whom the ILB had many posts in the past (actually more than I'd remembered), has recently published an issue brief titled “Windsor, Shelby County, and the Demise of Originalism: A Personal Account,” in which, according to the ACS blurb:

Johnsen examines the Court’s rejection of a methodology that “seeks to interpret the Constitution with reference only to the text and the original meaning of the Framers defined at the most specific level of meaning at the time of the provision’s adoption.” Johnsen contends that this approach, most strongly identified with Justice Scalia on the Court, the late Robert Bork in academia, and President Reagan’s Attorney General Edwin Meese in politics and government, is “utterly irreconcilable with Windsor and Shelby County,” the Court’s recent decisions striking down provisions of the Defense of Marriage Act and the Voting Rights Act. As she explains, “Windsor [] reflects not only constitutional change in the direction of more expansive judicial protection of equal protection and due process, but also fidelity to a mainstream approach to interpreting the Constitution that considers a range of sources and methods and allows for the consideration of evolving social norms and constitutional understandings.”
Access it here, via the ACS site.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Courts in general

Courts - "My Non-Artist Take on the Portrait of the Four Female Justices"

From Josh Blackman's Blog, this post on the giant (8 x 10 foot) portrait unveiled yesterday of the four female SCOTUS justices. I wish I'd written it!

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Courts in general

Ind. Gov't. - " Ohio Governor Defies G.O.P. With Defense of Social Safety Net"

From the front-page of today's NY Times, this story by Trip Gabriel. Some quotes:

[L]ast week [Ohio Gov. John R. Kasich] circumvented his own Republican legislature and its Tea Party wing by using a little-known state board to expand Medicaid to 275,000 poor Ohioans under President Obama’s health care law. * * *

He said it made no sense to turn down $2.5 billion in federal Medicaid funds over the next two years, a position backed by state hospitals and Ohio businesses.

Yet, at the same time Ohio under Mr. Kasich refused to run its own state insurance exchange as encouraged by the health care law, known as the Affordable Care Act. The governor said he did not believe that the law, which mandates that people buy insurance, will work. To the contrary, he said, “It’s going to throw people out of work and not control costs.”

Expanding Medicaid, which became an option for states after the 2012 Supreme Court ruling upholding the health care law, is different, Mr. Kasich asserts. The governor argued all year that extending eligibility beyond poor mothers and children to include childless adults earning up to $15,860 will help thousands of the mentally ill and drug-addicted.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Indiana Government

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

In NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., and LEXINGTON INSURANCE COMPANY v. MEAD JOHNSON & COMPANY LLC, et al. (SD Ind., Young), a 17-page opinion, Judge Posner writes:

Before us are consolidated appeals in a pair of diversity suits governed, the parties agree, by Indiana law. One suit pits two insurance companies, National Union and Lexington (both subsidiaries of American International Group), against Mead Johnson, which purchased liability coverage from them. The other suit is just between National Union and Mead Johnson. We can ignore the procedural tangle reflected in the caption.

Mead Johnson had purchased a primary Commercial General Liability policy (a standard policy issued by many insurance companies) from National Union. The policy has a limit of $2 million for liability for what is called “personal and advertising injury.” Mead also has an excess liability policy from Lexington (a policy that kicks in when an insured’s liability exceeds the limit in his primary policy) that has a limit of $25 million. The insurance companies sought and obtained (on motions for summary judgment) declaratory judgments that they have no duty to pay claims that Mead Johnson filed with them regarding two tort suits against it. So Mead has appealed. * * *

[ILB: From an interesting passage on p. 6] Remarkably, in its opening brief on behalf of its client Mead Johnson, the well‐known law firm of Cadwalader, Wickersham & Taft argued that the amendment does apply to claims and suits as well as to occurrences, because the caption of the amendment is “Duties in the Event of Occurrence, Offense, Claim or Suit.” That is a misrepresentation. * * * Cadwalader’s frivolous interpretation, though exposed in the insurance companies’ brief, is repeated in Mead Johnson’s reply brief and was defended by Cadwalader’s lawyer for Mead at the oral argument. That a major law firm would engage in such shenanigans distresses us. The firm’s argument regarding the amendment to the National Union insurance policy is censurable, and we hereby censure it. * * *

[ILB: Beginning on p. 9] There would be no need for an evidentiary hearing on the issue of the harm done to the insurers by Mead Johnson‘s untimely notice of PBM’s suit had the district judge been correct in ruling that when untimely notice is given to insurer (in this case insurers) by an insured after the trial in the underlying suit, the presumption of harm becomes irrebuttable— in other words, that when notice is that late the insurer is off the hook. Period. * * * The Indiana Supreme Court has never so ruled. It has always described the presumption as rebuttable. Delay could be forever, yet the insured be unharmed.

The judge was misled by two decisions of Indiana’s intermediate appellate court that treat the presumption of harm from late notice as unrebuttable if notice isn’t given until after the suit against the insured has been tried. Allstate Ins. Co. v. Kepchar, 592 N.E.2d 694, 699 (Ind. App. 1992); Milwaukee Guardian Ins., Inc. v. Reichhart, 479 N.E.2d 1340, 1343 (Ind. App. 1985). They do so on the ground that the loss of the insurer’s opportunity to make decisions on the conduct of the trial, a loss that is irrevocable once the trial takes place, deprives the insurer of a valuable right. But that deprivation is not a tangible injury—a loss for which damages can be awarded—nor, if the insurer could have done no better in managing the defense at trial than the insured did, even a cause of injury. The two decisions we just cited thus are inconsistent with Miller, and so we would not expect the Indiana Supreme Court to approve them. * * *

To summarize, the grant of summary judgment in favor of the insurers in the suit relating to the PBM litigation is reversed and that case remanded for further proceedings consistent with this opinion, while the judgment in favor of National Union in the suit arising from the class action against Mead Johnson is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

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

For publication opinions today (6):

In In the Matter of the Termination of the Parent-Child Rel. of: S.B., Ay.B., A.B. & K.G. (Minor Children), and K.G. (Mother) v. Marion County Dept. of Child Services, Child Advocates, Inc., a 13-page opinion, Judge Vaidik writes:

In 2011, Magistrate Julianne Cartmel held an evidentiary hearing to determine whether K.G.’s (“Mother”) parental rights to her four children should be terminated. Mother did not attend the hearing but she was represented by counsel. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. The case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights.

This case is one of a number of termination cases arising from Magistrate Cartmel’s resignation to reach this Court. The appellants challenge Magistrate Bradley’s authority to report factual findings and conclusions without having presided over the underlying evidentiary hearing. In this specific case, Mother argues that the order terminating her parental rights violated Indiana law and her due-process rights because it was based on the findings of a magistrate who did not preside over the evidentiary hearing.

We conclude that the termination order does not violate Indiana law because the relevant statutory section does not prohibit Magistrate Bradley’s actions. We also conclude that the order does not violate Mother’s due-process rights because the underlying evidence was undisputed and did not require Magistrate Bradley to make any credibility determinations. Specifically, there was no dispute that Mother had not successfully completed services and had not secured stable housing or employment. There was also no dispute that Mother had stopped visiting the children and communicating with caseworkers. We therefore find that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evidentiary hearing. We affirm the termination of Mother’s parental rights. * * *

FRIEDLANDER, J., concurs.
BAKER, J., concurs in result with separate opinion. [beginning on p. 9]In

In In the Matter of the Termination of the Parent-Child Rel. of I.P., Minor Child and His Father, T.P.: T.P. (Father) v. Child Advocates, Inc., and Indiana Dept. of Child Services, a 16-page opinion, Judge Baker writes:
This case is one of several termination cases stemming from Magistrate Cartmel’s resignation to reach this court. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. As a result, the case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights.

In this case, T.P. (Father) challenges the order terminating his parental rights with regard to his minor son, I.P. Father was incarcerated on both days that the termination hearing took place, but he participated telephonically and was represented by counsel. Although Father does not challenge the substance of the order terminating his parental rights, he maintains that the judgment violated his right to due process and the provisions of Indiana Trial Rule 63(A) because Magistrate Cartmel, the magistrate who actually heard the evidence, did not issue the recommended order.

We conclude that Magistrate Bradley’s subsequent recommended order terminating Father’s parental rights did not violate the trial rules or Father’s right to due process. Thus, we decline to set aside the order terminating Father’s parental rights and affirm the judgment of the trial court. * * *

FRIEDLANDER, J., concurs.
VAIDIK, J., concurs in result with an opinion. [beginning on p. 12]

In Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Incorporated, Transmar Corporation, Didiac Establishment, Beta Steel Corporation, and Top Gun Investment Corporation, II, a 22-page opinion, Judge Mathias concludes:
The prior rulings of the Greek courts conclusively establish that Panayiotis gave
ownership of Beta Steel to Theodore when Panayiotis was still alive, and Constantinos cannot now relitigate this issue in Indiana courts. As all of Constantinos’s legal claims are based on his claim of a right to a portion of Beta Steel as an heir to Panayiotis’s estate, all of his claims were properly dismissed. The trial court, however, erred in conflating the issue of confidentiality for purposes of discovery with the issue of restricting public access to materials filed in court, and we therefore reverse the trial court’s order regarding public access to Theodore’s depositions and remand with instructions that the trial court hold a hearing at which Theodore must prove by clear and convincing evidence that portions of his depositions should not be open to public access pursuant to Indiana Administrative Rule 9. [ILB emphasis]
In Shawn Telligman v. Review Board of the Indiana Department of Workforce Development and Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication, a 17-page opinion, Judge Brown writes:
Shawn Telligman appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication (“IDWD”) on IDWD’s claim that Telligman failed to disclose or falsified information to IDWD in order to receive unemployment benefits, that he received certain benefits to which he was not entitled, and that he is liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest. Telligman raises two issues which we restate as whether the Board erred in finding that he knowingly failed to disclose or falsified any fact that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, and whether the Board abused its discretion in denying his request to submit additional evidence. We affirm. * * *

Based upon the record, we conclude that the ALJ and Board did not err in finding that Telligman knowingly failed to disclose or falsified facts that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, in finding him liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest, and that the Board did not abuse its discretion in denying his request to submit additional evidence. For the foregoing reasons, we affirm the decision of the Board.

In Jason E. Morales v. State of Indiana, a 3-page ruling with a pro se petitioner on a petition for rehearing, Judge Baker concludes:
It appears that Morales really wanted a declaratory judgment that the Program’s criteria excluded too many offenders, particularly sex offenders. There are procedures to seek a declaratory judgment, but Morales did not pursue them.

Morales’s petition for rehearing is granted for the limited purpose of clarification as to the specific issue discussed above. Otherwise, we stand by our previous opinion.

MATHIAS, J., concurs.
MAY, J., would deny the petition for rehearing.

In Gerald Clemons v. State of Indiana , a 10-page opinion, Judge Brown writes:
Gerald Clemons appeals his conviction for possession of cocaine. Clemons raises one issue, which we restate as whether the evidence is sufficient to sustain his conviction. We affirm.
NFP civil opinions today (1):

Rebecca Waggoner v. Robert Waggoner (NFP)

NFP criminal opinions today (3):

Michael Wayne Norred v. State of Indiana (NFP)

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

Chad Malone v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Commission on Courts files report, makes recommendations in four areas

The Commission on Courts has issued a 10-page final report for this interim period. (h/t Massons Blog)

The recommendations are on p. 9 of the PDF document. These recommendations do not include several topics the Committee considered, including bail bond issues, certification of court reporters, and the content of judgment dockets.

The Commission made the following recommendations:

(1) The Commission recommends that legislation should be enacted to amend IC 31-19- 11-6 concerning petitions for adoption to read: "The court may not hear and grant a petition for adoption if an appeal of a decision regarding the termination of the parent-child relationship is pending."

(2) The Commission recommends PD 3003 which allows the judge of the Vanderburgh Circuit Court to appoint a second full-time magistrate.

(3) The Commission recommends PD 3226, which provides that the law making all records of a juvenile court confidential does not apply to records involving proceedings that pertain to: (a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other. PD 3226 also provides that the law that specifies which persons may have access to juvenile court records without a court order does not apply to records involving proceedings that pertain to: (a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other.

(4) The Commission recommends that legislation be introduced that would permit courts to 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 Commission did not recommend specific language.

The references are to preliminary drafts (PD) that are not available on the Commission's webpage.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Indiana Courts

Ind. Courts - Union County prosecutor Ron Jordan resigns, cites criminal code changes

Some quotes from Bev Woodruff's report Oct. 24th in the Union County Liberty Herald:

A 27-year career of service to Union County will end at 4 p.m. tomorrow when prosecutor Ron Jordan leaves his office at the end of the day.

Earlier this month, Jordan submitted his official letter of resignation to Governor Mike Pence. Jordan announced his early retirement to the citizens of Union County last week in an open letter, which was published as a paid advertisement in the Liberty Herald and the Union County Review.

Jordan will leave an unexpired term that will end Dec. 31, 2014. The Union County Republican Party met last night (Wednesday) to set a date and time for a caucus to appoint someone to fill that unexpired term. * * *

Jordan cited upcoming changes in the Indiana criminal code and a desire to travel and spend more time with family as his reasons for resigning.

“The upcoming changes in Indiana's criminal code, which changes penalties for 'victimless' crimes such as drug possession, will require prosecutors' offices to make 'dramatic alterations in practice and procedure,'” he said in his letter to UC residents.

Jordan will celebrate his 70th birthday in Jan., and from the tone of his open letter to UC residents., it appears he did not want to spend his 70th year, and the last year of his term, dealing with significant changes to the Indiana Criminal Code.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Indiana Courts

Environment - "Uh-oh: Asian carp reproduce in Great Lakes watershed"

John Flesher's AP story in the Lafayette Courier Journal reports today:

Scientists said Monday that they have, for the first time, documented that an Asian carp species has successfully reproduced within the Great Lakes watershed.

That’s an ominous development in the struggle to slam the door on the hungry invaders that could threaten native fish. * * *

[B]ecause all Asian carp species require similar conditions to reproduce successfully, the Sandusky River discovery suggests it’s likely that any of them could spawn there and in many other Great Lakes tributaries, said Duane Chapman, a USGS fisheries biologist and member of the research team. * * *

John Goss, who heads the White House Council on Environmental Quality’s Asian carp program, said sterile grass carp have been found in the Great Lakes for years.

But the discovery that they can reproduce within the watershed “reinforces why we must continue to execute the aggressive strategy to keep silver and bighead carp out of the Great Lakes that we have been pursuing for the past three and a half years,” said Goss, a former director of the Indiana Department of Natural Resources.

Posted by Marcia Oddi on Tuesday, October 29, 2013
Posted to Environment

Monday, October 28, 2013

Ind. Courts - Still more on: Morgan County Prosecutor to challenge expungement

Updating this ILB post from this morning, and looking again at Tim Evans Star story about the Morgan county prosecutor's challenge to the constitutionality of a state statute, and looking again at this quote:

Regardless of how Morgan Circuit Judge Matthew Hanson rules on Sonnega’s challenge, the verdict is likely to be appealed.

So far, the attorney general, who typically defends state laws, has stayed out of the case. An appeal would set up an interesting scenario because the attorney general also represents prosecutors in cases that go to the Indiana Court of Appeals or state Supreme Court.

Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another.

Bryan Corbin, a spokesman for the attorney general, said the office would step in to defend the law if Hanson rules in favor of the prosecutor.

“It is the duty of the Office of the Attorney General to defend a statute passed by the Legislature if it is found unconstitutional by a trial court,” Attorney General Greg Zoeller said in a statement to The Star.

This seems odd. In 2010 the Attorney General had introduced changes to the statutes which the ILB wrote about at least twice. A Feb. 2, 2010 post discussed SB 394, which would significantly expand the authority of the attorney general. The bill added a new chapter to the law regarding the "Authority of the Attorney General to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise." It stated in part:
If the constitutionality of a state statute, ordinance, or franchise affecting the public interest is called into question in an action, suit, or proceeding in any court to which any agency, officer, or employee of the state is not a party, the court shall certify this fact to the attorney general and shall permit the attorney general to intervene on behalf of the state ...
This March 3rd, 2010 post, reporting that the bill was on its way to the governor, quoted the new SEA's digest:
Authorizes the attorney general to intervene in a declaratory judgment action in which a statute, ordinance, or franchise is alleged to be unconstitutional. Provides that a court must notify the attorney general if the constitutionality of a state statute is called into question, and permits the attorney general to intervene in the case to present evidence and arguments concerning the constitutionality of the statute. Permits the attorney general to intervene in a case in which a claim or defense is based on a statute or executive order administered by a state officer or agency. Authorizes the attorney general to file an amicus curiae brief without the leave of the parties or the court.
The post also quotes the bill's sponsor as saying:
This is an Attorney General's bill, it's a notice of the Attorney General any time the state law is claimed to be unconstitutional. In the past year there have been at least six cases when they didn't receive notice.
The resultant law is now found at IC 34-33.1-1.

Presumably, the attorney general might elect not to step in when a constitutionality of a law was challenged in a trial court where he believed his county prosecutor could adequately defend it. But in this case, it is the prosecutor who is challenging the constitutionality of a state law the attorney general is sworn to defend ...

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Indiana Courts

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

For publication opinions today (1):

In Chaunsey L. Fox v. State of Indiana, a 15-page opinion, Sr. Judge Darden writes:

Chaunsey L. Fox appeals his conviction of felony murder. Ind. Code § 35-42-1-1 (2007). We affirm.

Fox raises three issues, which we restate as:
I. Whether the court erred in denying Fox’s motions to dismiss.
II. Whether the trial court exhibited bias toward Fox.
III. Whether the prosecutor withheld exculpatory evidence. * * *

[I] Fox argues that the court should have dismissed the murder charges or suppressed his recorded statements from the June 20, 2011 and July 6, 2011 interviews because he was immune from prosecution on those charges pursuant to his agreement with the State. The State asserts that Fox breached the agreement, thereby rendering void the State’s promise not to prosecute him for murder. * * *

Fox has failed to establish a lack of evidence to support his conviction, and the court did not err in denying his renewed motion to dismiss and to suppress evidence.

[II] Fox argues that his conviction is improper because the trial judge demonstrated bias or prejudice against him in front of the jury. * * *

We conclude that Fox has failed to establish judicial bias and prejudice, and he was not placed in jeopardy.

[III] Fox claims the State withheld exculpatory evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). * * * Fox, however, argues that the State had a duty under Brady to obtain all relevant documents from federal agencies and turn them over to him. He cites several cases from other jurisdictions and Bunch v. State, 964 N.E.2d 274 (Ind. Ct. App. 2012), trans. denied, in support of his argument. * * * Bunch does not compel a conclusion here that the State suppressed information by failing to obtain all documents from federal agencies, and we conclude that there was no Brady violation.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Denielle R. Pharr v. State of Indiana (NFP)

Tyrez Boyd v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Prosecutorial misconduct alleged in half of capital cases" in Arizona

How Appealing today links to the first 2 of a four-part series in the Arizona Republic.

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Courts in general

Ind. Decisions - Transfer list for week ending October 25, 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, October 25, 2013. It is three pages (and 30 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Indiana Transfer Lists

Ind. Courts - More on: Morgan County Prosecutor to challenge expungement

Updating this ILB post from Oct. 17th, questioning how the Morgan County prosecutor can challenge the constitutionality of a state statute that he, and the Attorney General, are sworn to uphold, the Indianapolis Star yesterday had a long story by Tim Evans headed "Indiana law erasing criminal records faces challenge." Morgan County Prosecutor Steve Sonnega is quoted:

“The Legislature over-stepped its Constitutional authority,” the prosecutor wrote in a court filing this month. “when it used the term ‘shall’ as opposed to ‘may.’” * * *

Sonnega said he is unaware of any other challenges to the new law, which already has prompted hundreds of Hoosiers to file petitions seeking to clear their criminal records.

“I guess there’s nobody else brave enough or stupid enough to try this,” he said. “I just think it’s important that we at least sort this out, and I’m sure a lot of people are watching to see what happens.”

The prosecutor’s challenge extends beyond the victim issue, although he acknowledges that may be his strongest legal — and moral — argument. He also cites other constitutional violations, including that the legislature overstepped its authority “by telling a court what it has to do” and that the law takes away the public’s right to know the truth and make informed decisions as to protect other potential victims. * * *

So far, the attorney general, who typically defends state laws, has stayed out of the case. An appeal would set up an interesting scenario because the attorney general also represents prosecutors in cases that go to the Indiana Court of Appeals or state Supreme Court.

[IU McKinney law prof. Joel] Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another.

Bryan Corbin, a spokesman for the attorney general, said the office would step in to defend the law if Hanson rules in favor of the prosecutor.

“It is the duty of the Office of the Attorney General to defend a statute passed by the Legislature if it is found unconstitutional by a trial court,” Attorney General Greg Zoeller said in a statement to The Star.

“While we respect the views of county prosecutors, we believe that changes to statutes should be brought back before legislators to resolve policy questions.”

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Indiana Courts

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

On May 23rd, Prof. Schumm's "Commentary" (worth rereading in full) was about a COA oral argument:

Part of the justification for the protective sweep of several rooms of the home was information that Weddle was manufacturing methamphetamine and the officers’ observation of a security camera outside the house.

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

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

In an oral argument before the Supreme Court on Oct. 24th, in Perez v. State, Justice Rucker, at about the 26-minute mark, appears to refer to the COA exchange, saying in part (paraphrase):
I think the State went down this this road once before, before the COA, where there was quite a lot of discussion on that panel about the judges all having security cameras ...

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Indiana Courts

Ind. Court - Death penalty and high-profile murder monetary costs and other issues as illustrated by the David Camm trial

There have been a number of articles over the years on the costs of the David Camm trials and how it is bankrupting Floyd County. The most recent was quoted in a September 30th post. And on Jan. 3rd Grace Schneider of the Louisville Courier-Journal reported "Price of justice for David Camm: $3.3 million and rising fast."

The ILB has had many posts on death penalty costs, this Google search lists a number of them. [Note: Camm was not a death penalty case, I don't believe, or at least the third trial, but was a high-profile triple-murder trial. I'm checking on this. More: Prof. Schumm tells me: "None were death. Two and three were life without parole."]

A "My view" column in the Indianapolis Star on Oct. 25th, from Shawn Boyne, a professor of law with the Indiana University Robert H. McKinney School of Law, writes on other problems illustrated by the David Camm trials [ILB emphasis]:

More than 12 years after Charles Boney fatally shot Kimberly, Brad and Jill Camm, a jury has set former state trooper, David Camm, free from prison. In her closing argument, Stacy Uliana, one of Camm’s defense attorneys, claimed that “the state is trying to tell you a story.”

The question remains, what kind of story did the state try and tell in this case and did that “story” serve the cause of justice. While I’m sure, that after spending over a decade in prison, Camm does not feel like a “lucky” man, in many ways, he is. Most individuals in his predicament, whether innocent or guilty, would have “confessed” and pled guilty. The “modern” American system is set up just to accomplish that result.

Although the eminent English legal theorist, William Blackstone, wrote centuries ago that “it is better that 10 guilty persons escape than that one innocent suffer,” the American criminal justice system has become one of the most punitive in the democratic world. It is a system that cannot function unless more than 95 percent of individuals charged with crimes admit that they are guilty. Armed with the threat of long prison terms, prosecutors often rely on the threat of punishment and an overburdened public defender, rather than a jury’s independent eye to secure a conviction. To be sure, understaffed public defender departments themselves could not function if they were forced to take every case to trial. But all too often the “bargain” that emerges from our courtrooms today is less the product of the strength of the evidence, than it is of the prosecutor’s leverage. The fact that David Camm stuck to his claim of innocence and refused to plea is an anomaly in the present day where the disparities in resources and the inherent coerciveness of the system work to produce plea agreements.

In the final work of his distinguished career, Harvard law professor William Stuntz wrote in 2011, that the American criminal justice system had collapsed because in the majority of cases, “prosecutors now decide whom to punish and how severely.”

Stuntz’s antidote — place more cases in the hands of jury to decide.

Yet, juries too, may be an imperfect diving rod. Especially if, as in the first two trials for Camm, judges allow jurors to hear specious claims of motive designed to paint the defendant with a broad stroke of guilt and moral condemnation and overcome a lack of physical evidence. I cannot say with certainty that Camm is innocent, but I can say that the state overreached in the first two trials and that overreaching did not serve the cause of justice.

While the Camm acquittal may be one small step forward for the cause of justice, as a country, all too often we short-circuit the truth-finding process.

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Indiana Courts

Courts - "At SCOTUS, tradition trumps technology, and transparency"

Robert Barnes writes today in the Washington Post at length about:

... an event called “Today’s Supreme Court: Tradition v. Technology and Transparency”
comparing state supreme courts which broadcast their oral arguments with the SCOTUS. Every reason the SCOTUS has given for not broadcasting was effectively refused at the event. And more:
Tony Mauro, the National Law Journal correspondent who has covered the court for 33 years, said barring cameras is not the only example of tradition trumping new technology.

Some courts live-stream audio of their arguments; except for rare occasions, the U.S. Supreme Court releases audio of its oral arguments at the end of the week (although transcripts are released within hours of the argument). Recordings of the bench announcements of court decisions aren’t available until the next term begins months later.

Financial disclosure forms for most public officials are available online. Those of the justices must be obtained from the Administrative Office of the U.S. Courts “on paper, for a fee, and only after the justices have been told who’s asking for them,” Mauro said.

Petitions to the court and amicus briefs in cases are not on the court’s Web site; private entities such as the American Bar Association and the unaffiliated SCOTUSblog fill the gap.

The justices provide no reason when they recuse themselves from cases. Their public schedules are not routinely distributed.

“News of their whereabouts and their health is very hit-and-miss,” Mauro said, “and dependent on how much or how little information the justices want to release.”

All of this underscores a gap between the public’s perception of the court as opaque and mysterious — as someone who covers the court, I’m often asked whether I’m “allowed to ever meet the justices” — and the justices’ views that they are the most transparent of government institutions.

To them, it’s the product that matters. They are fond of saying that all the information on which they base their monumental decisions is public record available to all who want to study it.

You may watch the entire one and a half hour video of the event here at C-SPAN.

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Courts in general

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

From Sunday, November 27, 2013:

From Saturday, November 26, 2013:

From late Friday afternoon, November 25, 2013:

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/28/13):

Thursday, October 31st

Next week's oral arguments before the Supreme Court (week of 11/4/13):

Thursday, November 7th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/28/13):

Next week's oral arguments before the Court of Appeals (week of 11/4/13):

Monday, November 4th

Wednesday, November 6th

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

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


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

Posted by Marcia Oddi on Monday, October 28, 2013
Posted to Upcoming Oral Arguments

Sunday, October 27, 2013

Ind. Decisions - "I Did Not 'Recant' on Voter ID Laws"

Judge Richard Posner's newest article, today in the New Republic.

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Juvenile justice: State program offers alternatives to detention"

From the start of Amanda Gray's Oct. 22nd story in the South Bend Tribune:

SOUTH BEND - Juvenile Justice Center executive director Peter Morgan envisions a better way of correcting juvenile offenders.

With that goal in mind, he's pushing for St. Joseph County to consider applying for the statewide Juvenile Detention Alternative Initiatives program, or JDAI.

The program helps facilitate changes that emphasize alternative programs to detention for certain types of juvenile offenders.

Statewide, there are eight counties currently considered official JDAI expansion sites, including Elkhart County -- where the director said they've had success already, just more than a year into the program.

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to Indiana Courts

Law - Marijuana reform nationally - both medical and recreational marijuana

Prof. Douglas Berman of Sentencing Law and Policy yesterday looked at a new article in the New Republic headed "Marijuana is America's Next Political Wedge Issue: Pot politics, in 2016 and beyond." He concludes:

But I think this commentary may be missing one key reality that I am certain will impact dramatically the politics of pot over the next few election cycles: the reality and perceptions of what ends up happening, good or bad, in Colorado and Washington as recreational pot goes mainstream in these two distinct states. If legalization is seen as a huge success inside and outside these states over the next 12 months, especially in swing-state Colorado, we should expect marijuana reform supporters to see positive political possibilities as early as 2014 and I suspect it will become especially difficult for either party to be vocal opponents of marijuana liberalization and legalization realities. But if things go poorly in these states, the modern reform politics neccesarily will take on a much different character.
Ameet Sachdev, Chicago Tribune business reporter, wrote this week in a story headed "Illinois pot law presents hazy legal situation for employers: Businesses struggle to reconcile drug policies with medical marijuana legalization," that begins:
Marijuana will soon be legal in Illinois as a prescription painkiller, but that doesn't mean patients who test positive for pot can't be fired from their jobs. At the same time, employers will not be able to discriminate against workers or applicants on the sole basis of their status as medical marijuana patients.

Are you dazed and confused?

The legalization of medical marijuana, coming Jan. 1, presents some thorny workplace issues, especially since federal law continues to ban marijuana use. The language in the Illinois law sets up a potential clash between a drug-free workplace and patients' rights.

Employers in Illinois are struggling to reconcile their drug policies with the new right to get high. The Illinois Chamber of Commerce has held a dozen webinars on the matter, and all of them have sold out, said Todd Maisch, executive vice president.

Human resource managers are wrestling with such questions as whether employees who use marijuana before they come to work might be too impaired to do their jobs, what they are allowed to ask job candidates and whether they can punish someone for engaging in what is now deemed legal activity.

"I'm still seeing a lot of confusion over the law," said Tom Posey, an attorney at Faegre Baker Daniels in Chicago who represents businesses in employment-law issues. "There are protections in Illinois for both employers and employees, and that's where we're going to see conflict."

In California, Adam Nagourney and Rick Lyman reported yesterday in a lengthy story for the NY Times:
LOS ANGELES — In the heart of Northern California’s marijuana growing region, the sheriff’s office is inundated each fall with complaints about the stench of marijuana plots or the latest expropriation of public land by growers. Its tranquil communities have been altered by the emergence of a wealthy class of marijuana entrepreneurs, while nearly 500 miles away in Los Angeles, officials have struggled to regulate an explosion of medical marijuana shops.

But at a time when polls show widening public support for legalization — recreational marijuana is about to become legal in Colorado and Washington, and voter initiatives are in the pipeline in at least three other states — California’s 17-year experience as the first state to legalize medical marijuana offers surprising lessons, experts say.

Warnings voiced against partial legalization — of civic disorder, increased lawlessness and a drastic rise in other drug use — have proved unfounded.

Instead, research suggests both that marijuana has become an alcohol substitute for younger people here and in other states that have legalized medical marijuana, and that while driving under the influence of any intoxicant is dangerous, driving after smoking marijuana is less dangerous than after drinking alcohol.

Although marijuana is legal here only for medical use, it is widely available. There is no evidence that its use by teenagers has risen since the 1996 legalization, though it is an open question whether outright legalization would make the drug that much easier for young people to get, and thus contribute to increased use.

The NY Times also has an interactive feature headed "Milestones in U.S. Marijuana Laws."

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to General Law Related

Ind. Gov't. - A look at the use of caususes to fill legislative vacanies between general elections

Niki Kelly of the Fort Wayne Journal Gazette takes a long look today at the use of caucuses to fill legislative vacancies between general elections. The story is headed "Rise in caucuses raises questions about process of filling legislative vacancies: Critics think it lets the savvy do an end run around voters." Some quotes:

INDIANAPOLIS – Most Indiana legislators had to take their cases to thousands of voters before swearing their first oath of office. * * *

But another group – 28 lawmakers, almost 19 percent of the state’s 150 sitting legislators – arrived at the General Assembly through a much different process: a political caucus. * * *

And even though the House and Senate members caucused into the ranks face the voters for re-election, it is rare to lose as an incumbent. * * *

[Some] see the caucus as a type of political rigging for savvy folks who might have insider knowledge of upcoming vacancies. * * *

Whenever a vacancy occurs in a state legislative office, the precinct committee people from that district and from the party of the departing lawmaker meet to tap a replacement.

These precinct folks run for election to the post. Or the county chairman appoints residents to fill a precinct committee slot if it becomes vacant.

Northeast Indiana has had a spate of caucuses in recent years – at least eight, more than other areas of the state.

Overall, the Senate has a larger number of members who came to the legislature by way of caucus – 18 compared with 10 in the House.

Of the 28 current state lawmakers who came in through a caucus, eight filled vacancies caused by death. The vast majority, 20, filled vacancies opened by resignations from office before a term was over.

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to Indiana Government

Law - "Florida Officials Reveal 5 Earlier Prison Escape Attempts Using Forged Documents"

Nick Madigan reported Oct. 22nd in the NY Times in a story that began:

MIAMI — Florida law enforcement officials, already embarrassed by the revelation that two convicted killers were released from a state prison after forging documents that allowed them to walk free, acknowledged Tuesday that they had discovered at least five previous instances of such forgeries. * * *

“There’s still a lot that we don’t know,” [Gerald M. Bailey, the commissioner of the Florida Department of Law Enforcement,] told reporters. The investigation is being hampered by a lack of cooperation from the two inmates, he said. The inmates apparently used computers in the prison’s library to create the forgeries, he said, adding that they looked authentic and included case numbers and a signature that appeared to be that of a judge.

Of the five previous cases that involved fake documents, only one led to an escape, and then only for a few hours. None of those cases had been disclosed before.

The ILB has reported at least three forged document incidents in Indiana and Kentucky:

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to General Law Related

Ind. Gov't. - "Promotion of same-sex marriage ban in Indiana beginning" - The other view...

Tim Vandenack of the Elkhart Truth reported Friday:

ELKHART — Organizing to promote the proposed same-sex marriage ban, a looming topic in the 2014 legislative session, has started in Elkhart County.

Leaders pushing for the change — actually to define marriage in the Indiana Constitution as the union of one man and one woman — gathered in Elkhart Thursday, Oct. 24, to discuss the campaign with local elected officials, religious leaders and business representatives.

The meeting wasn’t open to the public, but participant Michael Neal, speaking by phone from the event, said about 20 Elkhart County representatives were on hand. Neal, from Schererville, is director of public policy for the Indiana Pastors Alliance, which backs the change, and chairman of the Indiana Federation of Young Republicans, which hasn’t taken a stance on the issue.

“If we’re to be successful, we have to mobilize people all around the state,” said Neal.

Similar meetings were held earlier this week in Kokomo, Tipton, Merrillville and Fort Wayne, with another gathering set for Friday in Indianapolis. Future meetings are planned in additional Indiana locales.

At issue in the coming legislative session will be whether to approve House Joint Resolution 6. If lawmakers approve it, a question will be put on the November 2014 general election ballot asking Indiana voters if the state constitution should be changed to define marriage as the union of one man and one woman. That would effectively ban same-sex marriage.

“It’s not going to happen unless people get out in the community and talk to the lawmakers,” said Neal. “We’re going to have to knock on doors.”

As Neal envisions it, the first phase of proponents’ efforts would be focused on getting lawmakers to approve HJR 6. Then, presuming that passes, the focus would be on getting the public to vote for the change. * * *

Neal touted the marriage amendment as a positive for the economy. Children raised in a household with a father and a mother have the best chance at success as adults, as he sees it, and that success, in turn, drives the state economy. Foes of the amendment have argued, among other things, that the change would be bad for the state, hindering efforts to retain and attract talent in Indiana.

Posted by Marcia Oddi on Sunday, October 27, 2013
Posted to Indiana Government

Saturday, October 26, 2013

Ind. Gov't. - "Indiana education board suit raises serious questions about Open Door Law"

That is the heading to Lesley Weidenbener's very smart Sunday column in the Louisville Courier Journal. After relating the facts leading up to State School Superintendent Glenda Ritz' lawsuit against the State Board of Education, Weidenbener continues:

I feel confident in saying that those who wrote and passed the state’s Open Door Law intended for boards and commissions to take action in meetings — not outside them — and that those meetings are open to the public.

The law is clear about a few things: Official action is a broad term that includes deliberating, making recommendations, establishing policy and making decisions. It’s also clear that government boards — city councils, county commissions, state boards and others — must give the public notice that a meeting will occur and then post an agenda of what’s to be discussed or acted on.

Of course, there are plenty of ways to interpret these and other parts of the law. And my purpose here is not to determine whether the State Board of Education violated that law.

But if a judge decides what the board did is legal, it could set a dangerous precedent for other public groups and may call for legislators to rethink the Open Door Law.

After all, what would stop city council members from simply circulating a letter to approve a contract for snow removal? Or why couldn’t the Indiana Gaming Commission vote to discipline a blackjack dealer who broke the rules by just emailing the proposed punishment around to members?

For that matter, why would a board ever really need to meet again at all if the members could take care of business through email?

Sound extreme? Of course it does. And the action taken by 10 members of the State Board of Education was nothing like approving a contract, spending money or issuing a penalty.

The members requested that the legislative branch get involved in a Department of Education function. They didn’t even have the authority to demand that lawmakers get involved.

Still, there’s a reason these types of actions are supposed to take place in public.

In a democracy, constituents and the media are responsible for holding their elected officials — and often appointed officials — accountable for their actions. That’s tough to do if the public can’t see the actions taking place.

In addition, most government bodies let the public weigh in before they take action. That won’t happen when the decision is made through an email exchange.

So this case is one to watch — not just because of the impact it could have on education and state politics. It’s also about the public’s right to know and it could affect every layer of government in Indiana.

For more, see three ILB entries, the first, from the morning of Oct. 23rd, ends with the ILB comment: " So can we say the last paragraph here outlines a new way to evade the Open Meeting law? Just as would indicating the site of a meeting in the public notice as 'the Chicago airport'"? The second, from the evening of the 23rd, attempts to follow the sequence of events. And the third, from Oct. 24th, contains a good quote about “round-robin emails.”

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to Indiana Government

Law - "Giving a Wife Her Front-Yard Grave, No Matter What"

The ILB has had several entries on backyard burials, both in Owen County, and in Connecticut.

This week the NY Times had a long story by Campbell Robertson on a front-yard grave, in a small town in Alabama. Some quotes:

STEVENSON, Ala. — James Davis figures that his first mistake was asking permission. If a man promises his wife he will bury her in the front yard, then he should just do so.

But ever since Mr. Davis granted his dying wife’s wish by laying her to rest just off his front porch, he and the City of Stevenson have been at odds. From City Hall to the courts, the government of this little railroad town in southern Appalachia has tried to convince Mr. Davis that a person who lives in a town cannot just set up a cemetery anywhere he likes. On Oct. 11, the Alabama Supreme Court affirmed a judge’s decision saying as much.

But Mr. Davis, 74, is not inclined to back down.

“They’re waiting on me to die,” he said early last week, standing on the porch of the log house he built and looking out over his lawn, which along with the grave features an outhouse and a large sign demanding that his wife be allowed to rest in peace. “I am not digging her up.”

Alabama, like most states, has no state law against burying someone on private property, and family graves are not all that rare in the country. Sherry Bradley, the deputy director of environmental services for the State Department of Public Health, said people asked her about private burial several times a week. * * *

While private burials are permitted in rural areas, cities and towns often have ordinances governing the burials, to which the state defers.

Stevenson does not have such an ordinance, though Joshua Slocum, the director of the Funeral Consumers Alliance, a nonprofit watchdog group based in Vermont, said this was not atypical. Many cities lack burial ordinances because the issue of private burial hardly ever comes up, he said. * * *

Shortly before her death, Mr. Davis said, she expressed her wish to be buried in the yard of the house where they had spent three decades together. So he went to work, getting approval from the county’s Health Department and pressing the City Council for a permit.

The Council told Mr. Davis that he had not completed the necessary paperwork, and after two meetings, it voted to deny his request, speaking about its potential impact on property values and about who would take care of it in perpetuity. (The tombstone has Mr. Davis’s name beside his wife’s, and he planned to end up in the yard as well.) Parker Edmiston, the city attorney, said he was concerned about setting a precedent.

“If you allow it for Mr. Davis, you allow it for Ms. Adams, Mr. Jones and everyone else,” Mr. Edmiston said, adding that this was the most protracted litigation in the city since a case a few years ago involving something about pigs.

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to General Law Related

Ind. Gov't. - "Case in Detroit Highlights Costs of ‘Extra’ Pension Payments" - What about Indiana?

Mary Williams Walsh wrote Oct. 22nd in the NY Times about the Detroit pension system. Parts of the story caught the ILB's attention:

The city’s pension system made extra payments for decades to thousands of people, on the thinking that the base pensions were too small. The pension board thought it found the money for the extra payments by skimming off “the excess” when returns on investments exceeded the plan’s target — 7.9 percent in Detroit.

But the pension fund also had years when its investments fell short of the target. And with millions of dollars being paid out each year in the extras, the fund missed out on all the investment income that money would have brought in. So the extra payments fundamentally undercut the health of the pension plan.

Nor is Detroit alone in making the extra payments — known variously as “the 13th check,” “the skim fund,” “the bump up,” “the waterfall” and so on. New York City; Phoenix; San Jose, Calif.; and Tampa, Fla., along with some of the public plans in Illinois, Indiana, Texas and Mississippi also have the add-ons. * * *

Cities and states around the country are watching Detroit’s case closely. Many of them are struggling with pension plans that are overwhelming their finances, and a surprising number also make the extra payments. * * *

“We were saving the city money,” said Tina Bassett, a spokeswoman for Detroit’s pension trustees.

But a study in 2011 by an outside actuary showed that the extra payouts were actually costing Detroit billions of dollars, although it was hard to see because the city’s disclosures were sketchy. Actuaries model pension costs over the long term, and when trustees find “excess” money year by year and spend it, they defeat the fundamental premise of the plan — that investment gains, not local taxpayers, will pay most of the cost.

“This sounds like San Diego,” Mr. Levitt said when told about Detroit’s program. “It appears to lack transparency, and it appears deceptive, in terms of not defining the true cost of the pension.”

In San Diego, officials also decided that the “excess earnings” of the pension fund allowed the city to reduce its required annual contributions. In fact, that worsened the damage because after making all the extra payments, the pension fund needed more money from the city, not less.

The Detroit Free Press had the Detroit story on September 8th. Nathan Bomey and John Gallagher reported at length. Some quotes:
One of Detroit’s two pension funds handed out nearly $1 billion in bonus cash payments over two decades to retirees and active employees’ retirement accounts instead of reinvesting the extra earnings for the future, according to a Free Press review of city records.

The payments, often referred to as a “13th check,” contributed to Detroit’s financial crisis and its historic Chapter 9 bankruptcy filing by increasing the amount the city needed to contribute each year to keep the pension fund solvent.

So here is a valuable story from June 24, 2012, reported by Niki Kelly of the FWJG, about the "13rd check" granted last year. (It was also granted this year, but there are no detailed news stories this year.) The headline: "State pensioners may get a raise: Healthier funds could trigger cost-of-living adjustment." Some quotes:
INDIANAPOLIS – While a number of public retirees including judges and some police and firefighters receive a cost-of-living adjustment every year in their pensions, other retirees have to seek help every year from lawmakers for some increase in benefits.

Often that help comes in the form of a one-time payment, also known as a 13th check, which generally is less expensive for the state. * * *

[ILB:] I do not recall the last time, if ever, that retired teachers and state employees covered by PERF received a cost-of-living raise, as opposed to a 13th check. (Keep reading for the answer.)]

A number of individual pension funds make up the state’s entire pension obligation. The largest is the Public Employees’ Retirement Fund, or PERF. There are also separate funds for retired teachers, judges, prosecuting attorneys and police and firefighters.

Only two have automatic annual hikes – the judges and a police and firefighter fund.

Otherwise, the legislature has to step in every year and decide between a 13th check and a cost-of-living adjustment. [ILB: or nothing]

The 13th check is essentially a one-time payment given to all retirees based on years of service. It typically ranges from $125 to $400.

But the key is this one-time payment doesn’t affect the base benefit amount for the future.

A cost-of-living adjustment increases the base and has a compounding effect every year. So if someone gets $300 a month, a 1 percent cost-of-living adjustment (often called COLA) would give them an additional $3 monthly.

But over time, any additional adjustments are on that new higher amount.

Steve Russo, executive director of the Indiana Public Retirement System, said a cost-of-living adjustment doesn’t cost the state as much money during the first year, but over the long haul it’s a huge amount of money.

“Hypothetically, if we do the 13th check every year, it’s still cheaper over any time period,” he said.

Rep. Jeff Espich, R-Uniondale, chairman of the House Ways and Means Committee, agreed that both choices cost the state money, but the one-time payment costs less overall and doesn’t deepen unsound deficits in the fund.

He also said it’s better for some of the retirees, mostly those who are older and retired at much smaller salaries. He said that for a retired teacher who was making $25,000, a 1 percent cost-of-living adjustment is $250, compared with a one-time check of more than $400. * * *

This year’s 13th check cost roughly $55 million, and lawmakers put in a general fund appropriation to pay for a portion of it so the overall health of the fund wouldn’t worsen.

Lawmakers gave retired teachers a 13th check the past three years and cost-of-living adjustments from 2003 through 2008. Before that, there were several years with both benefits depending on retirement dates, Thomas said.

Bill Murphy, executive director of the Retired Indiana Public Employees Association, said public retirees received a 13th check from 1991 through 2011 except for one year, in 2004.

That year there was a cost-of-living adjustment. The last one was approved in 2008, and it was 1 percent.

ILB: Using the example above:
He said that for a retired teacher who was making $25,000, a 1 percent cost-of-living adjustment is $250, compared with a one-time check of more than $400.
So the retired teacher receiving $25,000 + $400 each year as a "13th check" receives a total of $254,000 over 10 years.

The retired teacher receiving $25,000 plus a 1% cost-of-living raise each year receives a total of $264,177 over 10 years.

In the 10th year, the teacher receiving a $400 13th check each year will received a total of $25,400. The teacher who has received a 1% cost-of-living raise each year will receive $27,616 in her 10th year.

Using the example again:

He said that for a retired teacher who was making $25,000, a 1 percent cost-of-living adjustment is $250, compared with a one-time check of more than $400.

That $250 vs. $400 comparison only favors the 13th check approach in the first year. The second year it is $503 vs. $400, the third $758 vs. $400 ... and by the 10th year, it is $2,616 vs. $400.

Finally, exactly what funds go to finance the 13th checks in Indiana each year is unclear to the ILB, as is their impact in the long run to the viability of the fund.

