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Saturday, November 30, 2013

Ind. Gov't. - "Ruling exposes gap in Open Door Law"

Updating this Nov. 26th ILB entry, which quoted Lesley Weidenbener's Nov. 25th story for The Statehouse File, and included an ILB link to the Public Access Counselor's file on the open meetings dispute between the Superintendent of Public Instruction and the State Board of Education, Weidenbener's column for the Sunday Louisville Courier Journal continues to focus on the public meetings issue and is headed "Ruling exposes gap in Open Door Law." Some quotes:

INDIANAPOLIS — The message that Indiana Public Access Counselor Luke Britt sent in his commentary last week about a State Board of Education dispute is more important than his actual ruling.

In an advisory opinion, Britt said he could not rule “definitely” that education board members broke the state’s Open Door Law when they signed and sent a letter to legislative leaders asking them to get involved in A-F grading for schools. * * *

“Final decisions are meant to be open and transparent,” Britt wrote in an unusual commentary that followed his advisory opinion.

Essentially, Britt said the education board might not have broken the letter of the law. But it sure teetered on the edge of its spirit.

The point of the law is to make sure that the public knows what a government agency or board is doing. That’s it. The goal is simple. The law requires boards and commissions and councils to take all actions in meetings that are announced to the public and follow published agendas.

There are a few exceptions. Boards can have private discussions about economic development, legal issues, personnel issues and a few other things. But all official action must take place in public. Period.

And Britt warned public officials that it’s a law that should be followed.

“I encourage all public agencies to be especially attentive to the purpose of public access laws to avoid ambiguous situations and arousing suspicions of prohibited activities,” Britt wrote. “Regardless of the intent, the appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.”

In the education board case, email made it possible for a majority of the board members – basically everybody except Ritz – to sign off on a letter requesting action from legislative leaders without ever meeting in public, Britt said. That’s because state law exempts email from a ban on so-called serial meetings in which officials meet in small groups to come to a consensus without ever making a quorum for action, he asid.

It also appears from Britt’s ruling that another reason the education board action may not have broken the law is because the group’s staff – at the Center for Education and Career Innovation – wrote the letter and circulated it. It’s not clear who directed the staff to do so. But Britt said that if a majority of the board had directed the staff to write the letter outside a public meeting, a violation of the law would have occurred.

(On a side note, that certainly raises questions about how much authority the Center for Education and Career Innovation has in setting or establishing policy.)

What this analysis says to me is that the education board’s actions fall through the cracks of the Open Door Law – intentionally or not. And now that the board has exposed those gaps, they’re available to any government council or commission that wants to exploit them.

Britt suggests in his opinion that lawmakers take a look at whether an email chain among board or council members should be considered a public meeting or a serial meeting and require public notice or other treatment.

I hope lawmakers will go a step further and look at the entire situation. Technology is changing how people – including public officials – communicate, and lawmakers have tried to keep up. But the law deserves another look in light of recent actions to see if there are yet more changes that will keep the public business in the public eye.

ILB: The interesting parenthetical "side note" above may cause one to wonder whether the tail is wagging the dog, insofar as the board and "the staff" are concerned.

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to Indiana Government

Law - "A lawyer's troubles can leave a legacy of chaos: Clients' cases and money abandoned when a solo lawyer dies or leaves"

This long, must-read story by Jim Hannah, who writes on the criminal justice system in Northern Kentucky for Cincinnati.com, begins:

When Northern Kentucky lawyer Patrick Moeves was convicted in 2010 of stealing thousands of dollars and forging a state senator’s name, Moeves’ clients were left out on a limb.

The clients were unable to retrieve their files from Moeves’ Fort Wright office because his landlord padlocked the door for failure to pay the rent. Many others found the money they paid Moeves was gone. They were then left with no lawyer when Moeves was disbarred.

Kentucky Bar Association President Tom Rouse, who is also the mayor of Erlanger, wants to make sure no other person whose lawyer stops practicing experiences the same problems. Rouse has established a task force to see how a state rule to handle the growing problem of “abandoned practices” can be strengthened.

“When an attorney leaves, closes or abandons his practice, it puts the public at risk,” said Rouse, who practices law out of his home. “That lawyer can hold the lives and fortunes of a whole lot of people in their files.”

The issue of abandoned practices isn’t unique to Kentucky. There also is a push to strengthen Ohio’s rule about abandoned practices. A presentation about the issues was conducted this month in Akron. Michigan and Utah are looking into adopting rules on abandoned practices.

Later in the story:
The American Bar Association has been campaigning for at least 15 years to get lawyers to adopt contingency plans in the event they can no longer practice. The plan should, at a minimum, include the designation of a “surrogate lawyer.” The surrogate would have the authority to review client flies and make determinations as to which files need immediate attention, and who would notify the clients of their lawyer’s death, according to the ABA.

“The overriding concern of the courts and the organized bar is the protection of clients who might be harmed when a law practice is abandoned for whatever reason,” said Erlanger lawyer William T. “Bill” Robinson III, past president of the ABA and a member of Frost Brown Todd locally.