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to Indiana Government

Ind. Courts - "Allen court to fill spot after Judge Heath fires magistrate"

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

Just a few months after taking the bench in Allen Superior Court’s Family Relations Division, longtime Judge Dan Heath fired one of his magistrates.

Heath would not comment on the reason for Karen Springer’s termination but said she had been fired Tuesday and had worked there about 10 years.

Heath, once a judge in the civil division, took over for Superior Court Judge Steve Sims in the Allen County Juvenile Justice Center after Sims retired this year.

The family relations division has two judges and four magistrates – split in half between the County Courthouse and the juvenile justice center.

Heath and his two magistrates share calendars – handling detention reviews, initial hearings on detention matters, disposition hearings and bench trials on custody and visitation issues.

All have a fairly heavy child-support calendar as well, Heath said.

Applications for the magistrate’s job are due by the end of court Monday, Heath said.

The job pays about $111,000 a year in combined county and state funds.

An attempt to contact Springer for comment was unsuccessful Friday.

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to Indiana Courts

Ind. Gov't - More on proposed PERF pension cut

Updating a number of earlier ILB entries under the heading "State board cuts public pensions," including this one from Oct. 22nd, Niki Kelly reported today in the Fort Wayne Journal Gazette:

INDIANAPOLIS – The Indiana Public Retirement System board Friday punted on a legislative recommendation involving a future pension cut.

Instead of taking action, the board unanimously voted to seek clarification from leaders on the Pension Management Oversight Commission about a recent recommendation. The board will address the issue again in December.

“We’re somewhat unclear on the intent,” member Michael Pinkham of Fort Wayne said.

The legislative panel this week passed a nonbinding recommendation on a contentious pension cut for soon-to-be retired teachers and public employees. * * *

Indiana Public Retirement System board member Brian Abbott of Huntington said he took the wording to mean drop the guaranteed interest rate to below the fund’s rate of return. He concedes the rate should have been adjusted years earlier.

While the staff investigates the legislative intent, the process to hire an outside insurer to take over the annuities continues.

But Russo said the board would not sign a contract until after the 2014 legislative session.

There is much more information in both this story and the earlier story linked at the beginning of this post.

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to Indiana Government

Ind. Courts - More on "William Clyde Gibson murder prosecution rests, closing arguments expected Friday"

The murder trial started Tuesday, and ended Friday, as Charlie White reports in this story this morning in the Louisville Courier Journal that begins:

Seventeen minutes.

That’s all the time it took Friday for a jury to convict William Clyde Gibson of the gruesome murder of 75-year-old Christine Whitis — and clear the way for a possible death sentence Monday.

Gibson, with his signature handlebar mustache, sat emotionless as the jury of eight men and four women — brought in from Dearborn County to hear the high-profile case — handed down the verdict. Family members of his victim, some grasping Bibles, collectively exhaled in relief.

They said nothing to the press as they exited the Floyd Superior courtroom, except for one family member who uttered “justice was served” as she got on the elevator.

The sentencing phase of the trial — jurors will decide whether he will be given the death penalty — starts at 9 a.m. Monday.

More:
Whitis is one of three women that Gibson is charged with murdering; he’s also accused of slaying Stephanie Kirk, 35, of Charlestown, and Karen Hodella, 44, of Port Orange, Fla. He is to be tried in their murders separately and also faces the death penalty in Kirk’s murder.

Posted by Marcia Oddi on Saturday, October 26, 2013
Posted to Indiana Courts

Friday, October 25, 2013

Ind. Courts - Judge Kimberly Brown's trial set for Nov. 4th through 8th

The trial will take place before a panel of three esteemed woman jurists in the Supreme Court courtroom. It will be open to the public, according to the Court's public information officer, Kathryn Dolan.

Tim Evans reports today in the Indianapolis Star:

Retired Monroe County Judge Viola J. Taliaferro will head the panel. The other members are Boone Superior Court Judge Rebecca S. McClure and Lake Superior Court Judge Sheila M. Moss.

Adrienne Meiring, an attorney with the Commission on Judicial Qualifications, will serve as the prosecutor in the case. Brown is represented by Indianapolis attorney Aaron Haith.

According to the docket for the case, in addition to Ms. Meiring, Thomas Carusillo and Elizabeth Dalton will serve as attorneys for the Commission.

In addition to Mr. Haith, Belle Choate has filed a notice of appearance for for Judge Brown.

In short, we may see during this trial a woman prosecutor, a woman defense attorney, a three-woman panel of jurists, and a woman defendant, Judge Kimberly Brown.

Here are the earlier ILB entries on this topic:

Posted by Marcia Oddi on Friday, October 25, 2013
Posted to Indiana Courts

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

For publication opinions today (4):

In Carrie A. Krampen v. James J. Krampen, a 16-page, 2-1 opinion, Judge Pyle writes:

Carrie Krampen, a/k/a Carrie Carpenter appeals the trial court’s grant of a petition to modify child support and provide an accounting of future child support payments filed by James J. Krampen), Carrie’s ex-husband. We reverse and remand.

Issues: 1. Whether the trial court’s findings of fact and conclusions of law supported the order of an accounting of future child support expenditures under Ind. Code § 31-16-9-6. 2. Whether the trial court’s findings of fact and conclusions of law supported the finding of a substantial and continuing change in circumstances justifying a reduction of child support. * * *

Typically, changes in parents’ income, emancipation, increase in educational expenses, and changes in custody of a child qualify as substantial and continuing circumstances that justify modifying a support order. See Borum v. Owens, 852 N.E.2d 966 (Ind. Ct. App. 2006); Borth v. Borth, 806 N.E.2d 866 (Ind. Ct. App. 2004); Rice v. Rice, 460 N.E.2d 1228, (Ind. Ct. App. 1984). However, the question of whether misuse of funds by the custodial parent creates a substantial and continuing change is an issue of first impression not addressed by our court. Yet, we need not address it. Having just found that there was insufficient evidence to support a finding that child support had been misappropriated, the trial court’s modification of child support on that basis was also inappropriate.

We reverse and remand with instructions for the trial court to enter a new child support order consistent with this opinion and the Child Support Guidelines.

VAIDIK, J., concur.
KIRSCH, J., dissent. [with no opinion]

In Jason Lee Sowers v. State of Indiana, a 3-page opinion on rehearing, Judge Brown writes:
Jason Lee Sowers petitions for rehearing following our published opinion in Sowers v. State, 988 N.E.2d 360 (Ind. Ct. App. 2013), in which we held that the communication between the bailiff and the foreperson resulted in fundamental error and reversed Sowers’s convictions for criminal recklessness as a class D felony, resisting law enforcement as a class D felony, and his adjudication as an habitual offender, and remanded for proceedings. On rehearing, Sowers raises one issue, which we revise and restate as whether this court should address an insufficient evidence claim. For the following reasons, we grant Sowers’s petition for rehearing.

Sowers argues on rehearing that he raised a claim of insufficient evidence of sanity on appeal, the State responded, and the claim was addressed in Sowers’s reply brief, but this court did not address the insufficient evidence of sanity claim. Sowers contends that this court should address his “insufficient of evidence of sanity claim to ensure that the double jeopardy clause of the federal constitution will not be violated by retrial.” * * *

In his dissent, Judge Bradford addressed the sufficiency of evidence, stated that it was for the jury to weigh the evidence including the reports submitted by Drs. Little and Rogers as well as Detective Blackwell’s testimony, and concluded that the evidence was sufficient to support the jury’s determination regarding Sowers’s mental state. 988 N.E.2d at 372-373. We adopt Judge Bradford’s analysis on this issue and conclude that the evidence is sufficient to permit retrial.

For the foregoing reasons, we grant Sowers’s petition for rehearing and remand for proceedings consistent with this opinion.
BRADFORD, J., concurs.
RILEY, J., would deny petition for rehearing.

In Michael A. Lane v. State of Indiana, a 17-page opinion, Judge Friedlander writes:
Michael A. Lane appeals his convictions for Murder, class B felony Conspiracy to Commit Dealing in a Schedule II Controlled Substance, and two counts of class C felony Criminal Recklessness. He presents the following restated issues for review: 1. Did the trial court abuse its discretion by rejecting Lane’s tendered jury instruction on reckless homicide as a lesser included offense of murder? 2. Did the trial court abuse its discretion by admitting certain hearsay evidence after concluding that Lane had opened the door to this previously excluded evidence? We affirm. * * *

In light of this overwhelming evidence placing Lane at the scene to complete a drug buy, the admission of additional evidence that, before the shooting, Derrington made calls to a phone number associated with Lane did not affect the verdict. The error was harmless beyond a reasonable doubt.

In Nathaniel Baker v. State of Indiana, a 9-page opinion, Judge Bradford writes:
During the early morning hours of December 5, 2011, Appellant-Defendant Nathaniel Baker, J.L.,1 and Rodney Zellers stole approximately forty-five gallons of gasoline belonging to David Stephan. On December 15, 2011, the State charged Baker with one count of Class D felony theft. During trial, the State introduced evidence of prior bad acts committed by Baker. The trial court admitted this evidence over Baker’s objection. Baker presented an alibi defense, claiming that he was with his fiancée the entire night in question. At the conclusion of trial, the jury found Baker guilty as charged. The trial court subsequently imposed a sentence of one and one-half years, with one year suspended. On appeal, Baker contends that the trial court abused its discretion in admitting the evidence of his prior bad acts. Concluding that it was error to admit the evidence of Baker’s prior bad acts but that the admission of the challenged evidence was harmless, we affirm.
NFP civil opinions today (1):

In the Adoption of B.R.; F.R. v. J.B. and E.B. (NFP)

NFP criminal opinions today (3):

Tyrez Boyd v. State of Indiana (NFP)

Daniel E. Wilkins v. State of Indiana (NFP)

Michael Grey v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 25, 2013
Posted to Ind. App.Ct. Decisions

About the ILB - Look for some posts this evening

Have been in a CLE all day.

Posted by Marcia Oddi on Friday, October 25, 2013
Posted to

Ind. Courts - "William Clyde Gibson murder prosecution rests, closing arguments expected Friday"

Opening arguments were Tuesday. Here is Charlie White's Thursday evening report in the Louisville Courier Journal. It begins:

Prosecutors rested their case Thursday in the William Clyde Gibson’s capital murder trial and the closing arguments in the gruesome case could be made as early as Friday afternoon.

Defense attorney Patrick Biggs told Floyd Superior Judge Susan Orth that he expects to be done calling witnesses by noon Friday and Orth told attorneys to be prepared to deliver their closing arguments to the jury shortly afterward.

Posted by Marcia Oddi on Friday, October 25, 2013
Posted to Indiana Courts

Thursday, October 24, 2013

Ind. Decisions - More on: Jury finds David Camm not guilty in 3rd trial for murder of family

Here is Tom LoBianco's story for the AP, headed "Indiana jury clears former state trooper in 3rd trial for 2000 slayings of wife, 2 children." A few quotes:

David Camm was released from custody in Lebanon about an hour after the verdicts were read. He's a free man after three trials and two successful appeals of his previous convictions in the case. He did not speak to reporters. * * *

The three trials have cost Floyd County, where the slayings occurred, more than $4 million and have forced officials to eliminate raises for most county employees and repair bridges and roads only in emergencies.

"David Camm free after being acquitted in family's murders" is the headling to this story and video from Grace Schneider of the Louisville Courier Journal. The video is an interview with Richard Kammen and Stacy Uliana, David Camm's attorneys. It is worth watching.

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Likely much too soon to gloat and ruffle feathers?

Erika Smith's column today in the Indianapolis Star is headed "Indiana's gay marriage fight is already settled." A few quotes:

After what happened here and in New Jersey this week, I’m convinced that Indiana has waited so long to come out in a big way against same-sex marriage that it’s no longer popular to do so. More than that, it’s no longer realistic. * * *

Ever since the U.S. Supreme Court handed down a pair of important, if legally muddled, rulings on the matter in June, more and more gay and bisexual Hoosiers are deciding to take that final legal leap with the person they love.

They’re setting dates, hiring bands and photographers, sending out fancy wedding invitations, and picking out suits and white gowns. They’re having receptions, celebrating with friends and family, and uploading pictures to Facebook.

Sure, they’re driving to Iowa or New York, or flying to California or Washington to do all of this. Those are some of the states where gay marriage is legal. But they’re coming back to Indiana as legally married couples in the eyes of the federal government. So, for the first time ever, they’re figuring out how to file their federal taxes jointly like any other married couple.

This is happening now. All over Indiana. In cities and in small towns. * * *

So go ahead and try to pass the amendment if you want. Go ahead and push our lawmakers to spend time and tax dollars debating this issue when they could be talking about ways to create jobs and improve education.

Go ahead and try, but it won’t matter. Because you’ve already lost.

There indeed has been a great deal of good news lately for supporters of marriage equality. With Connecticut, 14 states now recognize, by law or court decision, marriage equality.

But also in the news yesterday:

There is no predicting right now how any of there stories will turn out.

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Indiana Government

Ind. Decisions - Jury finds David Camm not guilty in 3rd trial for murder of family.

On all three counts. More:

Eric Berman ‏@WIBC_EricBerman 7s
Jury deliberated 11 1/2 hrs over 3 days. #Camm sobs as verdict is read. Case has been in system 13 yrs.

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)

For publication opinions today (3):

In In Re the Marriage of Leora McGee v. Robert McGee, a 6-page opinion, Judge Mathias writes:

Leora McGee (“Wife”) appeals the Lake Superior Court’s grant of the petition for dissolution of marriage filed by the co-guardians of Robert McGee (“Husband”) on Husband’s behalf. Wife presents several issues on appeal, but we address a single dispositive issue, namely, whether the trial court erred in granting the petition where Indiana statute provides no authorization for a guardian to file a petition for dissolution
on behalf of his or her ward. We reverse. * * *

The right to dissolve a marriage is not a common law right; rather it is a purely statutory right. Therefore, a petition to dissolve a marriage can only be brought in the manner and within the limitations prescribed by statute. * * *

While the statutes governing dissolution and guardianship in Indiana have evolved since 1951, when Quear was decided, it is still the case today that neither the current Indiana statutes governing dissolution of marriage nor those governing the guardianship of incapacitated persons provide a means for a guardian to file a petition for dissolution of marriage on behalf of his or her ward. * * *

Therefore, since Indiana statute does not provide guardians with the authority to petition for dissolution of marriage on the ward’s behalf, the trial court’s grant of the petition for dissolution Hilton and Kalajian filed on Husband’s behalf was improper.

Conclusion. For all of these reasons, we conclude that the trial court erred by granting the petition for dissolution filed by co-guardians Hilton and Kalajian on behalf of their ward, Husband.

In Patricia Terkosky v. Indiana Department of Education, a 41-page opinion, Judge Brown writes:
Patricia Terkosky appeals from the trial court’s order affirming the decision of the Indiana Department of Education (the “IDOE”) to suspend her teaching license for two years. She raises one issue which we revise and restate as whether the court erred in denying her petition for judicial review. We affirm. * * *

Conclusion. In addition to disciplining M.F. by making her ride the second bus, Terkosky’s acts all involved becoming physical with her students. Such acts, especially when viewed together, were found to have offended generally accepted standards of conduct of teachers and accordingly constituted misconduct in office. We find that substantial evidence was present to support the ALJ’s findings, and the ALJ’s conclusion that a two-year suspension was warranted was not contrary to law. Accordingly we conclude that the trial court did not err in affirming the ALJ’s Order.

For the foregoing reasons, we affirm the trial court’s denial of Terkosky’s petition for judicial review and affirming the decision of the IDOE to suspend Terkosky’s teaching license for two years.

In Gregory Dickens v. State of Indiana, an 18-page opinion, Judge Bradford writes:
Appellant-Petitioner Gregory Dickens was convicted of murdering a police officer while the officer was engaged in his official duties. Dickens’s conviction was affirmed by the Indiana Supreme Court on direct appeal. Dickens sought post-conviction relief, arguing, inter alia, that he was entitled to a new trial in light of newly discovered evidence, that he was entitled to a new trial because the State withheld evidence from the defense in violation of Brady v. Maryland, and that he received ineffective assistance of trial counsel. Dickens now appeals from the denial of his petition for post-conviction relief. Concluding that Dickens was not entitled to a new trial in light of either the newly discovered evidence or the alleged Brady violation, and that Dickens did not receive ineffective assistance of trial counsel, we affirm.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Cannon IV, Inc. v. Matthew Antisdel (NFP)

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - David Camm verdict reportedly to be announced at 12:30 today

More later.

[More] WLKY has the story. "The verdict is expected to be read at 12:30 p.m. WLKY will have live team coverage from Lebanon, Ind."

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Law - " Task force targets pregnant drug abusers: Group may push for law that offers them protections if they seek treatment"

That is the headline to this Oct. 23rd story by Maureen Hayden of CNHI, here in the Kokomo Tribune. Some quotes:

INDIANAPOLIS – Alarmed by the number of infants in Indiana born addicted to prescription painkillers, a task force of medical and legal experts may push for a new law that would provide some protection for drug-abusing pregnant women who voluntarily seek and stay in treatment for their addiction.

Such a measure is still being considered by the Attorney General’s Prescription Drug Abuse Task Force, which pushed for the new state rules that call for drug testing of pain-medication patients and closer monitoring of those patients by doctors.

At a meeting Monday, members of the legislative Commission on Mental Health and Addiction heard from task force coordinator Natalie Robinson, who said the incidence of babies born dependent on narcotics may have reached epidemic levels in Indiana. * * *

[The Prescription Drug Abuse Task Force] plans to push for more legislative remedies in the next session. Among them: requiring all health providers to report cases of neonatal abstinence syndrome to the state health department; and regulating the popular prescription pain-killer,Tramadol, as a schedule IV drug. That would increase the criminal penalties for abusing it or diverting it for someone else’s use.

The task force is still considering a law like the one passed recently in Tennessee that would give pregnant women some incentives to confess their drug addiction to their doctor and get into drug treatment programs. The Tennessee law, called the Safe Harbor Act, moves a pregnant woman to the front of the line for available spots in drug treatment programs and guarantees her newborn won’t be taken away by the Department of Children’s Services solely because of the drug use, as long as the woman continues in treatment and the baby is well cared for.

“We want to encourage these women to do the right thing,” Robinson said.

She said drug-abusing, pregnant mothers too often avoid getting prenatal care because they fear criminal prosecution and having their infants taken away from them.

The Tennessee legislation was supported by the state medical association, which made prescription drug abuse a priority among its public health issues. The Tennessee law sets out a series of conditions that the pregnant woman must meet in reporting her drug abuse to her doctor and following up with treatment. It doesn’t prevent the state from filing an action to remove the child from the custody of the mother or other caregiver if it’s determined the baby isn’t properly cared for.

One significant obstacle, identified by the Indiana task force, is what Robinson called the “extreme shortage” of drug treatment services in the state and healthcare providers who will treat pregnant drug abusers.

Today the NY Times has a lengthy story by Erik Eckholm headed "Case Explores Rights of Fetus Versus Mother" on a law in Wisconsin. Some quotes:
Under a Wisconsin law known as the “cocaine mom” act when it was adopted in 1998, child-welfare authorities can forcibly confine a pregnant woman who uses illegal drugs or alcohol “to a severe degree,” and who refuses to accept treatment.

Now, with Ms. Beltran’s detention as Exhibit A, that law is being challenged as unconstitutional in a federal suit filed this month, the first in federal court to challenge this kind of fetal protection law. Its opponents are hoping to set an important precedent in the continuing tug of war over the rights of pregnant women and legal status of the unborn.

Wisconsin is one of four states, along with Minnesota, Oklahoma and South Dakota, with laws specifically granting authorities the power to confine pregnant women for substance abuse. But many other states use civil-confinement, child-protection or assorted criminal laws to force women into treatment programs or punish them for taking drugs.

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Indiana Law

Ind. Courts - More on: New play uses 1991 SCOTUS argument to debate the pros and cons of public nudity

Updating this ILB entry from Sept. 6th, about the play based on a SCOTUS oral argument in a case involving nude dancing at the Kitty Kat Lounge in South Bend, when Michael Barnes, who since 2000 has been a judge on the Indiana Court of Appeals, was St Joseph County prosecutor, Slate now has this entertaining article by Emily Bazelon. The heading: "Thigh Court: How a theater company turned a SCOTUS case about nude dancing into a rollicking new play." A sample:

Mining that vein [of online oral arguments], he found the argument in Barnes v. Glen Theater, the Supreme Court’s 1991 decision about whether South Bend, Ind., had the right to ban nude dancing. (The ordinance in question required dancers at the Kitty Kat Lounge to wear pasties and a G-string.) The case turned on whether this kind of performance counts as art and is thus a protected form of free expression.

John noticed that there was a lot more audience participation during the Barnes arguments than he was used to hearing from the staid court recordings: People in the Supreme Court gallery were actually laughing out loud. There’s certainly a good bit of farce to be found in nine august justices and two lawyers wrestling with lofty First Amendment questions prompted by the gyrations of go-go dancers. At one particularly ridiculous point, Justice Anthony Kennedy conjures a hypothetical in which a nude dancer is hired to bring in customers at an “adults-only car wash.”

John decided he wanted to stage the argument in Barnes. He had a civic-minded purpose: to get “more people excited about how you can actually understand these cases, you can follow them.” He wanted to be a new kind of Supreme Court translator. “There were precedents cited I didn’t know or understand and legal ideas that were not immediately accessible, but so much of this case was accessible, I think, because it was about performance,” he says.

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Ritz sues GOP education board: Claims draft of A-F letter broke Open Door Law"

Updating this ILB entry from yesterday, the ILB wrote a section that began:

Sometime later (it is not clear whether it was the same day), but after the Board meeting in the video had adjourned, various Board members communicated with each other.
Could this communication, which resulted in the letter sent to the House and Senate leaders, be considered a secret "meeting" that resulted in official action in violation of the Open Door Law? Barb Berggoetz's story this morning in the Indianapolis Star and other Gannet papers illustrates how it could be so interpreted:
Gerry Lanosga, president of the Indiana Coalition for Open Government and an Indiana University assistant professor of journalism, said the “round-robin emails” ought to be considered an “electronic” meeting and not allowed under the law.

“They took an official action, and by the spirit of the law, it should be done in public,” Lanosga said. “But the statute is not well-worded enough that they may be able to get away with it — but it’s still bad policy.”

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to Indiana Government

About the ILB - think about using Twitter, if you don't already

Do you follow the ILB on Twitter, in addition to the blog itself? If not, you may be missing out on some good information.

A few years ago (actually 9 years ago), the ILB first posted an entry titled "How to Read a Blog." It is still useful today.

But today the ILB also uses Twitter, tweeting and linking to every new ILB post. For those of you familiar with RSS feeds, this serves as a similar tool.

The ILB also follows a number of other tweeters (currently 113), and "retweets" the tweets that I feel may be of interest to ILB readers. Because of this, the Twitter ILB combined with the Blog ILB can provide a richer variety for the reader. Take a look for yourself, here, by scrolling down the long list of recent ILB tweets (11,617 right now).

The Twitter ILB does not replace the Blog ILB, of course, but supplements it.

If you decide to join Twitter, there is no requirement that you yourself tweet. You can elect to simply use it as a tool to keep track of whatever you are interested in.

I'm posting this today because this morning's NY Times has a good introductory article on Twitter, by Hanna Ingber, headed "Twitter Illiterate? Mastering the @BC’s."

Posted by Marcia Oddi on Thursday, October 24, 2013
Posted to About the Indiana Law Blog

Wednesday, October 23, 2013

Ind. Courts - What to report about while the David Camm jury is deliberating?

"David Camm trial boosts businesses near Lebanon courthouse" reports Harold J. Adams in this Louisville Courier Journal story this evening. The story begins:

LEBANON, IND — . The trial of David Camm, accused of murdering his wife and children four months after quitting as an Indiana State trooper, has dominated the courthouse square here for more than two months.

Along the way it has boosted the business and piqued the interest of merchants around the square.

“This is the biggest thing that’s ever happened here,” said Sara Gallimore, a waitress at Brenda’s Cubbard, a restaurant tucked in the back of Cowan’s Drugs on State Road 39 inside of the square.

“We’re eager to learn about the trial and what’s going on,” Gallimore said.

In addition, Brenda’s Cubbard has served lunch to the Camm jury two days a week since the trial started. “So that’s helped our business out,” she said.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Courts - "Judge from Porter County to lead Indiana Court of Appeals"

Updating this ILB post from this morning, Dan Carden of the NWI Times reports this evening:

INDIANAPOLIS | A Porter County native was elected chief judge of the Indiana Court of Appeals Wednesday.

Judge Nancy Vaidik, who was appointed to bench in 2000 by Democratic Gov. Frank O'Bannon, will begin a three-year term as leader of the 15-judge appellate court starting Jan. 1.

As chief judge, Vaidik will speak for the appeals court in its dealings with the legislative and executive branches of state government and represent the court at ceremonial functions. * * *

Vaidik is a sixth-generation Hoosier who grew up in Portage and lives in Valparaiso. She earned her bachelor's and law degrees at Valparaiso University.

Her initial work as an attorney was in the Porter County prosecutor's office. She later entered private practice where she specialized in domestic relations, probate, municipal law and general litigation. She was a Porter Superior judge from 1992-2000.

Hoosiers voted in 2002 and 2012 to retain Vaidik on the appeals court for a 10-year term.

"I’m honored by the court’s selection and proud of its work," Vaidik said. "I’m also proud of my home region of Northwest Indiana and look forward to serving the entire state and our court as chief judge."

Vaidik has said she views the Court of Appeals existing "at the intersection of theoretical and practical law," and believes the court must "embody the highest degree of fairness and impartiality" by ensuring all litigants have the finest possible legal advocates.

She strives to craft legal writing that is "distinguished by logical construction and clear, explanatory prose." [ILB: Many attorneys believe J. Vaidik's opinions to be among the best written from the Supreme and Appellate Courts.]

Vaidik's election puts Northwest Indiana natives in charge of both the Court of Appeals and the Supreme Court. Indiana Chief Justice Brent Dickson was born in Gary and grew up in Hobart. [ILB: The current Chief Judge, Judge Robb, is from Lafayette, where CJ Dickson practiced before he joined the Court.]

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: "Ritz sues GOP education board: Claims draft of A-F letter broke Open Door Law"

Updating this ILB post from earlier today, Jim Shella of WISHTV has blogged this afternoon under the heading "Video used to challenge Ritz lawsuit." Some quotes:

State school superintendent Glenda Ritz declined interview requests Wednesday regarding the lawsuit she filed against the State Board of Education. She says the board conducted an illegal meeting without her. However, there is video that suggests that, in fact, she was in the meeting in question.

The board action that caused Ritz to run to court took place, according to a board spokeswoman, in a public meeting chaired by Ritz. You can see it on the official archive video of the October second meeting of the State Board of Education.

A board member suggests having the non-partisan Legislative Services Agency, or LSA, do its own calculations of A-to-F school grades as a check on grades issued by the Department of Education. “Actually, the department is more than excited about doing a check,” said Ritz during the meeting, “that’s just going to make sure that what we are going to release is correct.”

In a lawsuit filed Tuesday Ritz charges that a letter sent to legislative leaders regarding the LSA information was the result of a secret meeting. The suit was filed, said a spokesman, because she objects to LSA information coming out first.

There is no link to the video in the post. But there is the part of the video at issue reproduced in the WISHTV story this evening.

Watch it for yourself and decide whether this was "official action" - the ILB does not see anything other than a conversation at this meeting. There is no motion, there is no vote, authorizing the activities that followed. Of course, I don't know whether other actions of the State Board of Education are so vague and informal.

Sometime later (it is not clear whether it was the same day), but after the Board meeting in the video had adjourned, various Board members communicated with each other. Niki Kelly of the Fort Wayne Journal Gazette reported this morning:

State Board of Education member Cari Whicker said “absolutely there was not a meeting.” She said a board member had emailed DOE staff for a timeline update and hadn’t gotten a response.

This led to a discussion between state board members and staff at the Center for Education and Career Innovation – an agency created by Gov. Mike Pence that has unilaterally taken control of the State Board of Education.

“So there was communication back and forth with each other via phone or email feeling everybody out,” Whicker said. “Staff drafted the letter and asked who wanted to sign it. I got the email, printed it, signed it and scanned it.”

Here is the letter that the Board, sans Ritz, claims was the result of the conversation in the video at the officially convened meeting. And it is the letter that Ritz claims was the result of actions of Board members at a meeting in violation of the Open Meeting law, that occurred later.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Government

Ind. Courts - Reactions to Judge Posner's mea culpa continue; and what did the District Court say? [Updated]

The ILB recently has been collecting responses in two posts, this one from Oct. 20th, headed "Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge", and this one Oct. 21st, which looks at the why and whether of Judge Posner's statement.

But they continue. Today Jesse Wegman, an attorney and an editorial writer for the NY Times, neatly summarizes (and links to) practically everything that has been written before, and then concludes:

In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.” ,p> Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”

Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”

That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”

Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.

David Bangert, a columnist with the Lafayette Journal & Courier, has a lengthy article today, with quotes from a number of people.

Some ILB thoughts: The saying goes that the first wave of history always gets it wrong, that time provides needed perspective. Maybe that is the case with the voter ID issue and the courts. With the benefit of 7 years of history, I went back and looked again at the district court judge Sarah Evans Barker's 127-page, 4/14/2006 opinion in the case that next went to the 7th Circuit and the Posner panel. Here is Judge Barker's 2006 summary:

This litigation is the result of a partisan legislative disagreement that has spilled out of the state house into the courts. Plaintiffs (with one possible exception) became engaged in this dispute while it was still being debated by the Indiana General Assembly and, in moving to this judicial forum, in many respects they have failed to adapt their arguments to the legal arena. Plaintiffs, for example, have not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements. Plaintiffs also have repeatedly advanced novel, sweeping political arguments which, if adopted, would require the invalidation, not only of SEA 483, but of other significant portions of Indiana’s election code which have previously passed constitutional muster and/or to which Plaintiffs do not actually object; indeed, they offer them as preferable alternatives to the new Voter ID Law. In so doing, Plaintiffs’ case is based on the implied assumption that the Court should give these Constitutional and statutory provisions an expansive review based on little more than their own personal and political preferences.

Plaintiffs have mounted a facial challenge to the validity of SEA 483, raising a variety of related issues about the Voter ID Law, including that it substantially burdens the fundamental right to vote, impermissibly discriminates between and among different classes of voters, disproportionately affects disadvantaged voters, is unconstitutionally vague, imposes a new and material requirement for voting, and was not justified by existing circumstances or evidence. Defendants deny all of these criticisms, defending the enactment of SEA 483 as being justified by legitimate legislative concern for inperson voting fraud and a reasonable exercise of the State’s constitutional power to regulate the time, place, and manner of elections. Defendants also claim that Plaintiffs lack standing to bring this attack on the statute, and that, in any event, the Secretary of State and the Co-Directors of the Indiana Election Division are not proper defendants in this action.

For the reasons elaborated below, we hold that SEA 483 is a constitutionally-valid, reasonable time, place, and manner restriction on voting and on voters and, therefore, we GRANT Defendants’ Motions for Summary Judgment and DENY Plaintiffs’ Motions for Summary Judgment.

[Updated at 4:30 PM] Law prof. Rick Hasen has a new article in The Daily Beast titled "Why Judge Posner Changed His Mind On Voter ID Laws." Definitely a must read on this topic.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Courts - Court of Appeals elects new Chief Judge [Updated]

Judge Nancy H. Vaidik has been elected by the Court of Appeals judges to the three-year term, following the current Chief Judge, Judge Margret G. Robb.

[More] Here is the Oct. 28, 2010 ILB entry announcing the election of Margret G. Robb to succeed John G. Baker. It notes: "Chief Judge-Elect Robb's three-year term of office will begin on January 1, 2011."

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Phillip Griffin v. State of Indiana, 2-1, 3-opinion ruling, Sr. Judge Shepard writes for the majority:

Citizens are obliged to obey a police officer’s order to stop when the officer has probable cause or reasonable suspicion to believe that criminal activity may be afoot. When there is no indication of possible criminal activity, does a citizen who walks away commit the crime of resisting arrest by departing? We think it cannot be so, consistent with the Fourth Amendment, and reverse appellant Phillip Griffin’s conviction for resisting law enforcement.

On the other hand, whether Griffin’s conviction for battering an officer while being placed under arrest stands on different grounds. We affirm it. * * *

Griffin says the trial court lacked authority to order him to perform community service in lieu of fines and costs. * * *

In resolving Griffin’s claim, we follow this Court’s recent decision in Vaughn v. State, 982 N.E.2d 1071, 1075 (Ind. Ct. App. 2013). The Vaughn panel declared that in the absence of statutory authority, a court may not impose community service in lieu of costs and fees. * * *

For the reasons stated above, we affirm the battery conviction, reverse the resisting conviction and the order of community service, remanding for further proceedings on the issue of costs.

MATHIAS, J., concurs with separate opinion.
BAILEY, J., concurs in part and dissents in part with separate opinion.

[Mathis, concurring, writes in part, beginning on p. 11] I agree that Officer Miller lacked reasonable suspicion to detain Griffin for the purpose of investigating a possible crime, and therefore, Griffin was free to disregard Officer Miller’s order to stop. Accordingly, I concur fully in the majority’s conclusion that Griffin’s conviction for resisting law enforcement must be reversed. However, I write separately to address concerns about Officer Miller’s conduct in this case, particularly given his suspicion that Griffin suffered from a mental illness at the time in question.

[Bailey, concurring in part and dissenting in part, begins on p. 14] I concur in the affirmation of Griffin’s conviction for battery. However, I respectfully dissent from the reversal of his conviction for resisting law enforcement. * * *

I would follow the settled law as discussed in Cole. For this reason, I dissent from the reversal of Griffin’s conviction for resisting law enforcement.

NFP civil opinions today (1):

Reginald L. McCracken and Bowar Development, LLC v. Joseph Huber, Tony Thoma, Ronald Cox, Curtiss Wall, Jerry McCracken, Steve Donitzen, John Dowell, Phil Cagle, Craig Price, Bob Hooser, Et Al. (NFP)

NFP criminal opinions today (3):

James Cameron v. State of Indiana (NFP)

Eugene Robinson v. State of Indiana (NFP)

Curtis L. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - David Camm murder decision now with jury

Rod Rose of the Lebanon Reporter wrote last evening in a long story:

LEBANON — Jurors could decide Wednesday whether David Camm is guilty of killing his family.

The case was given to the jury at 4:38 p.m. Tuesday, after more than 10 weeks of testimony from experts on DNA and blood splatter, as well as Charles Boney — who was convicted of the killings in a separate trial — and the presentation of complex and often technical evidence. * * *

Closing arguments began shortly after 9 a.m. in a Boone Circuit Courtroom so packed with spectators that nearly 20 folding chairs were brought in so that everyone could be seated. * * *

Jurors are expected to deliberate until only 5 p.m. as long as deliberations last. After 5 p.m., they will be sequestered at a hotel.

Here is Grace Schneider's story in the Louisville courier Journal. It begins:
LEBANON, IND. — For two months, they listened as scores of witnesses talked through the evidence, sorted out motives and offered their opinions on whether former Indiana State Trooper David Camm killed his wife and two children in cold blood.

Now, a jury of four men and eight women will decide if Camm should be convicted a third time in their murders 13 years ago.

The jury received the case late Tuesday afternoon after hearing impassioned closing arguments before a standing-room-only crowd that included local and national media. They will be asked to deliberate daily from 9 a.m. to 5 p.m. until they reach a verdict.

As they left the limestone courthouse in a gray drizzle Tuesday, family members for the victims and defendant who sat through this trial praised the lawyers for a hard-fought case.

“They did a wonderful job. I’ve got no complaints,” Frank Renn, Kim Camm’s father, said of the prosecution team.

“It’s not easy to go through this. Thirteen years later, we’re back where we was to start with. Now we’re waiting,” he said.

Julie Blankenbaker, David Camm’s sister, said defense lawyer Stacy Uliana exhibited her passion for Camm’s innocence in her closing arguments.

“We’re real pleased and proud of her,” Blankenbaker said.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Courts - "David Bisard trial judge tears into IMPD over emails"

John Tuohy reports this morning to the IndyStar from the Bisard trial in Fort Wayne:

FORT WAYNE, IND. — The judge in Indianapolis police officer David Bisard’s trial tore into the Indianapolis Metropolitan Police Department today for emailing summaries of the trial to the chief and other police brass, including at least one on the witness list.

“This is about as unprofessional as anything I’ve ever seen,” Allen Superior Court Judge John Surbeck said.

The daily summaries were sent by an Indianapolis Metropolitan Police Department major watching the trial, now in its eighth day.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Courts

Ind. Law - Still more on: Bill gives agency right to refuse to acknowledge a record's existence

Updating this ILB entry from yesterday about the PAC opinion regarding the response made by the Indiana State Police to a Star records request applying an exception to the Public Records Law made by the last General Assembly, see also this post last evening from the blog Advance Indiana.

Also see this Lyle Denniston post at SCOTUSblog on the 3rd Circuit opinion yesterday limting GPS tracking.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Law

Ind. Decisions - "COA lets Allen County library try to recover spill costs"

Yesterday's Court of Appeals decision in Allen County Public Library v. Shambaugh & Son, L.P. et al is the subject of a story this morning by Niki Kelly of the FWJG. Some quotes:

INDIANAPOLIS – The Indiana Court of Appeals on Tuesday reversed a local trial court decision, giving the Allen County Public Library another chance to recoup almost $500,000 in diesel cleanup fees at the library.

“We conclude that the library is not precluded … from seeking recovery for pollution cleanup costs for property contaminated by the defendants’ allegedly faulty construction that is outside the scope of the work for which the defendants were contracted to perform,” the ruling said. “Namely, the defendants may be required to reimburse the library for cleanup costs of the land outside of the library building itself.”

The library sued several defendants in 2010 to determine who is responsible for a 2006 diesel fuel leak at the downtown library.

Last year, Allen Superior Court Judge Nancy Eshcoff Boyer ruled against the library, instead granting dismissal in the case to Shambaugh & Son, Hamilton Hunter Builders, MSKTD & Associates and W.A. Sheets and Sons. All were involved in the $65 million downtown library expansion and renovation.

More than 3,000 gallons of diesel fuel leaked into the ground below the parking garage. The library board contends the leak was caused when workers on the project mistakenly drove a steel stake through a pipe. The board is seeking to recover cleanup costs.

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided a second Indiana case yesterday

This appeal concerns the sentence of the former Lake County Clerk. The ILB has had a number of earlier entries about Mr. Philpot.

In UNITED STATES OF AMERICA v. THOMAS R. PHILPOT (ND Ind., Moody), a 24-page opinion, Judge Flaum writes:

Thomas Philpot, the former Clerk of Lake County, Indiana, took approximately $25,000 in incentive payments from a federally funded child‐support fund without the required approval of the county fiscal body. He was charged with three counts of mail fraud and two counts of theft from a federally funded program. A jury convicted Philpot on all counts—although the district court later acquitted him on two of them—and the court sentenced Phil pot to eighteen months in prison. Philpot now appeals his conviction and his sentence, arguing that he should be acquitted on the remaining counts. In the alternative, he argues that he is entitled to a new trial, and that the district court improperly assessed the loss amount in his sentencing. We affirm the district court on all grounds.

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

Ind. Gov't. - "Ritz sues GOP education board: Claims draft of A-F letter broke Open Door Law"

Niki Kelly has a comprehensive overview of the Ritz suit in this morning's Fort Wayne Journal Gazette. See also these two ILB posts from last evening: here and here.

Kelly also has a story titled "Process to draft letter threatens Ritz’s suit":

The legal basis for Glenda Ritz’s lawsuit against the state Board of Education is murky.

Hoosier State Press Association President Steve Key said it’s a fact-sensitive situation depending on the process used to draft the letter.

“The fact that there is a letter signed by 10 members of the board of education doesn’t necessarily mean there was a meeting subject to the open door law,” he said.

He said that if a quorum of six or more members met in one place it could be a violation. But if one member called or emailed others individually to ask about whether they would like to sign a letter, there likely isn’t.

Key said a change to the law by legislators made “serial meetings” illegal, in which the total number of members involved in a series of meetings equals a quorum.

He said a conference call would count as attending a gathering under this part of the law but the statute specifically excludes email.

State Board of Education member Cari Whicker said “absolutely there was not a meeting.” She said a board member had emailed DOE staff for a timeline update and hadn’t gotten a response.

This led to a discussion between state board members and staff at the Center for Education and Career Innovation – an agency created by Gov. Mike Pence that has unilaterally taken control of the State Board of Education.

“So there was communication back and forth with each other via phone or email feeling everybody out,” Whicker said. “Staff drafted the letter and asked who wanted to sign it. I got the email, printed it, signed it and scanned it.”

ILB: So can we say the last paragraph here outlines a new way to evade the Open Meeting law? Just as would indicating the site of a meeting in the public notice as "the Chicago airport."

Posted by Marcia Oddi on Wednesday, October 23, 2013
Posted to Indiana Government

Tuesday, October 22, 2013

Ind. Gov't. - Gov. Pence backs Board, sans Ritz

Here is a statement from Governor Pence regarding the Department of Education lawsuit:

Governor strongly supports state board, is confident laws were followed

Indianapolis, IN – The Office of the Governor issued the following statement regarding the lawsuit filed today by the Department of Education. The statement can be attributed to Communications Director Christy Denault.

Governor Pence strongly supports the actions taken by the bipartisan membership of the State Board of Education to ensure the timely completion of last year’s A-F school accountability grades. The Governor is confident that all relevant Indiana laws were followed. Because teachers and schools depend on these letter grades for salary increases, performance bonuses and federal funding, the Governor will continue to work in good faith with the State Board of Education and the Indiana Department of Education to get the job done for our schools and our kids.

See also this earlier ILB post this afternoon.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Government

Ind. Gov't. - "Superintendent of Public Instruction Glenda Ritz sues state board of education" [Updated twice]

From a press release issued this afternoon by Glenda Ritz:

INDIANAPOLIS – In response to apparent violations of the Open Door Law by members of the State Board of Education, Superintendent of Public Instruction Glenda Ritz filed suit today naming ten members of the Board as defendants. The lawsuit alleges that the named members of the State Board violated Indiana’s Open Door Law by taking action in secret by drafting, or directing the drafting of, a letter they sent to President Pro Tempore Long and Speaker Bosma dated October 16, 2013. The suit seeks to prevent the State Board of Education from continued violations of the Open Door Law and declaratory relief.

Specifically, the lawsuit alleges that ten members of the State Board violated Indiana’s Open Door Law when they took action by requesting that Senator Long and Speaker Bosma appoint Indiana’s Legislative Services Agency to perform calculations to determine the 2012-2013 A-F grades for Indiana schools. The suit alleges that no public notice was issued for a meeting that allowed for this action and that Superintendent Ritz was not made aware of this action until after it was taken, despite her role as Chair of the State Board of Education.

“When I was sworn in to office, I took an oath to uphold the laws of the State of Indiana,” said Superintendent Ritz. “I take this oath very seriously and I was dismayed to learn that other members of the State Board have not complied with the requirements of the law. While I respect the commitment and expertise of members of the board individually, I feel they have over-stepped their bounds.

“Since my inauguration, I have worked tirelessly to communicate openly with the Board and the public. I do not take this action lightly, but my obligations as elected state Superintendent require it. I look forward to continuing to work to improve education for all Indiana students in a fair, transparent and collaborative manner.”

The suit is Ritz v. Elsener, et al and it has been filed in the Marion Circuit Court. The cause number is 49C01-1310-PL-038953. The Department of Education is using in-house counsel to avoid any additional costs to the state.

Niki Kelly of the Fort Wayne Journal Gazette has tweeted:
Niki Kelly ‏@nkellyatJG
State Board of Education member Cari Whicker says there was no meeting or conference call with members to create the letter in question.

Niki Kelly ‏@nkellyatJG
Instead, it was through email and some one-on-one calls with staff and members.

The question would be, are such "work-arounds" of the Public Meeting Law legal?

Here, from the Lafayette Journal Courier, is the letter the Board of Educations members, sans Ritz, sent to the House and Senate leaders.

Here, just posted on the IndyStar site, is a story by Stephanie Wang outlining the controversy. Here is a story from Oct. 19th by Barb Berggoetz, giving background to the suit.

The ILB is hoping to post the complaint filed in Marion County Court.

[Updated at 4:44 PM]
Here, from NPR's State Impact Indiana, is a story by Kyle Stokes and Elle Moxley headed "Raising Stakes In A-F Grading Dispute, Ritz Files Suit Against State Board Members." It includes a copy of the complaint.

[Updated at 4:57 PM]
Here is Niki Kelly's story in the FWJG.

Here also are some quotes from a statement issued today by the minority leadership of the house and senate:

Instead of working with the Department, the Pence-appointed Board of Education has prodded Republican legislative leadership to subvert the process, and in doing so, unashamedly trampled state law and politicized the traditionally non-partisan Legislative Services Agency.

The statute is clear, the Department of Education and the Superintendent have the sole authority to assess and determine school accountability grades. Any other interpretation is a disingenuous attempt to sidestep the letter of the law.

Hoosier students deserve to know the grades they worked for are accurate. Parents and teachers deserve the satisfaction of knowing their hard work paid off. Elevating cheap politics over ensuring accuracy is a far cry from what Hoosiers expect.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Government

Ind. Courts - Opening arguments in Gibson trial yesterday, and closing arguments in Camm trial today

Posted today on the Louisville Courier Journal site:

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Courts

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

Updating earlier ILB entries, Niki Kelly reports today in the Fort Wayne Journal Gazette:

INDIANAPOLIS – A legislative pension oversight committee has urged the state pension system to reverse course on plans to privatize annuity savings accounts.

Monday’s unanimous vote is nonbinding, and the Indiana Public Retirement System will consider it at a Friday meeting.

“The board will look closely at what was recommended,” said Jeff Hutson, spokesman for the retirement system. “I can’t predict what they will do.”

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 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 lowering 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, critics contend.

According to state pension staff, the current market rate would be in the range of 4.0 percent to 4.5 percent. This would result in a cut of tens of thousands of dollars to beneficiaries.

The recommendation passed Monday by the Pension Management Oversight Committee asks the retirement system to keep the annuity in-house and periodically establish an interest rate that will not create an unfunded liability in the fund. “We want INPRS to step away from their decision of privatizing the system,” said Rep. David Niezgodski, D-South Bend.

The Indiana Public Retirement System does not have to follow the recommendation. If it doesn’t, though, lawmakers could intervene in the 2014 session beginning in January.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Government

Law - The felony murder doctrine

Douglas A. Berman, of Sentencing Law Blog, also has a site that appears to work in conjunction with a criminal law class. Here he urges the class to read an interesting August 11, 2006 commentary on an Illinois Supreme Court felony murder decision (available here), and the doctrine in general.

[More] On Oct. 9th the ILB had this post headed " Felony-murder case involving four Elkhart youths goes national."

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to General Law Related

Ind. Gov't. - "Indy Chamber votes to oppose Indiana same-sex marriage ban"

Jon Murray reports today in the IndyStar:

The Indy Chamber staked out a position today against Indiana’s proposed amendment to ban same-sex marriage in the state constitution.

The business group is the latest high-profile business interest to oppose the amendment, which will be considered for the second and final time early next year by the General Assembly. If the legislature approves the amendment, called House Joint Resolution 6, then it heads to Indiana voters in a statewide referendum in November 2014.

“The Indy Chamber is in the business of strengthening our economy and attracting top talent to our region,” John Thompson, chairman of the Indy Chamber’s board, said in a news release. “The proposed marriage amendment does nothing to help show the nation that Indiana is a place that welcomes all, not just some, and we must be mindful of how actions such as this will impact our competitiveness on a national and global level.” * * *

At the statewide level, the Indiana Chamber of Commerce, which is separate from the Indianapolis-area chamber, has said it plans to stay neutral on the issue, citing differing opinions among its members.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Allen County Public Library v. Shambaugh & Son, L.P., Hamilton Hunter Builders, Inc., W.A. Sheets & Sons, Inc., and MSKTD & Associates, Inc., a 16-page opinion, Judge Barnes writes:

Allen County Public Library (“the Library”) appeals the trial court’s grant of summary judgment in favor of Shambaugh & Son, L.P. (“Shambaugh”), Hamilton Hunter Builders, Inc. (“Hamilton Hunter”), W.A. Sheets & Sons, Inc. (“Sheets”), and MSKTD & Associates, Inc. (“MSKTD”) (collectively “the Defendants”). We reverse and remand.

The Library raises two issues, which we combine and restate as whether the trial court properly concluded that the Library was contractually prohibited from seeking recovery from the Defendants for pollution remediation costs related to construction work that the Library hired the Defendants to perform. * * *

Consistent with our holding in Midwestern, we conclude that the Library is not precluded by Section 11.3.7 of the standard AIA contract from seeking recovery for pollution cleanup costs for property contaminated by the Defendants’ allegedly faulty construction that is outside the scope of “the Work” for which the Defendants were contracted to perform. Namely, the Defendants may be required to reimburse the Library for cleanup costs of the land outside of the library building itself. We reverse the grant of summary judgment to the Defendants and remand for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Gabriel McCreary v. Connersville Storage and Miniwarehousing (NFP)

James W. Johnston v. Diana Johnston (NFP)

NFP criminal opinions today (3):

Jeffrey Robinson v. State of Indiana (NFP)

Tony Kimble v. State of Indiana (NFP)

Brian K. Moore v. State of Indiana (NFP)

Note: There were no COA opinions yesterday, Oct. 21st.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Bill gives agency right to refuse to acknowledge a record's existence

The bill discussed in this April 16, 2013 ILB post, is now law - SEA 369-2013.

This opinion issued Oct. 17, 2013 [link now fixed] by the Public Access Counselor, Luke Britt, in response to a complaint made by the Indianapolis Star, re the answer made by the Indiana State Police to a Star records request, may be the first formal application of the new provisions:

However, ISP provided a response to you on September 16, 2013, stating all of the records you were seeking either did not exist or were not subject to disclosure. Specific to your current complaint, the ISP denied the records reasoning that the public disclosure of the records would threaten public safety under the APRA. * * *

Ind. Code § 5-14-3-4(b)(19) states that the release of record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack is at the discretion of the public agency. A record described under this subdivision includes a record assembled, prepared, or maintained to prevent, mitigate, or respond to an act of terrorism.

Ind. Code § 5-14-3-4.4(b)(1) further holds the agency who is the custodian of the documentation containing sensitive information may deny the disclosure of the record or part of the record. The ISP’s response is in substantial compliance with the other portions of the statute.

The ISP has stated in their response it is their determination the records you seek fall into this exception. This complaint has weighed heavily on the ISP’s public information staff. They unilaterally reached out to this Office to attempt to satisfy as much of the request as possible. It appears this was done in the spirit of cooperation and with a focus on transparency. In fact, the ISP did make the records available for inspection. I declined out of deference to their expertise in matters of public safety.

That being said, you are fully accurate in your statement that, “Contracts and other financial records are vital information that show how government agencies spend taxpayer dollars and are traditionally among the most readily available public documents at an agency”. Whenever possible, this Office, as is its charge, views the facts in a light most favorable to the individual who has been denied a record. The burden is on the public agency to show why a record may not be released. ISP maintains the nature of this records request is particularly sensitive. As I am not a finder of fact, nor am I a subject matter expert in public safety or terrorism, I cannot accurately determine if the records contain information that would threaten public safety. If they do, then the withholding of the records is not a violation. If they do not, then it would be a violation. That fact- sensitive matter would be determined by a trial court which may compel disclosure through injunctive relief or the discovery process.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Law

Courts - "Justices Return to a Death Penalty Issue"

Adam Liptak reports today in a story the NY Times:

WASHINGTON — More than a decade after the Supreme Court banned the execution of the “mentally retarded” in 2002 in Atkins v. Virginia, the justices agreed on Monday to clarify how states should determine who qualifies.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Courts in general

Ind. Gov't. - " State reverses records refusal over fatal West Nile case: Public health concerns prompts release"

Updating this ILB post from Oct. 18th titled "Judge rules public can't access cause of death records" that quotes a news story reporting:

The Indiana Attorney General’s Office has asked the Indiana Supreme Court to hear the appeal of a judge’s ruling that cause of death information is not public record.

“In short, our office advocates that local death certificates are a public record that the public should be able to obtain,” said Bryan Corbin, a spokesman for the attorney general.

Today Arthur Foulkes of the Terre Haute Tribune-Star writes:
TERRE HAUTE — The fatal case of West Nile Virus in Vigo County comes amid a larger state debate about public access to death certificates.

Last week, the Tribune-Star asked the Marion County Health Department for a copy of a death certificate from a Vigo County man who died in an Indianapolis hospital. A recent obituary published in the Tribune-Star stated the deceased died “following complications from West Nile Virus.” An infectious disease doctor had told the family that test results were positive for West Nile Virus, the family has confirmed.

However, on Thursday, Marion County health officials declined to provide the death certificate to the newspaper, citing Indiana law and an August Indiana Court of Appeals ruling in which a panel of judges stated that death certificates were not public records unless the person seeking the certificate demonstrates a direct interest and necessity to receive the document.

On Friday, Luke Britt, Indiana Public Access Counselor, told the Tribune-Star he believed the newspaper could show a “legitimate” reason for receiving the death certificate in the interest of public health due to indications of a local death resulting from West Nile Virus.

“I would think that would be a legitimate reason to seek the record,” Britt said in a telephone interview.

The Tribune-Star resubmitted a public records request to Marion County’s health department Friday but was again declined on the same grounds — Indiana law and the August appeals court decision.

More from the story:
Attorney General, Greg Zoeller, has recently asked the Indiana Supreme Court to review that appeals court decision, arguing that death certificates are public records. Zoeller, in a friend of the court brief to the Supreme Court, stated the appeals court wrongly combined “certificates of death” with “certifications of death registration” in reaching its decision.

Death certificates are documents filed by doctors, coroners or funeral directors with county health departments and includes causes of death. Certifications of death registration are official records of death that do not contain causes of death and are often used to obtain life insurance payments or for other property-related reasons, according to Zoeller’s brief.

Nearly 40 years ago, in 1975, another Hoosier appeals court ruled that a death certificate is not the same as a certification of death and that death certificates should be public documents, according to the AG’s friend of the court brief. The state legislature has passed nothing to change that view, the brief argues, and, therefore, death certificates should remain accessible public documents.

“Access to public records are vitally important to our republican form of government … and this split authority regarding the [public records law] should be resolved” by the Supreme Court, Zoeller’s brief concludes.

Steve Key, general counsel for the Hoosier State Press Association Foundation, agrees with Zoeller, noting that the recent appeals court ruling has confused the issue of whether death certificates are public documents or not.

“There are now two conflicting appellate court arguments,” Key said. “We believe that the first court decision [finding death certificates were public documents] was correct based on the state statutes … and from a public policy standpoint.”

Access to information concerning causes of death can alert authorities or the public to clusters of diseases or health problems that might require public policy action, he said.

Also Wednesday, the Indiana State Department of Health, after announcing the state’s first fatal case of West Nile Virus, refused to reveal the county of residence of the person who died. On Friday, however, the ISDH reversed that position and revealed the death took place in Vigo County. An agency spokeswoman told the Tribune-Star the change emerged from a review of past ISDH handling of West Nile information.

ILB: Here is the recent COA opinion, now pending review by the Supreme Court: Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department. See also this Aug. 26, 2012 entry. And here is the 1975 COA opinion cited in today's story. It too was an Evansville case.

Posted by Marcia Oddi on Tuesday, October 22, 2013
Posted to Indiana Government

Monday, October 21, 2013

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

In BILLY JULIAN v. SAM HANNA, et al. (SD Ind., Pratt), a 13-page opinion, Judge Posner writes:

The plaintiff in this suit under 42 U.S.C. § 1983 appeals from the dismissal (with prejudice) of his complaint. The complaint charges three Indiana police officers, plus the Town (Frankton) that employed two of them, plus the county sheriff, with malicious prosecution in violation of the due process clause of the Fourteenth Amendment. Other torts are alleged as well; we’ll come back to them. There are two superfluous defendants: a school that employed one of the officers, who was also employed by the Town (which is all that matters); and the County, which was dismissed but remains listed in the caption of the appeal.

The district judge dismissed the malicious prosecution claim on the alternative grounds that it was untimely and that Indiana state law provides an adequate remedy for malicious prosecution, barring recourse to section 1983. * * *

The district judge dismissed the claim as barred by Indiana’s two‐year statute of limitations. Unlike the malicious prosecution claim, the Brady claim may have accrued when Julian was granted a new trial in September 2007, more than two years before the filing of the present suit. That was before the charges against him were dropped; and ordinarily a Brady claim does not accrue until that happens. Johnson v. Dossey, 515 F.3d 778, 781–82 (7th Cir. 2008); Newsome v. McCabe, supra, 256 F.3d at 752. But although Julian’s ordeal was not over (because he was subject to being retried), his Brady claim was ripe. The exculpatory evidence had been revealed; the harm the alleged Brady violation had done could not be affected by a retrial. But it would be tidier to postpone accrual until the charges were dropped, as otherwise Julian might have had to bring a separate section 1983 suit while defending against criminal charges in a retrial.

We needn’t pursue the issue. Julian doesn’t challenge the district judge’s accrual determination; he challenges her ignoring his contention that the defendants should be equitably estopped to plead the statute of limitations as a defense to his Brady claim. A defendant who prevents a timely filing of a suit against him, for example by promising the plaintiff not to plead the statute of limitations, is estopped (that is, forbidden) to plead the statute of limitations. E.g., Shropshear v. Corporation Counsel of City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450– 51 (7th Cir. 1990); Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1052 (9th Cir. 2008). And that is what Julian alleges happened: the defendants intimidated him into delaying the filing of his civil suit until the criminal proceeding ended with the dismissal of the charges against him in July 2010. If this is true, the limitations clock did not start to tick until then, which would place his November 2011 filing well within the two‐year limitations period. The district judge will have to address the equitable‐estoppel issue on remand.

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "$50K judgment issued in Carmel suspended attorney case"

The ILB has a long list of entries on Sarah Nagy, the suspended Carmel attorney.

Today Kara Kenney of WRTV 6 reports:

INDIANAPOLIS - A Hamilton County Superior Court judge has granted a $58,978.52 default judgment for a jailed man, Jeffrey Baber, who said he paid a Carmel defense attorney legal fees but she did little work on his case.
The story includes links to the legal documents, plus a statement by Nagy.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending October 18, 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, October 18, 2013. It is one page (and 1 case) long. One transfer was granted last week:

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Transfer Lists

Courts - "A challenge to same-sex marriage ends" in New Jersey

Updating earlier ILB entries, The State of New Jersey is no longer challenging the lower court ruling allowing same sex marriage.

Lyle Denniston has a report here at SCOTUSblog. Some quotes:

New Jersey Governor Chris Christie, convinced that the state’s challenge to same-sex marriages would fail in the state supreme court, on Monday had his legal staff withdraw an appeal on the issue. * * *

As a result, a ruling in September by a state judge in Trenton becomes final, as of Monday, making New Jersey the fourteenth state — along with Washington, D.C. — to allow same-sex couples to wed. In fact, marriages of some of the couples have already begun in the state.

Governor Christie’s office said that the opinion released last Friday by the state supreme court “left no ambiguity about the unanimous court’s view on the ultimate decision in this matter.” While the governor “strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people,” he said that the court had now ”spoken clearly” on New Jersey law and he would carry out the ruling through state agencies.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Courts in general

Ind. Gov't. - More on "State to lose $63M in tobacco payments next year"

Updating this ILB entry from Oct. 17th, and quoting again from Lesley Weidenbener's excellent story last Thursday in The Statehouse File [emphasis by ILB]:

INDIANAPOLIS – The state is set to lose $63 million in tobacco payments next year after an arbitration panel determined it had not worked hard enough to collect funds from cigarette companies that weren’t part of the original deal.

The ruling – issued last month by a three-judge panel – will reduce Indiana’s payment from $131 million to $68 million.

And there’s the potential for the state to lose even more. The recent ruling addresses claims from payments in 2003; the years 2004 through 2012 remain in dispute. * * *

Forty-six states, including Indiana, signed what was called a master settlement agreement in 1998 with four of the largest cigarette manufacturers in the United States. Since then, another 40 or so tobacco companies have joined the settlement, which requires the companies to make annual payments to states.

The amounts paid vary depending on the state and manufacturer and vary by year. They are primarily based on the number of cigarettes sold.

The settlement allows companies to reduce the amount they pay to states if they’ve lost market share to cigarette manufacturers that aren’t part of the agreement. States were to be exempt from the cuts if they enacted – and enforced – laws that imposed obligations on any non-participating companies that sold cigarettes within their borders.

But the arbitration panel ruled in September that Indiana and five other states had failed to diligently collect those payments and therefore the participating tobacco companies could reduce what they paid to the states.

Rep. Charlie Brown, the ranking Democrat on the House Public Health Committee, said the state’s tobacco payments have been used to pay for programs designed to stop smoking, help support community health centers, provide matching money for the Children’s Health Insurance Program, and finance sickle cell anemia research.

“What is disturbing about this decision is that it appears to be tied to our state’s complete failure to pursue compliance from those cigarette manufacturers that chose not to be a part of the original settlement,” said Brown, who was the author of the original bill that defined the uses of tobacco settlement money.

“Indiana was asked to make an effort to get companies that did not sign the agreement to make payments into an escrow fund if they chose to do business here,” Brown said. “Obviously, they didn’t try hard enough.”

Denise Keane, executive vice president and general counsel of Altria Group, which owns Philip Morris USA, said last month that the decision “sends a strong message about the importance of diligently enforcing the laws that apply to non-participating manufacturers.”

The panel’s decision did not affect 22 states and jurisdictions that joined had a December 2012 settlement of the master settlement disputes. But Indiana and 14 other states opted to take the issue to arbitration instead of settling.

The arbitration panel ruled in favor of nine states, saying they had done what was necessary to meet the terms of the master settlement. But Indiana and five other states lost.

“The non-diligent states could have avoided (the) result altogether had they either diligently enforced their escrow statutes or joined December’s settlement of these issues,” Keane said last month.

The Arbitation Panel's Final Award re: State of Indiana

The ILB has obtained from the Attorney General's office a copy of the 23-page, Sept. 11, 2013 final award document.

The findings and conclusions specific to Indiana begin on p. 18. Notice first that the attorneys for Indiana are identified as Church, Church, Hittle & Antrim.

In answer to my question, Bryan Corbin, public information officer for the attorney general's office, said:

Former Attorney General Steve Carter is serving as consultant to the State in the arbitration matter rather than as outside counsel.
The witnesses for Indiana are listed. Remember that this arbitration focuses on events that took place in the year 2003. The 9 witnesses include Greg Zoeller, who was then "Chief of Advisory Section". They do not include Steve Carter, who was the Indiana Attorney General in 2003.

Pages 20-23 set out the "factors considered in the determination of diligent enforcement" and an analysis of how Indiana was graded for each of the factors. If you have read this so far, you should read pp. 20-23 for yourself. Basically, the conclusions are that for the year 2003: A) Indiana's collection rate was one of the lowest; b) few lawsuits were filed and no judgments were enforced; c) Indiana had no program to track noncompliance; d) resources were not allocated to enforcement; e) Indiana did little to prevent non-compliant nonparticipating members from future sales; f) "Although Indiana did pass some significant supporting legislation, there was little effort in utilizing it"; g) "Indiana sent too few demand or notice letters, and had no formal enforcement processes in place until late in the game"; h)"Although representatives from Indiana purportedly attended several NAAG conferences, there was no evidence of contribution to or ideas adopted from that group."

What role did former-Attorney General Carter play?

From the Jan. 25, 2010 issue of Indiana Legislative Insight (used with permission)

Carter's (very) little legal bills
Ex-AG to arbitrate tobacco deal for State

No other members of the media were around for this month's meeting of the State Ethics Commission at which former Attorney General Steve Carter (R) sought a Formal Advisory Opinion from the panel that would allow him to represent the State of Indiana in arbitration against non-participating tobacco
manufacturers (NPMs) under the 1998 Tobacco Master Settlement Agreement (MSA).

MSA terms require cigarette makers to make an annual payment to offset health care costs allegedly caused by their products. Other costs are assessed based upon an independent accounting analysis to ensure a level of fair competition between all companies, and 2003 payments are being challenged on the basis of whether states were diligently enforcing certain statutes against NPMs.

At stake: some $1.1 billion. However, the National Association of Attorneys General (NAAG) explains, "arbitration could resolve underlying legal issues and create precedents for disputes over potential NPM Adjustments for 2004-2008" that could total yet another $4.1 billion.

Carter received approval from the Ethics Commission for the work on behalf of the Office of the Attorney General to handle the arbitration work before a trio of former federal judges in the complex proceedings that will determine whether each state has diligently enforced MSA provisions against the non-participating tobacco companies. No conflict existed with his previous service.

Other states have hired outside law firms and found the cost of gearing up for arbitration – ramping up to speed with the MSA's 10-year history, forging a relationship with the NAAG five-attorney team overseeing state efforts (and which will present the general case overview before the individual states appear), working with the MSA participating manufacturers, and understanding the nature of the arbitration process – has resulted in "some real sticker shock," Attorney General Greg Zoeller (R) tells us.

General Zoeller explored retaining outside counsel – including former federal judges – before concluding that Carter's MSA history, his work as NAAG's president, and his understanding of the nature of the non-legal policy decision that an AG has to make made him the ideal person to handle the matter for the state (other AGs are reportedly envious of the Carter hire!).

Carter will contract with the State for a retainer of $10,000 per month – the "cheapest [arrangement] I've heard from any of my colleagues," proclaims Zoeller, who also points to the "value-added of eight years of experience" that his predecessor brings to the table, the likes of which other states are having to fund as they bring their outside counsel up to speed.

While we understand that expectations are for less than four months worth of work, no one – including the tobacco companies – should assume the State would set an arbitrary, up-front cap on resources devoted to protecting its interests.

Since the arbitration process itself is novel, it's too early to have a complete read on the length of the arrangement, and Carter or another attorney or entity could be involved for a period beyond the initial period contemplated.

Is there a conflict with former AG Carter representing the State? Neither the Ethics Commission in Formal Advisory Opinion 10-I-2 nor the Attorney General believe so. Zoeller tells us that he approached Carter to do the work for the State, and was not solicited by Carter for it. The AG sees the State as benefiting from Carter's experience, knowledge, and lack of the conflicts that he (and his colleagues) found permeating potentially qualified outside law firms. Carter, however, is "not adverse to the state and never has been," says Zoeller. "If he was going to be representing the tobacco companies, I would have shown up at the Ethics Commission‰ to oppose him, the AG says.

Uncertain today: whether Carter may also take on work for any other states. The former AG tells us that he has not talked with any other states about doing so.

The ILB has accessed the contract with Mr. Carter discussed in the 2010 ILI story. It is a $35,000 contract that began on Jan. 15, 2010 and ended on April 15, 2010. Carter's duties, as specified in the contract:
WHEREAS, the State desires to engage Consultant to provide expertise and advice on the proper structure and strategy of the State's presentation in a unique national tobacco arbitration proceeding of critical importance to Indiana (the "Professional Services'). As the State's Attorney General for eight years, the Consultant offers unique qualifications for the required duties set forth.

NOW THEREFORE, in consideration of the premises and the mutual promises and covenants set forth below, it is agreed by and between the State and Consultant as follows:

1. Duties of Consultant. Consultant shall perform the Professional Services as requested by the State. Consultant shall execute its responsibilities by following and applying the highest professional standards.

The remainder of the contract looks to be the standard, state-required boilerplate.

But this turns out to be not the only such contract between the AG's office and Mr. Carter. As shown below, in a screen-shot from the state's contracts database, it was the first of ten such contracts and amendments, the most recent of which expires this year. The ten contracts total $886,000.*

Contract #2, which expired June 20, 2010, amends the scope of work in the original contract:

Paragraph I (Duties of Consultant) is hereby deleted in its entirety and replaced with the following:

I. Duties or Consultant. Consultant shall perform the Professional Services as requested by the State. Consultant shall work with the Office of the Attorney General to prepare the state for its presentation in the national arbitration proceeding. Work will include, but not be limited to, matters related to the selection of the arbitration panel, the adoption of the rules of arbitration that will be employed by the panel, filing of the state's initial documents with the panel (including the Statement of Claim) and preparation for attendance at the initial conference of the panel, the various states, and the participating manufacturers. Consultant shall execute its responsibilities by following and applying the highest professional standards.

Here is the scope of work in the current contract (#10):
1. Scope of Services. Consultant shall work with the Office of the Attorney General to prepare the State in matters relating to the national tobacco arbitration proceedings as requested by the State. Consultant's duties shall include, but are not limited to: reviewing the applicability of orders issued by the 2003 arbitration panel; attending the Marion County Superior Court challenge to the pattial award issued by the 2003 arbitration panel; attending and participating in multi-state meetings regarding the 2004 arbitration proceedings; common case development with other states and the National Association of Attorneys General for current and future proceedings; reviewing settlement proposals; and reviewing and advising on negotiations and dispute resolution strategies (the "Services"). Consultant shall confer with personnel from the Office of the Attorney General and personnel from other states.
_________
*But that total may be misleading. Notice that some of these documents are contracts and some are amendments. It appears that the practice may have been to enter into a contract for an estimated amount, and then later amend the contract to reflect rates actually claimed. For instance, from contract #9:

Paragraph 2 ("Consideration and Payment") is hereby deleted in its entirety and replaced with the following:

2. Consideration and Payment.
Consultant shall be paid Twelve Thousand Dollars ($12,000.00) for July 1, 2012 through July 31, 2012. Consultant shall be paid Eleven Thousand Dollars ($11,000.00) for August 1,2012 through August 31, 2012. Consultant shall be paid Ten Thousand Dollars ($10,000.00) per month for September 1, 2012 through August 31, 2013. The maximum consulting fees payable under this Agreement shall not exceed One Hundred Forty-Three Thousand Dollars ($143,000.00). Consultant shall also be paid a daily rate of One Thousand Two Hundred Dollars ($1,200.00) or a half day rate of Six Hundred Dollars ($600.00) to attend, either in person or via remote electronic attendance, any scheduled arbitration hearings in various locations as determined by the national arbitration panel or any other necessary meetings outside of the State of Indiana. The maximum hearing fees payable under this agreement shall not exceed Sixty-Seven Thousand Eight Hundred Dollars ($67,800.00). Consultant shall be reimbursed for travel expenses consistent with paragraph 24 of this Agreement in an amount not to exceed Eight Thousand Dollars ($8,000.00). Total remuneration under this Agreement shall not exceed Two Hundred Eighteen Thousand Eight Hundred Dollars ($218,800.00). Consultant shall submit monthly invoices to the state showing the general description of the Professional Services rendered. All payments shall be made in arrears in accordance with Indiana law and state fiscal policies and procedures, and, as required by IC 4-13-2-14.8, by electronic funds transfer to the financial institution designated by the Contractor in writing unless a specific waiver has been obtained from the Auditor of the State. No payments will be made in advance of receiptof the goods or services that are the subject of this Contract except as permitted by IC 4-13-2-20. Consultant shall provide status updates as requested by the State.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Government

Ind. Decisions - More on: Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge [Updated]

Updating yesterday's entry, the State Bar of Michigan blog asks this morning:

This is all very interesting stuff, of course, to lawyers interested in voting rights cases, and so Posner's change of heart has gotten lots and lots of media play. But isn't it worth giving at least a little thought to the meaning and implications of judges publicly second-guessing their own decisions in a nonjurisprudential forum, when the decisions themselves continue to live, and perhaps subsequently evolve and die, exclusively within a jurisprudential universe? Are Posner's remarks intended primarily as expiation -- a juicy footnote in the biography of an impressive legal figure -- or are they intended as political speech aimed at influencing the course of future decisions on voter i.d. issues?
[Updated on Oct. 22] In the same vein, Charles Lane, an editorial writer for the Washington Post, had a piece yesterday headed "A judicial mea culpa better left unsaid." A sample:
Some critics of voter ID laws may revel in Posner’s confession. I wish he’d kept his mouth shut. Not because I’m a fan of voter ID laws — I’m not — but because Posner’s casual mea culpa is improper behavior for a sitting federal judge.

The Code of Conduct for United States Judges discourages members of the bench from opining on the issues of the day. They may “speak, write, lecture, and teach on both law-related and nonlegal subjects,” as long as that doesn’t “detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality,” among other caveats.

Not the clearest line, to be sure — it has proved flexible enough to accommodate Posner’s vast opus, which, over the years, has included dozens of books and articles on subjects ranging from antitrust to sex, as well as a popular blog. The Huffington Post calls Posner “the premier American public intellectual” of our time.

Yet however blurry that line may be, by publicly recanting one of his decisions while still on the bench, Posner has finally crossed it.

His comments amount to intervention in a live political, and legal, issue, cloaked — whether or not he intends it — in the authority of his judicial office. Indeed, his comments carry the authority of someone who previously considered the matter in court and has now switched sides. It’s as if Harry Blackmun, the author of Roe v. Wade, came out against abortion rights while still a justice.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Decisions

Courts - "Law Scholarship’s Lackluster Reviews"

Adam's Liptak's "Sidebar" column today in the NYTimes begin:

WASHINGTON — “Would you want The New England Journal of Medicine to be edited by medical students?” asked Richard A. Wise, who teaches psychology at the University of North Dakota.

Of course not. Then why are law reviews, the primary repositories of legal scholarship, edited by law students?

These student editors are mostly bright and work hard, but they are young, part-time amateurs who know little about the law or about editing prose. Yet they are in charge of picking the best articles from among many hundreds of submissions written by professors with authentic expertise in fields the students may never have studied.

James T. Lindgren, a law professor at Northwestern, once put it this way: “Our scholarly journals are in the hands of incompetents.”

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Courts in general

Ind. Courts - "Arguments begin today in William Clyde Gibson's first capital murder trial in Floyd County"

The ILB has had many entries on accused triple-murder suspect William Clyde Gibson. Today his jury trial starts, presided over by Floyd Circuit Judge Susan Orth. Here is Charlie White's* story in the Louisville Courier Journal.

Note: This is not the same Charlie White as is currently in a hearing today in Hendricks County.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Courts

Ind. Courts - "Camm trial litigators no stranger to courtrooms"

Maureen Hayden's (CNHI) story today in the Kokomo Tribune looks at the prosecution and defense in the third David Camm trial. A few quotes:

LEBANON — For the past two months, the extraordinary third murder trial of former state trooper David Camm has pitted two of Indiana’s most experienced litigators against each other.

Between them, special prosecutor Stan Levco and court-appointed public defender Richard Kammen have spent nearly eight decades in courtrooms, involved in a multitude of high-profile cases ranging from public corruption to terrorism.

That experience has proven invaluable, given the challenges that the Camm case presents: An error-filled investigation of a triple murder 13 years ago, two previous convictions overturned, appeals court rulings that bar the jury from hearing evidence of a motive, and contradictory testimony from forensic experts and other witnesses.

Presiding over the trial in Boone County is special judge Jonathan Dartt of Spencer County, who also has experience with high-profile cases. As a prosecutor, he argued successfully for the death penalty in a 2001 rape and murder case where the victim was a 15-year-old girl.

“Here you have a very complicated and difficult trial,” said retired Indiana Supreme Court Chief Justice Randall Shepard, who knows Levco, Kammen and Dartt well. “I’d say its good fortune that such able people are all in the same room together to try to help the jury find their way to justice.”

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Courts

Ind. Courts - "Vigo Courthouse adds security for cases: Two high profile cases set to go to trial"

WTHI TV10 reported Friday, in a story by Matthew Gregory, with video:

TERRE HAUTE, ind. (WTHI) - Next week will bring heightened security measures to Vigo County courts as two high profile cases head to trial. After the courtroom melee last summer the county's law enforcement said they will not be re-active this year.

Last August chaos erupted in the courthouse. Tensions boiled over as a barrister brawl spilled out of a Vigo Country courtroom. After charges had been filed against William Mallory who stands accused of murder.

Flash forward to this year. Next week his trial begins, the same week as the trial for a drunk driving death is set to start.

While Vigo County doesn't anticipate the scene repeating, the sheriff's office will make sure it doesn't.

"Obviously emotions were very high and so we have chosen to be pro-active as opposed to re-active,” Major Jeff fox of the Vigo County Sheriff’s Department said.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Indiana Courts

Ind. Courts - Friday was Fax Day at the Indiana Supreme Court: Expect Several New Cases on the Court’s Argument Calendar Soon

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

This October 11 post summarized transfer grants from the past quarter, mentioned that many had not yet been scheduled for oral argument, and concluded that “[i]t seems likely the Court will soon issue several orders in many of the remaining fifteen cases, scheduling arguments for December or early 2014.” Friday appears to have been fax day.

Here’s one of the faxes issued late Friday morning, setting argument in an Appellate Clinic case for 9:45 on Thursday, January 9, 2014. Other faxes were likely issued for dates in December and January in cases in which transfer was recently granted and some cases in which the Court is considering whether to grant transfer. These cases should appear on the Court’s calendar by the end of the week. I’ll have some analysis then, just as I did in this June 13 post after 20 cases were added to the calendar.

Finally, I have a few thoughts about the scheduling faxes. Unlike the Court of Appeals, which simply issues an order scheduling oral argument, the Supreme Court sending a fax is a nice way to allow counsel with a conflict an opportunity to reschedule. Some of the language in the fax, though, is a bit surprising. First, the fax begins, “Finding dates when all five Justices can be present is difficult . . . .” This seems to suggest the justices are usually not around and available, which is not the case. The Court’s calendar has long shown two or three arguments on nearly every Thursday except in the summer.

The reason counsel should not ask for a different argument date is not because the justices will not be around on any date other than the one selected. Rather, an Indiana Supreme Court oral argument is a big deal that should take precedence over just about anything else. I think most lawyers know that, whether it is stated in the fax or not.

More surprising, though, is this language: “The Court’s typical practice is to expect someone else from your firm or other co-counsel to argue if you have a conflict with the scheduled date.” If one lawyer at a firm has spent scores or hundreds of hours on an appeal or has a specialized practice in an area but is going to be on a long-planned vacation, the quoted language suggests the lawyer should send a junior associate or someone who does not regularly practice in that area (and may know nothing about the case) to argue. It hardly seems fair to bill a client for a bunch of extra hours while a new lawyer gets up to speed. Moreover, the Indiana Supreme Court should have the benefit of the best arguments from the most prepared and experienced counsel in a case, even if it means occasionally moving an argument back a week or two.

Posted by Marcia Oddi on Monday, October 21, 2013
Posted to Schumm - Commentary

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

From Sunday, October 21, 2013:

From Saturday, October 20, 2013:

From Friday afternoon, October 19, 2013:

Posted by Marcia Oddi on Monday, October 21, 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 10/21/13):

Thursday, October 24th

Next week's oral arguments before the Supreme Court (week of 10/28/13):

Thursday, October 31st

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/21/13):

Tuesday, October 22nd

Thursday, October 24th

Next week's oral arguments before the Court of Appeals (week of 10/28/13):

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, October 21, 2013
Posted to Upcoming Oral Arguments

Sunday, October 20, 2013

Ind. Decisions - Wrapping up, on the ILB at least, the comments on Judge' Posner's disclosure re his decision in the voter ID challenge [Updated Oct. 22]

The ILB has had a number of entries under the heading "Judge Posner has second thoughts on his voter ID decision; says he didn't know enough," dating back to this one from a week ago. Since that time there have been various news articles and editorials, including this article and this editorial from the NYT, posted on the ILB on the 16th and 17th.

Also on the 17th, the attorney who argued the Crawford side before the SCOTUS spoke out, responding to Judge Posner's disclaimer that he wasn't presented enough information.

Also on the 17th, the $$ WSJ Law Blog reported that retired Supreme Court Justice John Paul Stevens "said he was concerned by the proliferation of state laws tightening voter-identification requirements but believes he ruled correctly in 2008 that an Indiana voter-ID law could stand." More:

But he said his opinion was correct because the challengers failed to present enough evidence showing the requirement suppressed poor and minority voters. "My opinion should not be taken as authority that voter-ID laws are always OK," Justice Stevens said. "The decision in the case is state-specific and record-specific." * * *

"At the time of the Indiana arguments, we understood it was a party-line vote [by Indiana lawmakers] and it was perfectly clear the Republicans thought they would get an advantage out of it," Justice Stevens said. But "even though the motives were bad, I don't think the constitutionality turns on the motive of the legislature" if the law is "otherwise valid," he added. * * *

The Supreme Court's 2008 ruling upholding the Indiana law, which requires voters to present a photo ID issued by the state or federal government, didn't have a single majority opinion. Justice Stevens's opinion, joined by Chief Justice John Roberts and Justice Anthony Kennedy, explicitly left open the door to challenges to voter ID laws if plaintiffs present evidence of burdens that violate the 14th Amendment's equal-protection clause.

Justice Antonin Scalia wrote a concurring opinion joined by Justices Clarence Thomas and Samuel Alito that left less room for future challenges. Three justices including David Souter dissented and said they would have struck down the Indiana law.

Justice Souter reasoned that "tens of thousands of voting-age residents lack the necessary photo identification" and the law would disproportionately affect those who have trouble getting to state offices offering photo IDs. The dissent included statistics sourced to Indiana state agency websites. Justice Souter, who retired in 2009, declined to comment for this article.

"I have always thought that David Souter got the thing correct, but my own problem with the case was that I didn't think the record supported everything he said in his opinion," said Justice Stevens, who retired in 2010. "He got a lot of stuff off the Internet and inferred things and so forth." But "as a matter of actual history, he's dead right. The impact of the statute is much more serious" on poor, minority, disabled and elderly voters than evidence in the 2008 case demonstrated, he said.

Comment #4 to this entry on The Brad Blog (more about the blogger), dated Oct. 13th and written by Indianapolis attorney Bill Groth, reads:
I served as lead counsel for the Indiana Democratic Party in Crawford and write to respond to Mr. Canning's apparently uninformed comments suggesting that the record in Crawford contained no evidence that any voter had been or would be harmed by Indiana's new ID requirements. Though my client brought this suit as a pre-enforcement facial challenge, it is untrue to state or imply that the record contained no evidence from or about voters who'd be disenfranchised or unnecessarily burdened by the law's requirements. If anyone would take the time to review the voluminous record of affidavits, deposition transcripts, and declarations submitted in support of our summary judgment motion, as well as by the ACLU which represented several individuals and associations, it will be obvious that the problem with Posner's ruling was not the lack of evidence but that, as he now concedes, he applied the wrong legal standards, including a too strict burden on the Plaintiffs and no burden whatsoever on the State to prove that the "problem" the State sought to ameliorate (imposter voting) existed. He also made no effort to inquire whether the new law would unnecessarily burden or even disenfranchise more voters than the number of imposters it would deter or detect. Not only did the record before the district court, which is accessible at no cost here, include a large number of affidavits from voters who did not have and would be unable to obtain a photo ID, it included expert testimony including from a renowned political scientist at Indiana University who opined, without contradiction, that this law would increase the costs associated with voting and thus have an adverse impact on turnout.

Judge Posner's admission of errer is indeed a stunning one. Had he switched his vote, the Indiana law would have been declared unconstitutional, and the odds that SCOTUS would have granted cert. would have declined exponentially, given Posner's prodigious reputation. In short, there would have been no Crawford decision handed down by SCOTUS in 2008 and many other voter suppression laws subsequently enacted would not have enjoyed the broad license many now (though wrongly) claim Crawford provides.

Finally, today, both the IndyStar and the Fort Wayne Journal Gazette have articles/editorials on last week's story. From the Star:
Posner’s admission didn’t sit well with Bill Groth, the lead attorney for the Indiana Democratic Party in Crawford v. the Marion County Board of Election.

Groth wrote on www.BradBlog.com that plenty of evidence was submitted. The problem, Groth writes, was that Posner put too much of a burden on the law’s challengers to prove the law was a burden, and didn’t require the state to prove that the action they were trying to prevent — people impersonating others to cast a vote in person — existed.

Marion County Clerk Beth White, a Democrat, struck a similar note when she told The Star last week that Posner’s mea culpa on the case was “cold comfort” for her and other opponents of the voter ID law.

From the FWJG:
Judge Terence T. Evans, the dissenting vote on the three-judge panel, “was right,” Posner said.

“Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic,” wrote Evans, who died in 2011.

But the majority opinion, affirmed by the U.S. Supreme Court in 2008, became the foundation for GOP efforts elsewhere to restrict access to the polls. Posner told the New York Times last week that the political environment has changed since the case was heard. “There’s always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it’s since achieved,” he said. “One wasn’t alert to this kind of trickery, even though it’s age old in the democratic process.”

The trickery has continued with a continuing assault on voter rights. “Fraud” is the inevitable justification for each new measure. The current Indiana secretary of state, Connie Lawson, unveiled a new state voter registration form just this month with the obligatory reference to fraud. Prosecutions for voter fraud, of course, are exceedingly rare. Save for the felony conviction of Lawson’s predecessor, Republican Secretary of State Charlie White, charges are virtually unheard of in Indiana.

The Supreme Court decision left room for examining evidence that voter ID laws disenfranchise voters. Those examples are growing and will inevitably form the basis of new challenges and new precedent.

In the meantime, Posner’s admission of error should stand as the definitive word against further attacks on voter rights. Supporters of similar suppression laws have used the appeals court ruling as a battering ram against mostly minority voters with obstacles to obtaining birth certificates or other acceptable ID verification. That tool is rendered ineffective by the judge’s mea culpa.

[Updated Oct. 22] Fran Quigley, a clinical professor at Indiana University McKinney School of Law, posted this article on Nuvo's News Blog yesterday.

Posted by Marcia Oddi on Sunday, October 20, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "IEDC undermines message with lack of transparency"

Lesley Weidenbener's Sunday column today in the Louisville Courier Journal begins:

INDIANAPOLIS — The state’s economic development agency has come under fire in recent years for failing to disclose information about job creation that would make it easier to determine how well it’s achieving.

State lawmakers and Gov. Mike Pence have tried to rectify the situation with a new law and promises that the Indiana Economic Development Corp. will be more transparent.

But now agency officials say they’re not ready to disclose how much state money it’s using for a new deal to advertise on the Pacers court at Bankers Life Fieldhouse in Indianapolis.

The deal is the first in the National Basketball Association to close — well, apparently not actually close — since the league voted to allow sponsorships on the edge of the courts.

When asked how much the deal is worth or how much the state is paying, an IEDC spokeswoman said this in an email:

“Since this is a mutually beneficial partnership, the Pacers offered a custom, comprehensive package to the IEDC well below market value. Releasing the exact amount of the package could hinder the ongoing advertising negotiations of both the Pacers and NBA (as these assets sell for a range of prices at different stadiums across the country).”

In other words, it’s not good for the Pacers to reveal how much — or how little — the state paid for the sponsorship, which includes the words “A State that Works” along the court’s out-of-bounds lines.

But because the IEDC spends state money, it can’t withhold the information based on concerns about the impact on the Pacers or the NBA. It needs a legal reason — one outlined in the Indiana Public Records Act — for keeping the numbers confidential.

When asked for a legal reason, the IEDC spokeswoman said that the state “does not actually have a final executed contract with the Pacers yet, just an agreement in principle.”

“Thus, our negotiations are still active with the Pacers,” she said. “Negotiations, including ours, are protected under statute.”

Posted by Marcia Oddi on Sunday, October 20, 2013
Posted to Indiana Government

Law - "Many encounter problems when trying to pay off private student loans early"

Michelle Singletary, financial columnist for The Washington Post, writes:

The student-loan ombudsman for the Consumer Financial Protection Bureau has just released a report analyzing complaints the watchdog agency has received from private student-loan borrowers.

Not surprisingly, the chief gripe concerned payment issues. But it’s not what you might think. Many borrowers said they encountered problems trying to pay off their debt early.

Reading through the column, the complaints sound very similar to those faced by people dealing with mortgage servicers. The column is a must-read if your are repaying student loans.

Posted by Marcia Oddi on Sunday, October 20, 2013
Posted to General Law Related

Law - "Are You A Casemaker or Fastcase State? Duke Law Library Maps It Out For You"

Thanks to the blog, 3 Geeks and a Law Blog, and the Duke Law Library.

Posted by Marcia Oddi on Sunday, October 20, 2013
Posted to General Law Related

Friday, October 18, 2013

Courts - New Jersey Supreme Court unanimously refuses stay in same sex marriage ruling

Updating this Sept. 27th ILB post, and this one from Oct. 11th, the Supreme Court of New Jersey today refused to stay trial Judge Mary Jacobson's ruling, saying, "among other reasons, the State has not shown a reasonable probability of success on the merits." Therefore, the trial court's order, directing state officials to permit otherwise eligible same-sex couples to enter into civil marriage starting Oct. 21, remains in effect.

Lyle Denniston of SCOTUSblog has this post, along with a link to the NJ Supreme Court ruling. The Sept. 27th ILB post includes this link to the trial court ruling (along with other documents, including the NJ SCt ruling).

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Courts in general

Courts - "Illinois Supreme Court kills 'Amazon tax'"

Crain's Chicago Business is now reporting that:

The Illinois Supreme Court ruled 6-1 today that Illinois' so-called Amazon tax on out-of-state Internet retailers is pre-empted by federal law. * * *

The decision upheld lower court rulings in favor of Performance Marketing Association Inc., which said federal law pre-empted a 2011 state law's attempt to create so-called “click-through” nexus when retailers advertise on Illinois-based websites.

The state law prompted the CouponCabin website and other Illinois-based Internet marketers to move to Indiana and Wisconsin.

Crain provides access to the Illinois Supreme Court opinion.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Courts in general

Ind. Decisions - "Orbitz Can Keep Indiana Hotel Rates Secret, Court Says "

Bloomberg reports briefly today on Wednesday's Tax Court decision in Orbitz, LLC v. Indiana Department of State Revenue:

Orbitz Worldwide Inc. (OWW), the online travel service, won the right to keep its rates for Indiana hotels from public disclosure in a state-court tax dispute.

The company asked the Indiana Tax Court to bar public access to contracts it had with three hotels in the state, claiming this information is proprietary.

In an Oct. 16 ruling, the court agreed, despite a general rule in Indiana that anything submitted to public entities should be accessible by the public.

The court determined that the rates constituted information with economic value that’s not generally known by the public and that Orbitz took “reasonable efforts” to maintain secrecy.

As such, the rates fell within the state’s definition of a trade secret and deserved a mandatory exception to the public disclosure policy, the court said.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - More on "Long Beach court case could set precedent in lakefront property rights"

Updating yesterday's ILB entry, John Robbins reports today in the Gary Post-Tribune under the headline "Four-hour hearing in beach property case; no timeline for verdict." The story begins:

LAPORTE — Dozens of people showed up to hear arguments Thursday in a beach property rights case that could have far-reaching implications.

“This is probably a record-setting crowd,” said LaPorte County Circuit Court Judge Thomas Alevizos as he surveyed the audience of about 40 people, who nearly filled the area of the courtroom reserved for spectators.

They were there to hear arguments in the case of Long Beach Lakefront Homeowners Association against the town of Long Beach, Ind.

Attorneys for all parties involved agreed the trial is breaking new ground in Indiana by trying to fix the boundaries of private property along the shore of Lake Michigan.

“Something tells me this case is going to be decided by five guys in Indianapolis,” Alevizos said, referring to the Indiana Supreme Court.

ILB: Actually, four guys and a woman. More from the story:
The homeowners association contends the private property of the lakefront homeowners extends from their lot lines along Lake Shore Drive all the way north to the water’s edge, regardless of where the water happens to be.

Intervening defendants Alliance for the Great Lakes, Save the Dunes and the Long Beach Community Alliance argued that private property rights only extend to what is known as the “ordinary high water mark” of Lake Michigan. The land beyond that point, to the water’s edge, is state-owned public property, they contend.