Indiana’s rule for dealing with abandoned practices is considered unique in the nation because if a lawyer hasn’t named a surrogate to act on his behalf in cases of emergencies, a retired judge will be appointed to that role.

“That is really what has made Indiana’s rule stand out,” said Indiana lawyer Ted Waggoner, who help usher in that state’s rule. “That is why we get phone calls from other states seeking advice on this issue.”

He said the rule kicked in when a Kokomo lawyer recently walked away from his solo practice to move to Australia.

“It is not a violation of confidentiality for the surrogate to break into the office, get into the files and to take over the lawyer’s trust account,” Waggoner said. * * *

A downside to the Indiana rule is there is no compensation for the surrogate attorney. That becomes a problem when no money is left in the practice’s bank accounts.

“The surrogate lawyer could be on the hook for several thousands of dollars of expenses,” Waggoner said. “We do not have a good solution for that.”

There is much more in the story. See also this Oct. 16th ILB post, headed "Confusion trails 'missing' Kokomo attorney: Bradley Hamilton's cases handed over to attorney surrogate." The 2007 Ind. Rule requiring attorneys to name a surrogate when they register each year is Rule 23, Sec. 27.

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to General Law Related

Ind. Gov't. - "Working-poor residents in similar circumstances face vastly different health coverage options, depending on which side of the Ohio River they live"

Sunday's Louisville Courier Journal will contain this very long article by Laura Ungar titled "Medicaid expansion's tale of two states: Kentucky 'haves' vs. Indiana 'have-nots'." From near the start of the story:

Working-poor residents in similar circumstances face vastly different health coverage options, depending on which side of the Ohio River they live.

It wasn’t supposed to work that way.

The 2010 law was designed to expand Medicaid to all Americans earning up to 138 percent of the federal poverty level — $15,856 for an individual in 2013 — allowing uninsured residents above that cutoff to seek health plans on insurance exchanges.

But the U.S. Supreme Court in 2012 let states choose whether to expand Medicaid, and as of Nov. 22, the Kaiser Family Foundation said only half, including Kentucky, had decided to do so.

Indiana is among the 25 states that have decided against it, effectively creating a double whammy for some of the state’s poor residents: Not only do they miss out on gaining access to Medicaid, but they must pay full price for plans on the federal exchange.

The ACA doesn’t offer health care subsidies to those earning less than the federal poverty level, because the law presumes they would be covered by expanded Medicaid. The nonpartisan Kaiser Family Foundation estimates 181,930 Hoosiers will fall into this “coverage gap.”

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to Indiana Government

Courts - More on: Differences in two cases on searching cell phones reflect the fast-moving evolution of cell phones

Supplementing this ILB entry from Nov. 22nd, Politico's Tal Kopan today has a long, wide-ranging article titled "Digital era confounds the courts." Here are a few snippets:

The Founding Fathers weren’t big on texting.

Courts have long struggled to deal with key questions at the intersection of individual privacy and ever-advancing technology with little guidance from the Constitution or from prior cases – now judges and experts are hoping that’s about to change. * * *

Starting next week, the nation’s top court is set to consider whether to take up three key related cases .... Here are the big tech issues that could finally get decided: * * *

Lower courts have been split on the authority of police to search your technology. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation. * * *

How far does that extend? …Massachusetts says it extends to a call log. Well what about an app? What if you have Dropbox? Does it extend to stuff stored only on the phone? Does it extend to the cloud?” * * *

In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it. So can police compel someone to provide a password or to unlock an account or decrypt a file? * * *

Another nettlesome issue brought up in part by the ubiquity of cellphones and smartphones is the ability of police to track a person’s movements.

While the Supreme Court ruled last year that police cannot affix a GPS tracking device to a car without a warrant, it decided U.S. v. Jones based on a question of trespassing, which doesn’t apply when police get location information from a suspect’s devices or service provider. * * *

The rules about personal information trusted with major companies loom large over perhaps the most public debate about privacy: Widespread surveillance by the National Security Agency revealed last summer by leaker Edward Snowden.

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to Courts in general

Ind. Law - "Wrongful conviction group hires David Camm"

Mark Vanderhoff reports in the Louisville Courier-Journal that:

A group that advocates on behalf of the wrongfully accused announced it has hired recently released David Camm, who after 13 years was found not guilty in the murder of his family.

Camm will work as a case coordinator for Investigating Innocence, a national nonprofit that provides criminal defense investigations for inmates, said Louisville resident Bill Clutter, director of investigations for the organization.

The lengthy story is here. The story links to the website for Investigating Innocence.

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to Indiana Law

Law - "Law schools adjust to lower enrollments "

Ameet Sachdev, business reporter for the Chicago Tribune has a lengthy story, dated Dec. 1, subheaded "Job market tough for their graduates; heads of institutions confront financial pressures that many have never dealt with." A few quotes:

The first to reduce their enrollments were lower-tier schools, according to published reports. But now the pain is spreading up the ranks. National admissions data for the entering Class of 2013 are being compiled by the American Bar Association, but a survey of law schools in Illinois shows sharp declines in enrollment.

At Loyola University Chicago, the entering Class of 2013 was one-fourth smaller than the 2012 class. The University of Illinois at Urbana-Champaign enrolled 170 students, which was 28, or 14 percent, fewer than a year ago.

Even elite schools can't escape the trends. Northwestern University, No. 12 in U.S. News & World Report's Best Colleges rankings, trimmed its 2013 entering class of three-year law students to 177, or 14.5 percent, from 207 the year before.

Unless law schools relax their admissions standards, enrollments may continue to shrink, judging by the numbers of people considering getting a Juris Doctor degree. The Law School Admission Council reported that 33,673 people took the law school entrance exam, known as the LSAT, in October, down nearly 11 percent from the same test month last year. The exam is administered four times a year. * * *

In the face of declining enrollments, the heads of law schools confront financial pressures that many have never dealt with. Schools are forgoing millions of dollars in tuition revenue by shrinking their enrollments. To balance their budgets, some deans have reduced faculty and staff through layoffs and attrition.

At the same time, they are spending limited resources to attract more students and find more jobs for their graduates. They are throwing themselves into curriculum reform and cajoling alums to hire students for either internships or full-time positions.

"We're in a longer-term correction in terms of jobs," said Harold Krent, dean of the IIT Chicago-Kent College of Law. "Technology changes, globalization trends, corporate pressures on law firms and tax issues for state governments all have contributed. We have to ensure we continue to be as relevant as we can."

Posted by Marcia Oddi on Saturday, November 30, 2013
Posted to General Law Related

Friday, November 29, 2013

Ind. Courts - "Porter County judge rejects plea in Portage teacher sexting case"

Bob Kasarda of the NWI Times reported Nov. 27th:

VALPARAISO | Porter Circuit Judge Mary Harper rejected a proposed plea agreement Wednesday that would have allowed a former Portage middle school teacher to serve no more jail time on charges of twice sending sexually suggestive text messages to students.

Harper dismissed a last-minute plea by the prosecutor and defense attorney, saying based on her limited knowledge of the facts, she believes 45-year-old Bryan Tyman should serve a modest amount of time at the county jail as part of the sentence.

While acknowledging how mischievous young girls can be, Harper said Tyman carried a responsibility in his position of authority as teacher.

The case was set for trial Feb. 24.

The father of one of the three students named in the case agreed with Harper's concern over the lack of jail time.

"He can't do a couple months in the county jail?" the father said following Wednesday's short hearing.

The father said it will be clear when the girls testify at trial the alleged offenses had a negative impact on them.

A sentencing memorandum filed by the defense said when Tyman, a Fegely Middle School teacher, was asked by one of the girls in December 2011 what he wanted for Christmas, he responded by text, "I think you know what I want." There were no further advances.

A year later, three female students taking part in a sleep-over sent him a series of sexually explicit messages posing as one girl and asked for a sexually explicit photo, according to the memo. After initially dodging a sexual response, he reportedly joined in, sent the requested photo and asked for a photo of the girl.

Tyman had pleaded guilty to two Class D felony counts of child solicitation in return for prosecutors dropping a third Class D felony count of vicarious sexual gratification.

The deal called for him to spend six years on formal probation and spend the first year on home detention. He also would have been required to register as sex offender for 10 years, undergo sex offender treatment and lose his state teaching license for life.

Harper had voiced concern with the proposal two weeks ago and had given attorneys until Wednesday to work out an alternative.

Posted by Marcia Oddi on Friday, November 29, 2013
Posted to Indiana Courts

Ind. Gov't. - "Union County Republican caucus turns down only prosecutor candidate"

Bev Woodruff reported this week in the Union County Liberty Herald:

In Union County, the prosecutor's office is functioning even though a Republican caucus held last week failed to appoint the lone candidate to fill the unexpired term left by former prosecutor Ron Jordan upon his resignation.

While Republican Party officials are working with district and state officials to determine what the next legal step is, acting prosecutor Kathy Kolger is continuing to function as prosecutor.

Deputy prosecutor Kolger became acting prosecutor after Jordan resigned at the end of Oct. Kolger submitted her name for consideration to be named by the GOP caucus to fill the unexpired term. Last week, Republican party chair Alan Alcorn said the question of residency was an issue for some members of the caucus.

“There was a lot of conversation regarding that issue [residency],”Alcorn said. “I won't say that was the main driver, but there was a lot of conversation about it.” * * *

Kolger had previously resided in Wayne County, where her husband is a judge. Prior to applying to fill the vacancy, Kolger established residency in Union County and registered to vote in Union County.

Last week, Alcorn was of the opinion the governor would appoint someone to the position. The Indiana Judicial Center and the state election board do not agree.

Last Thursday, Union Circuit Judge Matthew Cox said he had conferred with the Indiana Judicial Center. According to Cox, it was the opinion of the judicial center Kolger would continue to serve as acting prosecutor, as she has since Nov. 1, until the vacancy is filled or until she resigns.

Also last Thursday, Union Circuit Clerk Sue Ray contacted the state election board to verify how the county should proceed. Ray was told Kolger should continue as acting prosecutor until the position is filled. According to the state election board, the Republican Party will need to hold another caucus and try to fill the vacancy. * * *

Kolger said she would not leave the justice system in the county hanging.