Attorneys turned to the distant past to support their claims, relying on surveyor’s notes from 1829, the Indiana Constitution of 1816 and the Northwest Ordinance of 1787. Even pre-revolutionary English common law was cited in asserting ownership claims. * * *

ong Beach precipitated the suit by passing a resolution that restricted town police from enforcing private property ordinances on lakefront beach property.

Plaintiffs contend that represents an unlawful taking of property by denying them proper protection of their property.

Lukmann argued that the plaintiffs were only using the resolution as a vehicle to bring the suit to court. “The town is not the right defendant,” he said, adding that the state was the rightful defendant.

Even Alevizos seemed struck by the conspicuous absence of the state. “Where is the state of Indiana? Aren’t they a necessary party?”

After four hours of arguments Alevizos adjourned the hearing to take the matter under advisement. No date has been set for issuing a verdict in the case.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Indiana Courts

Ind. Decisions - Still more on "Judge rules public can't access cause of death records"

Updating this ILB entry from April 23rd, that begins with this quote (from the now unavailable E C&P):

The Courier & Press and Pike County, Ind., resident Rita Ward are appealing a judge’s decision that the Vanderburgh County Health Department does not have to provide the public information about a person’s causes of death.

At issue is how conflicting state laws governing death records apply to local government.

Here is a story from the C&P, reported by Mark Wilson, as reprinted in the New Albany News & Tribune on Oct 17th, that reports:
INDIANAPOLIS — The Indiana Attorney General’s Office has asked the Indiana Supreme Court to hear the appeal of a judge’s ruling that cause of death information is not public record.

“In short, our office advocates that local death certificates are a public record that the public should be able to obtain,” said Bryan Corbin, a spokesman for the attorney general.

The legal brief filed by the Attorney General’s Office argues that the court decision goes against state policy on public records.

“The Access to Public Records Act requires courts to liberally construe its provisions to fully implement the State’s policy for open access to public records,” it said.

Also joining in petitioning the high court to hear the case and settle the issue are Indiana Coalition for Open Government and the Hoosier State Press Association, said Pat Shoulders, attorney for the newspaper. All three have filed formal “friend of the court” petitions asking the Indiana Supreme Court to consider the case brought by the Evansville Courier & Press.

“The Courier & Press is encouraged by the fact that the State of Indiana, through it’s Attorney General, the official charged with interpreting and enforcing state law, has filed a brief in support of the petition to transfer,” Shoulders said.

He noted Indiana Public Access Counselor Joseph Hoage ruled death certificates are public records.

In the lawsuit, originally filed in Vanderburgh Circuit Court in 2012, the newspaper and Pike County resident Rita Ward argued that death records are governed by conflicting state laws. * * *

The Court of Appeals of Indiana upheld the decision in August. The panel of three appeals judges ruled that state law says death certificates are public records but can be disclosed “only if” certain circumstances are present, such as whether the person seeking them has a direct interest in the death and whether it is needed to determine issues of property rights.

See this August 30th ILB entry and its links re the Court of Appeals ruling.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Government

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

For publication opinions today (4):

In Timothy S. Enders and Enders & Longway Builders, Inc., v. Debra Sue Enders as Personal Representative of the Estate of Randall Enders, a 3-page opinion on rehearing, Judge Baker concludes:

Having addressed Timothy’s argument on rehearing and finding it unpersuasive, we stand by our previous opinion.
In Floyd Weddle v. State of Indiana, a 5-page opinion on rehearing, Judge Baker writes:
We now grant Weddle’s petition for rehearing for the limited purpose of addressing an omitted issue regarding his convictions for both manufacturing methamphetamine and possession of methamphetamine. Weddle maintains that convicting him of both offenses violated the Indiana Constitution’s prohibition against double jeopardy. * * *

In light of our discussion above, the jury could have reasonably concluded that Weddle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug. * * * As a result, we reject Weddle’s argument that convicting him of both manufacturing methamphetamine and possession of methamphetamine violated the prohibition against double jeopardy.

In conclusion, we grant Weddle’s petition for rehearing for the purpose of addressing his double jeopardy claim. In all other respects, we reaffirm our original opinion.

In David Rhodes v. State of Indiana, a 9-page opinion, Judge Pyle writes:
David Rhodes (“Rhodes”) appeals his conviction, following a bench trial, for two counts of Class D felony theft. We affirm.

ISSUE. Whether the trial court abused its discretion by admitting into evidence a cell phone and a credit card found in Rhode’s pocket during a patdown by police. * * *

The State contends that the evidence was admissible because it was properly seized pursuant either to a search incident to arrest or a proper Terry stop and search. * * *

Here, Rhodes contends that the cell phone and credit card were inadmissible, but he did not object when the State offered them into evidence. In fact, he affirmatively stated that he had “[n]o objection” to the admission of this evidence. Consequently, Rhodes has waived appellate review of his claim of error. * * *

Because Rhodes did not object to the admission of the evidence at issue and has failed to demonstrate any fundamental error in the admission of the evidence, we need not address the issue of whether the search of his person was lawful. * * *

Waiver notwithstanding, we conclude there is no error—fundamental or otherwise—because the specific facts before us support the conclusion that the evidence was properly seized pursuant to a search incident to arrest.

In Audie Wilson v. State of Indiana, an 11-page opinion, Judge Bailey writes:
Our Supreme Court has stated that the unnecessary, excessive, or unproved use of aliases could create a connotation of criminality sufficient to thwart the fairness of a trial. Edgecomb v. State, 673 N.E.2d 1185, 1194-95 (Ind. 1996). The use of a nickname is questionable where there is no apparent reason not to use a defendant’s proper name, and even more so where the nickname itself carries at least the implication of wrongdoing. See McAbee v. State, 770 N.E.2d 802, 805 (Ind. 2002).

Here, Wilson testified during direct examination as to his use of the nickname “Mike,” thus opening the door to questioning during cross-examination as to his use of other nicknames. Further, none of the nicknames explored by the State carry any implication of wrongdoing. Therefore, the use of nicknames here does not create a connotation of criminality sufficient to thwart the fairness of a trial. The trial court thus did not abuse its discretion when it admitted evidence on cross-examination as to Wilson’s use of nicknames.

Wilson contends that the trial court abused its discretion in giving to the jury Final Instruction 23. He argues that he is entitled to a new trial because the instruction improperly shifts to him the burden of proof as to whether he reasonably believed C.C. was at least sixteen years old. * * *

Here, however, Wilson failed to object at trial to Final Instruction 23, and thus he has waived appellate review of that instruction. See Ind. Crim. Rule 8(B); Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011). Wilson seeks to avoid waiver by claiming fundamental error. * * *

Therefore, we conclude the defense does not negate an element of the crime, but instead is an affirmative defense that must be raised by the defendant and for which the defendant must bear the initial burden of proof. * * *

The trial court did not abuse its discretion when it permitted the State to cross-examine Wilson regarding his use of other nicknames. Additionally, there was no fundamental error in giving Final Instruction 23.

NFP civil opinions today (1):

Jolene G. Burtrum v. Citizens Health Center (NFP)

NFP criminal opinions today (6):

Chad Musick v. State of Indiana (NFP)

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

Christopher T. Taylor v. State of Indiana (NFP)

Louis O'Neal v. State of Indiana (NFP)

Gregory Calvain v. State of Indiana (NFP)

Martin Cenfetelli v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Supreme Court suspends former AG Phill Kline's Kansas law license: Disciplinary Administrator had argued for disbarment"

Fascinating. Thanks to this post from How Appealing, the ILB has learned that the former Attorney of General of Kansas has had his law license indefinitely suspended. The AP story today by John Milburn begins:

TOPEKA, Kan. (AP) -- The Kansas Supreme Court indefinitely suspended the law license of former Kansas Attorney General Phill Kline on Friday following allegations of ethical misconduct during his investigation of abortion providers.

The court agreed with a state disciplinary panel that Kline repeatedly misled or allowed subordinates to mislead others, including a Kansas City-area grand jury, to further his investigations. The unanimous decision comes after repeated disputes between the Republican and his critics over his tactics.

Justices said in their ruling that Kline committed "significant and numerous" violations as an attorney while pursuing prosecutions as attorney general and district attorney in Johnson County. * * *

In 2007, Kline filed 107 criminal charges against a Planned Parenthood clinic in the Kansas City suburbs, accusing it of performing illegal abortions and falsifying records. The last of those charges were dropped in August 2012. He also pursued misdemeanor criminal charges against Dr. George Tiller because of late-term abortions performed by his Wichita clinic. The case was dismissed for jurisdictional reasons.

If this sounds familiar, there is an Indiana connection. Both Kansas and Indiana were in the national news in 2005 for their efforts to obtain medical records of patients seeking reproductive care. See this ILB post from March 24, 2005, headed " Local dispute over patient records makes national news" and this one from Feb. 3, 2006, headed "Kansas Supreme Court rules in favor of privacy of abortion patients" that began:
A decision today by the Kansas Supreme Court today may have repercussions in Indiana also. Recall that last spring both the Attorney General of Kansas and Indiana's Attorney General made national news over their efforts to obtain medical records from abortion clinics.
On Sept. 22, 2006, the Indiana Court of Appeals ruled against Attorney General Carter in a similar Planned Parenthood records case.

From a story in the Topeka Capital Journal headed "Supreme Court suspends Kline's Kansas law license: Disciplinary Administrator had argued for disbarment"":

The court found that Kline committed professional misconduct as Attorney General when he ordered staff members to attach sealed documents to a publicly filed brief in violation of a Supreme Court protective order. Kline later directed his staff to file misleading information in a court pleading, the Supreme Court ruled.

The court also said Kline, while Johnson County District Attorney, provided false information to a district court judge investigating how his office obtained confidential patient medical records during a criminal investigation of abortion providers. It said Kline also made misleading statements to the Supreme Court regarding his handling of those records.

The Supreme Court also found that Kline failed to properly advise a grand jury about applicable law in its investigation of whether abortion providers had engaged in sexual abuse in treating minor patients. Kline also filed unauthorized motions to enforce the grand jury’s subpoena to an abortion provider against the specific directions of the grand jury, the Court ruled.

Here is the Kansas Supreme Court's 154-page disciplinary ruling.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Courts in general

Ind. Law - Indiana University McKinney School of Law professor emeritus Harold Greenberg dies

From the Indianapolis Star obituary:

Harold Greenberg, Indianapolis, passed away on October 15, 2013.

Harold was a distinguished professor of law at the Indiana University McKinney School of Law from 1978 to 2011. He served as the Director of the International Law program located in Lille, France for several summers and was a visiting professor of Law in Jacksonville, FL and Chicago, IL. Professor Greenberg mentored many students during his distinguished academic career.

Harold served on the Board of Directors of Footlite Musicals and produced over 30 musicals at Footlite. He also was a member of American and Indiana Bar Associations.

Family services will be held on Friday, October 18, 2013 in Aaron-Ruben-Nelson Mortuary, 11411 North Michigan Road. A memorial celebration of his life will be scheduled at a later date.

Harold is survived by his sister, Linda Greenberg of Somerset, NJ; his many cousins and by his special friend Ellie Sellars.

He will be deeply missed by those who knew him and who were inspired by him.

Memorial contributions may be made to Footlite Musicals or to the Indiana University McKinney School of Law.

More about Professor Greenberg can be found here at Indiana University Robert H. McKinney School of Law website.

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Indiana Law

Ind. Decisions - "Former Indianapolis attorney William Conour gets 10 years in prison"

Updating a lengthy list of earlier ILB entries on the Conour debacle, Kristine Guerra of the Indianapolis Star reports today in a long story that begins:

He was once considered a top lawyer, a man whom many knew as one of the best, if not the best, in his field.

Coupled with his millions of dollars in assets — including a 25-room Carmel mansion, a horse farm in Hamilton County, an apartment in Scotland, and expensive collections of wine and artwork — William Conour had it all.

But a different man walked into a federal courtroom in Indianapolis on Thursday. Conour, once one of Indiana’s top construction and accident injury lawyers, will spend the next 10 years in federal prison and will have to pay nearly $7 million in restitution to 36 former clients, a task that could prove to be impossible.

The once wealthy attorney now appears broke. All that is left, according to his daughter, is a box of clothes and a box of books.

Prosecutors alleged that Conour, 66, bilked his clients out of $6.7 million in settlement money by not depositing the appropriate funds into client trust accounts.

He ran a Ponzi scheme for more than a decade, prosecutors said, spending money he won for clients’ legal settlements, then attempting to replace the missing funds with proceeds from subsequent settlements.

The former lawyer’s victims included widows, orphans, people with permanent medical needs and his own daughter.

Also today, Paul Ogden, the Indianapolis attorney currently awaiting the Supreme Court's decision on the recommendations of the Disciplinary Commission in the action against him (the Commission has recommended a one year suspension w/o automatic reinstatement) has an interesting post today at his blog, Ogden on Politics, headed "Indiana Supreme Court Needs to Investigate Disciplinary Commission's Failure to Protect the Public From William Conour ."

Posted by Marcia Oddi on Friday, October 18, 2013
Posted to Ind Fed D.Ct. Decisions

Thursday, October 17, 2013

Ind. Courts - Morgan County Prosecutor to challenge expungement [Updated]

Keither Rhoades has this story on the $$ Martinsville Reporter-Times website. It begins:

Morgan County Prosecutor Steve Sonnega will be asking Morgan County Circuit Court Judge Matthew Hanson to declare a law that allows the expungement of criminal records to be unconstitutional. A hearing is scheduled for 1:30 p.m. Friday in the case of Jason Combs. Combs is asking that his 2006 criminal conviction for reckless driving, unreasonable speed, be expunged.
Unfortunately, the rest of the story is available to subscribers only.

[Updated at 9:30 PM] Prof. Schumm mentioned this case in a commentary on Sept. 25th, titled "State Constitutional Twilight Zone: Judges and Prosecutors are Arguing Statutes are Unconstitutional." He noted:

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.
Attorney Cara Wieneke writes this evening in a similar vein:
Can a prosecutor even ask that a state law be declared unconstitutional? The State is the State is the State. So how can the State of Indiana declare that one of its own laws that it promulgated is unconstitutional?

Plus, a citizen has rights under the State Constitution; the State does not. My understanding is that the Morgan County prosecutor is going to argue, in part, that the expungement law violates a provision of the Constitution that discusses victims of a crime. Shouldn't the victim, then, be the only person with standing to make such a challenge?

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Indiana Courts

Ind. Decisions - Yet more on: Judge Posner has second thoughts on his voter ID decision; says he didn't know enough

Adding to earlier ILB entries, Paul M. Smith, Partner, Jenner & Block, who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, has posted a long and powerful response to Judge Posner's statement that he was wrong in the Crawford case, that concludes:

It is certainly true, as Judge Posner told the Times, that in 2007, competition between the parties had not yet “reached the peak of ferocity that it’s since achieved.” But the unfortunate approval of the Indiana law that the Seventh Circuit provided cannot fairly be blamed on how the case was litigated. As Judge Posner now recognizes, voter ID laws are “widely regarded as a means of voter suppression rather than of fraud prevention.” But Judge Posner’s dissenting colleagues recognized that all along. His was a case of judicial passivity in the face of a quite apparent affront to important constitutional values.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "State to lose $63M in tobacco payments next year" [Updated]

Lesley Weidenbener of The Statehouse File reports today in a long story:

INDIANAPOLIS – The state is set to lose $63 million in tobacco payments next year after an arbitration panel determined it had not worked hard enough to collect funds from cigarette companies that weren’t part of the original deal.

The ruling – issued last month by a three-judge panel – will reduce Indiana’s payment from $131 million to $68 million.

And there’s the potential for the state to lose even more. The recent ruling addresses claims from payments in 2003; the years 2004 through 2012 remain in dispute.

Interestingly, Indiana Legislative Insight had a comprehensive, subscription-only story on the front-page of its Sept. 23rd edition that pointed out that since 2010 former attorney general Steve Carter has been retained by current AG Zoeller to represent the State in arbitration against the non-participating tobacco manufacturers. Indiana is one of five states that the panel found to have failed to "diligently enforce" the provisions. The story concludes by reporting that no decision has yet been made by AG Zoeller on a judicial appeal.

[Update] ILB now has permission to post the entire story from the Sept. 23rd issue of Indiana Legislative Insight:

Up in smoke: Indiana loses in a key tobacco arbitration

In January 2010, we exclusively told you about former attorney general Steve Carter (R) being retained to represent the State of Indiana in arbitration against the non-participating tobacco manufacturers (NPMs) under the 1998 Tobacco Master Settlement Agreement (MSA).

MSA terms require cigarette companies to make an annual payment to offset health care costs caused by their products. Other costs are assessed based upon an independent accounting analysis to ensure a level of fair competition between all companies. The manufacturers have sought to reduce future payments to states from the outset, and 2003 payments are being challenged over whether states were diligently enforcing certain statutes (largely related to escrow payment rules) vs. NPMs. Participating manufacturers asserted that the failure of the states to enforce the rules led to significant market erosion for their tobacco products, and thus their payments should be reduced. The arbitration ruling applies only to tobacco settlement payments for 2003; the tobacco companies continue to dispute the extent of their liability for subsequent years (to 2013).

The three-judge national arbitration panel this month ordered 30+ tobacco companies to fork out $227 million in disputed tobacco settlement payments to nine states, finding that these states had “diligently enforced” provisions related to smaller tobacco manufacturers, NPMs that were not parties to the master settlement.

However, arbitrators determined that Indiana, Kentucky, Maryland, Missouri, New Mexico, and Pennsylvania failed to “diligently enforce” the relevant MSA provision, resulting in reductions in payments to which they would otherwise have been entitled.

Fortunately, Indiana does not have any outstanding “tobacco bonds” that could be downgraded as a result of the ruling. Still, Bond Buyer observes that “States that lose in the arbitration decisions will share in a reduction in next year’s settlement payments of about $642 million.,” but just how much Indiana will lose has not yet been formalized.

No decision has been made by the Office of the Attorney General yet on a judicial appeal.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Indiana Government

Courts - "Roberts Court Cloaks Activism in Complexity"

As is evident from this post earlier today, the SCOTUS decision to grant cert in the greenhouse gases case is not that easy to unravel. Noah Feldman, Harvard constitutional law professor, has a long article today in Bloomberg examining this complexity. Just a sample:

The regulation of greenhouse-gas emissions bids fair to produce a similarly confusing result. The court had been asked to review a decision of the U.S. Court of Appeals for the D.C. Circuit that upheld Environmental Protection Agency regulations on greenhouse gases that are the Barack Obama administration’s most significant accomplishments for environmental protection. The court declined to review -- and thus left in place -- the regulations on motor-vehicle emissions. It also chose not to review the basic question of the EPA’s authority to regulate greenhouse gases. Environmentalists cheered this result.
Technical Question

At the same time, however, the court agreed to review a single, wildly technical-sounding question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” What this question asks in English, roughly speaking, is whether the EPA was allowed to issue emissions regulations governing factories and power plants under the authority of the law that lets it regulate cars and trucks. And what that means in practical terms is that the court could strike down the Obama EPA’s existing greenhouse-gas regulations for the nonmoving (“stationary”) polluters who create much of the pollution that drives global warming.

Behold the Roberts paradigm! Or don’t behold it: The hand is quicker than the eye. The headline allows environmental regulation to stand. The fine print suggests that the most important part of the existing regulations enacted by the Obama administration could be ditched.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Courts in general | Environment

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

For publication opinions today (2):

In North American Roofing Services, Inc. v. Menard, Inc., a 10-page opinion, Sr. Judge Sharpnack writes:

Menard, Inc., hired North American Roofing Services, Inc. (“NARSI”), to install a roof on a new store that was being built. During construction, a portion of the structure collapsed and fell on two workers, injuring them and resulting in lawsuits. After the roof was completed, Menard refused to pay NARSI, and NARSI filed suit. NARSI now appeals the trial court’s denial of its motion for partial summary judgment and the grant of summary judgment to Menard. We reverse and remand. * * *

For the reasons stated above, we reverse the judgment of the trial court and remand with instructions to: (1) deny Menard’s motion for summary judgment on NARSI’s claims for breach of contract and foreclosure of mechanic’s lien; (2) grant NARSI’s motion for partial summary judgment on its claim for breach of contract; and (3) move forward to resolve NARSI’s claim to foreclose upon mechanic’s lien.

In Timothy L. Hyser v. State of Indiana, a 13-page opinion, Judge Brown writes:
Timothy L. Hyser appeals his convictions for child molesting as a class A felony and child molesting as a class C felony. Hyser raises three issues, one of which we find dispositive and restate as whether he was improperly denied a meaningful opportunity to present a complete defense. We reverse. * * *

The testimony and evidence Hyser wished to elicit and present was exculpatory, unique, and critical to his defense. The trial court did not permit Hyser to present his defense that the allegations and testimony against him were untrue and fabricated in retaliation or response to the fact that he had made a report to DCS that he believed Marner was physically abusive toward J.M. Hyser had the right, as a fundamental element of due process of law, to present his own witnesses to establish a defense and to present his version of the facts. Kubsch, 784 N.E.2d at 924. The Indiana Rules of Evidence did not prohibit him from presenting the evidence and testimony he wished to present and elicit. Based upon the record, the exclusion of the evidence Hyser wished to present deprived him of a meaningful opportunity to present a complete defense. Accordingly, we reverse Hyser’s convictions on this basis and note that the State is not barred from retrying Hyser.

NFP civil opinions today (3):

Bush Truck Leasing, Inc., v. Indiana Farmers Mutual Insurance Company (NFP)

FSF Presidential Estates, Associates, LLC, individually and d/b/a Presidential Estates Apartments and Indianapolis Power and Light v. Joshua Grounds, Fleener Roofing & Guttering, LLC (NFP)

Frances Ashton v. City of Indianapolis (NFP)

NFP criminal opinions today (8):

Anthony Worl v. State of Indiana (NFP)

Antonio Hughley v. State of Indiana (NFP)

William J. Eisele v. State of Indiana (NFP)

Darren Englert v. State of Indiana (NFP)

Jeffery Bonds v. State of Indiana (NFP)

Darrail Mix v. State of Indiana (NFP)

Harold Ferrin v. State of Indiana (NFP)

Justin Dent v. State of Indiana (NFP)

Norman T. Podell v. State of Indiana (NFP)

David Davenport v. State of Indiana (NFP)

Miguel Perez v. State of Indiana (NFP)

Devon Miller v. State of Indiana (NFP)

Stanley D. Wills v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Ex-trooper David Camm's trial winds down"

Grace Schneider continues her reports in the Louisville Courier-Journal with this story today - some quotes:

LEBANON, IND. — Testimony in David Camm’s triple-murder trial wrapped up Wednesday afternoon after nearly eight weeks and a long parade of witnesses, giving way to a final stage that will decide the fate of the former Indiana State Police trooper from Georgetown.

Special Judge Jonathan Dartt told the jury of eight women and four men that on Monday they’ll hear closing arguments, receive final instructions and start deliberations while being sequestered. They’ll deliberate daily from 9 a.m. to 5 p.m. at the Boone County Courthouse until they reach a verdict.

Looking exhausted and relieved, prosecutors and defense lawyers filtered out of the government building saying they couldn’t say precisely what jurors took away from the mountain of evidence and witness testimony since late August, particularly experts’ opinions about how Jill Camm’s blood droplets were deposited on her father’s T-shirt. * * *

Jurors were told that they will be given time during the next two working days to review evidence presented during the last two weeks. They will also have a private viewing of the Bronco again.

Before leaving the courtroom, they were told they should pack clothes to bring Monday because they will remain sequestered, staying overnight in a hotel, until they deliver a verdict.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Indiana Courts

Ind. Courts - "Long Beach court case could set precedent in lakefront property rights" [Updated]

Fascinating. Does the ownership of Lake Michigan beach property extend to the water's edge? John Robbins has a long story today in the Gary Post-Tribune. It begins:

A court case that could set a precedent for all owners of Lake Michigan beach property will begin Thursday in LaPorte County Circuit Court.

Judge Thomas Alevizos will hear arguments on a request for summary judgment on beach property rights in a suit filed against the town of Long Beach by Long Beach lakefront residents.

Margaret West and Don Gunderson, along with the Long Beach Lakefront Homeowners Association, have sued Long Beach to overturn a town resolution that restricts police enforcement of private property ordinances, such as trespassing. They also want the court to clarify their property rights.

“What happens here may affect every other piece of property along the shoreline,” said Robert Schaefer, Long Beach Town Council president.

Long Beach is a small community with million dollar homes hugging the Lake Michigan shoreline. The town council recently passed a resolution restricting police from enforcing private property ordinances along the lakefront between the water’s edge and what is called the “ordinary high water mark.”

Gunderson and the homeowners’ association contend their property rights extend to the water’s edge and they have the deeds to prove it. The town’s policy of not enforcing property laws in that zone “is like saying ‘I’m taking control of your backyard,’” said Gunderson.

The town resolution was drafted following an Indiana Department of Natural Resource directive that indicates that the land below the high-water mark, legally defined as 581.5 feet above sea level, is public property, according to Schaefer.

Patrick Cannon, board member of the recently formed Long Beach Community Alliance, cites a 1978 Indiana attorney general’s office opinion claiming state ownership of the land between the water’s edge and the high-water mark.

This is much more of interest in the lengthy Post-Tribune story.

The ILB has not done an extensive search, but here are some earlier entries on Great Lakes landowners' property rights:

ILB: I'm hoping to be able to post a copy of the 1978 AG opinion.

[Update] I'm told there is no relevant 1978 AG opinion.

From this 1990 opinion by AG Lindley Pearson:

The State of Indiana owns the land 1akewards of the ordinary high water mark on the Lake Michigan shore to the northern boundaries of the State in Lake Michigan.

Public rights to use Lake Michigan are governed by Federal and State statutes, regulations and rules.

ILB: No further authority is cited for the "State of Indiana owns" statement.

H/T to our Supreme Court librarians.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Indiana Courts

Courts - "Federal Judiciary Budget Increases in Last-Minute Budget Deal"

So reports The Blog of Legal Times this morning.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Courts in general

Courts - "SCOTUS lets EPA’s climate authority stand, will review permitting question"

That headline is from this Washington Post blog post by Juliet Eilperin.

The LA Times story yesterday, by David G. Savage and Neela Banerjee, is headed "Supreme Court to hear challenge to EPA powers on greenhouse gases: Justices will decide whether the EPA's move beyond cars and trucks, to stationary sources such as power plants, is valid."

From Adam's Liptak's story yesterday in the NY Times [ILB emphasis]:

The Supreme Court accepted six petitions seeking review of that rejection, but it limited the issue it would consider to the question of whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.” Among the cases accepted for review was Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.

“The regulations the court has agreed to review represent the Obama administration’s first major rule making to address the emissions of greenhouse gases from major stationary sources across the country,” said Richard J. Lazarus, who teaches environmental law at Harvard. “At the same time, the court declined to review E.P.A.’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.”

In urging the court to hear a challenge on the issue the justices agreed to hear, trade groups said the regulation of “greenhouse gas emissions from stationary sources represents the most sweeping expansion of E.P.A.’s authority in the agency’s history, extending its reach to potentially millions of industrial, commercial, and residential facilities across the country, at costs estimated to run into the tens of billions of dollars per year.”

Environmental groups reacted to Tuesday’s developments by emphasizing the regulations the justices had let stand.

“Today’s decision by the U.S. Supreme Court to deny numerous further legal challenges to E.P.A.’s science-based determination that six greenhouse gases threaten our nation’s health and well-being is a historic victory for all Americans that are afflicted by the ravages of extreme weather,” Vickie Patton, general counsel of the Environmental Defense Fund, said in a statement. “The justices have also declined to hear legal challenges to the broadly supported clean car standards that will strengthen our nation’s energy security, cut carbon pollution and save families money at the gas pump. ”

Greg Abbott, attorney general of Texas, one of the states challenging the regulations, said in a statement that he welcomed the opportunity to demonstrate that “the E.P.A. violated the U.S. Constitution and the federal Clean Air Act when it concocted greenhouse gas regulations out of whole cloth.”

Adding further clarity is this long story by Warren Richey in the Christian Science Monitor, headed "Landmark case? Supreme Court to review EPA regulation of greenhouse gases. The Supreme Court said Tuesday it would take up six petitions seeking review of EPA actions regarding greenhouse gases. But it will not take up the agency's so-called endangerment finding.

Here is the SCOTUSblog case page for Utility Air Regulatory Group v. Environmental Protection Agency, listing all the cases involved.

Finally, Lyle Denniston this morning posted on SCOTUSblog this entry, headed "Analysis: Greenhouse gases case." A sample:

After the Court’s review order came out Tuesday, it became clear immediately that the U.S. Environmental Protection Agency has the authority to regulate greenhouse gases on the premise that they contribute to heating up the planet and thus pose a threat to human health and to the environment, and that the agency definitely can curb such emissions from the exhausts of cars and trucks. Those powers, too, had been under challenge, but the Court turned aside those protests, leaving intact EPA’s rulings on those aspects.

What the Court did take on was a sharp new controversy over a policy that EPA has been following for thirty-three years, even before global warming was thought to be a problem. Since 1980, EPA has understood that once it decided to regulate any single kind of air pollution, it could reach out further and deal with all such pollutants and their sources. This, the agency has argued, follows from the simple fact that the Clean Air Act gives it power over “any air pollutant.”

[More] "SUPREME COURT: Tricky permit issue seen splitting challengers to EPA climate rules." Jeremy P. Jacobs, E&E reporter, Greenwire story Wednesday.

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Courts in general | Environment

Ind. Decisions - Still more on: Judge Posner has second thoughts on his voter ID decision; says he didn't know enough

Judge Posner's recent comments on his Indiana voter ID decision continue to cause comment. Today the NY Times has this editorial, that concludes:

“Maybe we should have been more imaginative,” [Judge Posner] said. “We weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.”

Those indications were clear, of course, to judges who disagreed with Judge Posner at the time.

In a new book, he writes that he was “guilty” of upholding a law “now widely regarded as a means of voter suppression rather than of fraud prevention.”

Had he spoken those words a few years ago, the landscape of voter-ID laws might look very different.

[Note: The ILB has reparagraphed the above.]

Posted by Marcia Oddi on Thursday, October 17, 2013
Posted to Ind. (7th Cir.) Decisions

Wednesday, October 16, 2013

Ind. Decisions - Ruling of SD Ind. on filings under seal

In Planned Parenthood of Ind. and Ky. v. Comm. Indiana State Dept. Mental Health, a 4-page, 10/15/13 order, Judge Magnus-Stinson writes:

On October 11, 2013, the Defendants filed a Response to Plaintiff’s Motion for Preliminary Injunction and a First Stipulation of the Parties. Two issues with those filings require the Court’s attention.

A. Filings Under Seal The Defendants’ response brief, the stipulation, and all exhibits attached to those filings were filed under seal without a motion requesting to do so. The Court recognizes that the parties’ Joint Motion for Protective Order is presently pending. [Dkt. 36.] It is highly unlikely, however, that the proposed protective order or prevailing Seventh Circuit precedent would justify filing all of those materials under seal. * * *

As the Seventh Circuit has observed, “How else are observers to know what the suit is about or assess the [judge’s] disposition of it? Not only the legislature but also students of the judicial system are entitled to know what the heavy financial subsidy of litigation is producing.” Id.

Very few categories of documents are to be kept confidential once “their bearing on the merits of a suit has been revealed.” Id. In civil litigation, “only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret.” Id. A party seeking to maintain confidentiality must explain what harm will result from the disclosure as well as why that harm is the sort that presents a legal justification for secrecy in presumptively public litigation. Id. at 547.

B. Exhibits

The Defendants’ description of the exhibits attached to their brief does not facilitate the Court’s review. * * *

C. Amended Brief For the reasons detailed herein, the Court ORDERS the Defendants to file an Amended Response Brief by noon on October 17, 2013.

Note: The ILB has added the emphasis to the phrase "trade secrets" in light of the ILB post earlier this afternoon from the Indiana Tax Court.

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Tax Court issues one today

In Orbitz, LLC v. Indiana Department of State Revenue, a 9-page opinion, Judge Wentworth writes:

This matter comes before the Court on Orbitz, LLC’s request to have certain documents within the judicial record placed under seal so they cannot be accessed by the general public. Being duly advised in the matter, the Court grants Orbitz’s request. * * *

Accordingly, both APRA and Administrative Rule 9 set forth certain exceptions to the general rule of public access, trade secrets being one of them. See IND. CODE § 5-14-3-4(a)(4) (2013 (version c, eff. 7-1-2013)); Admin. R. 9(G)(1)(b); Bobrow v. Bobrow, 810 N.E.2d 726, 732-33 (Ind. Ct. App. 2004) (explaining that such exceptions are mandatory). * * *

There are certain procedures a court must follow before granting a request to shield information from public access under either Indiana Code § 5-14-3-5.5 or Administrative Rule 9. Most notable among these are the court’s duty 1) to conduct a public hearing on the request and 2) to subsequently issue an order that specifically outlines why the need for privacy outweighs the strong public policy that would otherwise allow access to such records. See IND. CODE § 5-14-3-5.5(c),(d) (2013); Admin. R. 9(H)(1)-(3) (footnote added). When, however, the documents sought to be protected fall within the mandatory exceptions set forth in APRA or Administrative Rule 9, a court can seal those records without holding such a hearing and balancing the competing interests. See Bobrow, 810 N.E.2d at 734; Admin. R. 9(G)(1), (H), (I). Consequently, the Court’s primary task is to determine whether Orbitz’s contracts are, or contain, “trade secrets.” * * *

Based on this statutory definition [IND. CODE § 24-2-3-2 (2013)], Indiana courts have long held that a trade secret has four general characteristics: 1) it is information; 2) that derives independent economic value; 3) that is not generally known, or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use; and 4) that is the subject of efforts, reasonable under the circumstances, to maintain its secrecy. * * *

Because the Court has determined that Orbitz’s contracts have the four characteristics of trade secrets, they fall within the mandatory exceptions to the general rule of public access set forth in APRA and Administrative Rule 9. Accordingly, the Court need not determine whether Orbitz’s need for privacy outweighs the policy of providing public access.

CONCLUSION

Competition is the bedrock of our country’s economic system. See WEBSTER’S THIRD NEW INT’L DICTIONARY 332 (2002 ed.) (defining capitalism). The protection afforded to trade secrets under APRA and Administrative Rule 9 helps to foster a healthy, competitive marketplace. See Bridgestone Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189, 192 (Ind. 2007) (stating that “[u]nlike other assets, the value of a trade secret hinges on its secrecy. As more people or organizations learn the secret, [its] value quickly diminishes”). Here, Orbitz’s contracts contain trade secrets and therefore are protected from public disclosure under both APRA and Administrative Rule 9.

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on: Supreme Court decision in Berry v. Crawford posted

On June 8th, the Supreme Court issued its decision in Berry v. Crawford, the legislative fines case. The vote was 3-2 to grant the defendants' motion to dismiss, with Justices Rucker and Rush dissenting.

On Oct. 8, the docket in the case shows this entry:

APPELLEE'S PETITION FOR REHEARING DENIED.
BRENT E. DICKSON, CHIEF JUSTICE
ALL JUSTICES CONCUR, EXCEPT RUCKER AND RUSH, JJ, DISSENT AND
WOULD GRANT REHEARING.

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Steven R. Ott v. State of Indiana, a 9-pge opinion, Judge Brown writes:

Steven R. Ott appeals the denial of his motion to correct error following the trial court’s order denying his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).” Ott raises one issue which we revise and restate as whether the court erroneously denied his motion to correct error. We affirm. * * *

Ott argues that he was sentenced approximately six weeks before the law designating classes of felonies went into effect. He contends that “[i]t would appear that the legislative intent, as evidenced by the language of the statute, was to make possession of LSD a class D felony.” Ott states that “if he had been sentenced six weeks later his sentence would have ranged from six (6) months to three (3) years.” * * *

Based upon the language in the relevant statutes, we cannot say that the legislature provided for a modification of a felony conviction to a misdemeanor conviction for a felony committed prior to the division of felony classes. Under the circumstances, we cannot say that the trial court had authority to grant Ott’s motion to convert his conviction to a class A misdemeanor.

In Carl Croom v. State of Indiana, an 11-page opinion, Judge Vaidik writes:
Indianapolis Metropolitan Police Department Officer Bryan Zotz stopped Carl Croom after a search of his interim dealer license plate revealed that there was no registration information in the database. When the officer stopped Croom, the officer discovered that Croom’s driving privileges had been forfeited for life and arrested him. Croom had a bench trial and was convicted. Croom appeals his conviction for Class C felony operating a motor vehicle after his driving privileges had been forfeited for life. He argues that the officer did not have reasonable suspicion under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution that his interim dealer license plate was unregistered. Finding that the officer had reasonable suspicion to conduct an investigatory traffic stop because the officer mistakenly believed that all of the old interim dealer license plates had expired, we affirm.
NFP civil opinions today (0):

NFP criminal opinions today (1):

John Neal Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Judge Posner has second thoughts on his voter ID decision; says he didn't know enough

Updating this ILB entry from Oct. 13th, John Schwartz of the NY Times reports today under the heading "Judge in Landmark Case Disavows Support for Voter ID." A quote from the must-read story:

In a new book, “Reflections on Judging,” Judge Posner, a prolific author who also teaches at the University of Chicago Law School, said, “I plead guilty to having written the majority opinion” in the case. He noted that the Indiana law in the Crawford case is “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”

Judge Posner, who was appointed by President Ronald Reagan in 1981, extended his remarks in a video interview with The Huffington Post on Friday.

Asked whether the court had gotten its ruling wrong, Judge Posner responded: “Yes. Absolutely.” Back in 2007, he said, “there hadn’t been that much activity in the way of voter identification,” and “we weren’t really given strong indications that requiring additional voter identification would actually disenfranchise people entitled to vote.” The member of the three-judge panel who dissented from the majority decision, Terence T. Evans, “was right,” Judge Posner said.

The dissent by Judge Evans, who died in 2011, began, “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

In a telephone interview on Tuesday, Judge Posner noted that the primary opinion in the 2008 Supreme Court decision upholding the law had been written by Justice John Paul Stevens, “who is, of course, very liberal.” The outcome of the case goes to show, he said, that oftentimes, “judges aren’t given the facts that they need to make a sound decision.”

“We weren’t given the information that would enable that balance to be struck” between preventing fraud and protecting voters’ rights, he added.

Richard L. Hasen, a law professor at the University of California, Irvine, and an expert on election law, said an admission of error by a judge is unusual, and “gives to Democrats an ‘I-told-you-so’ ” argument on voter identification issues.

More significant, he said, it reflects what he called a recent shift. Previously, cases were decided largely along party lines, but then “you started seeing both Democratic- and Republican-leaning judges” reining in voter identification requirements.

Judge Posner seemed surprised that his comments had caused a stir, and said much had changed since Crawford. “There’s always been strong competition between the parties, but it hadn’t reached the peak of ferocity that it’s since achieved,” he said in the interview. “One wasn’t alert to this kind of trickery, even though it’s age old in the democratic process.”

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on: Update on Commission on Improving the Status of Children meetings

Updating this ILB entry from Oct. 8th, the Commission is meeting today for the second time. The session is being videotaped and will be viewable later. Here is the temporary website with today's agenda, plus the documents from the first meeting.

IndyStar reporter Marisa Kwiatkowski is at the meeting and tweeting - access her tweets here: @IndyMarisaK

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Indiana Government

Ind. Courts - " Confusion trails 'missing' Kokomo attorney: Bradley Hamilton's cases handed over to attorney surrogate"

Scott Smith reports in the Kokomo Tribune today - some quotes:

Kokomo attorney Bradley Hamilton is nowhere to be found, much to the consternation of his former clients, who have been showing up in court expecting his representation.

According to a petition filed last month by fellow Kokomo attorney Brent Dechert, Hamilton tried and failed to sell his law practice and moved to Australia.

At least that’s where Dechert said he had “cause to believe” Hamilton went, according to the court filing.

Hamilton’s law office was closed Tuesday, and his house in the Green Acres subdivision is empty and has a “for sale” sign out front. His Realtor declined to comment on Hamilton’s whereabouts, citing client confidentiality.

Howard Superior Court IV Judge George Hopkins appointed Dechert the attorney surrogate for all of Hamilton’s unresolved legal cases, giving Dechert access to Hamilton’s files, if they can be found.

Dechert, who didn’t return messages, is also charged with notifying Hamilton’s clients of the situation, filing requests for time extensions on their behalf, and taking possession of any trust accounts Hamilton might have left behind. * * *

Judges at the Howard County Courthouse began noticing a problem the Monday after Hamilton’s purported exit from the Kokomo environs.

Hopkins said he had several people show up for guardianship hearings that Monday, all expecting Hamilton’s representation. Their cases had to be continued.

Howard Superior Court 1 Judge William Menges said he’s seen at least four cases in the past two weeks where Hamilton’s clients — one of whom was incarcerated and expecting a decision on a plea deal — were left unrepresented in the courtroom. Menges said he released the individual pending a new court date.

“I expect complaints will be filed,” Hopkins said, when asked about the fallout from Hamilton’s disappearance.

As attorney surrogate, Dechert is empowered to make recommendations to Hamilton’s clients on replacement counsel and can also file notices, motions and pleadings in cases where court time limits are involved, and other legal counsel hasn’t been obtained.

Tuesday, Hamilton was still listed as “active and in good standing” on the Indiana Roll of Attorneys.

ILB: After several similar incidents in the past, the Supreme Court in 2007 passed a rule requiring attorneys to name a surrogate when they register each year. Rule 23, Sec. 27. It is unclear from the story whether Brent Dechert had been named by Hamilton on his registration.

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Indiana Courts

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

Updating this ILB entry from Sept. 30th, there has been further activity in the disciplinary action against Marion Superior Judge Kimberly J. Brown. The order naming the three masters has been expanded. Judge Brown has a new counsel. The three masters have issued a report of schedule, scheduling trial for Nov. 4-8 in the Supreme Court Courtroom. And on Oct. 15th, the Judicial Qualifications Commission filed a motion for leave to amend the charges and add additional counts. Here is the docket:

09-27-2013 THE COURT HAS ISSUED THE ATTACHED AMENDED ORDER:

AFTER CAREFUL CONSIDERATION OF THE PARTIES' SUBMISSIONS AND DUE DELIBERATION, A MAJORITY OF THE COURT DECLINES TO GRANT THE VERIFIED PETITION FOR INTERIM SUSPENSION, AND CONCLUDES THE CHARGES FILED BY THE JUDICIAL QUALIFICATION COMMISSION UNDER THIS CAUSE NUMBER SHOULD BE HEARD ON AN EXPEDITED BASIS BY THE MASTERS WHO ARE APPOINTED BY THIS ORDER.

IN ADDITION, BEFORE US IS A "MOTION TO STRIKE OR ALTERNATIVELY, MOTION FOR LEAVE TO FILE RESPONSE TO COMMISSION'S REPLY TO JUDGE BROWN'S RESPONSE TO VERIFIED PETITION FOR INTERIM SUSPENSION" FILED BY RESPONDENT ON SEPTEMBER 19, 2013.

HAVING CONSIDERED THE RESPONDENT'S MOTION AND BEING DULY ADVISED, THE COURT CONCLUDES THAT IT SHOULD BE AND THEREFORE IS DENIED.

FINALLY, PURSUANT TO INDIANA 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 HON. VIOLA J. TALIAFERRO, JUDGE (RETIRED);
THE HON. REBECCA S. MCCLURE, JUDGE, BOONE SUPERIOR COURT;
THE HON. SHEILA M. MOSS, JUDGE, LAKE SUPERIOR COURT
JUDGE TALIAFERRO IS DESIGNATED TO SERVE AS THE PRESIDING MASTER.

THIS MATTER SHALL BE HEARD ON A EXPEDITED BASIS. ACCORDINGLY 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. GIVEN THE EXPEDITED NATURE OF THIS PROCEEDING, THE PARTIES SHOULD NOT REQUEST CONTINUANCES OR EXTENSIONS OF TIME EXCEPT IN EMERGENCY SITUATIONS OF AN UNFORESEEN AND EXTRAORDINARY NATURE.

BRENT E. DICKSON, CHIEF JUSTICE
(ORDER REC'D. 10/1/13 AT 3:40 PM) ENTERED 10/2/13 KM

10-02-2013 ****** ABOVE ENTRY MAILED ******

10-10-2013 NOTICE OF APPEARANCE BY BELLE T. CHOATE, ATTY. FOR THE HONORABLE KIMBERLY J. BROWN (2) CERTIFICATE OF SERVICE (2) BY MAIL 10/10/13 ENTERED ON 10/10/13 LH

10-10-2013 0003214-49; EMAIL SENT REGARDING TRANSMISSION OF ORDERS, OPINIONS & NOTICES TO ATTORNEY ETHEL BELLE TURNER CHOATE

10-09-2013
THE COURT HAS ISSUED THE ATTACHED MASTERS REPORT OF SCHEDULE:

MASTERS REPORT OF SCHEDULE:

ON OCTOBER 9, 2013, THE MASTERS PARTICIPATED IN A TELEPHONIC CONFERENCE CALL AND REACHED THE FOLLOWING DECISIONS:

1. A TELEPHONIC PRE-TRIAL CONFERENCE WILL BE HELD ON OCTOBER 23, 2013 AT 11 O'CLOCK A.M. ALL MASTERS CONCUR.

2. THE TRIAL OF THE HONORABLE KIMBERLY J. BROWN WILL BE HELD ON NOVEMBER 4, 5, 6, 7 AND 8, 2013 IN INDIANAPOLIS, INDIANA. THE TRIAL WILL BEGIN EACH DAY AT 9 A.M.

3. WE HAVE ASKED THE COURT ADMINISTRATOR TO RESERVE THE SUPREME COURT COURTROOM OR THE CONFERENCE ROOM FOR THE HEARINGS WITH THE UNDERSTANDING THAT WE WILL BE RELOCATED IF THESE ROOMS ARE NOT AVAILABLE ON THE TRIAL DATES.

4. THE COURT ADMINISTRATOR WILL SECURE A COURT REPORTER.

HON. VIOLA J. TALIAFERRO, PRESIDING MASTER
ENTERED ON 10/10/13 MS

10-15-2013
COMMISSION'S MOTION FOR LEAVE TO AMEND CHARGES AND TO ADD ADDITIONAL COUNTS (6) CERTIFICATE OF SERVICE (6) MAIL 10/15/13
ENTERED ON 10/15/13 MS

10-15-2013 ****RECEIVED 10/15/13: (AMENDED) NOTICE OF THE INSTITUTION OF
FORMAL PROCEEDINGS AND STATEMENT OF CHARGES (6) CERTIFICATE OF
SERVICE (6) MAIL 10/15/13 ENTERED ON 10/15/13 MS

[More] The ILB has sent an inquiry to the Supreme Court press office as to whether the trial on Nov. 4-8 will be open to the public.

Posted by Marcia Oddi on Wednesday, October 16, 2013
Posted to Indiana Courts

Tuesday, October 15, 2013

Ind. Gov't. - More on "Wayne Township Schools to settle compensation fight with ex-superintendent" [Updated]

Kara Kenney of WRTV 6, whose earlier reporting led to the General Assembly's action last year requiring superintendents' employment contracts to be posted online, now has obtained and posted the entire settlement agreement referenced earlier today in this ILB post.

Here is Kenney's story this evening, replete with links, including to the settlement and release agreement, claimed to be confidential earlier today.

[Updated] Here is the text of the confidentiality provision in the settlement agreement:

Confidentiality: The Parties and their counsel shall use reasonable care to keep confidential the terms of this Agreement. Upon receipt of (a) an appropriate public records request, (b) an inquiry from a governmental agency, or (c) a subpoena (or a court order), and apart from other legal requirements, the Parties may release only this Agreement and the Media Releases attached hereto as Exhibits Band C to only the person or entity which issued the (a) appropriate public records request, (b) inquiry from a governmental agency, or (c) subpoena (or as directed by the court order). Other than releasing the Agreement and the Media Releases, the Parties and their counsel shall not comment on or discuss this Agreement with any person or entity.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Indiana Government

Ind. Courts - Wm Conour sentencing report worth reading [Updated]

Here is the 24-page United States' sentencing commentary in the case of U.S. v. William F. Conour, the former Indianapolis "Super Lawyer." A sample:

William Conour, the defendant, was a prominent personal injury lawyer in Indiana. He portrayed an image of being highly successful. He drove luxury cars including Bentley, Mercedes, and Porsche. He lived in a mansion, had a condo in Carmel, and a horse farm north of Indianapolis. He had luxury boxes at concerts and sporting events. He gave $450,000 to the Indiana University School of Law to create the William and Jennifer Conour Atrium.

Here is a long list of earlier ILB entries on Conour's fall.

[Updated on 10/16/13] Here is Conour's 26-page Defendant's Sentencing Memorandum.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - More on: Another big case today before the SCOTUS, this time it is affirmative action in higher education

Here is Lyle Denniston's recap of today's oral argument in Schuette v. Coalition to Defend Affirmative Action, at SCOTUSblog, which also now has the transcript of the argument.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Courts in general

Ind. Gov't. - More on "Governor should appeal court ruling on deer"

Updating this ILB entry from this morning re the letter in the Indianapolis Star that began: "Gov. Mike Pence should appeal the confusing and contradictory court decision in Harrison County that said the deer in Rodney Bruce’s operation are private property and not subject to state regulation."

This afternoon the Star has posted a story by Ryan Sabalow that begins:

Indiana’s attorney general is going to appeal a recent court ruling that appears to open the door to more high-fence deer hunting in the state, and restrict the Department of Natural Resources’s authority to enforce state hunting laws on the private deer-hunting preserves.

Attorney General Greg Zoeller’s office filed notice of appeal today, two weeks after Harrison County Circuit Court Judge John Evans issued a ruling in favor of Rodney Bruce, who operates Whitetail Bluff, a preserve near Corydon.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Indiana Government

Ind. Gov't. - "Wayne Township Schools to settle compensation fight with ex-superintendent"

That is the headline to this story by Eric Weddle posted on the IndyStar site a little before noon. This caught my eye:

Details of the settlement between the school board and [Terry] Thompson, who led the district from 1996 to 2010, were confidential.
Really? The settlement document entered into with the school board is secret?

ILB readers may recall that it was the unavailability of Thompson's school superintendent contract that caused the General Assembly last year to pass a law putting all such documents online ...

And now the settlement, also a contract, is confidential.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Indiana Government

Ind. Courts - More on "Brizzi's competence on trial as former secretary of state Charlie White seeks relief from conviction"

Updating this ILB entry from August 16th on the Charlie White PCR hearing, which ended with the statement, "The hearing was continued to Oct. 15th", here is a preliminary story from Jill Disis and Dan McFeely of the Indianapolis Star, that begins:

Defense attorney Carl Brizzi testified this morning that allowing former Indiana Secretary of State Charlie White to take the stand in his 2012 theft and voter fraud trial “would have been a disaster.”

Brizzi had represented White in that case. White is now trying to erase his felony convictions for theft and voter fraud as he faces a one-year, home-detention sentence.

White’s new attorney is trying to show that Brizzi provided incompetent counsel.

Brizzi, a former Marion County prosecutor, today explained why he didn’t want Brizzi to testify.

"It was all I could do to just keep him, to just maintain composure," Brizzi said.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 11, 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, October 11, 2013. It is two pages (and 20 cases) long.

No transfers were granted last week. Justice Massa "did not participate" in one criminal case.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Judith (Lund) Pherson v. Michael Lund, an 8-page opinion, Judge Bailey writes:

Judith Lund Pherson (“Wife”) appeals the denial, in substantial part, of her motion to correct error, which challenged a post-dissolution order in response to a motion by Michael Lund (“Husband”) for clarification of a pension-fund provision of a property settlement agreement incorporated into a divorce decree. Wife presents the sole issue of whether the trial court erroneously modified the property settlement agreement. We affirm. * * *

The trial court did not impermissibly modify a property settlement agreement or decree. Rather, the trial court clarified that the intent of the parties was to divide the marital property, that is, property acquired before the marriage or after the marriage and before the final date of separation.

In Martha Ferguson, Anthony Schmitt, Rebecca Schmitt, Mary Meadows, Christopher Schmitt, Rosemary Schmitt, Jerry Shillington, Christina Aleman, Steven Shillington, et al. v. Berton O'Bryan, a 14-page, 2-1 opinion, Judge Crone writes:
In Walker v. Lawson, our supreme court held that “an action will lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind. 1988). Following Mary Linder’s death, a group of her relatives (“the Relatives”) brought a legal malpractice action against the drafter of her will, attorney Berton O’Bryan. The Relatives were not specifically named in the will, but were listed on a form that O’Bryan had given Linder for the purpose of making bequests to her intended beneficiaries. The list was referenced in the will, but was not signed, dated, or witnessed. The Relatives assert that as a result of O’Bryan’s professional negligence in drafting the will, the bequests that Linder intended to make to them failed. O’Bryan claims that he never saw the list before Linder’s death. He successfully moved for summary judgment on the basis that he owed the Relatives no legal duty with respect to drafting the will because they were not known third-party beneficiaries.

On appeal, the Relatives argue that the trial court erred in granting O’Bryan’s summary judgment motion. We conclude that regardless of whether O’Bryan saw the list, he knew that Linder intended to benefit anyone named on the list; therefore, the Relatives are known third-party beneficiaries for purposes of Walker and are thus entitled to bring a legal malpractice action against O’Bryan. Consequently, we reverse and remand for further proceedings. * * *

ROBB, C.J., concurs.
FRIEDLANDER, J., dissents with opinion. [which begins, on p. 11] In Walker v. Lawson, our Supreme Court held that a will-drafting attorney owed a duty to a listed beneficiary of the will “on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind. 1988). We are now called upon to consider more precisely what an attorney is required to know in order to create a duty to a beneficiary. The Majority holds that it is sufficient if the attorney knows that the testator intends, at some future point, to create a list naming a group of unidentified individuals as beneficiaries. Because I believe more is required, I respectfully dissent.

NFP civil opinions today (6):

In Re The Marriage of Debra Ann Fioritto (Weber) v. Victor Lynn Weber (NFP)

Aleesha Duensing, Erica Buzalski, Kristi Buzalski and Ray Buzalski v. Wendy Johnson and Kris A. Frazier (NFP)

In Re the Marriage of Jennifer Sausaman and Gregory Sausaman; Jennifer Hutchens (Sausaman) v. Gregory Sausaman (NFP)

In Re The Marriage of Patricia Sovinski and Patrick Sovinski; Patrick Sovinski v. Patricia Sovinski (NFP)

In Re the Paternity of S.P., W.V. v. R.P. (NFP)

Perfect North Slopes, Inc. v. Nicholas A. Searcy (NFP)

NFP criminal opinions today (1):

William Beeler v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Muncie Central rapist ordered to pay victim $750,000"

The 2010 sexual assault at Muncie Central High School has led to much litigation, here is a list of earlier ILB entries.

Here are some quotes from a story yesterday by Douglas Walker of the Muncie Star Press:

MUNCIE — It is a victory — at least a symbolic one — for the teenager who was sexually assaulted at Central High School nearly three years ago.

A Delaware County judge has ordered Steven Moore — the then-Central student who attacked the girl in a school restroom on Nov. 9, 2010 — to pay his victim $750,000.

Where Moore, now a 19-year-old felon and ex-convict, is going to come up with that kind of money is anyone’s guess.

“We don’t know at this point,” Cari Sheehan, an Indianapolis attorney who represented the victim and her mother, said Monday when asked how collection of the judgment would be pursued. “It’s still up in the air.”

In an order signed last week, Delaware Circuit Court 1 Judge Marianne Vorhees wrote that Moore “admitted to, and was convicted of, the rape of (the victim), which occurred at Muncie Central High School;” that “rape is an intentional act of the perpetrator,” and that the girl “suffered damages as a result of the rape, including but not limited to medical and emotion damages.”

The victim and her mother previously reached an out-of-court settlement in the portion of their lawsuit that targeted Muncie Community Schools and its administrators. Terms of that settlement were not released.

The story also reviews the history of the incident.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on: Muncie car dealer cited for wetland violations

Updating this ILB entry from May 1st, Seth Slabaugh of the Muncie Star-Press updates the story today, with a new report headed Sam Pierce to restore unmapped wetlands: Auto dealer discusses disturbance of wetlands." A quote:

YORKTOWN — Car dealer Sam Pierce says he will restore three isolated wetlands totaling six-tenths of an acre that were disturbed when he cleared a 50-acre woods.

Pierce told The Star Press in a recent interview that he knew there was a designated, 4.4-acre wooded wetland on the site because it was shown on the National Wetlands Inventory Map. That wetland was left undisturbed during clearing by Pierce’s contractor.

The contractor did disturb three isolated, unmapped, wooded wetlands elsewhere on the site but was unaware they were wetlands, Pierce said.

“Nevertheless, we’ve got to correct it and monitor it,” he said.

Much interesting in the story.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Environment | Indiana Government

Law - Two interesting stories, from California and Delaware

In the Oct. 12th LA Times, Ashley Powers and Melanie Mason report in a long story headed "Brown vetoes bill giving sex abuse victims more time to file lawsuits: His veto comes after a heated opposition campaign led by the Catholic Church. Groups representing victims condemn the decision." The story begins:

SACRAMENTO — Gov. Jerry Brown vetoed a bill that would have given some childhood sex abuse victims more time to file lawsuits, after a heated opposition campaign led by the Catholic Church that stretched from Capitol hallways to Los Angeles church pews.

In an unusually detailed three-page veto message released Saturday, the Democratic governor, a former Jesuit seminarian, said the bill raised questions of equal treatment of public and private employers. Pointing to a centuries-long tradition of limiting the period when legal claims can be filed, Brown said institutions should feel secure that "past acts are indeed in the past and not subject to further lawsuits."

He also argued that the legislation, which would have in part lifted the statute of limitations on sexual abuse claims for one year to allow some childhood victims to file lawsuits, was "unfair" because it singled out private organizations, such as Catholic dioceses and the Boy Scouts. Public schools would not have been affected by the bill, something Brown called "a significant inequity."

From the Oct. 11th Delaware Online, a very long story on who will be the next Chief Justice of the Delaware supreme court, why it is important, and a run-down of the candidates, headed "Who will preside as Supreme Court chief over Delaware's gold mine?" The story begins:
In a state that has built a $1.4 billion industry as the preferred legal home for Big Business, Gov. Jack Markell’s choice for Supreme Court chief justice must protect Delaware’s franchise that caters to corporations and covers more than a third of the state’s budget.

Four judges are considered the frontrunners for the prestigious post on the appellate court that oversees all state courts, including Chancery that specializes in large corporate law cases.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to General Law Related

Ind. Gov't. - "Governor should appeal court ruling on deer"

That is the heading of this letter with many signatures printed yesterday in the Indianapolis Star. Here it is in full:

Gov. Mike Pence should appeal the confusing and contradictory court decision in Harrison County that said the deer in Rodney Bruce’s operation are private property and not subject to state regulation.

Judge John Evans stated that in the high fence/canned hunting operation the “individual hunters comply with the Department of Natural Resources hunting regulations, including obtaining a deer license, hunting during the proper days of the year, and reporting killed deer to DNR.” This suggests the high fence/canned hunting operation is required to comply with state law. Then follows a contradictory statement that “the deer ... are privately owned and are not the property of the State of Indiana. Therefore the animals are not the property of the people of the State of Indiana.” This statement suggests the high fence/canned hunting operation is not required to comply with state law.

If captive deer are wild animals, then they are regulated by the Indiana Department of Natural Resources. If they are not wild animals, they are either livestock or pets and regulated by the Indiana Board of Animal Health that oversees disease management, animal cruelty, humane slaughter, and appropriate animal care and disposal.

Under current Indiana law, high fence/canned hunting is illegal. Last fall Judge Frank Nardi in Owen Circuit Court upheld this fact in a summary judgment decision. The two conflicting court decisions make it very difficult for our Conservation Officers to enforce the law, and hunting season is upon us.

The Harrison County ruling is in direct contradiction to the North American Model of Wildlife Conservation that natural resources agencies have adopted and followed since the time of Teddy Roosevelt.

It’s also important to point out that this court order does not open the door for new high fence/canned hunting operations, despite what was quoted in the media shortly after the judge’s decision was published. This is one more aspect of the confusion that has been created and must be clarified.

Everyone who values wildlife should contact Gov. Pence at (317) 232-4567 or www.in.gov/gov/2333 and request an appeal of this recent Harrison Circuit Court ruling.

For background see this Oct. 3rd ILB entry, headed "Ind. Decisions - More on "Trial judge rules DNR overstepped in attempt to shut down high-fence deer hunting", which includes links to the two trial court rulings mentioned in the letter.

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Ind. Trial Ct. Decisions | Indiana Courts | Indiana Government

Courts - Another big case today before the SCOTUS, this time it is affirmative action in higher education

Last week it was campaign finance regulation, today it is affirmative action. Nina Totenberg has this report at NPR, headed "Supreme Court Returns To Affirmative Action In Michigan Case." Some quotes:

The U.S. Supreme Court takes up the issue of affirmative action again Tuesday, but this time the question is not whether race may be considered as a factor in college admissions. Instead, this case tests whether voters can ban affirmative-action programs through a referendum.

In 2003, the the University of Michigan Law School's affirmative-action policy. The next day, opponents of affirmative action launched a referendum campaign to bar such programs, and in 2006, voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative-action programs in higher education.

Michigan's state colleges and universities promptly abandoned any use of race or ethnicity to promote diversity, and minority enrollment plummeted. In 2012, a federal appeals court ruled that the referendum itself was discriminatory, and the U.S. Supreme Court stepped in to decide the issue. * * *

At issue in Tuesday's case is not just the Michigan affirmative-action referendum, but a line of Supreme Court decisions dating back to 1969. Those decisions established the so-called "political process doctrine" and struck down state referenda that the court said targeted racial minorities. In one case, for example, the state referendum prohibited a local busing program that was used to desegregate schools. * * *

The elephant in the room in this case, of course, is the whole question of affirmative action in higher education.

How Appealing has collected some other stories here.

Lyle Denniston has an argument preview, headed "Race’s role on campus, in society" at SCOTUSblog. At the same site, Amy Howe has a preview "in plain English."

Posted by Marcia Oddi on Tuesday, October 15, 2013
Posted to Courts in general

Monday, October 14, 2013

Ind. Law - Indy Legal Aid Society moves to English Building

From the news release:

INDIANAPOLIS – The Indianapolis Legal Aid Society (ILAS) has moved into an expanded office space that will give the organization room to grow. The larger suite of offices in the English Building, located at 615 N. Alabama Street, will provide space for up to three more attorneys in the future. The new offices were made possible thanks to grants from The United Way of Central Indiana Capital Fund and the Central Indiana Community Foundation (CICF).

The nonprofit organization is currently leasing a portion of the new space to the Indiana Bar Foundation. The two legal organizations will co-host a reception and open house on Thursday, October 24, from 5:30 p.m. - 7 p.m. at the offices in Suite 122. Monarch Beverage Co. has graciously agreed to donate beverages for the event. There will be a short program beginning at 6 p.m. * * *

The Indianapolis Legal Aid Society has served the legal needs of low-income individuals in Central Indiana since 1941. The organization relies principally on the support of private funds and donors.

Posted by Marcia Oddi on Monday, October 14, 2013
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/14/13):

Next week's oral arguments before the Supreme Court (week of 10/21/13):

Thursday, October 24th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/14/13):

Next week's oral arguments before the Court of Appeals (week of 10/21/13):

Tuesday, October 22nd

Thursday, October 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, October 14, 2013
Posted to Upcoming Oral Arguments

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

From Sunday, Oct. 13, 2013:

From Saturday, Oct. 12, 2013:

From Friday afternoon, Oct. 11, 2013:

Posted by Marcia Oddi on Monday, October 14, 2013
Posted to Catch-up

Sunday, October 13, 2013

Ind. Gov't. - "State faces same-sex tax filing decision"

In the Sunday Indianapolis Star, John Ketzenberger's business column explores how the Indiana Dept. of Revenue (and perhaps ultimately the General Assembly) will handle the state tax issues created by the SCOTUS decision in Windsor. Some quotes:

Legally married same-sex couples who live in Indiana can file a joint federal tax return next year thanks to a recent ruling by the Internal Revenue Service, which could provide significant tax benefits.

But what will those same couples do when it comes time to file their state returns?

Indiana won’t allow joint filing of state income tax returns, of course. State law currently bans same-sex marriage and voters may be asked next year whether to place a ban in the state constitution.

The state’s solution to the problem will be revealing because Indiana can make it simple for married, federal joint-filing same-sex couples, or it can make it much more difficult.

We’ll know which it is in a few weeks, when the Indiana Department of Revenue plans to announce its policy on filing state returns, according to spokesman Robert Dittmer.

The IRS set matters in motion in late August, when it decided to allow joint returns, and the attendant benefits, from same-sex couples legally married regardless of where they actually live.

The new policy created a problem in Indiana and 23 other states that ban same-sex marriage yet use federal tax returns as the basis for state filings. Since they’ll still have to file individual returns in Indiana, how do same-sex couples who file a joint federal return determine their income for the state returns?

The column then discusses the options.

The ILB has had a number of posts on this issue, including:

The Indiana Law Blog: Law - "Same-sex couples will get federal tax ...
Aug 29, 2013 - The Treasury Department and IRS announced on Thursday that legally married same-sex couples will receive the same tax treatment and benefits as ...

The Indiana Law Blog: Law - "Gay and Married Couples in New ...
Aug 31, 2013 - Gay couples can now plan for how their financial lives will change when it comes to federal taxes, even though big questions remain about benefits like Social ...

The Indiana Law Blog: Ind. Gov't. - "Gay Marriage and State Taxes ...
Sep 13, 2013 - "Gay Marriage and State Taxes: States that don't recognize same-sex marriage will face a few tax complications come 2014". Penelope Lemov, correspondent ...

The Indiana Law Blog: Law - More on "Same-sex couples will get ...
Aug 30, 2013 - Law - More on "Same-sex couples will get federal tax recognition". Good points in this Advance Indiana post on the Indiana implications of today's IRS ruling, ...

The Indiana Law Blog: Indiana Law - Indiana newspapers speak out ...
Aug 25, 2013 - As we have said, statutory law already bans same sex marriage in Indiana, so to us, the proposed constitutional ban constitutes piling on by opponents of gay ...

Posted by Marcia Oddi on Sunday, October 13, 2013
Posted to Indiana Government

Ind. Courts - Camm trial continues in Lebanon

While the Marion County Bisard case is set to start this coming week in Fort Wayne, the Floyd County David Camm case continues in Boone County.

The David Camm Trial Blog can be accessed at WDRB.com in Louisville. Two other Louisville stations also offer extensive coverage 84WHAS.com, and WAVE3.com (for the latter, no need to search, simply scroll down the page for results).

The defense rested Friday, next week (Tuesday, as Monday is Columbus day) will begin with rebuttal witnesses from the prosecution.

Maureen Hayden of CNHI had two stories on the cost of the trial last week:

Posted by Marcia Oddi on Sunday, October 13, 2013
Posted to Indiana Courts

Ind. Courts - "Long-delayed trial set to start: Indianapolis officer charged in ’10 fatal crash"

Rebecca Greene reports in the Sunday Fort Wayne Journal Gazette:

FORT WAYNE – On Monday, Tuesday and Wednesday, about 150 potential jurors will head to the Allen County Courthouse to learn whether they will be selected to decide the fate of suspended Indianapolis police officer David Bisard.

Bisard, 39, stands trial this week in Allen Superior Court before Judge John Surbeck. His case was moved to Fort Wayne because of the extensive publicity in the Indianapolis area.

Thee legal machinations:
Since the original crash on Aug. 6, 2010, the case has become a political and procedural catfight among the Indianapolis Metropolitan Police Department, the Marion County Prosecutor’s Office and the city of Indianapolis. Add a defense team paid for by the police union, and the matter has been a drawn-out legal mess.

Because of the relentless interest in the case by the Indianapolis media, Bisard’s defense attorney John Kautzman asked to have the case moved. Last December, Marion County Judge Grant Hawkins granted the request.

By February, the case had been moved to Surbeck’s docket. In the past few months, judges Fran Gull and Wendy Davis, along with Magistrate Sam Keirns worked to keep Surbeck’s calendar as clear as possible to deal with the lengthy and frequent motions from both sides in the case.

It is uncommon for Allen County criminal cases to continue this long, and if they do, to involve as much motion-filing and paperwork as a respectable civil case.

But the Bisard case has been filled with motions, responses, hearings and arguments.

Hearings scheduled for one day have stretched into two, and jury selection alone is scheduled to take three days, still less than the week or so originally suggested by the lawyers.

The defense attorneys have asked Surbeck to close hearings to the public, sequester the jury for the duration of the trial and again to suppress the vials of blood collected from the officer shortly after the crash.

Prosecutors want to keep out statements made about the admissibility of the blood vials by former Marion County Prosecutor Carl Brizzi.

In addition to those motions, both sides have made a litany of other requests for information and evidence they want kept out of the courtroom

Tuesday, Surbeck issued a ruling prohibiting the defense from subpoenaing Marion County Prosecutor Terry Curry about a letter he wrote to Indianapolis Mayor Greg Ballard in May 2012 complaining about the behavior of the Department of Public Safety in connection with evidence in the Bisard case.

Dealing with the media attention:
With the case scheduled to run from Oct. 14 through Nov. 8, area residents will definitely notice one thing: the constant and abiding presence of Indianapolis television trucks parked outside the courthouse.

Since Bisard first made his appearance in an Allen Superior Court room, the Indianapolis media have been watching from the gallery, requiring a lot of attention and handling on the part of court staff.

Kathryn Dolan, spokeswoman with the Indiana Supreme Court, has been helping Surbeck and court staff figure out how to accommodate the media.

In late September, Indianapolis media met with court staff to go over behavior expectations – including where they could take their phones (only on the first floor), whether they could use computers in the courtroom (only for note-taking) and where they would park their satellite trucks.

Phones are prohibited in the Courthouse for anyone but Courthouse staff and attorneys with proper identification.

During a high-profile murder case two years ago, a local radio station employee was found to be in contempt of court when he took his cellphone into the courtroom and sent a text message during a hearing.

For the Bisard case, any members of the media caught with their cellphones on the third floor will be kicked out of the building and their organization will lose access to the media area roped off on the first floor, according to an order issued last month.

Last Friday WRTV6-Indy, posted this lengthy history of the Bisard case.

FOX59 reported yesterday, "Jury selection begins Monday in Bisard case."

Posted by Marcia Oddi on Sunday, October 13, 2013
Posted to Indiana Courts

Ind. Decisions - Judge Posner has second thoughts on his voter ID decision; says he didn't know enough

This was Crawford v. Marion County Election Board, the voter ID decision that was later affirmed by the SCOTUS and has set the precedent. Here is the Jan. 4, 2007, 2-1 7th Circuit opinion. Here is the April 5, 2007 7-4 ruling denying rehearing en banc. Now-Chief Judge Woods wrote the 5-page dissent. Here is a sample:

The state’s justification for the new voting requirement is voter fraud—specifically, the problem of fraud on the part of people who show up in person at the polling place. Yet the record shows that the existence of this problem is a disputed question of fact. It is also a crucial question for the inquiry that Burdick demands, because if the burden on voting is great and the benefit for the asserted state interest is small as an empirical matter, the law cannot stand. This creates, as FED. R. CIV. P. 56 puts it, a “genuine issue of material fact” that may not be resolved in favor of the state in ruling on the state’s own motion for summary judgment. In fact, it appears that no one has ever, in Indiana’s history, been charged with voter fraud. Burdick requires an inquiry into the “precise interests put forward by the State as justifications for the burden imposed,” but in this case, the “facts” asserted by the state in support of its voter fraud justification were taken as true without any examination to see if they reflected reality.
Here is the SCOTUSblog case page on the April 28, 2008 opinion upholding the Indiana voter ID law.

Josh Gerstein of Politico wrote Oct. 11th on Judge Posner's widely-reported statement re his 2007 opinion. Here are some quotes:

In an interview Friday on HuffPostLive, Seventh Circuit Judge Richard Posner said his opinion finding the Indiana law constitutional was mistaken, due to the court not having sufficient information about how the law could be used to prevent or discourage people from voting. * * *

And the problem is that there hadn’t been that much activity with voter identification," Posner said. "Maybe we should have been more imaginative….We weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote."

Posner authored the 2-1 opinion in Crawford v. Marion County, which likely influenced the Supreme Court in its 6-3 decision upholding the statute in the same case.

"There was a dissenting judge [on the appeals court panel], Judge Terence Evans, since deceased, and I think he was right," Posner said. "But at the time I thought what we were doing was right. It is interesting that the majority opinion was written by Justice [John Paul] Stevens, who is very liberal, more liberal than I was or am…. But I think we did not have enough information. * * *

The Supreme Court's ruling in the Indiana voter ID case is a potentially serious obstacle to efforts by private groups and the Justice Department to target voter ID laws in the wake of the Supreme Court ruling earlier this year striking down the requirement the Voting Rights Act imposed on all or parts of 15 states to get advance clearance for voter ID and similar laws.

Here is Rick Hasen's Election Law Blog report on Judge Posner's statements on Friday.

Finally, the ILB asked an attorney familiar with the case for a reaction:

For Judge Posner now to admit he was wrong but then blame the lawyers for not giving him enough information by which he could evaluate the suppression claims takes real chutzpah. He was well aware of the history of race and class-based voter suppression in this country. He also had no record of voter fraud in front of him, yet placed no burden of proof on the State while holding Crawford's attorneys to an impossible standard.

And if they presented him with such an anemic record, why did Judge Evans, and later Judges Wood, Williams and Rovner en banc, who looked at the same evidence, get it right while Posner got it wrong?

The consequences of this mistake were immense. Had Posner switched his vote, Judge Sykes may have as well, and the odds of SCOTUS hearing this case decline exponentially. Indiana's law would thus not have become a model for other voter suppression laws across the nation, and Crawford's majority opinion may have been written by Judge Evans, striking down Indiana's law. That would have dramatically altered the course of election law and set a completely different tone and direction, particularly in light of Posner's prodigious reputation.

Posted by Marcia Oddi on Sunday, October 13, 2013
Posted to Ind. (7th Cir.) Decisions

Saturday, October 12, 2013

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

In U.S. v. Richard E. Brown, a 15-page opinion, Judge Sykes writes:

For 20 years Richard Brown was the office manager and accountant for a cluster of small businesses in southern Indiana owned by the Walker family. In 2009 the family patriarch discovered that Brown was embezzling money by using company credit cards and writing company checks to pay for personal items and expenses. An audit revealed that during the course of at least a decade, Brown had stolen hundreds of thousands of dollars, gradually putting the businesses in financial straits and destroying their credit.

A federal grand jury indicted Brown on more than 150 counts of wire fraud, mail fraud, and tax fraud. Brown pleaded guilty to a single count of each of these crimes. The advisory guidelines sentencing range was 21 to 27 months’ imprisonment, but the district judge thought that was far too low. The judge settled on a sentence of 60 months, a significant variance from the top of the range. Judgment was entered and Brown appealed.

Weeks later, without warning, the judge filed an amended judgment and attached a written “statement of reasons” to “supplement” the reasons he had given in open court for the sentence. Apparently applying “departure” analysis, the judge recalculated the guidelines range, adding upward adjustments based on the amount Brown embezzled, the duration of the scheme, and the vulnerability of one of the victims. On this revised calculation, the guidelines range was 41 to 51 months. Compared to this range, the 60-month sentence seemed like a less significant variance from the guidelines.

On appeal Brown argues that the district judge violated Rule 32(h) of the Federal Rules of Criminal Procedure by failing to give notice of his intent to apply upward “departures.” He also argues that his 60-month sentence is substantively unreasonable.

We affirm. The judge’s belated effort to adjust the guidelines range introduced complications but did not violate Rule 32(h). That rule requires “reasonable notice” when the district court is “contemplating” a departure from the sentencing guidelines. FED. R. CRIM. P. 32(h). But “[t]he old regime of ‘departures’ is defunct,” United States v. Barlett, 567 F.3d 901, 909 (7th Cir. 2009), and Rule 32(h) does not apply to an upward variance from the advisory guidelines range, see Irizarry v. United States, 553 U.S. 708, 714 (2008). Because departures are obsolete, Rule 32(h) no longer has any work to do.

Moreover, because the judge’s written statement of reasons was filed after Brown appealed, the court lacked the power to substantively alter the sentence because jurisdiction had shifted to this court. Brown’s sentence did not change, though the rationale for it certainly did. To the extent that the judge’s recalculation of the guidelines range amounts to a substantive change, it is a nullity because the court lacked jurisdiction to make the change. If the recalculation simply introduced an inconsistency between the written statement and the oral pronouncement of the sentence, the oral pronouncement controls. Either way, we disregard the written statement of reasons. Considered in light of the court’s oral pronouncement of sentence, the 60-month sentence is reasonable.

Posted by Marcia Oddi on Saturday, October 12, 2013
Posted to Ind. (7th Cir.) Decisions

Friday, October 11, 2013

Ind. Courts - Transfer Statistics for the Past Quarter: Transfer Ten Times More Likely in FP (than NFP) Cases

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

As has become a tradition for more than a year now, the end of a quarter is an apt time to reflect on the Indiana Supreme Court’s transfer statistics and offer some broader perspective on its docket and any discernable trends.

Transfer Dispositions: July 1, 2013-September 30, 2013*
  FP cases NFP cases FP & NFP
CIVIL 9/25 (36%) 2/34 (5.9%) 11/59 (18.6%)
CRIMINAL 8/24 (33%) 2/85 (2.4%) 10/109 (9.2%)
ALL CASES 17/49 (34.7%) 4/119 (3.4%) 21/168 (12.5%)

These statistics are remarkable in at least three ways.

First, the almost 35% grant rate in FP cases is nearly twice the usual rate, which generally hovers in the teens. Imagine having a better than one in three chance of something; attorneys who advise clients of these odds will likely be told to pursue transfer in most FP cases.

Next, those seeking transfer from an NFP opinion—especially in a criminal case—faced especially long odds this quarter. Overall a grant of transfer was ten times more likely from a FP decision than an NFP. FP civil litigants were six times more likely to secure transfer than those whose cases were decided in an NFP decision. The disparity in criminal cases was fourteen times. Although the State was one for two in seeking transfer from an NFP opinion, criminal defendants seeking a grant of transfer from an NFP decision were 1 for 83—a 1.2% chance of transfer compared to 21% (4/19) in FP cases in which a criminal defendant petitioned for transfer. The Court of Appeals may therefore expect even more motions to publish in NFP cases. Unfortunately, as previously discussed here, the court does not report statistics on these motions.

Finally, the overall grant rate of 12.5% is more than a third higher than the historic average near 9%. After a fiscal year in which the Court’s opinion output was a bit lower than usual, the Court appears eager early in the new fiscal year to take cases.

The Attorney General’s Batting Average in Criminal Cases: .714

The Indiana Supreme Court reviewed seven petitions to transfer filed by the State in criminal cases, granting five and denying two. The granted petitions included:

The two denials were both by a 3-2 vote with Chief Justice Dickson and Justice Massa dissenting. Martin v. State involved a speedy trial (Criminal Rule 4(C)) claim, and State v. Perkins (NFP), affirmed a trial court’s dismissal of charges after granting a defendant’s motion for mistrial.

The NFP Transfer Grants

Beyond Chambers, which is discussed above, the other NFP criminal case in which transfer was granted was Bond v. State, which included a powerful dissent from Judge Kirsch: "Yet 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." It is surprising the opinion was issued NFP when it was a discretionary interlocutory appeal, the possible grounds for which include that it involved “a substantial question of law,” and was decided after oral argument at the Court of Appeals. The Appellant even filed a motion to publish, which was denied.

The two civil cases were a termination of parental rights case and a Child in Need of Services (CHINS) case, which are discussed at the end of this post.

Variations Among Justices

As discussed three months ago, a grant of transfer requires a minimum of three votes, but the order granting transfer does not include a vote line. As lawyers approach oral argument, there is no way to know which three (or more) justices voted to take the case. Questions at oral argument may give a hint, and several times during the past year the justices decided to vacate a grant of transfer after hearing argument.

When transfer is denied, however, the order includes a vote line that notes which, if any, justices voted to grant transfer. During the past quarter—and consistent with prior quarters—Justices David and Rush were the most likely to vote to grant transfer, although their rate was down considerably from 12 each the past quarter.

Dissenting from the Denial of Transfer Votes: July-September 2013
Justice David 9
Justice Rush 6
Justice Rucker 6
Chief Justice Dickson 4
Justice Massa 3

This order is the same as in the past quarter, when Justice Massa and Chief Justice Dickson, respectively, were the least likely to vote to grant transfer in cases with a reported vote.

Oral Argument Avalanche Coming Soon?

As discussed in this June 13 post, the Indiana Supreme Court added twenty cases to its oral argument calendar in a single day. This appears to be a change from prior practice of scheduling arguments shortly after a grant of transfer (or a vote at conference to schedule oral argument) throughout the year. Although the court generally schedules oral argument in the vast majority of cases in which transfer was granted, only six of the 21 grants during the past quarter have been scheduled for oral argument.

The three cases in which transfer was granted on July 11 were argued in September or early October. Somewhat surprisingly, these cases secured much earlier argument dates than the cases granted transfer weeks earlier. For example, transfer was granted May 16 in Bleeke v. State, but the case is scheduled for oral argument December 5—the last day on which arguments are currently scheduled.

The most notable exception to delay in scheduling arguments occurred in cases involving children, as the Court scheduled oral argument for October in three cases, including:

It seems likely the Court will soon issue several orders in many of the remaining fifteen cases, scheduling arguments for December or early 2014.

__________________________
*This table does not include the nine cases that appeared on the transfer tables but did not involve a Court of Appeals’ opinion. Three cases were 56(A) (emergency transfer) petitions, which seek to bypass the Court of Appeals and go directly to the Indiana Supreme Court. The other six primarily involved appeals from the granting of a motion to dismiss an appeal. For example, transfer was granted last quarter then vacated after oral argument in September in the high profile case involving the Indianapolis Star’s refusal to reveal the identity of an anonymous commenter on its website.

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Schumm - Commentary

Ind. Decisions - More on "Supreme Court to hear Fort Wayne man's shoe-cam case"

Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reports in a story headed "Arguments in shoe-cam case heard by justices: Defense describes conduct as ‘creepy but not criminal’". The report concludes:

The Indiana Court of Appeals in January tossed out the child exploitation convictions, saying the case didn’t meet the technical wording of the charge. The ruling found because the statute under which he was convicted required participation by a child, it did not apply in his case.

Michael Borschel, attorney for Delagrange, told four Indiana Supreme Court justices Thursday that it should uphold the appellate decision.

“Mr. Delagrange’s conduct was creepy but not criminal,” he said, adding later, “He’s a peeper, not a child pornographer.”

J.T. Whitehead argued on behalf of the Indiana Attorney General’s Office that the legislative intent behind the statute is clear, and the Indiana Court of Appeals ruling creates absurd results.

For instance, he said if a child was drugged or asleep a person could not be convicted of sexual exploitation.

The justices, though, said they have to apply the plain meaning of the words. And several expressed concern that if a statute is found to be ambiguous they can’t hold Delagrange criminally responsible.

A ruling is expected in the coming months.

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Indiana Decisions

Ind. Gov't. - "Morristown town attorney writes response to Open Door Law complaints"

From Nick Cusack at the Shelbyville News, this report:

After dealing with two Open Door Law complaints, the Morristown Town Council read a reply submitted by town attorney Mark McNeely Wedensday night.

The reply was made to the Indiana Office of the Public Access Counselor from McNeely, who was not at the meeting, but provided each council member with a copy of the response. The document was in response to a complaint made to the Public Access Counselor about a meeting where some members of the public could not enter the meeting because the room was too full.

The meeting was one where a Tenaska representative gave a question and answer presentation. Tenaska has been thinking about building a power plant in Morristown, and that idea has met with some resistance.

"The Open Door Law does not specifically require that a governing body meet in a room of any particular size, or that it meet in a room that can seat or otherwise accommodate every person that desire to attend the meeting," McNeely wrote.

The complaint also said that some people didn't get a chance to talk, which McNeely similarly dismissed, saying the law gives no right for people to speak during meetings, just that they have the ability to observe and record.

The Public Access Counselor has not released a decision yet.

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Indiana Government

Courts - "Judge sets schedule for same-sex marriage case" in Penn. and in N.J.: "Judge Says New Jersey Can Begin Allowing Same-Sex Marriages in Two Weeks"

Amy Worden of the Philadelphia Inquirer, Harrisburg Bureau, reports:

HARRISBURG - The federal judge presiding over a lawsuit challenging the constitutionality of the state law barring same-sex marriage said Wednesday that he would decide within a month if the case should proceed to trial next year.

During an hour-long meeting with lawyers, U.S. District Judge John E. Jones 3d said he first must rule on motions by the Corbett administration to dismiss the case.

In filings to the judge, lawyers for the commonwealth have argued that under a 1972 U.S. Supreme Court ruling, federal courts have no jurisdiction over state marriage laws.

If Jones agrees with that decision, "the case is over," lawyer William Lamb told him. Lamb, a West Chester resident and former state Supreme Court judge, represents Corbett and state Health Secretary Michael Wolf.

Lawyers for the plaintiffs said they do not expect the motion to be granted. If it is, they plan to appeal to the U.S. Court of Appeals for the Third Circuit in Philadelphia.

The plaintiffs - 23 men, women, and children - want the judge to overturn the 1996 state law that defines marriage as a civil contract between "one man and one woman," and order the state to recognize their marriages as legal. They contend the law violates the Equal Protection and Due Process clauses of the 14th Amendment.

And in New Jersey, Kate Zernike reports today in the NY Times in a long story that begins:
A judge on Thursday cleared the way for same-sex marriages to start in New Jersey in two weeks, dismissing the state’s request to prevent the weddings until after an appeal of the court decision allowing them is completed.

“There is no ‘public interest’ in depriving a class of New Jersey residents their constitutional rights while appellate review is pursued,” wrote Judge Mary C. Jacobson of State Superior Court in Mercer County, who also wrote the decision last month that ordered the state to allow same-sex marriages. “On the contrary, granting a stay would simply allow the State to continue to violate the equal protection rights of New Jersey same-sex couples, which can hardly be considered a public interest.”

The state immediately requested that the appellate division grant a stay. It had already asked the New Jersey Supreme Court to hear the appeal on an expedited basis; the court has not said yet whether it will do so.

Judge Jacobson said in her opinion that the state had not demonstrated that its appeal was likely to be successful. And she denied the state’s argument that New Jersey would suffer “irreparable harm” if marriages began happening, ruling instead that the people harmed would be the same-sex couples who would have to wait even longer to gain access to the federal benefits that the United States Supreme Court guaranteed them in a decision in June.

For more on this New Jersey case, see this Sept. 27th ILB entry.

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Courts in general

Ind. Gov't. - More on: "Backyard barnyards could be banned in Oakland City"

Updating this ILB entry from Sept. 26th, this Oct. 8th story by Tabitha Waggoner in the Princeton Daily Clarion is headed "OC backyard barnyard ban back on books." Some quotes:

OAKLAND CITY—Despite a petition with more than 100 signatures asking the Oakland City Council to allow citizens to keep goats and chickens in their backyards, the council Tuesday upheld a 60-year-old ordinance that hasn’t been enforced in decades.

Council President Jerry Richardson offered a motion unanimously supported by the council that the ordinance be kept “as is” but allow until Jan. 1, 2014 before penalties kick in for those violating the ordinance. * * *

Oakland City resident Bryan Grubb returned with his wife Crickett and several children to present a petition that he said bore signatures of more than 70 people who did not want ordinance 1953-1 to be upheld.

Grubb said he spent two days on the petition. Alfred Cooper Jr. also voiced support for the Grubbs and other chicken and goat owning families. “Food costs are going up tremendously in the United States,” he said. “I think there’s some sensible people at this (council) table...If they just take the courage and think about it, they can think of a way to allow chickens so people have eggs...I think you guys can come to some common sense decision.” He reiterated that it should be restricted and be clean.

“There are a lot of low income people...there aren’t a lot of high paying jobs in Oakland City...they’re trying to make the ends meet.”

Oakland City resident Tiffani Burns presented pictures of run down, overgrown Oakland City properties to the council and said, “you may decide that some of these people may need goats.”

Lana Myers-Getto, who originally received a grandfathering to the ban when the ordinance was missing, once again requested a variance and cited medical reasons (and presented documents) for needing her goats and chickens.

“I have paperwork I know you’ll chuck in the trash as soon as you walk out the door,” she said to the council, but passed it out to each of them anyway.

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Indiana Government

Courts - More on "Mugged by a Mug Shot Online"

Updating this ILB entry from Oct. 6th, John Caniglia of the Cleveland Plain Dealer had a long story yesterday headed "Lawsuit over mug-shot web sites captures a public records dilemma." From the long story:

A class-action lawsuit filed in U.S. District Court in Toledo claims that companies that post the mug shots and charge money to take them down are nothing more than extortionists.

The suit says the companies are using people like Lashaway in a commercial way to benefit their business, a violation of Ohio's Right of Publicity Law. The suit contends that more than 250,000 people in Ohio have been harmed by web sites such as JustMugshots.com, BustedMugshots.com and mugshots.com.

"What they're doing with these web sites is akin to someone setting your house on fire and then charging you to put it out," said Scott Ciolek, an attorney representing Lashaway and others in the suit. "That's what these companies are doing. In my opinion, it is tantamount to extortion. That's also an infringement on publicity rights." * * *

The federal lawsuit is in its early stages. Ciolek, the attorney for Lashaway and Kaplan, says the web sites' actions have nothing to do with the First Amendment. He said the companies use public documents as a lever to force people to pay to take the photos down.

"When you consider the number of people affected by these web sites, I would consider it one of the largest extortion rings ever perpetrated," Ciolek said.

The lawsuit says that Citizens Information Associates charges customers a monthly membership fee ranging between $12.95 and $19.95 to view photos that are displayed on BustedMugshots.com. The suit says BustedMugshots.com charges an image and name removal fee of about $178 "for rush removal of the booking photos from its web site."

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Courts in general

Ind. Courts - "Longtime Faculty Member Diane Wood is New Chief Judge of Seventh Circuit "

That is the heading to this University of Chicago Law School Alumni Magazine article by Meredith Heagney. The long article begins:

It may sound like an unusual compliment, but many who know Judge Diane Wood have been compelled to utter it: she’s the kind of person it’s OK to disagree with. She won’t often abandon her point of view, but she’ll listen with respect and consideration to yours. And you can stay colleagues and even friends during and after your debate.

That quality—of being able to disagree without being disagreeable—is one of Wood’s many attributes that are likely to serve her well in her new role as Chief Judge of the Seventh Circuit Court of Appeals. It’s also, Wood pointed out, a quintessential Law School value that has been exported to the Seventh Circuit.

Wood, an 18-year veteran of the court, succeeds Judge Frank Easterbrook and Judge Richard Posner, both of whom served as Chief Judge in the last 20 years. All three are Senior Lecturers in Law and former professors at the Law School.

[h/t, How Appealing]

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Indiana Courts

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

For publication opinions today (4):

In Medtronic, Inc., v. Lori A. Malander, Individually and as Personal Representative of the Estate of David M. Malander, Sr., Deceased and Kathleen Malander, an 18-page opinion, Judge Barnes writes:

Medtronic, Inc., (“Medtronic”) appeals the trial court’s denial of its motion for summary judgment in an action against it by Lori Malander, individually and as the personal representative of the Estate of David Malander, deceased, and Kathleen Malander (collectively, the “Malanders”). We affirm.

Medtronic raises two issues, which we restate as:
I. whether the trial court properly found that the Malanders’ claim was not preempted by federal law; and
II. whether the trial court properly denied summary judgment regarding whether Medtronic voluntarily assumed a duty to David.