“I wouldn't do that to the people of Union County or to the court,”Kolger said. “I've enjoyed being the chief deputy prosecutor for 15 years and I'm going to continue to serve the citizens of Union County. I think the people of Union County deserve better than what happened with the caucus last week.”

As to the issue of residency, Kolger said she sought an opinion from IPAC prior to putting her name before the caucus. * * *

Kolger also pointed out the last several judges elected to the Union Circuit Court were not residents of the county and moved into the county in time to establish residency to run for office. She added the candidate that challenged Jordan during his last run for office had moved into the county.

“I had complied with the residency requirements,” Kolger said.

Posted by Marcia Oddi on Friday, November 29, 2013
Posted to Indiana Government

Wednesday, November 27, 2013

Ind. Decisions - Court of Appeals issues 9 today (and 12 NFP)

For publication opinions today (9):

Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chair

Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louis Cochran, Deceased

In Sterling Commercial Credit - Michigan, LLC v. Hammert's Iron Works, Inc., a 9-page opinion, Judge Brown writes:

Sterling Commercial Credit – Michigan, LLC, (“Sterling”) appeals the trial court’s grant of summary judgment in favor of Hammert’s Iron Works, Inc., (“Hammert’s”) on both Sterling’s complaint and Hammert’s counterclaim. We reverse and remand with instructions for the trial court to enter summary judgment in favor of Sterling on its complaint as well as on Hammert’s counterclaim. * * *

Although we have found no similar Indiana cases, our result is consistent with similar case law from other jurisdictions. See Quantum Corporate Funding Ltd. v. L.P.G. Associates, Inc., 246 A.D.2d 320, 323 (N.Y. App. Div. 1998) (holding that account debtor’s assurance to factor gives rise to an estoppel predicated upon the factor’s reliance on that assurance in purchasing the assignment from the vendor); Dimmitt & Owens Financial, Inc. v. Realtek Industries, 280 N.W.2d 827, 829 (Mich. Ct. App. 1979) (holding that account debtor that completed verification letter estopped to deny liability).

In Glenn Hatmaker v. Betty Hatmaker, a 9-page opinion, Judge Bailey writes:
Glenn Hatmaker (“Father”) appeals from the deemed denial of a motion to correct error which challenged an order denying his motions for unsupervised parenting time with his child with Betty Hatmaker (“Mother”), and modification of child support. We reverse and remand for further proceedings consistent with this opinion. * * *

Conclusion. The order for supervised parenting time, modifiable upon agreement of the parties, is contrary to law. The trial court abused its discretion by refusing to modify Father’s child support obligation in the face of uncontroverted evidence that Mother’s income had increased substantially while Father’s income had decreased substantially.

In Diane S. Brown Bell, on behalf of herself and all others similarly situated v. The Bryant Company, Inc., a 12-page opinion, Judge Friedlander concludes:
Considering the foregoing, it is apparent to us that in order to determine whether certification of the class here is appropriate under T.R. 23, the trial court will be required to consider matters beyond the pleadings. Accordingly, this could not provide a valid basis for granting a T.R. 12(C) judgment on the pleadings in favor of Bryant. Therefore, judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.
In Debra A. Roop v. Dean A. Buchanan, a 10-page opinion, Judge Riley writes:
Appellant-Petitioner, Debbie Roop (Roop) [pro se], appeals the trial court’s order to pay her child support arrearage to Tina Buchanan (Buchanan). We affirm in part and reverse in part.

Roop raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it ordered Roop to pay her child support arrearage to her adult child, Buchanan, instead of to Appellee-Respondent, Dean Buchanan (Dean), who is deceased. * * *

Based on the foregoing, we conclude that the trial court properly ordered Roop to pay the accrued child support obligation to Buchanan for satisfaction of Dean’s funeral expenses. However, the trial court abused its discretion when it awarded the remainder of the child support arrearage to the emancipated children.

In Joseph Everroad v. State of Indiana, a 7-page opinion, Judge Bailey writes:
Joseph Everroad (“Everroad”) appeals his conviction for Robbery, as a Class B felony, presenting the sole issue of whether the trial court admitted evidence in contravention of his Sixth Amendment right of confrontation. We affirm. * * *

The trial court ruled that Thomas could testify before the jury as a skilled witness and further concluded, with respect to the AT & T legend: “It is merely an aid and a tool that this witness is using to make a determination of what the short hand abbreviations are that AT & T is using in the document that they sent to him.” * * *

Conclusion. Everroad enjoyed the right to confront Thomas, who testified at trial and was subject to cross-examination. The legend to which he referred was not testimonial. Everroad has shown no deprivation of his Sixth Amendment right of confrontation.