We first note that many of the facts of this case are subject to a stipulated protective order. As such, portions of the briefs and appendices are excluded from public access. * * *

We have attempted to exclude matters covered by the protective order from this opinion. However, to the extent such matters are included in this opinion, we deem such information to be essential to the resolution of the litigation or appropriate to further the establishment of precedent or the development of the law. See, e.g., Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011) (“As to the facts of the case that derive from the records of the Department and are discussed in this opinion, we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law.”). * * *

[I. Preemption] [W]e conclude that the Malanders’ claim is not preempted by the MDA, and the trial court properly denied Medtronic’s motion for summary judgment on this issue. * * *

[II. Assumed Duty] The Malanders do not allege that Medtronic should have participated in the surgery, was responsible for deciding whether to remove the Lead, or was involved with the physician/patient relationship. Rather, the Malanders argue that, having voluntarily agreed to give technical support, the technical support should have been made in a “reasonable and prudent manner.”

We agree with the Malanders. In fact, Medtronic concedes that, “[h]aving volunteered to provide technical support, Medtronic at most assumed a duty to provide that support in a reasonable and prudent manner.” Medtronic’s failure to exercise reasonable care in giving technical support would clearly increase the risk of harm to a patient. Medtronic voluntarily undertakes to perform the technical support for physicians to assist the physician in using their devices. The Malanders designated evidence that Medtronic’s technician was present in the operating room and that Dr. Klein talked on the telephone to additional technicians regarding the short V-V intervals experienced by David’s Lead. * * * Because “[t]he existence and extent of such a duty are ordinarily questions for the trier of fact,” Merrill, 771 N.E.2d at 1270, and genuine issues of material fact exist regarding whether Medtronic assumed a duty here, summary judgment on this argument would have been improper.

Conclusion. We conclude that the MDA does not preempt the Malanders’ claim against Medtronic and that genuine issues of material fact exist regarding whether Medtronic assumed a duty to David. Consequently, the trial court properly denied Medtronic’s motion for summary judgment. We affirm.

In In the Matter of Mental Health Actions for A.S. Sara Townsend, a 13-page opinion, Judge Friedlander writes:
Sara Townsend appeals a finding of indirect civil contempt against her issued by the Clark Circuit Court in conjunction with a mental health detention proceeding initiated by Townsend against A.S. Townsend presents the following restated issues for review: 1. Did the trial court err in finding Townsend in indirect civil contempt? 2. Did the trial court err in ordering Townsend to pay A.S.’s attorney and medical expenses? We affirm in part, reverse in part, and remand. * * *

In conclusion, this trial court erred in finding Townsend to be in indirect civil contempt of court because the deceptive actions upon which the ruling was based were undertaken in the absence of a court order and thus cannot be regarded as an act of disobedience. The actions that caused the trial court to issue its order for rule to show cause form the basis for a charge of criminal contempt, not civil contempt. We leave it for the State to decide whether to file such charges upon remand. Finally, we affirm the order directing Townsend to pay A.S’s uninsured medical expenses and $1000 toward her attorney fees, as well as to pay $500 to Wellstone, because such was a legitimate exercise of the court’s inherent power to impose sanctions.

In Matthew Fiandt v. State of Indiana, a 14-page, 2-1 opinion, including an 8-page dissent, Judge Barnes writes:
The issue before the court is whether Fiandt was improperly denied his right to a jury trial. * * *

Fiandt claims he was improperly denied his right to a jury trial because the trial court did not personally secure a jury trial waiver from him on the record. * * *

Fiandt failed to make a timely demand for a trial by jury as required by Criminal Rule 22, and, therefore, he was not entitled to have one. We affirm.

BAILEY, J., concurs.
NAJAM, J., dissents with opinion. {that concludes] Accordingly, I would hold that the Town Court properly granted Fiandt’s request for a jury trial and that the Superior Court erred when it accepted the proposed waiver of that right submitted by Fiandt’s counsel. I would reverse Fiandt’s convictions and remand for a jury trial.

In Robert Corbin v. State of Indiana, a 21-page opinion, Judge Mathias writes:
Robert Corbin (“Corbin”) brings this interlocutory appeal from the Starke Circuit Court’s denial of his motion to dismiss two counts of attempted child seduction. On appeal, Corbin claims that the facts alleged in the charging information are insufficient to support the charges alleged and that the trial court therefore erred in denying his motion to dismiss. We find Corbin’s conduct to be morally reprehensible. But we are also constrained to find that, as charged in the first count, Corbin did not take the substantial step required to amount to attempted child seduction. As to the second count, we are similarly constrained to find that Corbin again did not take the substantial step required to amount to attempted child seduction. In addition, the second count does not even charge a crime under Indiana law. We must therefore reverse and remand.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Frank D. Dinius v. State of Indiana (NFP)

Bryan D. Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 11, 2013
Posted to Ind. App.Ct. Decisions

Thursday, October 10, 2013

Courts - "Justice Kennedy On Law School, Blogging, And Popular Culture"

Jess Bravin of the $$ WSJ Law Blog, posts here on his "discussion on the Supreme Court before a student audience at University of California Washington Center." A sample:

Q: Chief Justice John Roberts, among others, has criticized law reviews for publishing articles on obscure subjects that offer little assistance to the bar and bench. I understand you agree—but have found a substitute.

A: Professors are back in the act with the blogs. Orin Kerr, one of my former clerks, with criminal procedure [and] the internet area, Mike Dorf, Jack Goldsmith. So the professors within 72 hours have a comment on the court opinion, which is helpful, and they are beginning to comment on when the certs are granted. And I like that.

Q: So you’re reading blog posts after cert grants?

A: I have my clerks do it, especially with the ones when we’ve granted cert, to see how they think about what the issues are.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Courts in general

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

In John Mullin, II v. Temco Machinery, Incorporated (SD Ind., Pratt), a 16-page opinion, Judge Flaum writes:

John Mullin, II, brought suit alleging that he was fired because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. He was an employee with an allegedly less than sterling performance as a follower of corporate policy. He was also the oldest—and most profitable— salesman for a company that sells fire trucks and other rescue equipment, Temco Machinery, Inc. After Temco fired the fifty‐six year old Mullin, it quickly hired two inexperienced salesmen in their twenties. Mullin brought suit, and the district court granted summary judgment to Temco. For the following reasons, we reverse and remand. * * *

Standing alone, none of these incidents, events, or alleged justifications would likely suffice for Mullin to survive summary judgment. In combination, however, they point to a string of questionable conduct, from the suspicious timing of personnel decisions to ambiguous statements about age to multiple seemingly inaccurate allegations. Mullin genuinely contests all of Temco’s accusations. He has put forth sufficient evidence that the jury should resolve the many material factual questions, as well as the credibility issues underlying them. Of course, we express no view on the ultimate merit of Mullin’s claims. When, as here, the “facts are susceptible to two interpretations,” the Supreme Court has cautioned against granting summary judgment “too readily.” Filar, 526 F.3d at 1066 (citation and internal quotation marks omitted).

III. Conclusion. For the foregoing reasons, we REVERSE and REMAND.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Ind. (7th Cir.) Decisions

Courts - "Federal courts likely to stay open despite government shutdown"

A Reuters story this afternoon by Joseph Ax includes:

Once the funding runs out, the chief judge of each federal district court will have to determine which employees and services are "essential" to the court's constitutional duty to hear and decide cases, just as other federal agencies have already been forced to do. Under federal law, "essential" employees must continue to work during a lapse in government spending, while "non-essential" workers are furloughed.

Many courts are poised to stay open - even if the money runs out - ensuring that litigants, attorneys and members of the public will likely see little difference in day-to-day operations.

Chief judges in New York, Indiana, Nevada, Michigan, Florida and elsewhere have announced that all court employees are essential and will report to work despite the shutdown. Those workers will not be paid until after the shutdown ends, but are guaranteed their salaries.

The U.S. Supreme Court will also remain open next week for oral arguments.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Courts in general

Ind. Decisions - "Elkhart teen begins appeal of his murder conviction"

Updating this ILB entry from yesterday, headed "Felony-murder case involving four Elkhart youths goes national," here is an Oct. 3rd story by Sharon Hernandez titled "Elkhart teen begins appeal of his murder conviction." The youth, Blake Layman, 17, of Elkhart, was convicted of felony murder at the joint trial in August. Some quotes from the story:

Layman’s attorney, Cara Weineke of Indianapolis, asked the [Elkhart Circuit Court on Oct. 3rd] to find her client indigent, so that he can obtain a copy of the trial transcript free of charge.

If a person is found indigent, the court may give that person permission to proceed with legal action without having to pay court fees or costs.

Weineke, who was hired as private counsel, explained to the court that it was Layman’s family that hired her, not her client. She said Layman does not have the money to retain her services and therefore should be found indigent.

Anyone can obtain a copy of a court hearing transcript, but each page of a transcript costs $2.80.

Circuit Court Judge Terry Shewmaker pointed out that Sparks and Sharp had also said they planned to file for an appeal, and that he did not know whether the three appeals will be consolidated.

Shewmaker said he would take the matter under advisement and issue a ruling at a later time.

Today the ILB contacted Ms. Wieneke, who explained:
Blake's family was able to hire me as private counsel. But when I called the court reporter for the transcript, I was told it would likely be about $5000. Well more than the fee the family have agreed to pay me.

So I filed a motion for Blake to be allowed to proceed in forma pauperis for purposes of appeal. The Judge held a hearing on the motion last week.

An appellate attorney appointed [as a public defender] on that case out of Judge Shewmaker's court would make $1500-2500, depending on whether the Judge thought it warranted the higher amount. Still half of what the court reporter will make for making a transcript for just one of the co-defendants.

The Court, if the motion were granted, would not be appointing me as a public defender because my fee would be paid by the family. Instead, he would merely be treating Blake as an indigent person for purposes of the fees and costs. Here's what he can expect to have to pay: the fee for the transcript, any copying costs for a copy of the Clerk's Record (no idea how much that will be yet), and a $250 filing fee for the Court of Appeals. Altogether it will most likely exceed my fee.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - "Supreme Court to hear Fort Wayne man's shoe-cam case"

This morning the Supreme Court heard oral argument in David Delagrange v. State of Indiana. Here is an AP story by Rick Callahan written before the argument. From the story:

Delagrange was arrested in February 2010 at an Indianapolis mall and found to have video images obtained from beneath the skirts of a 15-year-old girl and three 17-year-olds, according to officials.

The state appeals court threw out Delagrange's conviction in January.

The Indiana Court of Appeals ruled that Delagrange's behavior didn't violate state law regarding attempted child exploitation because the statute makes only "sexual conduct by a child" illegal and no such conduct was alleged.

Delagrange was arrested in February 2010 at Castleton Square Mall. He did not deny that he attempted to take photographs beneath women's skirts, court records said.

Judge Melissa May wrote that under the law, the girls would have had to expose themselves to satisfy sexual desires.

"The state presented no evidence the victims exhibited their genitals or intended to satisfy anyone,' " May wrote in the 2-1 decision.

In a dissenting opinion, Judge Edward Najam Jr. said that the law governing child exploitation could not be interpreted to depend on the child's intentions.

"Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children," Najam wrote.

Delagrange was originally also charged with voyeurism. But a court commissioner in Indianapolis dismissed those charges on the basis that voyeurism means peeping inside a dwelling, not looking up a skirt in a public place.

Here is the Jan. 25, 2013, 2-1 opinion of the Court of Appeals, which was vacated by the Supreme Court when it granted transfer. See also this June 6th ILB entry, providing background on the case.

Video of this morning's oral argument in the case is now available here.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

[ILB Update: This listing has been corrected, 3 opinions identified as for publication on the COA recent opinions index page are actually designated NFP in the opinions themselves. There have also been one or two similar errors earlier this week that the ILB corrected without mention.]

For publication opinions today (3):

In John Einhorn and Roxanne Einhorn v. Scott Johnson, Gretchen Johnson, Purdue University Board of Trustees Et Al., a 15-page opinion, Judge Najam writes:

John and Roxanne Einhorn appeal the trial court’s grant of summary judgment in favor of Purdue University Board of Trustees d/b/a Purdue University Cooperative Extension Service (“Purdue”), Marshall County 4-H Fair Association, Inc. (“4-H Fair Association”), and Scott and Gretchen Johnson on the Einhorns’ complaint for damages alleging negligence. The Einhorns also appeal the trial court’s order dismissing their complaint against Purdue for lack of subject matter jurisdiction. The Einhorns present the following dispositive issues for our review:
1. Whether the trial court erred when it concluded that it lacked subject matter jurisdiction over their claims against Purdue.
2. Whether the trial court erred when it concluded that Purdue and 4-H Fair Association are immune from liability under the Equine Activity Statute as a matter of law.
3. Whether the trial court erred when it concluded that the Johnsons were not negligent as a matter of law. * * *

[John was trampled by a spooked horse at the Marshall County 4-H Fairgrounds.] At the time of the incident, John was working as an unpaid volunteer at the 4-H Fair. Nine days later, on July 21, he was notified that he was eligible for medical benefits under Purdue’s workers’ compensation policy. John ultimately received $79,215.48 in medical benefits from Purdue’s workers’ compensation carrier even though he had not applied for those benefits. * * *

Because John was not Purdue’s employee at the time of the accident, his negligence claim against Purdue is not barred by the exclusivity provision of the Workers’ Compensation Act. Purdue and 4-H Fair Association are entitled to summary judgment as a matter of law under the Equine Activity Statute. And the Johnsons are entitled to summary judgment as a matter of law because they did not know or have reason to know that Clu had any dangerous propensities prior to the accident. Affirmed in part and reversed in part.

In Kevin C. Stone v. Jennifer M. Stone, a 3-page opinion on a motion for rehearing, Judge Barnes writes:
Kevin Stone (“Father”) petitions for rehearing following our decision in Stone v. Stone, 991 N.E.2d 992 (Ind. Ct. App. 2013). Among other issues raised by Father on appeal was whether the trial court erred in ordering his visitation with his daughter to be supervised. We declined to address this issue on the merits, finding it to be moot upon Jennifer Stone’s (“Mother”) submission of a recent court-approved agreement by the parties granting unsupervised visitation to Father in accordance with the Indiana Parenting Time Guidelines. We stated in part that Father had not filed a reply brief arguing that the issue of supervised parenting time was not moot. Stone, 991 N.E.2d at 998 n.2.

We now acknowledge that Father did, in fact, file a reply brief arguing that the issue of supervised parenting time was not moot, which brief erroneously was not considered by us. Regardless, after considering both Father’s reply brief and his rehearing petition, we remain convinced that Father’s supervised visitation argument is moot. * * *

With the above observations and acknowledgment that Father did in fact file a reply brief in this case, we grant rehearing but reaffirm our original opinion in all respects.

In Dustin Jack Gifford v. State of Indiana, a 9-page opinion, Judge Crone writes:
Jason Hays appeals his conviction for class B felony operating a vehicle with a controlled substance in blood causing death. The sole restated issue presented for our review is whether fundamental error occurred when the trial court admitted evidence that methamphetamine was found in Hays’s blood. Concluding that the claimed error does not rise to the level of fundamental error, we decline to review Hays’s challenge to the admissibility of the blood evidence and affirm his conviction. * * *

Here, Hays challenges the admission of what he claims to be unlawfully seized evidence, arguing that the search warrant that was executed on his vehicle to obtain the evidence was not supported by probable cause because the information used in the probable cause affidavit was gathered during an improper inventory search of the vehicle. This basis for challenging his conviction does not cast doubt as to whether Hays committed the crime, but is merely a challenge to the integrity of the judicial process. As in Brown, there is no claim here of fabrication of evidence or willful malfeasance on the part of the investigating officers. There is similarly no contention that the blood evidence is somehow not what it appears to be. Accordingly, the claimed error does not rise to the level of fundamental error. We therefore decline to review Hays’s challenge to the admissibility of the blood evidence and affirm his conviction.

NFP civil opinions today (5):

Nathan and Deanna Ferguson v. Shiel Sexton Company, Inc., WR Dunkin & Son, Inc., Lynch, Harrison & Brumleve, Inc., et al.

In the Matter of the Termination of the Parent-Child Relationship of E.T., D.T., L.T., and Y.T., Minor Children: M.T., v. Indiana Dept. of Child Services and Lake Cty. Court Appointed Special Advocate (NFP)

In the Matter of the Termination of the Parent-Child Relationship of C.W. (Minor Child), and J.W. (Mother), v. The Indiana Department of Child Services (NFP)

In Re The Involuntary Termination of the Parent-Child Relationship of R.C. and M.C.: Ro.C. (Father) v. The Indiana Department of Child Services (NFP)

Coady Coyote Craddick v. Indiana Department of Correction (NFP)

NFP criminal opinions today (6):

Fredrick D. McClure v. State of Indiana (NFP)

Jason Hays v. State of Indiana (NFP)

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

Tabatha Murphy v. State of Indiana (NFP)

Ryan Thomas Johnston v. State of Indiana (NFP)

David Roy Winters v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Environmental Concerns Addressed Over Logjam Removal"

Updating yesterday's ILB entry, here is the second part of a three-part story from StacyPageOnline, out of Kosciusko County, examining the Tippecanoe River logjam removal project, which is to begin today. Some quotes:

According to Amy Bloemendaal of Kosciusko County Lakes and Streams, the process of removing logjams aims to reduce erosion and sedimentation in rivers and streams due to the jams. She explained that due to logjams, water can be redirected toward areas of concern, such as roads, stream banks and areas that may “markedly affect stream channel patterns.” She further explained that the process of removing the logjams is of great concern to agencies such as the DNR, especially when weighing the effects on fish, wildlife and other aquatic organisms.

“Woody debris provides a valuable habitat for fish, wildlife and other aquatic organisms, so removal of logjams must be weighed against the impacts on fish and wildlife habitat,” stated Bloemendaal. “Expertise within DNR will be utilized to help determine these potential impacts. If approved, the removal of such logjams must be conducted in a manner that minimizes impact on both the aquatic habitat and the land used to access the stream for logjam removal.”

Bloemendaal said it is recognized that woody debris is an import part of the habitat within the river and stressed the removal process would be limited to areas of greatest severity. She noted that removal would be conducted in an environmentally conscious way.

“The project will not, cannot and in good environmental conscious has no intention to remove all woody debris,” stated Bloemendaal. “The project will only focus on removals in the areas of most severe jamming, which can actually improve the health of the Tippecanoe River and has the potential to help mitigate flooding.”

Both Bloemendaal and Kosciusko County Emergency Management Director Ed Rock stressed the fact that absolutely no dredging will take place during the removal of the logjams and that only light equipment will be utilized. Bloemendaal also noted there will be no clear cutting as a result of the project. * * *

According to Rock, the project will be handled by Gilbert Drainage and Excavating of Wawaka. Though the company was awarded the $111,000 bid, currently $46,000 is available for the project through the LARE grant and a 20 percent match. Rock said much of the match was raised by groups such as the Lake Tippecanoe Property Owners, Pike Lake Property Owners and Center Lake Property Owners. As each logjam is estimated at $1,000 to clear, Rock stated the county plans to pursue additional funding next year to finish the logjam removal process.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Environment | Indiana Government

Ind. Courts - More on "Indiana doctor accused of road rage shooting arraigned in Madison County Ky"

Updating this ILB entry from Oct. 3rd, which includes a link to a video of the alleged event, Lexington WKYT reported late yesterday afternoon in a story headed "Attorney claims Madison County road rage driver had BB gun". Some quotes from the story:

Eyewitness video captured by David Kollar shows the driver, later identified by police as Dobyns, pointing a gun at Kollar.

Wednesday morning in court the trooper heading the investigation revealed that police in Indiana found a CO2 powered BB gun while searching Dobyn's car. The trooper testified that State Police didn't ask for further analysis of Dobyn's car after the bb gun was found.

Dobyn's attorney, Jim Baechtold, says the puff of smoke or vapor out of the firearm is consistent with a BB gun and insists that's what it was.

Baechtold said in court the harshest charge his client should be facing right now is second degree wanton endangerment.

Dobyns will be allowed to return to Indiana while awaiting a grand jury's decision on any indictments.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Indiana Courts

Ind. Decisions - More on: ND Ind. issues opinion in Herx motion to compel discovery

Updating this ILB entry from yesterday, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

FORT WAYNE – The Fort Wayne-South Bend Catholic Diocese will have to tell a former teacher how many teachers signed a morals clause while they were employed by diocesan schools from 2006 to 2011.

Emily Herx’s request for the information comes in the midst of her lawsuit against the diocese. She sued the diocese in the spring of 2012, claiming she had been the victim of discrimination when she was fired from her teaching job at St. Vincent de Paul School when she underwent in vitro fertilization. * * *

A letter written by Bishop Kevin Rhoades in 2011 called the procedure an “intrinsic evil, which means that no circumstances can justify it,” according to court documents.

The Equal Employment Opportunities Commission found in Herx’s favor in January 2012.

A few months after the suit was filed, attorneys for the diocese asked a U.S. District Court judge to dismiss Herx’s complaint. The diocese argued that it is a religious employer that acted in a manner consistent with its belief when it decided not to renew Herx’s contract.

This year, Herx filed requests for disclosure of information as the case progressed, specifically information about the diocese and who made the decisions to fire her.

She also wanted to know how various teachers were treated with respect to the morals clause, who had to sign it and whether men or woman were handled the same way. * * *

In an order issued this week, U.S. District Magistrate Judge Roger Cosbey said Herx was entitled to the information about all diocesan teachers during that period for the purpose of comparison.

He said the diocese failed to show any case a religious organization was exempt from providing information to the other side in a civil case because of religious concerns.

The diocese has to provide the information by early November, according to court records.

Posted by Marcia Oddi on Thursday, October 10, 2013
Posted to Ind Fed D.Ct. Decisions

Wednesday, October 09, 2013

Ind. Decisions - Felony-murder case involving four Elkhart youths goes national

From a long August 19th post by Sharon Hernandez in an Elkhart Truth blog, headed "All you need to know about ongoing trial for three Elkhart teenagers charged with felony murder":

Blake Layman, Jose Quiroz, Levi Sparks, Anthony Sharp and Danzele Johnson allegedly attempted to break into a house at 1919 Frances Ave., Elkhart. Rodney Scott, the homeowner, was sleeping in the second floor of his home when he heard noise downstairs. He called 911 and took his handgun as he started to walk down the stairs. When he saw strangers moving about in the first floor of his house, he fired shots, hitting Johnson, 21, and Layman. Layman was taken to the hospital and later arrested. Johnson died at the scene. * * *

In a press conference, Elkhart County Prosecutor Curtis Hill, Jr., said his office had charged all four people involved in the Oct. 3 break-in with felony murder. Scott was not charged because it was determined he was acting in self-defense. Sparks, Sharp and Quiroz, 17, were arrested before and shortly after the press conference. * * *

Jose Quiroz pleaded guilty to felony murder about a month after his charge was filed. He received a sentence of 45 years in prison and 10 years on probation. During his plea hearing, Quiroz gave up some details about the attempted break-in, including Layman, Sparks and Sharp in his description of the incident.

The three remaining were found guilty of felony-murder on August 22. As Ms. Hernandez reports in the Sept. 12th Elkhart Truth:
Blake Layman, 17; Levi Sparks, 18; and Anthony Sharp, 19, appeared for their sentencing hearings Thursday morning, Sept. 12.

Layman and Sharp received a sentence of 55 years in prison. Sparks received a 50-year sentence. * * *

“Felony murder is a hard concept for these young men to understand” said Mark Doty, Layman’s attorney. “It is not an easy concept for people to wrap their head around when the perpetrators didn’t pull the trigger.”

On Sept. 21st Ms. Hernandez had a long story in the Truth headed "Age of defendants could be part of appeal for Elkhart teens convicted of felony murder." From the story:
The case will remain in the courts system, as families of the defendants have expressed their intentions to appeal the conviction and sentence.

Joel Schumm, clinical professor of law at Indiana University Robert H. McKinney School of Law, explained that there are a few wrinkles in the case, which could lead to interesting arguments when it reaches the court of appeals or Indiana Supreme Court.

First, there’s the fact that there were multiple defendants.

Then, that it’s one of the defendants, not the victim, who died during the commission of a crime, and that it was the homeowner — the victim — who fired the shots.

Though not unheard of, it is in some respects an unusual case. Schumm pointed out Palmer v. State, an Indiana Supreme Court case that Circuit Court Judge Terry Shewmaker mentioned in his sentencing hearing, which aided him in making his decision on the sentencing.

In Palmer v. State Jesse Palmer attempted to kidnap an officer while helping another man, Robert Williams, escape. During the ordeal, officers shot and killed Williams, and Palmer was charged and later convicted of felony murder.

The Indiana Supreme Court affirmed the conviction. The statute did not restrict the felony murder provision only to the instance in which the felon is the killer.

The court also quoted the Indiana Court of Appeals, which had said a person who commits or attempts to commit an offense listed in the felony murder statute is criminally responsible for a homicide.

The court agreed it has to be foreseeable by the people committing the felony that there’s danger of death as a result, Schumm said.

In Layman, Sparks and Sharp’s case, there was a chance that the owner of the house would be armed.

“And in Indiana it’s pretty clear by statute that homeowners are allowed to defend themselves against unlawful entry into their house by shooting at the people that break in.”

Another wrinkle in the case was that some of the defendants were juveniles at the time of the break-in.

Over the last several years there has been discussion about how juveniles assess situations differently from adults, Schumm said.

“I assume the argument could be made in appeal that whether this is foreseeable or not should be different because a juvenile’s involved,” he said.

“Maybe an adult would or should foresee that but a juvenile, if they talked about breaking into someone’s house to take something, it’s probably not as foreseeable to them that someone might end up getting shot as a result.” * * *

The Indiana felony murder rule, found under Indiana Code 35-42-1-1 (2), says it is murder when a person kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or carjacking.

On Oct. 4th the Huffington Post had an article by Steve Drizin, Clinical law professor, Northwestern University School of Law, and Emily Keller, a Staff Attorney at Juvenile Law Center, headed "The Elkhart Four and the Unjust Application of the Felony Murder Rule on Teens ." Some quotes:
Felony murder statutes should not apply to children and adolescents. Such statutes rely on an assumption that an individual who takes part in a felony understands the risk that someone may get killed in the course of the felony. However, adolescent development and brain science research show that, compared with adults, children and teenagers are less able to perceive and assess risks. This research confirms what common sense tells us: adolescents are less capable decision-makers than adults -- they are more impulsive, less risk-averse, and have difficulty assessing the consequences of their actions, often prioritizing short-term rewards over any potential long-term negative consequences.

When teens like Blake Layman, Levi Sparks, and Jose Quiroz, take part in a burglary, they therefore are less able to foresee the negative outcomes that an adult may anticipate, including the chance that someone may get injured or killed. Unfortunately, children and teens are too often prosecuted under felony murder statutes that inaccurately presume that the teens understand the risk that someone could be killed as a result of their actions. Alarmingly, a report from Human Rights Watch and Amnesty International shows that approximately 26 percent of the 2,500 juveniles in the U.S. sentenced to life without parole received these sentences based on felony murder convictions. Though these children did not kill or intend to kill the victim, they have been sentenced to die behind bars.

Children who commit crimes should be held accountable, but their charges and sentences must be based on their own actions and culpability rather than results of their actions that they, as adolescents with poor risk-assessment skills, are unlikely to foresee. In Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the U.S. Supreme Court relied on adolescent development research in banning the juvenile death penalty and constraining the imposition of juvenile life without parole sentences, finding that children are categorically less culpable than adults. Similarly, the Elkhart Four should not remain behind bars until they are senior citizens based on an unforeseen killing, but should receive sentences based on their individual actions, reduced culpability, and potential for rehabilitation.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Ind. Trial Ct. Decisions

Courts - Ever do something like this? [More]

Thanks to How Appealing for the link to this story by Paul Hammel of the World-Herald Bureau, headlined "Oops! Email deriding Nebraska Supreme Court accidentally sent to chief justice". A sample:

The email was sent by Omaha attorney Warren Whitted Jr., an immediate past president of the bar, just after the high court heard oral arguments Sept. 30. The case involved whether lawyers should continue to be required to join the bar, the state's lawyers' association.

Whitted apologized for the inadvertent distribution later on Sept. 30. The email was sent to members of the Bar Association's executive council. He failed to delete from the list Heavican, who is a nonvoting liaison to the Supreme Court on the executive council.

“The comments were not directed to you and I intended no disrespect to the court,” Whitted wrote in an email apology sent to the court. Messages left with his office Tuesday were not immediately returned.

[Chief Justice Mike] Heavican, according to court documents, did not respond to the email, but notified the attorneys representing the Bar Association and the plaintiff in the case, State Sen. Scott Lautenbaugh of Omaha, of the improper contact, citing court rules on such inadvertent communications.

[More] Also interesting is the back story. The oral argument was about whether Nebraska lawyers should be forced to join the Nebraska Bar Association. Nebraska is one of the states, like Michigan, where all lawyers or part of a mandatory, or integrated, bar. According to this long Oct. 1 story, also by Paul Hammel, a Nebraska state senator is petitioning the Nebraska Supreme Court to make state bar membership voluntary. A quote from the beginning of the story:
LINCOLN — Lawyers should not be forced to join what amounts to a union — the Nebraska State Bar Association — to practice law, a state senator told the Nebraska Supreme Court on Monday.

Among the reasons, according to State Sen. Scott Lautenbaugh of Omaha, is that the organization takes political positions that conflict with his views and others in the organization. He also said the association strayed beyond regulating the legal profession and improving legal services, the mission established by a U.S. Supreme Court ruling.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Courts in general

Ind. Decisions - Tax Court decides one case, yesterday

In Douglas G. Kildsig v. Warrick County Assessor, a 6-page, Oct. 8th opinion, Judge Wentworth writes:

This case concerns the Indiana Board of Tax Review’s determination that the burden-shifting rule contained in Indiana Code § 6-1.1-15-1(p) did not apply to its proceedings and that a portion of Douglas G. Kildsig’s land was properly classified as residential excess acreage for the 2009 tax year. The Court reverses in part and affirms in part. * * *

For the above-stated reasons, the Indiana Board’s determination that the burden-shifting rule contained in Indiana Code §6-1.1-15-1(p) did not apply to its proceedings is REVERSED. The Court, however, AFFIRMS the Indiana Board’s determination that Kildsig’s 11.648 acres were properly classified as residential excess acreage for the 2009 tax year.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - SD Ind. court clerk explains court operations after "shutdown"

Laura A. Briggs, Clerk of the Court, SD Ind., has issued this press releases:

October 9, 2013

COURT OPERATIONS AFTER “SHUTDOWN”

INDIANAPOLIS, Indiana (October 9, 2013): The Federal Judiciary is likely to exhaust all available sources of funding some time during the week of October 14, 2013, unless a continuing resolution or other source of funding is passed by Congress and signed by the President before then.

Once all funds have been exhausted, the Judiciary enters a “shutdown” phase. However, even in this phase, the normal processing of all criminal and civil cases will continue. New cases can be filed. Criminal and civil hearings and conferences will take place. Jury and bench trials will proceed. CM/ECF will be operational, and Orders will be processed. The Courthouses of the Southern District will be open.

Customers should experience minimal disruption – unless they are involved in a civil case in which the United States Attorney’s office has appeared. Some of these cases are stayed pursuant to the Court’s Order of October 7, 2013 (available on our website: www.insd.uscourts.gov). The civil case docket should be reviewed to determine if the stay is in effect in a particular case. Questions about the presence or absence of a stay in a particular case should be directed to the Clerk's Office.

Any further information on this topic will be posted on the Court’s website.

ILB: The ND Indiana website has more general information.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In In Re: the Marriage of L.C. v. T.M., an 18-page opinion, Judge Baker writes:

In this case, appellant-respondent, L.C. (Mother) challenges the trial court’s denial of her petition to modify custody of the parties’ two children, K.M. and D.M. The original order that was entered in 2007 provided that Mother and appellee-petitioner, T.M. (Father), share both legal and physical custody over the children. Mother resides in Carmel where the children attended school and Father lives in Mooresville. Both of the children play in a Carmel travel soccer league that continues throughout the year.

Because of the logistics involved in the soccer league, the children’s desire to live with Mother, and other changed circumstances that have occurred since 2007, Mother filed a petition for custody modification that the trial court subsequently denied. Mother asserts that the trial court’s reliance on the parties’ initial agreed shared physical custody arrangement as a basis for denying the modification request is clearly erroneous because of the changed circumstances and modification is in the children’s best interests.

After reviewing the record, we believe that Mother presented sufficient evidence at trial warranting modification of custody. More particularly, Mother demonstrated that substantial changes in circumstances have occurred since the entry of the original decree, and that a change in the original physical custody order is in the children’s best interests. Therefore, we conclude that the trial court’s judgment denying Mother’s petition was clearly erroneous. Thus, we reverse the judgment of the trial court and remand this cause with instructions that an order be entered based on the evidence presented that modifies the custody arrangement in accordance with the children’s best interests.

In Custom Radio Corp., Custom Management Group, Inc., Richard Yarger and Robert O'Brien v. Actuaries & Benefit Consultants, Inc., and John M. Fogle, a 10-page opinion, Judge Bradford writes:
Appellants-Plaintiffs Custom Radio Corp.; Custom Management Group, Inc.; Richard Yarger; and Robert O’Brien appeal the trial court’s grant of summary judgment in favor of Appellees-Defendants Actuaries & Benefit Consultants, Inc. and John Fogle. From 1995 to 2004, Appellees provided consulting services to Appellants with respect to certain Welfare Benefit Plans investing in cash value life insurance. The plans were designed to comply with 26 U.S.C. § 419(A)(f)(6) so that Appellants’ contributions thereto would be tax-deductible. In July of 2003, however, the Internal Revenue Service (“IRS”) issued final regulations with regard to subsection 419(A)(f)(6), which rendered Appellants’ plans non-compliant and their contributions retroactively taxable. A subsequent IRS audit revealed that Appellants owed nearly $750,000 in back taxes, penalties, and interest, but, on October 20, 2008, Appellants entered into a settlement agreement with the IRS, whereby the tax penalties were waived.

On October 19, 2010, Appellants filed suit against Appellees, claiming negligent provision of consulting services and breach of oral contract. Appellees moved for summary judgment on the basis that the statutes of limitation had expired. The trial court determined that Appellants’ causes of action accrued and their respective statutes of limitation began to run on April 30, 2004, by which date Appellants allegedly knew that their Welfare Benefit Plans were non-compliant with 26 U.S.C. § 419(A)(f)(6). On appeal, Appellants argue that their causes of action did not accrue until October 20, 2008, the date on which they reached their settlement agreement with the IRS and thereby discovered their damages.

We conclude that Appellants’ causes of action accrued and the statutes of limitation began to run on the date Appellants knew or, through ordinary diligence, could have discovered that their Welfare Benefit Plans were non-compliant with subsection 419(A)(f)(6) and that their plan contributions were retroactively taxable. But finding a genuine issue of fact as to whether Appellants knew or could have known this information by April 30, 2004, we hold that summary judgment is inappropriate. The judgment of the trial court is reversed and remanded.

In Specialty Foods of Indiana, Inc., d/b/a Jersey Mike's Subs v. City of South Bend and Century Center Board of Managers , an 11-page opinion, Sr. Judge Darden writes:
Specialty Foods of Indiana, Inc. III, d/b/a Jersey Mike’s Subs (“Specialty Foods”), appeals the trial court’s order denying its complaint for declaratory judgment. We affirm.

Specialty Foods presents three issues for our review, one of which is dispositive: whether the force majeure clause of the agreement between Specialty Foods and the Century Center Board of Managers for the City of South Bend (“Century Center”) applies to excuse the Century Center’s further performance under the agreement. * * *

Specialty Foods contends the trial court erred by applying the force majeure clause of the UMO Agreement to excuse the Century Center’s performance under that agreement when the NFF moved the Hall of Fame from South Bend to Atlanta, Georgia. * * *

For the reasons stated, we conclude that the force majeure provision of the UMO Agreement is applicable to excuse the Century Center’s non-performance of its obligations under the Agreement because the closure of the Hall of Fame in South Bend constitutes a “reason not within the reasonable control of Century Center.”

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jesse Doyle, Jr. v. State of Indiana (NFP)

Derek Dewitt v. State of Indiana (NFP)

Darrell Hix v. State of Indiana (NFP)

Jeffrey Cook v. State of Indiana (FNP)

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: State of Indiana, 15 public school districts sue over Obamacare

Updating this post from earlier this morning, IndyPolitics has now posted a 7-minute audio clip from Rep. Ed DeLaney who says "the Republican lawsuit filed against the Affordable Care Act could result in thousands of Hoosiers being left with no insurance coverage."

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Ind. Courts - "Prosecutors seek convictions, bank accounts in Northside Indianapolis prostitution bust"

Tim Evans reports in the Indianapolis Star on high-end prostitution arrests in Marion County. Some quotes:

Now, Veronika LeBlanc, 23, and Anzhelika Rampone, 29, are facing an Oct. 23 jury trial in Marion Superior Court on prostitution charges.

Rampone, the alleged madame who police say arranged trysts online using the name “Natasha Smirnoff,” is charged with promoting prostitution. The Class C felony charge carries a penalty of two to eight years in prison, plus a fine of up to $10,000.

LeBlanc is charged with prostitution. That is a Class A misdemeanor, which carries a maximum penalty of up to one year in jail and a $5,000 fine.

But the criminal charges may not be their biggest worry. That’s because the women are facing an even more ominous legal battle: a fight for more than $300,000 in cash and bank deposits police seized following their arrests.

In addition to the criminal charges, prosecutors have filed two forfeiture lawsuits: One seeks $156,000 from nine bank accounts belonging to LeBlanc and Rampone, the other targets $94,000 confiscated from Rampone and $49,000 plus more than a dozen pieces of jewelry, taken from LeBlanc.

The lawsuits contend the money came from criminal acts and that Rampone and LeBlanc “have participated in, and constructed to operate a corrupt enterprise, through a pattern of racketeering activity.”

ILB: See also Ogden on Politics' post on the civil forfeiture aspects of the story.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Ind. Gov't. - "Log Removal Project Raises Public Concern"

StacyPageOnline, out of Kosciusko County, has a three-part series "examining the Tippecanoe River log jam removal project, which is to begin Thursday." This is from Part 1, an Oct. 8th report from Alyssa Richardson.

An earlier story, from Phoebe Muthart on Sept. 10, reported that:

The Tippecanoe River clean-up project is closer to becoming a reality. That was the message provided to the Kosciusko County Commissioners this morning.

According to information provided in a recent study of the river, there are 111 blockages in the river. Blockages include tree limbs and other debris that are preventing the water from flowing. The result has been local flooding, especially in the Center and Pike lakes in Warsaw and along the Barbee Chain of Lakes.

The river clean-up project will be broken up into segments and includes removal of limbs and debris.

Bids for the project are approximately $110,000. So far, $45,000 is available to pay for the project and the county has also applied for a Lake and River Enhancement grant.

The clean-up project is expected to start at the west county line moving east. Over 30 miles of the river will be completed. The entire area of over 30 miles of the river in the county will be cleaned. “We can’t use heavy equipment,” said Ed Rock. “We can only use hand tools.”

A committee will select a bidder this week. Once a bid is awarded, the project may begin as early as this year or not until next spring, Rock said. Property owners will be notified prior to work beginning.
“There’s no guarantee it will fix the problem (flooding),” Rock said of the clean-up efforts, but feels confident removing blockages will help. “We just have no history to prove it.”

From the Oct. 8th story:
Though many are looking forward to some reprieve from flood waters, others are not quite as certain that the log removal process is a “good idea.”

Recently, a flier has circulated through the community demanding that Tippecanoe River property owners not sign a form from the county requesting access to the river from their properties. The flier questions whether the county has done a study on the removal of fallen trees and other snags that impede water flow.

In addition, the flier questions whether anyone knew of the committee responsible for the clean up efforts and if that committee ever contacted property owners for their opinions. Lastly, the flier states that in the 1980’s, a company was hired to put snags and drop trees into the river and infers that the removal process could be harmful for endangered species. * * *

According to Amy Bloemendaal of Kosciusko Lakes and Streams, the project to clear the river of obstructions has been a collaboration between the Kosciusko County Office of Emergency Management, the Kosciusko County Surveyor’s Office, Lake Tippecanoe Property Owners, Kosciusko Lakes and Streams and the Indiana Department of Natural Resources.

In addition, the U.S. Army Corps of Engineers, Indiana Department of Environmental Management, Natural Resources Conservation Service, Soil and Water Conservation District and The Nature Conservancy were consulted in the process and development of this project.

According to Kosciusko County Emergency Management Director Ed Rock, the decision to remove the logs was not based on a study, but on the fact that grant money was available from the IDNR to remove log jams along the river. Upon the discovery that this grant money was available through the Lake and River Enhancement program, Rock stated parties involved in the log jam removal project began investigating whether that grant money might be well utilized in the area. After examining the Tippecanoe River, it was discovered that a total of 111 jams exist west of Warsaw alone. That does not include the blockages east of Warsaw to Oswego.

“In reality, if you ask about what study was done, I would have to say no, no study was done,” said Rock. “There were grants available to remove log jams in the river. We decided we’d look at it and see if we had any. (After discovering) 111 log jams, we thought maybe we should get some of those out of there before it creates a major issue.”

Rock added the project to remove log jams is not a new one, instead, efforts have been in effect for over a year now to not only seek out public opinion, but to raise the 80 percent match mandated by the DNR to begin the removal process.

Bloemendaal and Rock both noted that the public was notified on several occasions over the past year of the intent to remove log jams along the river. According to Bloemendaal, two stakeholder meetings were held on Aug. 24, 2012 and Sept. 6, 2012. Invitations were sent to environmental organizations and agencies, lake associations and property owners along the stretch of river and other potentially interested parties. In addition, on both Dec. 19, 2012, and Jan. 2 of this year, the project was presented on the Kosciusko County Commissioner meeting agenda.

ILB: Looking through earlier ILB entires, I found this COA opinion on log jams, from July 20, 2006, and this follow-up entry, from July 24, 2006.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Government

Ind. Courts - More on: State of Indiana, 15 public school districts sue over Obamacare

Updating this post from yesterday, here is Dan Carden's story in the NWI Times. Some quotes:

INDIANAPOLIS | Attorney General Greg Zoeller is taking a second legal shot at halting a piece of the Affordable Care Act, also known as Obamacare.

The Republican sued the Internal Revenue Service on Tuesday, claiming that tax penalties for businesses with 50 or more full-time employees that fail to provide qualifying health benefits cannot be enforced against state or local governments.

He is asking the Indianapolis federal court permanently exempt government entities from the so-called "employer mandate," but is not re-challenging the constitutionality of the overall health law, which the U.S. Supreme Court upheld last year following an earlier Zoeller lawsuit. * * *

The Indiana lawsuit is being led by Solicitor General Thomas Fisher, a Jasper County native, and will paid for using existing resources appropriated by the Republican-controlled General Assembly for the attorney general's office. The schools are represented by the Indianapolis law firm of Bose, McKinney and Evans.

Zoeller has authorized spending an additional $20,000 to hire Ken Klukowski as a special deputy attorney general for 10 months.

Klukowski is a Notre Dame graduate and director of Center for Religious Liberty at the conservative Family Research Council where he co-authored the 2011 book, "The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency."

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Ind. Courts - "New St. Joe court to hear domestic violence cases"

Madeline Buckley has a long story today in the South Bend Tribune that reports:

... Most similar pleas for protection are funneled through small claims court where they fall in the busiest dockets amid landlord-tenant disputes and minor debt collection issues. Others are assigned to the Superior and Circuit courts.

Seeking a better way to handle what some officials say are the most sensitive of civil claims, the county has secured a federal domestic violence grant to create a court devoted to hearing protective order cases.

Judges, attorneys and advocates say such a court will offer improved and efficient services for victims and more care and attention to cases in which the violence can potentially escalate.

But in the longterm, the county will likely have to put up the money to keep the court running if it decides it is a necessary service.

St. Joseph Circuit Court Judge Michael Gotsch applied for and received a $40,000 federal grant to create the court after the idea sprung out of a 2011 meeting of law enforcement, prosecutors, judges, advocates and other community leaders. * * *

At the start, the protective order court will not be anchored in a physical courtroom with its own judge or magistrate, but it will be run through the Circuit Court with its own stenographer, who will also act as an administrative assistant and a part-time bailiff.

The administrative assistant will corral all protective order petitions filed with the clerk’s office and ensure they are assigned to the right court.

The grant funds the stenographer/assistant salary and part of the bailiff salary. An additional $16,900 contributed from the county funds the rest of the salary as well as office supplies, postage, training and equipment.

Gotsch received permission from the state to use county senior judge hours, so a rotation of the county’s senior judges will hear the protective order cases. That money comes from the state.

Blocks of time will be assigned each week in courtrooms in both the South Bend and Mishawaka courthouses for the senior judges to hear the cases. Eventually, Gotsch said, he hopes to petition the legislature to hire a magistrate to preside over the protective order court.

And as the county is currently building four new courtrooms, Gotsch said the protective order court could get its own space down the road if it continues to receive funding.

Gotsch said the court could tentatively start running in November. Gotsch will reapply for the grant each year when it expires, though he said the county probably will not receive the same amount each year.

“They sort of wean you off the grant,” Gotsch said, meaning the county will likely need to come up with more of the funds to run the court as the years progress.