Jason Deaton v. State of Indiana

Peter A. Roberts v. State of Indiana

NFP civil opinions today (6):

Mike Ellis, Debra Ellis, VJJ&A Transport, Inc., Bob Hopkins, Kathleen Hopkins, John Gomes, John Dunn, et al. v. David M. Duree and David M. Durree & Associates, P.C., and John R. Price et al. (NFP)

Richard R. Hogshire v. Ursula Hoover (NFP)

Tracy K. Fry and Keith A. Fry v. PHH Mortgage Corp (NFP)

Pizza King of Elwood v. The Peniel Group, Dollar General Stores, and Elwood Holdings, LLC (NFP)

Kenneth D. Hunter v. E*Trade Bank (NFP)

Mark A. Valdes and James H. Valdes v. Vincennes Building and Safety Commission and the City of Vincennes (NFP)

NFP criminal opinions today (6):

Clarence W. Seeley, III v. State of Indiana (NFP)

Johnathan Robinson v. State of Indiana (NFP)

Dontay Martin v. State of Indiana (NFP)

Terrence J. Douglass v. State of Indiana (NFP)

Kasi Ballew v. State of Indiana (NFP)

Laraysha Webb v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Sixteen Cases Added to the Supreme Court’s Argument Calendar in Early 2014

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

This June 13 post and this August 2 post discussed the twenty cases set for oral argument this fall and early winter.

The Indiana Supreme Court recently added sixteen more cases to the argument calendar.

Scheduled Indiana Supreme Court Oral Arguments: January-April 2013
Date and Time Case Name County FP/NFP Granted/Pending
THU, MAR 6, 2014 at 9:45 AM Shannon Robinson, et al. v. Erie Insurance Exchange Marion FP Granted
THU, MAR 6, 2014 at 9:00 AM Seth Miller v. State of Indiana Pike FP Pending
THU, FEB 13, 2014 at 9:45 AM First American Title Insurance Co. v. Stephen Robertson, et al. Marion FP Granted
THU, FEB 13, 2014 at 9:00 AM Jesse Brown v. Indiana Department of Child Services Johnson FP Granted
THU, FEB 6, 2014 at 10:30 AM Larry R. David, II v. William Kleckner, M.D. Marion NFP Pending
THU, FEB 6, 2014 at 9:45 AM Caterpillar, Inc. v. Indiana Department of State Revenue Marion FP Granted
THU, FEB 6, 2014 at 9:00 AM McLynnerd Bond, Jr. v. State of Indiana Lake NFP Granted
MON, FEB 3, 2014 at 10:30 AM Gayle Fischer v. Michael Heymann, et al. Marion FP Granted
MON, FEB 3, 2014 at 9:45 AM Douglas A. Guilmette v. State of Indiana St. Joseph FP Granted
MON, FEB 3, 2014 at 9:00 AM Fishers Adolescent Catholic Enrichment Society, Inc. v. Elizabeth Bridgewater, et al. Appeal from agency FP Granted
THU, JAN 16, 2014 at 10:30 AM Bruce Ryan v. State of Indiana Marion FP Granted
THU, JAN 16, 2014 at 9:45 AM Victor Ponce v. State of Indiana Elkhart FP Granted
THU, JAN 16, 2014 at 9:00 AM Bobby Alexander v. State of Indiana Marion FP Granted
THU, JAN 9, 2014 at 10:30 AM G.H. v. State of Indiana Marion FP Granted
THU, JAN 9, 2014 at 9:45 AM Martin Meehan v. State of Indiana St. Joseph FP Granted
THU, JAN 9, 2014 at 9:00 AM South Shore Baseball, LLC v. Juanita DeJesus Lake FP Granted

As usual, arguments will be heard primarily on Thursdays, although some weeks have no arguments. The notable exception is Monday, February 3, when the Court will hear three arguments, followed by three more on Thursday of the same week.

The argument schedule divides equally between civil and criminal cases.

Transfer has been granted in all but two (88%) of the cases, unlike the previous year when the Court more frequently held argument to decide whether to grant transfer. Less surprising, all but two of the cases arise from published opinions of the Court of Appeals.

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Schumm - Commentary

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

In THOMAS BLANCHAR v. STANDARD INSURANCE COMPANY (SD Ind., Young, CJ), an 11-page opinion, Judge Bauer writes:

Thomas Blanchar (“Blanchar”) brought suit against Standard Insurance Company (“The Standard”) to recover overtime pursuant to the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 201 et seq. The Standard moved for summary judgment, arguing that Blanchar qualified as a bona fide administrative employee, and so was exempt from the FLSA’s overtime requirement. The district court granted summary judgment in The Standard’s favor, and Blanchar now appeals. * * *

Conclusion. Even when the facts are taken in the light most favorable to Blanchar, The Standard is entitled to summary judgment. Under the applicable regulations as well as case law, Blanchar’s work for The Standard satisfies the requirements of the administrative employee exemption, so he is not entitled to overtime compensation under the FLSA. We AFFIRM the decision of the district court.

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

Ind. Gov't. - Golf cart proposal debated by New Haven City Council

Ovr the years, the ILB has had many, many entries relating to the legalization of the use of golf carts on the streets of Indiana cities and towns.

This fall the City of New Haven has been considering the use of golf carts on city streets. Here is the most recent story, reported by Vivian Sade in the Fort Wayne Journal Gazette. According to the story, "A final vote will be taken on Dec. 10."

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Indiana Government

Courts - More on: "Justices Take Companies’ Cases Challenging Contraception Rule"

Supplementing this ILB post from yesterday, here is a story by Maureen Groppe of the Gannett Washington Bureau headed "Indiana companies have a stake in court's consideration of contraception coverage mandate."

here is a list of many earlier ILB entries on the "Hobby Lobby cases".

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Courts in general

Ind. Decisions - "Federal judge blocks chemical abortion law that targeted Planned Parenthood clinic in Lafayette"

Updating the ILB's post from last evening, linking to the federal judge's order, here is a story today in the Lafayette Journal-Courier, reported by Lesley Weidenbener and Emily Campion. Some quotes:

INDIANAPOLIS — A federal judge has blocked enforcement of a state law that imposes new restrictions on drug-induced abortions.

The decision from U.S. District Judge Jane Magnus-Stinson means that a Planned Parenthood clinic in Lafayette can continue — for now — to provide the abortions even though it does not meet the physical requirements of surgical clinics.

Magnus-Stinson issued a preliminary injunction, saying that Planned Parenthood — which sued to stop the new requirements — is likely to prevail with its argument that the law violates its equal protection rights. That’s because the law doesn’t impose similar requirements on physician’s offices that use abortion-inducing drugs.

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on "Public access counselor says ed board didn’t violate law, warns about perception"

Updating this ILB entry from yesterday, which includes a link to the documents, the Fort Wayne Journal Gazette has this lengthy, worth reading in full, editorial today. Some quotes:

Open government used to be popular. Gov. Mike Pence was big on it. So was Attorney General Greg Zoeller. And one would think the public access counselor, Luke Britt, would have some fondness for it, seeing as how his office is charged with enforcing and defending it.

But somehow, the public’s right to know has been caught up in Pence’s war on state Superintendent of Public Instruction Glenda Ritz.

The first casualty, as you know if you’ve been following this sorry progression of affairs, was the presumed legitimacy of elected office. Democrat Ritz’ apparent crime was winning the election.

In short order, Pence created a shadow agency, the Center for Education and Career Innovation, that undermined the authority of Ritz and the Department of Education. At the same time he appointed the members of the State Board of Education, who seem to fight everything the superintendent does.

Ritz is nominal chairman of the board, but she might as well be a lawn ornament for all the respect and attention the board has paid to her. * * *

This week, Public Access Counselor Britt, responding to a complaint by a group that included Fort Wayne school board member Julie Hollingsworth, decided that the request to Long and Bosma didn’t violate the Open Meetings Law.

Why? Because there was no meeting, Britt reasoned. The email approval, which involved all the board members except Ritz, doesn’t count because it isn’t clear that the members directed the staffer to write the letter and “the legislature has not yet addressed whether a meeting of the minds over an email chain would constitute constructive presence for public meetings or in an aggregate sum.” (Lawyers have a particular way of putting things, don’t they? In regular English, that would appear to mean that “these guys found a way to thumb their noses at the Open Meetings Law and there’s not a darned thing I can do about it.”)

Commendably, Britt urged the legislature to address this gaping hole in the law. And he warned public agencies that engage in this kind of under-the-radar activity that “the appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.”

But as of now, an agency that wants to take action without the public or even its chairperson knowing about it has a clear running field.

Does anyone in charge at the state government believe this issue, and the ugly precedent it will set, should transcend petty politics? Mr. Attorney General? Legislators? Governor?

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Indiana Government

Ind. Decisions - "Former IMPD David Bisard sentenced to 16 years, 3 suspended"

This long story by Tim Evans, Kristine Guerra and John Tuohy of the IndyStar is in most Indiana Gannett papers this morning.

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "New Albany council opposes state gay marriage ban amendment"

"Resolution approved 7-1-1 to take a stand on controversial legislation," reads the subhead to the story Nov. 21st in the New Albany News & Tribune, reported by Daniel Suddeath. Some quotes:

The city council obviously can’t mandate a state policy, but New Albany joined other Indiana organizations, businesses and universities in casting an opinion of opposition against HJR-6.

“It really is a step backward,” said Councilman Greg Phipps, the sponsor of the New Albany resolution.

It was approved 7-1-1 with Councilman Scott Blair voting against the measure and Councilwoman Diane McCartin-Benedetti choosing to abstain. * * *

Phipps, other council members and residents who attended the meeting countered that marriage is a basic right and shouldn’t be a matter of opinion.

“Certain things aren’t up for a vote in our country,” Phipps said. “Civil Rights are not.” * * *

Phipps said that if ending slavery had been left up to a general vote, some southern states would not have approved it.

Three people addressed the council during the public speaking portion of the meeting, and each opposed HJR-6.

[More] See also this long Nov. 22nd column by Matthew Tully in the Indianapolis Star, headed "More absurdity in the gay marriage debate." Here is how it begins:
So let me get this straight: Our esteemed state legislative leaders acknowledged the other day that the issue of same-sex marriage is no longer a top priority. It’s nowhere near as important, they now insist, as a long list of other issues.

OK, then why are they still talking about putting a prohibition of it in the Indiana Constitution, our state government’s most serious and sacred document? If it’s a third-tier issue, as they now suggest it is, then why waste the legislature’s time on it in the coming months?