ILB: As noted previously, like the Evansville paper, the SB Tribune will shortly become completely unavailable to nonsubscribers. The digital subscription will be $186.80/year.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Ind. Decisions - ND Ind. issues opinion in Herx motion to compel discovery

Updating a long list of earlier ILB entries in the case of Herx v. Diocese of Ft. Wayne, the ND Ind. has issued a 10-page opinion and order on:

Plaintiff Emily Herx’s Motion to Compel Complete Responses to Written Discovery. Herx is a former Catholic elementary school teacher whose employment contract was not renewed after it learned she was pregnant through in vitro fertilization treatment, purportedly in violation of the “morals clause” of her contract. * * *

For the reasons stated below, the Motion will be GRANTED IN PART and DENIED IN PART. Specifically, the Motion will be DENIED as to the Diocese’s Response to Request for Admission No. 14, the School’s Answers to Interrogatories Nos. 15 and 16, and the Diocese’s Answers to Interrogatories Nos. 15 and 16. The Motion will be GRANTED as to all remaining discovery requests, but the scope of discovery will be limited to teachers who, from January 1, 2006, to June 22, 2011, were employed by the Diocese, and who signed a Regular Teaching Contract containing a “morals clause” identical to the one Herx signed.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Ind Fed D.Ct. Decisions

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

Updating this ILB entry from Sept. 26th, McCutcheon v. Federal Election Commission was argued yesterday before the SCOTUS, in I believe the first oral argument of the new term.

Here is Adam Liptak's Oct. 1st preview in the NY Times.

Here is Nina Totenberg's Oct. 8th preview on NPR. Here is her post-argument story.

Here is Lyle Denniston's argument recap in SCOTUSblog. And here is SCOTUSblog's list of other stories on the argument.

[More] See also this Slate article by Dahlia Lithwick.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Courts in general

Ind. Courts - A total federal court shutdown looming?

That was the topic of Norman Cox's story, with video, last night on WRTV-6. Some quotes:

The federal courts in Indiana are open -- for now. But officials are saying they could run out of money in the next week or so if nothing happens in Washington to move budget talks off dead center. And if that happens, convicted criminals might have to be set free.

Defense attorney Jack Crawford said the legal community is getting more and more concerned as the day of a possible federal court shutdown approaches. He said there could be severe ramifications in criminal cases, where defendants are guaranteed by law that their cases will be handled speedily.

"A person who's arrested on a federal crime has to be brought in front of a magistrate for an initial hearing promptly. Usually (that) means the next day. And they are entitled to what's called a bond or detention hearing within three to five days,” Crawford said. “If that doesn't happen because the employees aren't there, then that person may have to be released back into the community."

Charges could be re-filed against that person after the government re-opens. But in the meantime a potentially dangerous criminal could be back on the streets.

U.S. Attorney Joe Hogsett is already operating with a half-staff and has cut back on civil suits to concentrate on criminal cases. He says his remaining staff will do whatever is needed to keep dangerous criminals from being turned loose.

"We will be working with the courts to make sure that all federal laws are complied with, especially as it goes to the right to a speedy trial,” Hogsett said. “But it is a concern, and particularly when half of your office is being furloughed by the partial government shutdown."

An official with the federal courts clerk’s office said that on or around Oct. 15 (that’s one week from Tuesday), the judges will re-assess their situation and “provide further guidance” on what will happen next.

Posted by Marcia Oddi on Wednesday, October 09, 2013
Posted to Indiana Courts

Tuesday, October 08, 2013

Ind. Decisions - Fed. CJ Young stays most civil cases at request of U.S.

SD Ind Chief Judge Richard L. Young has acted on a motion from the United States asking for a stay of civil litigation, including bankruptcy cases, pending before the Court, in which the United States is a party, due to the fact that as of Sept. 30, 2013, the appropriations act that had been funding the Dept. of Justice expired.

Judge Young grants the motion in part, and denies it in part, specifically denying as to habeas corpus proceedings.

Ex. A lists cases excepted from the stay.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, a disciplinary action re attorney statements about judges [Updated]

In In the Matter of: Thomas M. Dixon, a 16-page, per curiam, 4-1 opinion, the Court examines attorney statements about judges. The case relates back to the Notre Dame protests over Obama in 2009 - see these ILB entries. Here Dixon had asked for a change of judge:

Respondent sought Judge Manier's recusal based on her husband's alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with Judge Manier's failure to disclose this alleged advocacy. Respondent argued that his clients were arrested because they acted on beliefs about abortion and academic freedom for Notre Dame that were directly contrary to the beliefs allegedly advocated by Professor Manier during his career. Judge Manier also made statements that Respondent believed were inaccurate about her husband's writings at the hearing on the Motion for Change of Judge. In addition, Respondent cited Judge Manier's allegedly erroneous rulings in Kendall as a basis for recusal.

On October 8, 2009, Respondent filed a Motion for Certification of an Interlocutory Appeal requesting to appeal the recusal issue. Judge Manier certified the issue for appeal, but before the issue reached the Court of Appeals, Judge Manier filed a grievance against Respondent with the Commission and recused herself from the case.

The alleged offending statements are highlighted on p. 4.

From p. 9:

C. Indiana's Standard for Determining Rule 8.2(a) Violations
The prohibition against making a statement about a judge that the lawyer knows to be false is fairly straightforward, even though such actual knowledge might be difficult to prove in many cases. Not surprisingly, it is the prohibition against making a statement about a judge with reckless disregard as to its truth or falsity—as charged in this case—that is more often disputed. For such cases, we are now persuaded to join the majority view of other jurisdictions and expressly adopt an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). In formulating that standard, we are guided by the following considerations.

First, the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment. This Court has distinguished between the societal interests protected by the First Amendment and by rules governing professional conduct. See Terry, 394 N.E.2d at 95-96. The First Amendment protects the societal interest of enabling robust public discourse on issues of public concern, and its protections are therefore necessarily very broad. However, this interest must be balanced against the societal interest in the public's confidence in an impartial adjudicatory process, which unwarranted public accusations by an attorney against a judicial officer do nothing but weaken and erode. See Terry, 394 N.E.2d at 96. We conclude that the latter societal interest is not sufficiently protected by the New York Times subjective test, under which an attorney could be sanctioned only if he or she subjectively entertained serious doubts as to the truth of the statement at issue and actually had a high degree of awareness of its probable falsity.

Second, attorneys are expected to exercise reasonable objectivity in their statements about judicial officers. We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process. This, we note, also has the incidental benefit of fostering effective advocacy for their clients. An objective test is most consistent with that expectation, and with attorney discipline precedent in Indiana and other jurisdictions.

We therefore adopt an objective test for attorney statements under Rule 8.2(a): Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made? [ILB emphasis] See Yagman, 55 F.3d at 1437; Sandlin, 12 F.3d at 867. The extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity. See Yagman, 55 F.3d at 1439.

See the Court's analyis of why the statements on p. 4 are not sanctionable on pp. 13-14. The Court concludes on pp. 14-15:
The Court concludes that none of the statements at issue, which Respondent made in support of his Motion for Change of Judge, violated Indiana Professional Conduct Rule 8.2(a), considering the entire context in which the statements were made, including Respondent's supporting facts. We therefore enter judgment in favor of Respondent. * * *

All Justices concur., except Justice Rucker, who concurs in part and dissents in part.

Rucker, Justice, concurring in part and dissenting in part:
I concur in that portion of the Court’s opinion adopting an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). However, I disagree with the Court’s conclusion that Respondent did not violate the Rule in this case. There is little to no daylight between the highlighted portions of Statements C and D and the statements a majority of this Court found sanctionable in Matter of Wilkins. I agree with the hearing officer that Respondent’s “comments went beyond legal argument, they became personal, and violate current professional standards”. In my view Respondent violated Rule 8.2(a) and should be sanctioned accordingly.

ILB: No mention is made in the opinion as to who is responsible for the costs of the proceeding.

[Updated at 5 PM] An alert reader has pointed out that although the opinion was file stamped at 11:00 AM today, Oct. 8, the opinion is dated Oct. 9.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Ind. Sup.Ct. Decisions

Courts - "Federal Youth Case on Trial: Prosecution of 10-Year-Old on Sex Charges Stokes Debate Over Juvenile Justice"

A long story today in the $$ WSJ, by Zusha Elinson, begins:

Two years ago federal prosecutors won a delinquency finding against a boy accused of engaging in sex acts when he was 10 years old with other young boys on an Army base in Arizona—one of the youngest defendants ever pursued by the U.S. Justice Department.

The case, now being reviewed by the Ninth Circuit U.S. Court of Appeals, could open a new front in a long-running debate about how to handle juvenile sex offenders, whose cases generally have been tried in state, not federal, courts. The records are sealed because the defendant was tried as a juvenile, but the case came to light in September at an appellate hearing in San Francisco that was open to the public.

The boy's appeal involves a thorny legal question: Should children be prosecuted for sex acts with other children under a federal law that the boy's lawyers say was designed to target adult predators? The fight also highlights a broader debate over tagging juveniles as criminal sex offenders, a label that can land them a spot on registries that track offenders and limit where they can live.

H/T to How Appealing, which has links here.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Courts in general

Ind. Courts - State of Indiana, 15 public school districts sue over Obamacare

Niki Kelly reports this afternoon in the Fort Wayne Journal Gazette:

INDIANAPOLIS– Fifteen Indiana public school districts – and the state Attorney General – on Tuesday sued the federal government over mandates and penalties from the Affordable Care Act.

The suit challenges a new IRS regulation that imposes the costly "employer mandate" requirements of the Affordable Care Act onto state and local governments.

The plaintiffs are ultimately seeking a judgment in their favor, and an immediate injunction that would prevent the IRS from financially penalizing the state and its political subdivisions.

The suit contends the Affordable Care Act or ACA as passed by Congress does not allow financial penalties in states that did not create their own health insurance exchanges; and that the financial penalties – which are based on the total number of employees – cannot be applied to government employers. * * *

The suit was filed in U.S. District Court for the Southern District of Indiana.

No northeast Indiana school district is involved. Those that joined the state as co-plaintiffs are:

• Metropolitan School District of Martinsville, Martinsville

• Perry Central CommunitySchools, Leopold

• Benton Community School Corporation, Fowler

• Community School Corporation of Eastern Hancock County, Charlottesville,

• John Glenn School Corporation, Walkerton

• Monroe-Gregg School District, Monrovia

• Mooresville Consolidated School Corporation, Mooresville

• North Lawrence Community Schools, Bedford

• Northwestern Consolidated School District of Shelby County, Fairland

• Shelbyville Central Schools, Shelbyville

• Southwest Parke Community School Corporation, Montezuma

• Vincennes Community School Corporation, Vincennes

• Madison Consolidated Schools, Madison

• South Henry School Corporation, Straughn

• Southwestern Jefferson County Consolidated School Corporation, Hanover

According to a news release from the law firm, "The public school corporations are represented by Bose McKinney & Evans LLP. The State of Indiana is represented by Indiana Attorney General Gregory F. Zoeller." Here is a copy of the 50-page complaint.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (4):

In Indiana State Ethics Commission, Office of Inspector General, an agency of the State of Indiana, and David Thomas, in his official capacity as Inspector General v. Patricia Sanchez, an 11-page opinion, Judge Najam writes:

The Indiana State Ethics Commission (“the Ethics Commission”), the Office of Inspector General (“OIG”), and David Thomas, in his official capacity as Indiana’s Inspector General (collectively referred to as “the Appellants”), appeal the trial court’s reversal of the Ethics Commission’s Final Report against Patricia Sanchez. The Appellants raise four issues for our review, but we need address only the following two issues: 1. Whether the Ethics Commission was prohibited by the doctrine of res judicata from reconsidering the trial court’s prior decision that the State’s evidence against Sanchez had been seized without probable cause. 2. Whether the trial court erroneously determined that remanding to the Ethics Commission would be futile. We affirm. * * *

Remanding on these facts would be pointless. Pursuant to Indiana Code Section 4-2-6-4(b)(2), if the OIG’s ethics complaint is not supported by probable cause the Ethics Commission may either “dismiss the complaint,” I.C. § 4-2-6-4(b)(2)(A)(iii), or “refer the alleged violation for additional investigation by the inspector general,” I.C. § 4-2-6-4(b)(2)(C). But there is nothing left for the inspector general to investigate here. As explained above, the trial court in the earlier criminal action found the information underlying the OIG’s ethics complaint to be stale and the evidence seized based on that information to be without probable cause. Those conclusions are only more true with the ensuing passage of time. Thus, the only option left for the Ethics Commission would be for it to formally dismiss the complaint. But we need not remand for mere formality. We affirm the trial court’s judgment.

In In the Matter of the Termination of the Parent-Child Relationship of: N.Q., Je.Q., Ja.Q., L.Q., Minor Children, T.Q., Mother, and A.Q., Father v. Indiana Department of Child Services, an 18-page opinion, Judge Brown writes:
T.Q. (“Mother”) and A.Q. (“Father,” and collectively with Mother, “Parents”) appeal the involuntary termination of their parental rights to their children, N.Q., Je.Q., Ja.Q., and L.Q. (collectively, the “Children”). Parents raise one issue, which we revise and restate as whether the evidence is sufficient to support the trial court’s judgment terminating their parental rights. We reverse and remand. * * *

Recognizing that the involuntary termination of parental rights is the most extreme measure that a court can impose and is only designated as a last resort when all other reasonable efforts have failed, In re A.I., 825 N.E.2d at 805, and in light of the fact that DCS chose to rely primarily on the initial termination proceedings which occurred a year-and-a-half prior to the October 1, 2012 Second Termination Hearing, that the Parents’ presented evidence that their current situation had changed significantly, and especially that DCS did not investigate the Parents’ current situation leading up to the Second Termination Hearing but chose rather to rely upon circumstances, some of which were over two years old, we conclude that the court committed clear error in terminating Parents’ parental rights to the Children. We reverse and remand for a hearing which fully considers the Parents’ current circumstances as well as their habitual patterns of conduct to the extent that such patterns exist.

In David Holbert v. State of Indiana, a 10-page opinion, Judge Najam writes:
David Holbert appeals his convictions for possession of marijuana, as a Class A misdemeanor, and public intoxication, as a Class B misdemeanor, following a bench trial. Holbert raises the following two issues for our review: 1. Whether the State violated Holbert’s rights under the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution when it stopped him and searched his person; and 2. Whether the State presented sufficient evidence to support his conviction for public intoxication. We affirm in part and reverse and remand in part. * * *

[1] Thus, the officers properly stopped, frisked, observed, and seized the marijuana from Holbert, and the trial court did not abuse its discretion under either the federal or state constitution in the admission of this evidence.

[2] Holbert also argues that the State failed to present sufficient evidence to support his conviction for public intoxication, as a Class B misdemeanor. * * *

Historically, to prove public intoxication, as a Class B misdemeanor, it was enough for the State to show that the defendant was intoxicated while in a public place. * * *

As a result of our supreme court’s decision in Moore, the General Assembly amended Indiana Code Section 7.1-5-1-3 * * * Thus, the amended statute reflects this court’s pre-Moore decisions that the “‘[t]he spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.’” * * *

Holbert argues that the State failed to meet its burden under the amended statute because, while he was plainly intoxicated in a public place, there is no evidence that he met any of the four enumerated criteria while in a public place. The State responds that Holbert’s behavior alarmed Allen when he walked across her yard and that she continued to be alarmed when she observed Holbert walking on the sidewalk. Thus, the State contends that it does not matter whether Holbert’s behavior in Allen’s yard, the behavior that initially alarmed her, did not occur in a public place because she remained alarmed after Holbert had entered onto the sidewalk.

This is a question of first impression in our interpretation of the amended statute. * * *

There is no question that Holbert’s behavior alarmed Allen, but there is also no question that his alarming behavior did not occur in a public place. Accordingly, we agree with Holbert that the State failed to present any evidence that he committed any of the four criteria listed in the public intoxication statute while in a public place and, as such, we must reverse his conviction for public intoxication, as a Class B misdemeanor. We remand with instructions that the trial court vacate Holbert’s public intoxication conviction.

NFP civil opinions today (2):

Andrew Bridgford v. Julie K. Bridgford (NFP)

Bradley R. Benard v. Review Board of the Indiana Department of Workforce Development and Rolls-Royce Corporation (NFP)

NFP criminal opinions today (6):

Larry Warren v. State of Indiana (NFP)

Stephen G. Bentle v. State of Indiana (NFP)

David Lee O'Banion v. State of Indiana (NFP)

Jason Frye v. State of Indiana (NFP)

D.H. v. State of Indiana (NFP)

Phillip A. Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "It's a homecoming for Justice Randall T. Shepard; he's a part of this year's 'Appeals on Wheels'"

Although we can no longer access the Evansville C&P, there is the TriState website. Today it has a report on an oral argument held yesterday by a panel of the Court of Appeals at Evansville's Randall T. Shepard Academy for Justice and Law. The panel was made up of Judges May, Pyle, and Sr. Judge Shepard. The TriState News has a story by Fadia Patterson, plus a video.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Indiana Government

Ind. Gov't. - Update on Commission on Improving the Status of Children meetings

Updating this ILB entry from August 22nd, which end with:

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.
There is very good news! From a news release issued this morning:
The Commission on Improving the Status of Children in Indiana will hold upcoming meetings on October 16 from 10:00 a.m. to 2:00 p.m. and December 11 from 10:00 a.m. to 2:00 p.m. in Conference Rooms 1 & 2 at the Indiana Government Center South. The meetings are open to the public.

Thanks to the Indiana Department of Education, the October meeting will be videotaped and archived meeting video will be online at a later date (as soon as possible). The December meeting will also be videotaped with a live stream available during the meeting and archived video online after the meeting.

The Commission is also pleased to announce IN.gov will create a permanent website devoted to the work of the Commission. The website is under construction and not yet available. Meantime, a temporary site is available. The temporary website will link to meeting video, agenda details and information on topics discussed. The Commission looks forward to making the permanent website a place where those interested in the needs of children can learn more about the Commission and its enabling statute, which Governor Mike Pence signed into law on April 30, 2013.

The multi-branch statewide Commission held its inaugural meeting on August 21, 2013. It is aimed at improving the status of children in Indiana. In cooperation with other entities, members of the Commission will study issues concerning vulnerable youth, review and make recommendations concerning pending legislation, and promote information sharing and best practices.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Indiana Government

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

Updating this ILB entry from August 30th and this one from Sept. 24th, Maureen Hayden of CNHI reports today in the Anderson Herald Bulletin and the Logansport Pharos-Tribune in a story headed "Changes to pension benefits prompt pushback." Some quotes:

INDIANAPOLIS — The pre-retirement workshops offered to public school teachers and public employees around the state are rapidly increasing in attendance, as word gets out about potential reductions to their retirement benefits and some legislative pushback in response.

An official with the Indiana Public Retirement System, known as INPRS, said attendance at the September pre-retirement workshops — designed to help people budget for retirement —quadrupled over the normal month’s attendance, to more than 2,000 soon-to-be retirees concerned about the coming changes.

At issue is a July decision made by the Indiana Public Retirement System Board of Trustees to use a private vendor to administer the annuities savings plan that retiring public employees can use to turn lump sum payouts into monthly benefit checks.

In making that change, the board also voted to eliminate the current 7.5 percent interest rate the state has long guaranteed on those annuity payouts and switch over to market rates, which currently are at about 4 percent to 4.5 percent.

The change is expected to reduce annuity payouts to future retirees by $900 to $2,100 annually.

The change doesn’t go into effect until Oct. 1, 2014, and but it’s already generating political heat. At the September meeting of the legislative Pension Management Oversight Commission, some lawmakers on the panel said they’ll push for state pension officials to back off privatizing the annuity savings plan, and continue to administer it with lower return rate.

“I think there’s agreement that we need to reset the interest rate so we won’t have a drain on our [pension] funds,” said Sen. Karen Tallian, a Democrat from Portage who sits on the commission. Where there’s strong disagreement, she said, is the plan to turn over the annuity savings plan to an outside vendor.

The pension board staff has argued that it doesn’t have expertise to set what would be continually changing market rates and that’s why the pension board wants to hire an outside agency to manage the annuities. In doing so, it would shift more risk away from the state and the pension funds it manages, which have about $27 billion in assets.

Jeff Hutson, a spokesman for INPRS, said the current 7.5 percent payout is unsustainable and it threatens the viability of the pension programs. He also said the pension board would conduct a rigorous selection process for the outside provider, and would still closely monitor how those annuities are being managed.

“This is about how we can best protect the pension funds, those who fund it, and the members who depend on it being well funded, from the risk of what the market might do to that money,” Hutson said.

At the September meeting of the pension oversight commission, Nancy Guyott, president of the Indiana State AFL-CIO, said the changes being implemented by the state will cause unneeded reduction in returns on what she said were already modest retirement incomes.

Read on in the story for explanation of the two-part retirement system.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Indiana Government

Ind. Courts - Listen to Chief Justice Dickson on the Amos Brown Show

You can listen here to the Chief Justice's appearance yesterday on the Amos Brown radio show:

[I]t was a rare opportunity to sit down live with Indiana Supreme Court Chief Justice Brent Dickson in a wide ranging Afternoons with Amos interview about our justice system. Chief Justice Dickson has spoken out strongly on the need for Indiana’s attorneys to do more pro bono work. That’s legal work, on civil cases, done without charge. In the interview the Chief Justice talked with Amos and listeners about how the pro bono system works in Indiana. The Chief Justice explained the Supreme Court’s jurisdiction in the regulation of attorneys and their rights and responsibilities. The Chief Justice talked about the pressures attorneys and judges have with the advent of social media like blogs, Facebook and Twitter. The Chief Justice stressed that attorneys still have to adhere to their oath and their professional standards and responsibilities, even on social media.
Note from ILB: This audio comes in fine on my desktop, but was very faint on my iPad.

Posted by Marcia Oddi on Tuesday, October 08, 2013
Posted to Indiana Courts

Monday, October 07, 2013

Ind. Courts - Courthouse security in the news

From the Madison Courier, a story by Seth Grundhoefer headed "Courthouse Security: Public entry now limited to Main St. doors" that begins:

Jefferson County officials continue to revamp and rethink Courthouse security measures to protect visitors and employees.

The commissioners agreed Friday to change the public's entry point from the Jefferson Street entrance to the Main Street entrance on the building's north side.

County officeholders told the commissioners that visitors have been bypassing - mistakenly and sometimes intentionally - the metal detector and security desk. With the current location of the metal detector, visitors can actually access some of offices, the stairwell to the second floor and the bathrooms without checking through security.

From Shelby County, a brief item headed "New Court Security System Surprises Some" that begins:
The Shelby County Courthouse security renovation is complete, and the west entrance has been reopened. During the first week the system was in operation, 42 people were turned away from the courthouse because of banned items. Ammunition, a rifle bolt and marijuana are some of the contraband found with the equipment.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Courts

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

As the ILB noted on Sept. 22nd, Evansville Courier & Press news, and thus much of the news from SW Indiana, is now totally closed off from all but subscribers ($120/year for digital only). It is almost as though that part of Indiana has been cut off the map of the state.

In the past, the ILB has covered much legal and governmental news from that part of the state, by directing readers to the Evansville C&P website. For instance, the Rockport coal gasification plant coverage by the C&P has been outstanding. Right now, the issue of the Evansville smoking ban is before our Supreme Court.

The C&P has had a long line of great reporters, including Maureen Hayden, Bryan Corbin, and most recently, Eric Bradner. The ILB has found that at least one or two C&P stories a week were worthy of state-wide notice by the legal community. And until recently, our Chief Justice was from Evansville.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Law

Courts - More on "Mugged by a Mug Shot Online"

Updating Sunday's ILB entry, here is a different view, from Mathew Ingram of Gigaom, headed "First they came for the mugshot websites, but I said nothing."

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Courts in general

Ind. Gov't. - More on "States’ Film Production Incentives Cause Jitters"

Updating this ILB entry from Dec. 4, 2012, John Ketzenberger's new weekly column, "Business Insider," in the Indianapolis Star begins with a story headed "Incentives needed to shoot films in Indiana." A sample:

“The Fault in Our Stars,” a movie that absolutely should be made in Indiana (it is set in Indy locations), is shooting in Pittsburgh instead.

When it comes to incentives for making movies, Film Indiana brings a peashooter to a bazooka battle. Film Indiana, the successor to the moderately successful Indiana Film Commission, has an arsenal of exactly one incentive: the state will waive sales and county innkeepers’ taxes on rooms rented for at least 30 days.

Meanwhile Michigan offers a tax credit of up to 42 percent of a production company’s expenditures related to a film project. In Ohio, it’s 25 percent of expenses and 35 percent of the wages paid to Buckeyes. Even Kentucky offers a 20 percent tax credit.

The worthiness of tax credits all depends upon your point of view. Former Gov. Mitch Daniels blessed some tax credits, but he didn’t like what he called subsidies for the movie business. Daniels vetoed a bill to enact a 15 percent tax credit for film production, which is exactly the opposite tack taken by our neighboring states and Pennsylvania, which allows up to $60 million in such tax credits each year and where “The Fault in Our Stars” is being filmed.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Government

Ind. Courts - More on: Tax Court to hold full hour of oral argument Tuesday on whether online travel sites are subject to sales tax and on what basis

Supplementing this ILB post from Sept. 13th, the Washington Post "GovBeat" blog had a post Oct. 5th by Reid Wilson headed "Hotels, online sites fight over travel tax burden." A few quotes:

Online travel providers and the hotel industry will clash next year over which side is responsible for forwarding taxes to state and local governments, setting up high-stakes battles in state capitals that are increasingly facing the question of how to tax Internet sales. In this case, the consumer’s bottom line may not change, but shifting the tax burden is a threat to travel providers still operating on narrow margins after a recession severely dented their balance sheets.

The rate an online shopper sees now reflects a balance between hotels and the travel providers who sell their rooms. The online sites contract with hotels to sell rooms at below-market rates, then sell those rooms to the consumer at market rates; the difference is where Orbitz and Travelocity and Expedia make their profits. And even if the hotels are only receiving 80 percent of their regular rate, it’s better for them than to leave the rooms unoccupied.

What happens next is the nexus of the debate: When you pay the online provider the cost of the room plus the tax, they forward the contracted amount to the hotel. The hotel then forwards the taxes on the contracted rate on to state and local governments. But there’s a gap between the taxes the consumer pays and the taxes for which the hotel is responsible — and the hotel industry wants to close that gap. * * *

Both sides are fighting over the taxes in courts from Florida to Chicago. A federal court in Texas and state courts in South Carolina and Georgia have all ruled that online travel sites must pay taxes on the full amount under existing statute, while the travel sites won a case in Los Angeles in 2004.

But the fact that a resolution advocating the changes passed the NCSL is an indication that hotel and lodging interests will push the measure in legislatures again this year. For a resolution to pass the NCSL, a bipartisan group of state legislators whose executive committee is meeting this weekend in Portland, it must receive three-quarters of the vote, a high standard aimed at ensuring bipartisanship.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 4, 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, October 4, 2013. It is two pages (and 27 cases) long.

One transfer was granted last week:

In one case transfer was "withdrawn", perhaps a designation differing from transfer "vacated"?

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Daniel B. Buffkin v. Glacier Group, a 27-page opinion in a case involving an independent contractor, Judge Brown writes:

The issue is whether the trial court’s grant of a preliminary injunction is clearly erroneous. Buffkin maintains that the non-competition provision of the Agreement is unenforceable because it is unreasonable, that the Agreement does not protect a legitimate interest of Glacier, that the restrictions on activity and geographic scope are overly broad under the circumstances, and that thus the trial court abused its discretion by issuing a preliminary injunction enforcing the provision. Specifically, Buffkin argues that Paragraph 6 of the Agreement has several deficiencies, namely, that under the circumstances of his engagement with Glacier he did not gain a competitive advantage through his relationship with Glacier and thus it would not be unfair for him to compete, that the restriction simply seeks to quash honest competition which is not a legitimate use of a non-competition provision, that the scope of the restricted activity is overly broad in that it improperly seeks to prohibit him from working for a competitor in any capacity and restricts harmless activity, and that the geographic scope of the restriction is overly broad in that it prohibits activity in areas where Buffkin did not have transactions. Buffkin also asserts that the court abused its discretion when it improperly employed the blue pencil doctrine to alter the non-competition provision. * * *

Buffkin maintains that there is no reasonable likelihood of success in this case because Paragraph 6 of the Agreement is unreasonable and unenforceable. He argues that the provision does not protect a legitimate interest of Glacier, that the scope of the restricted activity is unreasonable and overly broad, and that the geographic scope of the restriction is unreasonable. We thus address whether the conclusion that Glacier has shown by a preponderance of the evidence a reasonable likelihood of success at trial is clearly erroneous. * * *

Based upon the language of the Agreement and the record, and keeping in mind that non-competition agreements are strictly construed against the employer, see Press-A-Dent, 849 N.E.2d at 668-669, we conclude that Paragraph 6 of the Agreement, to the extent that it protects a legitimate interest of Glacier, is unreasonable in terms of the activities it prohibits and its geographic restraints. Accordingly, the non-competition covenant in the Agreement was unenforceable. See Dicen, 839 N.E.2d at 689 (finding that the covenant not to compete exceeded the bounds of reasonableness and holding that thus the covenant was unenforceable). Glacier failed to meet its burden of showing a reasonable likelihood of success at trial. As a result, the court erred in granting its request for a preliminary injunction.

For the foregoing reasons, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

The Estate of Richard A. Mayer, and Spangler, Jennings & Dougherty v. Lax, Inc., and David Lasco, a 46-page opinion, Judges Barnes writes:
For the foregoing reasons, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

The dispositive issues we address are:
I. whether statements made by Mayer in counterclaims filed against Lax and Lasco were absolutely privileged and thus cannot support Lax and Lasco’s claims for defamation, abuse of process, malicious prosecution, negligent supervision and/or retention, tortious interference with a business relationship, and tortious interference with a contract;
II. whether Lax and Lasco’s claim against Spangler Jennings for malicious prosecution survives Mayer’s death;
III. whether there are any genuine issues of material fact precluding summary judgment in favor of the Estate and Spangler Jennings on Lax and Lasco’s abuse of process claim; and
IV. whether Lax and Lasco may seek punitive damages against the Estate and/or Spangler Jennings.

In Dorian Gray Jackson v. State of Indiana, a 12-page opinion, Judge Brown writes:
Dorian Gray Jackson appeals his convictions for possession of a narcotic drug with intent to deliver as a class A felony, two counts of dealing in a narcotic drug as class B felonies, and possession of marijuana as a class A misdemeanor. Jackson raises one issue, which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following the traffic stop and arrest of Jackson. We affirm. * * *

The police observed Jackson in a white Dodge Stratus on other buys and during surveillance. The cooperating sources had told police that they believed that the Stratus was used to go to Chicago to retrieve more heroin. Without a search warrant, Undercover Officer 8621 placed a GPS device on the Stratus. The GPS device was used to assist with visual surveillance and to determine that the Stratus had gone to Chicago and was traveling back to the Elkhart area on March 30, 2011. Once the police had observed that the Stratus was going to Chicago, they decided that a traffic stop would be initiated, if possible, when the Stratus returned to Elkhart.

NFP civil opinions today (5):

Robert Walke and Karen Walke v. Kitley Law Office, P.C., (NFP)

Gordon B. Dempsey v. JPMorgan Chase Bank, N.A. (NFP)

In Re: The Paternity of J.K., A.K. v. T.L. (NFP)

In Re The Paternity of I.B., K.H. v. I.B. b/n/f L.B. (NFP)

In the Matter of the Civil Commitment of S.I. v. Midtown CMHC (NFP)

NFP criminal opinions today (2):

Marie Castner v. State of Indiana (NFP)

Michael Morrisey v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - How health care decisions made in the Statehouse have impacted the working poor in Indiana

An opinion column Sunday by Maureen Hayden, CNHI Statehouse Bureau chief, published in the New Albany News & Tribune, shows how decisions made by our General Assembly and the Governor have impacted the 800,000 Hoosiers who are uninsured. Important reading.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Indiana Government

Courts - Today is the First Monday in October

Nina Totenberg of NPR has this report this morning. A sample:

It is the opening of a new term.

The docket this year has nothing quite as riveting as last year's same-sex-marriage cases, or the challenge to President Obama's health care overhaul from the term before. But once again, the court is facing hot-button social issues and questions of presidential and congressional power.

Moreover, in a half-dozen cases the court's current conservative majority could well overturn long-established legal precedents.

"It can really knock ... the few legs out of prior, more liberal precedents," says Supreme Court advocate Tom Goldstein, "across an array of incredibly important issues like abortion and religion and civil rights law."

David G. Savage of the LA Times has a long story headed: n new term, Supreme Court may steer to right on key social issues: The Supreme Court's conservative bloc has a clear chance to shift the law to the right on abortion, contraception, religion and campaign funding." It begins:
WASHINGTON — The Supreme Court term that opens Monday gives the court's conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion, as well as the political controversy over campaign funding.

If the justices on the right agree among themselves, they could free wealthy donors to give far more to candidates and parties and clear the way for exclusively Christian prayers at local government events.

In other cases due to be heard this fall, the justices are likely to uphold state bans on college affirmative action and block most housing bias claims that allege an unfair impact on blacks and Latinos.

They may also give states more authority to restrict and regulate abortion.

From the NY Times, an editorial run-down of the "precedents at risk" this term.

Finally, from the Washington Post Sunday Magazine, a long feature by Robert Barnes on Justice Ruth Bader Ginsburg.

[More] "Supreme Court Has Deep Docket in Its New Term," from Adam Liptak of the NY Times.

Posted by Marcia Oddi on Monday, October 07, 2013
Posted to Courts in general

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

From Sunday, October 6, 2013:

From Saturday, October 5, 2013:

From late Friday afternoon, October 5, 2013:

Posted by Marcia Oddi on Monday, October 07, 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 10/7/13):

Thursday, October 10th

Next week's oral arguments before the Supreme Court (week of 10/14/13):

Webcasts of Supreme Court oral arguments are available here.


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

Monday, October 7th

Next week's oral arguments before the Court of Appeals (week of 10/14/13):

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, October 07, 2013
Posted to Upcoming Oral Arguments

Sunday, October 06, 2013

Ind. Gov't. - Will Indiana be the last state to vote on putting a ban against marriage equality into its constitution?

A lengthy, front-page story by Jon Murray in today's Sunday Indianapolis Star discusses that possibility. A few quotes:

Activists say Indiana is the only state currently considering joining the 30 others that have constitutional bans on gay marriage. * * *

[Advocates] see Indiana as possibly the last state to put a constitutional ban on gay marriage to a statewide vote.

“What we want is for Indiana citizens to look at this and think really hard about the question of whether they want to be the last state in the country to pass a constitutional amendment that would take away freedoms from gay and lesbian people,” said Marc Solomon, national campaign director for New York City-based Freedom to Marry.

Another interesting report today is from NE Indiana Public Radio. A few quotes from the story by Emma Jacobs, titled "Holdout Pennsylvania Pelted With Gay Marriage Lawsuits":
In June, the U.S. Supreme Court ruling on the Defense of Marriage Act said that the federal government must recognize same-sex marriages from states that allow them. Since the decision, couples in states which do not recognize same-sex marriages have filed a flurry of lawsuits.

Conditions are ripe for litigation in those states, like Pennsylvania. In July, a rogue county clerk outside Philadelphia started granting marriage licenses to gays and lesbians, defying the state's ban. * * *

Since the Supreme Court's decision, couples have filed dozens of constitutional challenges to state laws around the country, says Brian Moulton, legal director of Human Rights Campaign.

"It's less about identifying a particular state where it's the right argument, but a state where there's perhaps the greatest likelihood of success before the courts," he says.

The American Civil Liberties Union has thrown its weight behind suits in Pennsylvania, Virginia and North Carolina in efforts to set precedents that would legalize same-sex marriage throughout the country. It expects federal judges in these regions will be receptive.

And a long story Sept. 30th in the Washington Post, reported by Robert Barnes, begins:
The legal team that overturned California’s ban on same-sex marriage is targeting Virginia to launch another challenge aimed at convincing the Supreme Court that gays and lesbians have a constitutional right to marry no matter where they live.

The American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

It is one of dozens of lawsuits filed across the nation by same-sex marriage activists who say they feel emboldened by the Supreme Court’s decisions in June that overturned the federal Defense of Marriage Act (DOMA) that forbade recognition of same-sex marriages and separately allowed such unions to resume in California.

Despite the victories, the justices stopped short of finding that the Constitution requires that gays and lesbians be allowed to marry and left the matter, for now, to the states.

There are dozens of lawsuits filed in state and federal courts in 18 states, according to the Human Rights Campaign, and on Friday, a state judge in New Jersey ruled same-sex marriages must be allowed there. Gov. Chris Christie (R) is appealing.

But the ultimate goal is the recognition of a constitutional right, such as when the Supreme Court struck down Virginia’s ban on interracial marriages in the 1967 Loving v. Virginia decision.

Posted by Marcia Oddi on Sunday, October 06, 2013
Posted to Indiana Government

Courts - "Mugged by a Mug Shot Online"

The NY Times has a very long story today by David Segal, found on the front page of the Sunday Business Section, about private web sites that collect and post mug shots. Some quotes:

But once he is done [with the pretrial diversion program, etc.], Mr. Birnbaum’s record will be clean. Which means that by the time he graduates from the University of Texas at Austin, he can start his working life without taint.

At least in the eyes of the law. In the eyes of anyone who searches for Mr. Birnbaum online, the taint could last a very long time. That’s because the mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites.

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid.

To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage, as Mr. Birnbaum learned in his sophomore year, when he applied to be an intern for a state representative in Austin. Mr. Birnbaum heard about the job through a friend.

“The assistant to this state rep called my friend back and said, ‘We’d like to hire him, but we Google every potential employee, and the first thing that came up when we searched for Maxwell was a mug shot for a drug arrest,’ ” Mr. Birnbaum said. “I know what I did was wrong, and I understand the punishment,” he continued. “But these Web sites are punishing me, and because I don’t have the money it would take to get my photo off them all, there is nothing I can do about it.”

The story continues with other examples and with a discussion of the legal issues involved. For instance:
Jennifer Williamson, an Oregon state representative from Portland, helped to draft her state’s bill, and she is the first to acknowledge that it is far from ideal.

“All approaches have significant shortcomings,” she said, referring to laws in other states. “I don’t know what the perfect tool is, but I’m sure we’ll be back at the drawing board soon.”

The trick is balancing the desire to guard individual reputations with the news media’s right to publish. Journalists put booking photographs in the same category as records of house sales, school safety records and restaurant health inspections — public information that they would like complete latitude to publish, even if the motives of some publishers appear loathsome.

The Reporters Committee for Freedom of the Press favors unfettered access to the images, no matter how obscure the arrestee and no matter the ultimate disposition of the case. Even laws that force sites to delete images of the exonerated, the committee maintains, are a step in the wrong direction.

“It’s an effort to deny history,” says Mr. Caramanica, the committee director. “I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.”

People eager to vanish from mug-shot sites can try a mug-shot removal service, a mini-industry that has sprung up in the last two years and is nearly as opaque as the one it is intended to counter. “I’m not going to go into what we do,” said Tyronne Jacques, founder of RemoveSlander.com (Motto: “Bailout of the Internet for good!”). “Whatever works.”

Removal services aren’t cheap — RemoveMyMug.com charges $899 for its “multiple mug shot package” — and owners of large reputation-management companies, which work with people trying to burnish their online image, contend that they are a waste of money.

The story ends with some efforts that do appear to be working, from Google and charge card companies.

On Sept. 25, 2012, the ILB had a long entry on a specific type of mug-shot site, the "shadow" sex offender registry. The March 3, 2012 Chicago Tribune column quoted is still accessible at this link.

Posted by Marcia Oddi on Sunday, October 06, 2013
Posted to Courts in general

Ind. Courts - Board of Accounts audit questions Muncie City Court Judge Dianna Bennington payments to employee for days not worked

Here is the story by Douglas Walker and Keith Roysdon in the Muncie Star-Press. From the story:

The audit, posted in recent days, carries the subhead “Ghost Employment” and alleges that City Court Judge Dianna Bennington paid a former court employee, Leah Alexander, $1,006.72 for vacation and sick/personal time off that she didn’t legitimately have to take. When Alexander took paid time off — a few days here and there — during the first half of 2012, she hadn’t worked for the city long enough to accrue the paid time off.

Nevertheless, Bennington — on a couple of occasions — approved the time off. At one point, she signed a blank time card for Alexander, former daughter-in-law of veteran Muncie attorney Michael J. “Mick” Alexander.

The audit quotes Indiana law about ghost employment and cites another instance, later in 2012, when the state found discrepancies in city court employee time cards.

ILB: Here is the SBA audit, filed 9/26/13 - it covers the year 2012. From pages 7 & 8:
City Court Judge Exit Conference

The contents of this report were discussed on August 7, 2013, with Leah Alexander, former City Court employee. The Official Response from Leah Alexander has been made a part of this report and may be found on page 8. We attempted to meet with Dianna Bennington, City Court Judge, but we received no replies to our requests to meet.

Report comment:

Judge Bennington approved vacation time as a condition of my employment at the Muncie City Court. I never expected to be compensated for the time off, however Judge Bennington stated that she would pay me for that time off. Judge Bennington stated that since she is the Judge that she is permitted to grant time off and compensate as she sees fit. Regarding personal/sick time, Judge Bennington approved and compensated me for that time as well. I was under the assumption that the Court's personnel policies were separate from the City's policies. I have made payment arrangements with the City Controller's office.

Leah Alexander

Today's Muncie Star-Press story concludes:
Although the audit might hold repercussions for Alexander’s checking account, Bennington won’t face a criminal penalty over the matter.

Delaware County Prosecutor Jeffrey Arnold said last week he was aware of the audit’s reference to “ghost employment,” but he said he didn’t intend to file any related charges.

“(A State Board of Accounts official) didn’t think there were any intentional crimes committed, and neither did I,” the prosecutor said.

Posted by Marcia Oddi on Sunday, October 06, 2013
Posted to Indiana Courts

Law - "Silencers Loophole Targeted for Closure"

The Oct. 4th Wall Street Journal ($$) has a long story by Joe Palazzolo about a federal effort to "close a loophole in current law [that] could stifle sales of silencers — one of the fastest-growing segments of the gun industry." More:

The proposed rule is galvanizing gun-control supporters, who say silencers inherently make a weapon more dangerous, and gun-rights advocates, who say the popular portrayal of silencers as the tools of criminals is off base and that silencers protect owners' hearing.

Posted by Marcia Oddi on Sunday, October 06, 2013
Posted to General Law Related

Saturday, October 05, 2013

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

The Sept. 30th ILB entry has now been updated with a photo of the offending "opinion from the '3rd District' of the Indiana Court of Appeals in this capital case".

Posted by Marcia Oddi on Saturday, October 05, 2013
Posted to Indiana Courts | Schumm - Commentary

Friday, October 04, 2013

Ind. Decisions - Stickdorn case "settles" - more about the settlement

The ILB has received more information about the Stickdorn settlement and has appended the information at the end of the October 3rd post.

Posted by Marcia Oddi on Friday, October 04, 2013
Posted to Environment | Ind. App.Ct. Decisions

Ind. Gov't. - What is "reasonable particularity" under the Access to Public Records Act?

Here are some quotes from a Sept. 30, 2013 response of the Indiana Public Access Counselor, Luke H. Britt, to an inquiry from the City of Jasper:

Background

On August 19, 2013, the Editor/Publisher for the Dubois County Free Press, Mr. Matt Crane, submitted a request to the City of Jasper (“City”) for copies of the following records:

“[a]ny letters of intent to sue the city has received in 2013. Letters or notices regarding impending lawsuits against (sic) the City of Jasper and its Dept’s (sic)”
It is unclear if you responded to this request; however, you submitted a request for an Informal Opinion on September 10, 2013.

As applicable here, the City does not feel the request was stated with reasonable particularity and seeks an opinion to clarify the meaning of reasonable particularity as defined in Ind. Code § 5-14-3-3(a)(1).

Analysis * * *

The APRA requires that a records request “identify with reasonable particularity the record being requested.” Ind. Code § 5-14-3-3(a)(1). “Reasonable particularity” is not defined in the APRA, but the public access counselor has repeatedly opined “when a public agency cannot ascertain what records a requester is seeking, the request likely has not been made with reasonable particularity.” Ops. of the Public Access Counselor 10-FC-57; 08-FC-176; 12-FC-13.

Because the public policy of the APRA favors disclosure and the burden of proof for nondisclosure is placed on the public agency, if an agency needs clarification of a request, the agency should contact the requestor for more information rather than simply deny the request. See generally Ind. Code § 5-14-3-1; Opinion of the Public Access Counselor 02-FC-13. * * *

The Public Access Counselor is not a finder of fact; therefore, I cannot state with confidence whether the City has an extraordinary amount of records relating to pending litigation. Taken at face value, it would not seem the City the size of Jasper would have a large volume of threatened lawsuits. That being said, if taken for fact and the records requested are voluminous in nature, it is reasonable you deny the request and negotiate with Mr. Crane that he submit clarification of the records he seeks.

As provided in prior advisory opinions, if an agency needs clarification of a request or believes the request is not reasonably particular, the proper response by the agency would be to seek further clarification rather than denying the request. Accordingly, I strongly encourage any public agency to work with a requestor to come to a mutual understanding of the records being sought. You state “such a request appears to be a fishing expedition”. Please be advised the individual requesting the records does not have to state the purpose for the request (Ind. Code § 5-14-3-3(a)(2).

A responsive, cooperative and communicative agency is a transparent agency. You state it is “always the desire of the City to cooperate with reasonable requests for information.” That epitomizes the spirit of open access and transparency and I strongly encourage the City to make the very best efforts to follow that philosophy.

ILB: Also of interest may be this March 14, 2013 ILB post re "What does 'reasonable particularity' mean as a requirement for records requests under the Access to Public Records Act?" quoting a column by Steve Key, executive director and general counsel for the Hoosier State Press Association.

And related may be this Oct. 2nd ILB post, headed "Jasper biomass lawsuit pricetag exceeds $500,000 (so far)."

Posted by Marcia Oddi on Friday, October 04, 2013
Posted to Indiana Government

Ind. Decisions - Supreme Court amends order in Indiana Newspapers

Updating this ILB entry from Sept. 29th, the Supreme Court late yesterday filed an amended order in Indiana Newspapers, Inc. v. Jeffrey M. Miller, et al., adding this paragraph:

Previously, the Court of Appeals in In re Indiana Newspapers Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012) (“Miller I”) addressed the merits of the issues before it but did not address jurisdiction. Because transfer was not sought from Miller I, it became final as to all matters directly addressed. After the trial court applied the holding in Miller I, the Appellant again appealed, but the Court of Appeals in Miller II held it did not have jurisdiction to address the Appellant’s appellate claims. The decision in Miller II does not undermine the merits determination of Miller I or diminish its precedential value.
J. Rush dissents in the amended order, as she had in the original.