These are questions with no good answers, because there is simply no sensible way to answer them. After all, you don’t typically have constitutional amendment debates over non-issues. You don’t often urge voters to alter your state’s guiding document over an issue that makes you shrug.

So what’s really going on? Well, after years of using the same-sex marriage issue to score political points, House Speaker Brian Bosma and Senate boss David Long clearly realize it doesn’t score them many points anymore. But how to dispose of an issue that they’ve used to rally their base for so long, particularly when some on the far edges of that base still want to enshrine anti-gay discrimination in the state’s most important document?

Posted by Marcia Oddi on Wednesday, November 27, 2013
Posted to Indiana Government

Tuesday, November 26, 2013

Ind. Decisions - Federal district court temporarily enjoins state enforcement of IC 16-18-2-1.5(a)(2) which Planned Parenthood has asserted would shut down its Lafayette clinic [Updated]

Updating this Nov. 8th ILB post headed "Ind. Decisions - SD Ind. orders IDOH to act by Nov. 13 on PPINK requests that have been pending before it for almost 4 months", today SD Ind. Judge Jane Magnus-Stinson has issued a preliminary injunction:

... such that the Defendants and their officers, agents, servants, employees, and attorneys are enjoined from enforcing Indiana Code § 16-18-2-1.5(a)(2) against PPINK’s Lafayette clinic. PPINK need not post a bond, given that the State does not dispute PPINK’s assertion that the State will not incur monetary damages from this injunction.
The order begins:
Presently pending before the Court is Plaintiff Planned Parenthood of Indiana and Kentucky, Inc.’s (“PPINK”) Motion for Preliminary Injunction. [Dkt. 7.] PPINK asks the Court to enjoin the Defendants Commissioner, Indiana State Department of Health, and Prosecutor, Tippecanoe County (collectively, the “State”) from enforcing Indiana Code §§ 16-18-2-1.5(a)(2) and 16-21-2-2.5(b), contending that those statutes violate various provisions of the federal Constitution as applied to a clinic that PPINK operates in Lafayette (the “Lafayette clinic”). It is undisputed that the Lafayette clinic provides medication abortions and does not provide surgical abortions. Pursuant to the statutes at issue, however, in order for the Lafayette clinic to continue to provide medication abortions after January 1, 2014, PPINK must modify the Lafayette clinic to comply with certain surgical facility physical plant requirements, despite the fact that the Lafayette clinic does not perform surgical abortions.

PPINK asserts three constitutional challenges to the two statutes at issue, but the Court concludes that PPINK has only shown a reasonable likelihood of success at this stage of the proceedings on its equal protection claim regarding Indiana Code § 16-18-2-1.5(a)(2). That statute divides medication abortion providers into two groups—“abortion clinics” and “physician’s offices”—and then treats those groups differently by requiring abortion clinics, but not physician’s offices, to meet physical plant requirements that previously only applied to surgical abortion facilities. The State has not presented a rational basis for distinguishing between medication abortion providers in this way, particularly when considering the statutory ambiguity between the terms “abortion clinic” and “physician’s office.” Accordingly, for reasons discussed further below and in light of the Court’s balancing of the other applicable factors, the Court issues a preliminary injunction enjoining the State from enforcing Indiana Code § 16-18-2-1.5(a)(2) with regard to PPINK’s Lafayette clinic. The Court denies PPINK’s request for a preliminary injunction on the waiver prohibition contained in Indiana Code § 16-21-2-2.5(b).

ILB: This is clearer if you look at IC 16-18-2-15(2), for which a temporary injunction was granted, and IC 16-18-2-2.5(b), which was not enjoined.

Here is the 29-page order.

[Updated at 7:31 PM] The ILB has just received this statement from the Attorney General's office:

“This new law reflects the policy judgment of Indiana legislators elected by our citizens. The Court’s decision faulting the law for treating nonsurgical abortion clinics different from physicians’ offices must be thoroughly reviewed. Because of the narrow ruling, we will consult with our clients and decide how next to proceed in the case,” Zoeller said.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - SCOIND decides one today

In F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor's Office, a 16-page, 3-2 opinion, Chief Justice Dickson writes:

In this action for damages, the plaintiffs (parents J.D. and M.D., individually and on be-half of their children, F.D., G.D., and T.D.) allege mishandling of child abuse reports by the In-diana Department of Child Services (DCS), the Evansville Police Department (EPD), and the Vanderburgh County Prosecutor's Office (VCPO). The trial court granted summary judgment to all defendants on grounds of immunity, and the plaintiffs have appealed the grant of summary judgment in favor of DCS and EPD, but not as to VCPO. As explained below, we affirm summary judgment in favor of EPD, but we reverse the summary judgment entered in favor of DCS. * * *

Plaintiffs appealed the trial court's ruling as to DCS and EPD, and a divided panel of the Court of Appeals affirmed the trial court. F.D. v. Ind. Dep't of Family Servs., 973 N.E.2d 1186 (Ind. Ct. App. 2012). * * *