Posted by Marcia Oddi on Friday, October 04, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil opinions today (2):

Howell Contractors, Inc. and Fidelity and Deposit Company of Maryland v. Calumet Civil Contractors, Inc. (NFP)

Robert J. Fiedler and Dianne C. Fiedler v. LaGrange County Health Department (NFP)

NFP criminal opinions today (7):

Dexter Berry v. State of Indiana (NFP)

Johnny Henderson v. State of Indiana (NFP)

Thomas Roberts v. State of Indiana (NFP)

Mark Gregory v. State of Indiana (NFP)

David Kifer v. State of Indiana (NFP)

Victor Gutierrez v. State of Indiana (NFP)

Jose Contreras v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 04, 2013
Posted to Ind. App.Ct. Decisions

Courts - Is Miller v. Alabama retroactive? 3rd Circuit opinion

Mark Scolforo of the AP reported yesterday:

HARRISBURG, Pa. (AP) -- Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.

The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.

The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.

Here is the 3rd Circuit opinion.

Posted by Marcia Oddi on Friday, October 04, 2013
Posted to Courts in general

Thursday, October 03, 2013

Ind. Decisions - Court of Appeals issued 3 yesterday, Oct. 2 (and 3 NFP)

[These have to have been posted very late yesterday, or this morning ...]
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

For publication opinions today (3):

Katherine Chaffins and Roger Chaffins Sr. v. Clint Kauffman, M.D.; Family and Women's Health Services; and Pulaski County Memorial Hospital

Shayla Bowling v. State of Indiana

Geroge A. Nunley v. State of Indiana

NFP civil opinions today (1):

Priority Press, Inc. v. Media Methodology (NFP)

NFP criminal opinions today (2):

Dennis Tiller v. State of Indiana (NFP)

Rasheen Middleton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Ind. App.Ct. Decisions

Law - Two must reads, or at least reading recommendations, this afternoon

A long, smart article by Dahlia Lithwick in Slate, headed "The End of the Reasonable Observer: The 2013 term at the Supreme Court may prove the last gasp of Sandra Day O’Connor’s legacy."

In Above the Law, "Where Law Schools Get Their Money", an article from Frank H. Wu, Chancellor & Dean of University of California Hastings College of the Law. A quote:

As we discuss much-needed reform of legal education, it might be useful for everyone to have information on where the money comes from to operate law schools. There are basically five sources of revenue for the 200 or so ABA-accredited institutions. Academic quality can be sustained only if the business model is viable.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to General Law Related

Ind. Courts - Hancock County prosecutor declines to prosecute woman who used deadly force

From the Greenfield Daily Reporter, Noelle Steele has a brief story, accompanied by Prosecutor Michael Griffin's motion to the court, which states that the woman "acted in defense of others." From the story:

The Hancock County prosecutor announced Thursday morning that a Greenfield woman who shot and killed her husband last week will not face charges because the prosecutor believes she was justified to use deadly force.

Elizabeth Roberts, 56, had reported her husband, Gary Roberts, 57, to police on the same day she shot him, saying he was acting erratically and had suicidal thoughts. He also had an arsenal of weapons in their home.

When Elizabeth Roberts told her husband she had reported him, he warned her and another family friend that he would kill any officers who showed up to their home on Greenfield's southeast side.

Gary Roberts was loading a magazine with ammunition when his wife shot him.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Courts - Re attorneys disciplined for criticizing judges

From the Central Pennsylvania Patriot-News, this story headed "Controversial attorney Don Bailey's law license suspended for 5 years."

From Georgetown law prof Jonathan Turley's blog, this post headed "Former Pennsylvania Congressman Suspended From Practicing Law Due To Criticism Of Judges." Much of the post is devoted to "One troubling case is unfolding in Indiana ..." H/T to Advance Indiana.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Courts in general

Ind. Courts - Governor Pence Names Sam Cappas Lake Superior Court Judge [Updated]

From the news release:

Indianapolis, IN – Governor Mike Pence today named Sam Cappas as Judge in the Lake Superior Court-Criminal Division.

“Sam Cappas has the legal skills and background necessary to serve the people of Lake County well as Lake Superior Court Judge,” said Governor Pence.

Currently, Cappas serves as the sole proprietor of the Law Firm of Samuel L. Cappas, where his focus has been criminal defense. Prior to opening his practice, Cappas was a partner at the law firm of Cappas & Jones. With nearly 20 years of experience as a public defender in the Lake County Superior Court system, Cappas served as Permanent Judge Pro Tempore in the Lake County Superior Court from 1992 to 1993. He also worked for nearly five years as Deputy Prosecuting Attorney in the Lake County Prosecutor’s Office. Cappas earned his undergraduate degree from Indiana University and his law degree from Valparaiso University School of Law.

[Updated at 6:54 PM] The Gary Post Tribune now has this story, that concludes:
Cappas was appointed to fill a vacancy created by the transfer of Lake Superior Court Judge Thomas Stefaniak Jr. to the juvenile division after Judge Mary Beth Bonaventura was named director of the Indiana Department of Child Services.

The Lake County Judicial Nominating Commission, chaired by Indiana Supreme Court Justice Robert Rucker, interviewed 11 attorney candidates and named three individuals for consideration by Pence in August. In addition to Cappas, they were Timothy Ormes, a criminal defense attorney and former deputy prosecutor, and Lake Superior Court-County Division Magistrate Michael Pagano.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Koch Development Corporation and Daniel L. Koch v. Lori A. Koch, as Personal Representative of the Estate of William A. Koch, Jr., Deceased, a 31-page opinion, Judge Mathias writes:

Daniel L. Koch (“Dan”) appeals the judgment of the Vanderburgh Circuit Court declaring that Lori A. Koch (“Lori”), as Personal Representative of the Estate of William A. Koch, Jr. (“Will”), was the owner of certain shares of Koch Development Corporation (“KDC”) and did not have to sell the shares to KDC and Dan pursuant to a shareholders’ agreement. Dan appeals and argues: (1) that the trial court clearly erred in determining that KDC and Dan materially breached the shareholders’ agreement and (2) that the trial court erred in concluding that KDC and Dan’s actions excused the Estate from performing under the shareholders’ agreement. We affirm. * * *

KDC owns and operates a theme park in Santa Claus, Indiana known as Holiday World and Splashin’ Safari. Started in 1945 by Louis J. Koch (“Louis”), the park was originally known as Santa Claus Land. * * *

While we regret seeing a family divide itself over an internal business dispute, our role is to determine whether the trial court’s findings were supported by sufficient evidence and whether these findings support the trial court’s judgment. Here, the evidence favorable to the trial court’s decision supports the trial court’s conclusion that Dan and KDC materially breached the terms of the Agreement and that this material breach excused the Estate of its obligation to perform under the Agreement. We therefore affirm the judgment of the trial court.

NFP civil opinions today (1):

Jose Garcia v. G. Wm. Walker Construction (NFP)

NFP criminal opinions today (6):

Milton L. Medsker v. State of Indiana (NFP)

Robert Klinglesmith v. State of Indiana (NFP)

Richard Green v. State of Indiana (NFP)

Matthew P. Thrall v. State of Indiana (NFP)

Marlen Hernandez v. State of Indiana (NFP)

Elbert G. Elliott v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one case, yesterday [Updated 10/8/13]

In Orange County Assessor v. James E. Stout, a 10-page opinion, Judge Wentworth writes:

The Orange County Assessor claims that the Indiana Board of Tax Review’s final determination regarding James E. Stout’s 2009 real property assessment is not in accordance with the law because the Indiana Board applied Indiana Code § 6-1.1-15-17, a burden-shifting statute, improperly. In the alternative, the Assessor argues that the Indiana Board’s final determination is not supported by the evidence. The Court, however, affirms the Indiana Board’s decision.
[More] See this analysis by Brent A. Auberry of Faegre Baker Daniels, headed:
Indiana Tax Court affirms application of burden-shifting statute in property tax appeal; Assessor failed to show land should be assessed as “excess residential” and not “agricultural”

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on "Trial judge rules DNR overstepped in attempt to shut down high-fence deer hunting" [Updated]

Updating this ILB entry from yesterday, Tim Evans, now joined by Ryan Sabalow, has a much longer story in today's Indianapolis Star. Some quotes:

The topic of hunting deer on fenced preserves divides many Hoosiers — even, it appears, judges.

A ruling this week in a Harrison County lawsuit only adds fuel to the debate that has been simmering since 2005, when the Department of Natural Resources tried to shut down the 12 high-fence hunting preserves operating in the state at the time.

The new ruling came in a challenge brought by Rodney Bruce, who operates Whitetail Bluff near Corydon. Harrison County Circuit Court Judge John Evans found the DNR overstepped its authority and that deer at facilities such as Bruce’s “are privately owned and not the property of the people of the state of Indiana.”

“Therefore,” the judge wrote, “the animals are not subject to regulation by DNR.”

Evans’ ruling troubled animal rights activists and hunting groups who say they’re worried that it could severely restrict the ability of state wildlife officials to enforce state hunting laws inside the fenced enclosures. They say it also challenges the long-held notion that wildlife is owned by the public and only in special, tightly regulated circumstances can private individuals possess and kill the animals.

The Harrison County decision came 10 months after a judge in Owen County threw out a similar challenge to the DNR’s authority to regulate the private hunting preserves.

If the new ruling settles anything, it is this: Indiana is in dire need of clarity when it comes to laws and regulations regarding fenced hunting.

More from the lengthy story:
The are two likely options that can be pursued by either side. One is a request for the Indiana Court of Appeals to determine which judge was right. The other is new legislation that clarifies oversight and regulatory authority.

“I would encourage the attorney general’s office to take a look at why the Harrison County judge ruled the way he did and to prepare a defense,” said Sen. Michael Crider, R-Greenfield.

But there is no guarantee the attorney general, who serves as the “state’s lawyer,” will take up the fight. A spokesman referred The Star to an Indianapolis attorney who represented DNR in the case.

Indianapolis attorney Joseph Chapelle said the agency is reviewing its options.

“We need time to think about what it means,” he said.

Doug Allman of the Indiana Wildlife Federation and the Indiana Deer Hunters Association said he hopes the DNR appeals the ruling.

He said that the case is troubling because it flies in the face of decades of case law giving the DNR authority to regulate deer behind a fence and the notion that deer are a public resource.

The ruling, Allman worries, could severely restrict or outright limit the ability of the state’s wildlife agency to monitor what goes on in deer farms and to enforce hunting regulations inside the fenced confines of the preserves.

“If the ruling is such that the state cannot regulate these,” Allman said, “then you can do whatever you want on them 365 days a year.”

Allman said that if the DNR didn’t have the authority to regulate deer preserves the gruesome actions of one particular operator would never have come to light — or might not have even been illegal.

Even more:
With just four preserves currently in business, most of Indiana’s breeders sell their shooter bucks to preserves in other states, such as Illinois and Missouri.

Most of the farms are small operations, many owned by a single Amish family. But they have some sympathetic supporters in the Indiana legislature, including longtime Indiana agricultural booster Republican Reps. Bill Friend, Macy, and Rep. Matt Ubelhor, Bloomfield.

Earlier this year, Ubelhor introduced a bill geared at grandfathering in the existing high-fence facilities. It was one of several bills that lawmakers considered during the nearly eight years the lawsuit was working its way through the Harrison County court system — some for, other against. None has been adopted.

That’s because the industry also has its detractors, including some powerful ones. At the end of this year’s legislative session, Republican State Sen. Pro Tem David Long killed Ubelhor’s bill when it reached the Senate.

Neither Ubelhor nor Long responded to requests for comment from The Star. But Long had plenty to say about the operations during the last legislative session.

“These are farm-raised deer — not wild animals — fenced in,” Long said this spring. “They bring in some guy to get a trophy and he pays $25,000 to hang it on his wall and say they’re a big game hunter.”

Long called the facilities nothing more than a “slaughterhouse without a roof.”

Niki Kelly of the Fort Wayne Journal Gazette also had a story today, headed "Judge rips curbs on deer hunts." Some quotes:
Harrison Circuit Court Judge John Evans ruled Friday that the deer bought by Whitetail Bluff and other hunting operations are privately owned and not the property of the people of the state of Indiana.

He said the DNR’s actions to try to regulate these hunting activities “constitute an improper exercise by an executive agency of the authority of the Indiana legislature.”

Evans granted a permanent injunction in favor of the hunting preserves.

DNR spokesman Phil Bloom said the ruling conflicts with one issued in Owen County last year in favor of the state.

“The DNR obviously is disappointed in the Harrison court decision, and we’re currently in the process of evaluating that ruling,” he said.

The Indiana legislature could step in and decide the situation – either by legalizing or banning the practice in statute. Efforts over the years on both sides have failed.

During the last two sessions, a bill to open up high-fenced hunting passed the House before being blocked in the Senate by Senate President Pro Tem David Long, R-Fort Wayne.

ILB: The ILB has now obtained and is posting:

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Courts - "Porter county judges air complaints about employee pay, health insurance"

Amy Lavalley reports in the Gary Post-Tribune in a story that begins:

VALPARAISO — The county’s judges used Wednesday’s budget hearing by the Porter County Council to vent their frustration over the lack of raises for their employees, and a health insurance plan passed earlier in the week by the Board of Commissioners that increases deductibles and co-pays.

Council members have said they will review requests for salary increases at the end of the budget session, once they know how the numbers will shake out, not that that stopped department heads from trying.

But it was the judges who were perhaps the most agitated, as Superior Court Judge David Chidester noted his secretary makes $28,500, “not a living wage,” and said he was going to file a mandate for pay raises.

“It’s coming, and it’s coming from Judge Chidester,” he said.

That didn’t go over with Councilman Dan Whitten, D-At-large, who said after the meeting that he’s taken a stance for getting raises for employees the last few years, and for someone to say they were going to get a mandate is “like a slap in the face.”

“To come in and threaten us really didn’t sit well with me,” he said, adding the council is trying to keep some 90 county budgets running and understands the value of county employees.

Superior Court Judge William Alexa lamented the health insurance changes. While monthly premiums remain the same, the rest of the rates go up, as commissioners try to trim 8 percent to 12 percent from insurance costs.

Alexa said he understood that the county was trying to save money, but they were doing it on the backs of the employees with the insurance changes.

“What’s it going to do? It probably means people won’t go in for routine physical maintenance,” he said.

The commissioners, not the council, made the insurance changes, Whitten said. “I don’t agree with doing savings on the backs of employees and I wouldn’t have voted for it.”

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Ind. Courts - "Two former college football players file class-action lawsuit alleging NCAA ignored concussions"

Zak Keefer reports today in the Indianapolis Star:

A class-action lawsuit filed in Indiana alleges that the NCAA has for decades largely ignored the long-term damage of concussions in college football.

Plaintiffs John DuRocher and Darin Harris, both former college football players, also named helmet manufacturer Riddell in the lawsuit.

It alleges that the NCAA “has breached its duty to protect college football players in the face of long-standing and overwhelming evidence regarding the need to do so.”

NCAA spokesman Stacey Osburn said in an email, “We have not seen the complaint, so we cannot comment at this time.”

DuRocher, a former quarterback for the Universities of Oregon and Washington, and Harris, a former safety at the University of Washington, filed the suit Tuesday through Indianapolis-based law firm Cohen & Malad.

The suit was filed in U.S. District Court of Southern Indiana on behalf of all former NCAA football players who suffered concussions leading to long-term serious injury. It claims the players developed chronic headaches, dizziness, dementia, Alzheimer’s disease or other physical and mental problems as a result of the injuries. * * *

The suit comes after a $765 million settlement in August between the NFL and more than 45,000 of its former players on the same topic.

It’s not the first such suit filed against the NCAA. In September of 2011, Adrian Arrington, a former Eastern Illinois player, sued to seek damages because of repeated concussions he suffered while playing.

Since Arrington’s lawsuit was filed, the NCAA has hired a chief medical officer and donated a $400,000 grant to further study concussion and brain injuries suffered in college sports.

ILB: Here is a copy of the complaint.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Ind. Courts - "Marion Circuit Court Adopts Amendment to Small Claims Court Rule"

Yesterday the ILB saw this item on the Indianapolis Bar Ass'n. website:

Marion Circuit Court Adopts Amendment to Small Claims Court Rule

On July 16th, the Marion Circuit Court published for comment a proposed amendment to Marion County Small Claims Court Rule 49SC00502. Following a comment period ending August 31, the court modified the rule as proposed. Pursuant to Indiana Trial Rule 81 and Indiana Code § 33-34-5-6, the Marion County Circuit Court now adopts the attached rule.

To view the order amending the rule, click here. To view the rule change, click here.

This rule will be effective on December 1, 2013.

The rule change has to do with a attorney's fees and how they are to be determined by the small claims court judge. Here is the comment to the rule:
Comment: The purposes of the proposed amendment are two‐ fold. This court has observed divergent practices and policies for determining “reasonable attorneys fees”. The first purpose is then to promote uniformity on this subject.

The second purpose of the amendment is to clarify that the courts are obliged to consider a wide variety of factors other than the amount of attorney time spent on the case. The amendment incorporates by reference Rule 1.5 of the Rules of Professional Conduct which lists no less than 8 factors.The list is not, however, exhaustive.

The Rule as amended would require counsel to separate work done by a paralegal from work done by an attorney. It also requires documentation of the time expended.

It disallows costs which are attributable to more than one case, unless the time can be apportioned with reasonable accuracy. Thus, if an attorney has travel time of one hour to cover 3 cases, 1/3 of an hour may be charged to each case. On the other hand, the time required to develop a standard demand
letter would not be recoverable, although the time spent generating such a letter in a particular case would be compensable.

While the Rule bars the recovery of anticipated legal services, it does not bar the Plaintiff from seeking a supplemental award of attorneys fees for work done after judgment.

Subsection B3, which addresses the problem of fees, which are disproportionate to the relief sought or received , is implicit in RPC 1.5(4), but warranted elaboration in view of its relevance to Small Claims cases.

Several commentators on the Rule as proposed and published on July 16, 2013, criticized the provision requiring the Court to consider the course of negotiations in determining what a reasonable fee would be. The critics noted the conflict between this provision and Indiana Rules of Evidence, Rule 408. This provision was also criticized as potentially counterproductive ie. will deter rather than encourage negotiations. The Court believes that the above criticisms are valid and has accordingly deleted the provision in the final draft. No other changes to the proposed amendment of this Rule have been made.

Many rule changes and changes to the court structure have been proposed to resolve problems with the Marion county small claims courts - see this May 31, 2013 ILB post.

This rule change seems to address the last paragraph of that post:

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

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Ind. Courts - "Indiana doctor accused of road rage shooting arraigned in Madison County Ky"

This story and video (including video of the alleged event) from Lexington WKYT concludes:

Police tell us that Dobyns works at the Branchville Correctional Facility, in Branchville, Indiana. WKYT contacted a local Sheriff's office who told us that Dobyns is actually the prison's doctor.

"Wow. Wow, that's a little scary," reacted Kollar, after hearing the suspect was a doctor. "Certainly the guy that's driving in the left lane (shoulder), passing people and shooting at people on the interstate needs to be off the road."

Dr. Dobyns is currently being held in the Perry County Jail, in Southern Indiana, and is expected to be brought back to Kentucky, likely as early as Tuesday. KSP hopes to be able to speak with Dobyns soon to question the 51-year-old man about his alleged actions. The doctor was arrested on a warrant for wanton endangerment.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Indiana Courts

Ind. Decisions - Stickdorn case "settles" ... [Updated 10/4/13] [Updated again on 10/4/13]

Here is an ILB post from nearly two years ago, Nov. 28, 2011:

In Eric Stickdorn and Lisa Stickdorn v. Elam B. Zook, Sarah F. Zook, Samuel L. Lantz and Mattie Z. Lantz, a 19-page opinion addressing significant issues of environmental law, Judge Baker writes:
Two neighboring farmers were conducting business near Cambridge City in Wayne County. The defendants built their dairy in 2003 that included a milking parlor about fifteen feet from the plaintiffs’ house. When the defendants emptied a manure pit on the farm in early 2004, the stench of rotten eggs and raw sewage permeated the plaintiffs’ home. The plaintiffs became physically ill, and a stream that crossed their property became polluted. The defendants repeatedly and continuously emptied the manure pit at various times over the next several years until April 2005, when they sold their farm. Because the plaintiffs did not file their cause of action for negligence, trespass, and nuisance until 2009, the defendants are entitled to summary judgment with regard to the negligence and personal injury claims. However, the nuisance and trespass actions survive.

Appellants-plaintiffs Eric and Lisa Stickdorn (the Stickdorns) appeal the trial court’s grant of summary judgment in favor of the appellees-defendants Samuel and Mattie Lantz (collectively, the Lantzes), regarding the counts of negligence, trespass, and nuisance, that they filed against the Lantzes. The Stickdorns argue that the trial court erred in determining that either the two-year or six-year statutes of limitations barred all of their claims.

We conclude that the trial court properly determined that the Stickdorns’ personal injury claims are barred by the two-year statute of limitations. However, we reverse the grant of summary judgment for the Lantzes’ with regard to the nuisance and trespass counts. Thus, we affirm in part, reverse in part, and remand for further proceedings with respect to the trespass and nuisance counts.

ILB: Worth watching is the Nov. 1, 2011 oral argument before the COA panel.
A check of the appellate docket this morning for the status of the case (89A01-1012-CT-00670) shows that the opinion was certified on Jan. 10, 2012, and no further activity is shown.

This morning the ILB received this news release from the Hoosier Environmental Council that the case had been settled:

After Setting Positive Legal Precedent for Protection of Small Family Farms, Famed Stickdorn Case Settles, Allowing Long-Suffering Couple to Return Home

(Cambridge City, IN)- In November of 2011, the Indiana Court of Appeals ruled in favor of Eric and Lisa Stickdorn, small family farmers in Cambridge City, [a town sixty miles east of Indianapolis]. The decision paves the way for Indiana’s small family farmers to protect their health and property from the nearly constant pollution exposure that can result from an industrial-scale livestock facility moving in and operating nearby. Now, the Stickdorn case has settled, ending the Stickdorns’ decade-long struggle to protect their home, their 120-acre farm, and their way of life.

The case began in 2003, when a confined feeding operation (CFO) was constructed and began operations less than 600 feet from the Stickdorns' home. Thereafter, the CFO's owners repeatedly took actions that created noxious odors, toxic waste spillage, and water pollution -- pollution so extreme that it rendered the Stickdorns' well-water undrinkable, and streams unfit for their cattle to drink. Conditions became so miserable for the Stickdorns that they began sleeping in the basement of their church, at the home of friends, at a campsite, and ultimately, within a year, in 2004 – within a year of the CFO beginning operations -- they were forced to move from their own home into an apartment. For the next nine years, the Stickdorns returned to their property only to care for their own animals, continuing to live, essentially, as refugees from their own home. While the details of the settlement are confidential, the polluting CFO is now closed and the Stickdorns recently moved back home.

“This settlement is a huge victory for Indiana’s small farmers,” said Kim Ferraro, staff attorney with the Hoosier Environmental Council who represented the Stickdorns. “People like the Stickdorns, who suffered for 10 years before getting justice, face a huge uphill battle when trying to protect their property rights. [And more fundamentally, they face an uphill battle in defending] their right to clean air and clean water when those rights are violated by a nearby polluting industrial livestock operation."

To make matters worse, during the most recent session of the Indiana General Assembly, lobbyists for corporate agri-business attempted to cut off the rights of small family farmers like the Stickdorns. They successfully convinced some state legislators to introduce bills that would, among other things, prevent an Indiana trial court from awarding damages or other relief to people, like the Stickdorns, who successfully demonstrate that they are being harmed by a neighboring CAFO. Additionally, such agribusiness lobbyists attempted to amend the Indiana State Constitution to give CAFO operators even more special legal protection by creating a fundamental right to commercially produce meat, poultry and dairy products. If allowed, the amendment would have made it nearly impossible for local or state agencies to enforce existing environmental and public health safeguards or to enact new ones. It would have also dramatically weakened the ability of rural Hoosiers to protect their homes and families from giant livestock factories that exist in every region of the state.

“What I hope people take away from our experience is that we do have a Constitutional right to the free use and enjoyment of our properties upon which we live and pay taxes, but until all citizens petition their legislators, or vote for new ones, these unfortunate conditions will continue to plague Indiana,” said Eric Stickdorn.

[Updated 10/4/13] See also this WISHTV8 story by Karen Hensel, headed "Constitutional amendment worries CAFO opponents"

[Updated again on 10/4/13] The ILB has obtained more information about the settlement.

After the Stickdorns prevailed in the appellate court and the case was remanded, they obtained a default judgment against the Lantzs for roughly $150K and ultimately reached a settlement of the entire case -- part of the settlement that can be disclosed involved closing the CFO and transferring the property to the Stickdorns.

More specifically, the Stickdorns first reached a settlement with the Zooks and subsequently, in Sept., with the Lantzs. The settlement with the Zooks closed the CFO and transferred most of the property to the Stickdorns. The settlement with the Lantzs transferred the remainder of the property.

Posted by Marcia Oddi on Thursday, October 03, 2013
Posted to Environment | Ind. App.Ct. Decisions

Wednesday, October 02, 2013

Ind. Decisions - "Trial judge rules DNR overstepped in attempt to shut down high-fence deer hunting"

Tim Evans of the Indianapolis Star reports this afternoon in a story that begins:

The Indiana Department of Natural Resources overstepped its authority in a 2005 attempt to shut down high-fence deer hunting farms, according to a court ruling that could open the door to more private hunting facilities across Indiana.

The ruling by Harrison County Circuit Judge John Evans ends, at least for the time being, an eight-year legal battle between the DNR and operators of a handful of private hunting preserves.

Evans found that an emergency ordered issued in 2005 by then-DNR Director Kyle Hupfer, which was aimed at stopping hunting on the fenced preserves, constituted “an improper exercise by an executive agency of the authority of the Indiana legislature.”

The judge also made permanent a preliminary injunction he had issued that prohibited enforcement of the DNR order, which had allowed hunting to continue at the facilities while the case was pending.

Here is a long, long list of earlier ILB posts on canned hunting. The most recent, from April 24, 2013, was about an effort in the 2013 General Assembly, and is headed "High-fenced hunts face uncertain fate."

More from today's story:

“We’re glad this is finally over,” said Rodney Bruce, owner of Whitetail Bluff near Corydon, who was one of the operators who sued the DNR. “I’ve fought for this for years and we are ready to move on.”

Bruce said he thinks the decision will open the door to an expansion of an “industry” that is booming in many other states.

“There were only four (high-fence facilities) active in the state until yesterday,” Bruce said. “With this ruling, others can open now.”

But that window may be short-lived.

During the nearly eight years the lawsuit was working its way through the Harrison County court system, lawmakers have considered several proposals regarding high-fence hunting — some for, other against — but none have been adopted.

That debate is likely to continue now that Evans has thrown the ball back in the legislature’s court.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Ind. Trial Ct. Decisions

Not law - The reining national newspaper, the NYT, should reign in usage confusion!

The ILB hopes the above heading sets your teeth on edge!

All too often, we see stories incorrectly reporting a need to reign in this or that, or about someone taking the reigns of government. But today the NYT had a long, front-page story ("Once Alienated, and Now a Force in Her Husband’s Bid for Mayor: Chirlane McCray Plays Key Role in de Blasio Campaign") with this blooper in the print version that arrived at my doorway this morning:

They are, in their relationship, their politics and, above all, their lifestyle, a striking departure from the city’s reining pair, Michael R. Bloomberg and Diana L. Taylor, his longtime girlfriend.
The error now has been corrected in the online version of the paper.

For much more on "rein or reign", see this post by Catherine Soanes at the Oxford Dictionaries blog.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to General Law Related

Ind. Courts - "The right to counsel in cases involving children is being addressed on several fronts in Indiana"

See this new post at Kaarin Lueck's Indiana Juvenile Justice Blog.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Indiana Courts

Ind. Gov't. - "Jasper biomass lawsuit pricetag exceeds $500,000 (so far)"

From the Dubois County Free Press, a lengthy story by Matthew Crane. It begins:

Jasper — The City of Jasper’s defense in the lawsuit filed by Healthy Dubois County, Inc. in August of 2011 has cost city utility ratepayers over half a million dollars so far.

The city has paid Bingham Greenebaum Doll, LLP, the firm representing the city, $514,547 on a nearly monthly schedule over the course of the 25 month litigation. These payments are made by the city’s electric utility through a special account funded by ratepayers’ utility payments.

As the fascinating history in the story lays out explains, this all began with alleged violations of the Open Door Law:
On August 5, 2011, the Jasper Council and Utility Service Board approved the lease agreement with Twisted Oak in a joint special meeting. Twisted Oak Corporation, founded in 2003, is a firm from Atlanta, GA, interested in converting the Jasper power plant from a coal-fired power plant to a biomass power plant.

Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. (HDC), a grassroots organization composed of local citizens concerned about the health and economic impact of a biomass burning power plant being developed in Jasper, filed the original lawsuit concerning alleged violations of Indiana’s Open Door Law August 5, 2011. After the hearing in December of 2011, special judge Lucy Goffinet ruled in favor of the City of Jasper.

Bingham Greenebaum Doll LLP had billed the city 722.80 hours at a cost of $190,952.50 to get to this point.

HDC filed an appeal, and a three judge panel of the Indiana State Appeals Court reversed Goffinet’s decision based on several factors including questioning the members of a group of volunteers who met to work out essential details concerning the contract with Twisted Oak. In the ruling by the appellate court, HDC was allowed to depose members of this controversial volunteer group that met without public scrutiny about 12 to 15 times during negotiations with Twisted Oak CEO Jay Catasein.

The firm billed 436.7 hours from January 3, 2012 to January 3, 2013, the timeframe it took to get through the appeal, for a total of $109,081.00.

Since January 3, 2013, the city has paid Bingham Greenebaum Doll, LLP an additional $214,513. 50 for 691.9 hours of work in preparation for the second trial scheduled for January 16 and 17 of 2014.

There is much, much more to read in this story.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Indiana Government

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

Updating this ILB entry from Monday, the Fort Wayne Journal Gazette editorializes today:

Motorists uncomfortable with the Indiana Bureau of Motor Vehicles’ explanation for millions of dollars in overcharges revealed earlier this year now are justified in feeling downright angry. Late Friday afternoon, the agency issued a news release announcing it was “lowering a number of fees following an independent review of its fee structure.”

In other words, the overcharges extended not just to driver’s license fees, but to dozens of other fees administered by the state agency. The BMV’s insistence that it has corrected its fee structure and will issue credits to motorists’ accounts is hardly reassuring. As the cost of the errors grows, agency officials have yet to take responsibility for overcharging customers.

“In order to simplify the administration of fees and better serve the driving public, the BMV and the governor’s office will work with the General Assembly to address this complicated statutory system and eliminate future confusion,” according to the news release. On its website, agency officials have simply posted a revised list of fees, with no explanation of its previous overcharges.

The agency’s responsibility, however, is to carry out state law, regardless of its complexity. Suggesting that the confusion emanated from legislative action is disingenuous. * * *

The total cost of the credits that will be issued is still unknown. There’s also the $55,000 cost of hiring an Indianapolis law firm to conduct a study, a copy of which the BMV refused to give to the Indianapolis Star, citing attorney-client privilege.

For residents who have moved out of state, there will be no credit for the overcharges as they likely won’t be conducting more business with the BMV. For Hoosiers who will receive a credit, there’s no interest to be paid on the amount of their overcharges.

State officials are eager to claim credit for tax caps, credits and refunds, some of which have created hardships for both local units of government and for schools. Whatever break they’ve given taxpayers in recent years is compromised by the additional burden created for motorists by the BMV’s errors.

It’s past time for the agency to own up to its poor performance.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Indiana Government

Ind. Decision - "Supreme Court to review two Evansville cases Will hear arguments on city's smoking ban, EVSC's central office"

As noted in Monday's "ILB Upcoming Oral Arguments", "The Indiana Supreme Court will hear arguments Thursday in the appeals of two Evansville cases." Mark Wilson's story in the Evansville Courier & Press continues:

In the first, the court will review rulings by a Vanderburgh County judge and the Indiana Court of Appeals upholding the city of Evansville’s indoor smoking ban. The five-member court will listen to oral arguments in that case from 9 to 9:40 a.m.

Also before the high court Thursday, is the Evansville Vanderburgh School Corp.’s appeal of an Indiana Court of Appeals ruling in a lawsuit by contractors who objected to how a contract was awarded to renovate the building now housing the EVSC administration. Oral arguments in that case will be from 10:30 to 11:10 a.m.

The story goes on to provide background to the two pending cases.

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Upcoming Oral Arguments

Environment - Acting USEPA air chief likely to be nominated by Obama to fill the vacancy

Environment & Energy Publishing on Monday had a lengthy story by Jason Plaautz about Janet McCabe, who headed the IDEM air office pre-Mitch Daniels's election. Some quotes:

President Obama is expected to keep leadership steady at U.S. EPA's critical Office of Air and Radiation when he announces a nominee to replace Gina McCarthy, who was confirmed as EPA administrator in July.

The smart money is on Janet McCabe, McCarthy's former deputy and acting chief of the air office, the primary rule writer in Obama's push to use the Clean Air Act to curb emissions of greenhouse gases.

McCabe and McCarthy have a lot in common. Both have extensive experience as state regulators, reputations for straight talk and a willingness to engage with friend and foe alike and backgrounds in public health.

They differ in style.

"Janet's a little more quiet, while Gina is more gregarious," said Margo Oge, who retired last year as EPA's director of transportation and air quality. "She comes across as a great listener and someone who's very open-minded. She has a real grasp on the issues, and I found her to be a very quick learner."

McCabe has been praised by environmentalists and industry officials alike for her handling of complex regulations both at the state level in Indiana and at EPA. If she's nominated for the full-time job or stays as acting air office chief, McCabe would be tasked to tackle the dirty work on the climate plan, including advancing a proposal on limiting emissions from new power plants and moving ahead with rules on existing plants.

That's not to mention work on several air quality standards and revisions to the Cross-State Air Pollution Rule (CSAPR), which regulates harmful emissions that cross state lines.

"I think she's a perfect fit for that job. She's got a keen awareness of how these issues affect state governments, and states are such critical partners with EPA on air programs," said Frank O'Donnell, president of Clean Air Watch. "Janet not only hits the ground running, she's in the middle of it already."

It's McCabe's experience in the air office that appeals to environmentalists. And industry groups will be more prepared to deal with an official with whom they've worked for years. For EPA -- already grappling with senior-level retirements in the air office -- a steady hand at the tiller is seen as invaluable (Greenwire, May 15).

The fact that McCabe has so much in common with McCarthy as a regulator also doesn't hurt.

"Wholly apart from the fact that McCarthy is still her boss, she would approach that job very much the way McCarthy did," said David Doniger, policy director for the Natural Resources Defense Council's climate and clean air program.

"She's smart, she's competent and she's really part of the team. Her approach is pragmatism, openness and a very thorough understanding of the subject matter, both legal and substantive."

There is much more in the lengthy story, including:
According to her official EPA biography, McCabe was brought up in Washington, D.C., and got both a bachelor's and a law degree from Harvard University. After leaving Harvard Law School in 1983, she began her career in Massachusetts -- as did McCarthy -- rising to become a assistant state attorney general for environmental protection and assistant secretary for environmental impact review before departing in 1993.

She switched states when she followed her husband back to his home state of Indiana, joining the Indiana Department of Environmental Management (IDEM).

ILB: The husband would be Jon Larimore, B&D.

James Bruggers, at his Louisville Courier Journal blog, has a long post headed "From Indiana to EPA, Janet McCabe plays central role in developing new climate rules."

Posted by Marcia Oddi on Wednesday, October 02, 2013
Posted to Environment

Tuesday, October 01, 2013

Ind. Courts - Hon. Diane P. Wood is 7th Circuit Chief Judge effective Oct. 1st

Per How Appealing.

Look closely at this biography: "Served as chief judge, 2013-present."

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Ind. (7th Cir.) Decisions

Environment - "Sink-hole terrain will challenge Bluegrass Pipeline developers"

Updating a long ILB list of earlier pipeline stories, James Bruggers has a lengthy story today in the Louisville Courier Journal, that begins:

Even as landowners and officials battle the merits of the planned Bluegrass Pipeline, experts say that Kentucky’s sink-hole and cavern-riddled geology poses major construction and operational challenges to its developers.

One leading geologist said the potential problems are so significant that they need to be fully evaluated before any dirt gets turned on the plan to run about 150 miles of new 24-inch diameter pipeline through Kentucky. The pipeline would carry natural gas liquids from Pennsylvania to the Gulf Coast.

At issue is how pipeline construction and operations could be affected by karst, a landscape common in a large part of the commonwealth and is typically underlain by limestone pocked with fissures and caves.

Counties along the pipeline’s projected route are marked by “tens of thousands of sinkholes,” said Ralph O. Ewers, an Eastern Kentucky University professor emeritus and consultant to industry and government whose work has taken him to karst zones around the world.

Sinkholes can swallow infrastructure — roads, buildings and pipelines, he said, creating the danger that hazardous liquids might be released, then move swiftly through subterranean rivers and streams, polluting water sources a mile or more away. In addition, he said, deadly vapors can settle into caves.

“I am not sure they have picked the least vulnerable route,” Ewers said of the Bluegrass Pipeline developers.

For their part, the pipeline developers said there’s nothing to fear.

The lengthy story concludes:
Ewers acknowledged that engineers can build projects that safely adapt to karst. But he said that too often, that doesn’t happen, despite promises.

“There aren’t a lot of engineers in the world who understand karst very well,” Ewers insisted. “I have spent much of my career, and I am now 76, cleaning up after engineering mistakes.”

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Christina Atkins, and Kyla Atkins, by her parent and next friend Christina Atkins v. Veolia Water Indianapolis, LLC, a 7-page order, Chief Judge Robb writes:

Appellant Christina Atkins appeals the trial court’s denial of her motion for leave to file a belated appeal under Indiana Trial Rule 72(E). Atkins raises two issues for our review: (1) whether the trial court abused its discretion by denying Atkins’s Rule 72(E) motion and (2) if so, whether the trial court erred by granting a motion for judgment on the pleadings in favor of Veolia Water Indianapolis, LLC (“Veolia”). Concluding the trial court did not abuse its discretion by denying Atkins’s motion under Rule 72(E), we affirm. * * *

Counsel for Veolia received a copy of the Order from the trial court clerk on November 16, 2012. The Order was also received by Atkins’s counsel; however, the Order was apparently misfiled, and Atkins’s counsel did not actually see the Order. The date on which Atkins’s counsel received his copy of the Order is unknown. On January 28, 2013, Atkins’s counsel went to the trial court and learned that the Order had been issued more than two months before. * * *

A copy of the Order was mailed to the office of Atkins’s counsel. It may well be true that her counsel never physically laid eyes on the Order and thus did not have actual knowledge of it. But her counsel’s mishandling of the Order does not negate the fact that notice was given. Because that notice was given, Atkins cannot now obtain relief under Rule 72(E). A contrary result would undermine the purpose of Rule 72(E). See Markle, 514 N.E.2d at 613-14.

Conclusion. We conclude that because lack of notice is a prerequisite to relief under Indiana Trial Rule 72(E) and Atkins had notice of the Order, the trial court did not abuse its discretion by denying Atkins’s request to file a belated appeal. Therefore, we affirm.

NFP civil opinions today (3):

Kenneth W. Gibbs-El v. Christopher E. Meloy, et al. (NFP)

Samuel C. Bowyer v. Kelley S. Bowyer (NFP)

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

NFP criminal opinions today (1):

Warren E. Large v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Guide to Indiana’s online health insurance marketplace"

A useful guide, from the Indiana Senate Democrats.

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Indiana Government

Ind. Gov't. - More on "Lake County officials promote new online tax sale"

Updating this ILB entry from August 12, 2012, Bill Dolan of the NWI Times has a story today headed "Lake government strikes it rich from Internet sales."

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Indiana Government

Courts - Increasing use of special masters by federal judges

A few quotes from Dionne Searcey's long Sunday story in the $$ WSJ, the headline was "Judges Outsource Workloads as Cases Get More Complex: Amid Tight Courtroom Budgets, Special Masters Help Keep Litigation on Track."

Judges typically have appointed special masters to broker settlement negotiations or monitor enforcement of consent decrees in school-desegregation cases. But contending with tight courtroom budgets and facing increasingly complex patent litigation or product-liability disputes that can involve hundreds—even thousands—of plaintiffs, judges increasingly are farming out other aspects of litigation to special masters as well.

A special master's responsibility can be broad, with duties set out by court order, though the judge has ultimate authority and can overrule a special master's decisions. Special masters' fees are paid for by the parties, who generally want to expedite litigation, ultimately saving on legal fees and other costs.

Comprehensive data on the numbers of special masters is scant. But lawyers and judges say the appointments are becoming staples of consolidated cases involving plaintiffs from multiple jurisdictions and high-stakes intellectual-property cases.

That presents a business opportunity for attorneys, mediators and retired judges. Rates range roughly from $300 to $1,000 an hour, negotiated by the parties and the court, and can be based on such factors as the special master's experience and private billing rate and the nature of the case.

"If you get one hairy, complicated case, that takes a lot of attention," says David Cohen, a lawyer whose special-master résumé includes a case that lasted several years and involved 12,000 plaintiffs. "You need someone who is devoted to that case alone."

Some litigation is so complex that judges appoint more than one special master. In a Louisiana federal case—in which nearly 3,000 plaintiffs sued the makers of diabetic drug Actos, saying it made them susceptible to bladder cancer—the judge appointed three special masters. One is the overall case manager, another sorts out the potentially volatile issue of fees for plaintiffs' lawyers and another helps write orders and handles scheduling issues.

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Courts in general

Ind. Gov't. - More on: Kitchell suit against Logansport argued before the Supreme Court

Updating this Sept. 8th ILB entry is this long Sept. 30th story by Mitchell Kirk in the Logansport Pharos-Tribune. Some quotes:

Contracts between the the city of Logansport, Logansport Municipal Utilities and the consultants hired to assist with the city’s power plant project were released to a Logansport attorney last month, revealing information about out-of-state meetings and estimated pay for each of the consultants’ services.

The proposed plant, which would be powered by refuse-derived fuel, is currently under negotiation between the city and Boca-Raton, Fla.-based Pyrolyzer LLC.

The contracts were released to Jim Brugh, a Logansport attorney whose client Julie Kitchell sued Logansport Mayor Ted Franklin and city council this spring alleging the administration began the negotiating process with Pyrolyzer before authorizing itself to do so. The case was argued before the Indiana Supreme Court earlier this month, but a decision has yet to be made.

The released agreements are between the city, LMU and William-Lynn-James, an Indianapolis firm that has recruited a team of consultants from across North America. To date, the city council has approved allocations totaling more than $1.5 million to the firm, an amount Franklin says he is planning to get reimbursed through the plant negotiations.

The contracts were released by John Molitor, an attorney working as special counsel for the city, after Indiana Public Access Counselor Joseph Hoage issued an informal opinion stating the documents should be disclosed.

In his opinion, Hoage sided with Brugh’s disagreement with Molitor that the consultants’ names and rates of pay were not trade secrets because the consultants “have previously been identified by the city and/or firm and have testified in related public hearings.”

Hoage added the consultants “advertise for work in their market and there is nothing proprietary what the firm chooses to pay them.”

Hoage, like Brugh, also contested Molitor’s claims that the contracts consist of documents the state’s Access to Public Records Act allows agencies to withhold, like diaries, journals, or a record, if publicly disclosed, that “would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”

The contracts include information on meetings in Atlanta, Boston and Washington, D.C.

Garry Petersen, senior economist at William-Lynn-James and project director of the power plant project the firm was hired to assist Logansport with, indicated that while an estimated timeline states these meetings already occurred, not all of them have.

“Some of it hasn’t,” he said. “I can’t discuss where we travel before it happens. After, we can.”

Petersen went on to call the contract “a living document.”

“It’s variable,” he said. “It gives us the latitude to shift direction. It moves around as the project moves around. [Franklin and LMU Superintendent Paul Hartman] can add and subtract things that will impact costs and performance.

“We always stay within the rule of law and we always stay within our scope. There is some travel. Under the expanded part of that contract, they went to Berlin and Toronto.”

More from the story:
An estimated budget in the contract between the city and the firm for the negotiating phase of the project states $41,000 for special counsel will go to Brian Bosma, Indiana Speaker of the House and a partner at Kroger Gardis & Regas LLP, an Indianapolis law firm.

A request for comment from Bosma was returned by an email from Petersen with a citation of Indiana’s Rules of Professional Conduct, which guides attorneys. One of the rules states, “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”

Petersen stated in the email that Bosma’s, along with the rest of the team members’ contracts, are between themselves and the firm, not themselves, the city and LMU.

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to Indiana Courts | Indiana Government

About this Blog - "Interrogatories: Candid Q&A with Joel Schumm"

The Indianapolis Bar Association has now posted on its site a nicely formatted version of the Tyler Helmond Q&A with the IU-McKinney Law Prof. Joel M. Schumm. Here is a sample:

Q. What advice do you give your students for navigating this incredibly difficult legal job market?

A. Develop some connections by proving yourself though an externship or part-time job. Even in this tough market, I know many students who have landed permanent job through this route. That said, good (or at least respectable) grades, especially in legal writing, still matter for many jobs.

Q. If you could change one thing about Indiana appellate procedure, what would it be?

A. Electronic filing of briefs. My students have uploaded their writing assignments to an electronic dropbox for the past decade; I never touch a piece of paper in critiquing and returning them. I welcome the day I will not have to take each appellate brief to the printer, pick up the bound copies a few hours later, and then drop them off or mail them to the clerk’s office.

See also the earlier IBA Q&A with the ILB.

Posted by Marcia Oddi on Tuesday, October 01, 2013
Posted to About the Indiana Law Blog | Schumm - Commentary