[P]laintiffs argue that because of the "role" and the "conduct" of DCS and EPD in the events surrounding the adjudication of Nephew, that the Indiana Tort Claims Act does not confer immunity in this case. The plaintiffs further urge that the immunity granted by the child abuse reporting statute is inapplicable because "the claims against [DCS and EPD] do not arise out of [their] 'participation'" in the delinquency proceedings against Nephew. * * *

[1. Applicability of the Indiana Tort Claims Act] In summary, we conclude that EPD's method of investigation is immune from liability under Indiana Code Section 34-13-3-3(8). Accordingly, summary judgment in favor of EPD is proper. However, because plaintiffs' claims against DCS do not result from the "initiation of a judicial or an administrative proceeding," DCS is not immune under Indiana Code Section 34-13-3-3(6) and summary judgment in favor of DCS is therefore improper as to this issue.

[2. Applicability of Immunity Under the Child Abuse Reporting Statute] DCS contends that it is protected by the immunity provision of the child abuse reporting statute. * * *

DCS asserts that it is immune under subsection (4) of the statute "for allegations that arise out of its participation in any proceeding resulting from the report of child abuse," including those alleged here. Appellee DCS's Br. at 11–12. We disagree. * * *

Indiana Code Section 31-33-6-1 unambiguously provides immunity from any civil liability "that might otherwise be imposed because of such actions." * * *

Thus, plaintiffs contend that DCS's inaction with respect to the separate report of abuse to Daughter hindered their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party on summary judgment, do not fall within the cir-cumstances granting immunity under the plain words of the statute—a statute which is in deroga-tion of the common law and must be narrowly construed against immunity. Accordingly, summary judgment is not proper as to this issue.

Conclusion. We affirm the grant of summary judgment in favor of the Evansville Police Department, finding that it is immune from the plaintiffs' claims under the Indiana Tort Claims Act. Howev-er, we reverse summary judgment with respect to the Department of Child Services, concluding that it is not immune under either the Indiana Tort Claims Act or the child abuse reporting stat-ute. This case is remanded to the trial court for further proceedings.

Rucker and David, JJ., concur.
Rush, J., concurs in part and dissents in part with separate opinion in which Massa, J., concurs.

[J. Rush's opinion begins on p. 12 of 16] I respectfully dissent from the issue the majority decides—whether DCS is immune—as well as one that it doesn’t—whether plaintiffs may hold DCS civilly liable. First, I disagree about the threshold immunity issue. I would conclude DCS is immune because plaintiffs’ claim arises from DCS’s participation in the initiation of a judicial proceeding. Second, the majority, without providing any guidance, leaves it to the trial court to determine whether plaintiffs have a valid claim—an issue that divided the Court of Appeals panel. In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here. I do not condone DCS’s egregious conduct of allegedly not notifying parents of their child’s abuse, but not every breach of a statutory duty provides plaintiffs with a negligence action. * * *

Conclusion. I respectfully dissent from my colleagues because I conclude DCS is immune from liability, and even if it weren’t, the Notice Statute would not provide plaintiffs with a private right of action. While I do not condone DCS’s conduct, I would affirm the trial court’s grant of summary judgment for all defendants.

Massa, J., concurs.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Public banned from Miami Courthouse restrooms

Carson Gerber reports for the Logansport Pharos-Tribune:

PERU — Miami County commissioners have closed two courthouse restrooms to the public after a woman fell and fractured her arm in September in the women’s second-floor restroom.

Tom Webster, who owns Webster Insurance Agency, which handles courthouse accident claims, approached commissioners Monday about closing the restrooms because of the accident.

He said September’s incident was the second case in the last few years where someone tripped and fell inside the bathroom, which has a 7-inch step to get to the toilet stalls.

Commissioners approved closing the restroom for public use, and making it available only to courthouse employees. The third-floor men’s restroom, which also has a 7-inch step, was also closed to the public.

“Why wait until someone falls in there?” said Commissioner Josh Francis.

Webster said commissioners have a $5,000 reserve to pay for small claims like the restroom accident. He said the incident will likely not increase insurance rates for the county.

Only one men’s and one women’s restroom are now available for public use in the courthouse.

ILB: A commenter writes to the paper: "Why not fix them instead of banning ppl from using them. Doesn't take a rocket scientist." And another question, re the only remaining public restrooms: Are they wheelchair accessible?

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Indiana Courts

Courts - 9th Circuit administrative tribunal extends same-sex benefits to federal court employees' same-sex domestic partners

This appears to be a first. From a story by Bob Egelko in SFGate:

The ruling was issued on behalf of the executive committee of the court's Judicial Council and sets a precedent for future cases in the nine states of the circuit, which include California.

It is binding only in other cases involving federal court employees, but "you will see this opinion cited by other courts" considering domestic partners' claims for benefits, said [Margaret] Fonberg's lawyer, Pamela Jacklin. * * *

A federal judge in Oregon ruled in March that Fonberg was not entitled to coverage or reimbursement because the couple was not married. On Monday, however, the appeals court said the high court's June 26 ruling, which declared unconstitutional the 1996 law's discrimination against same-sex spouses, applied equally to domestic partners.

Fonberg and her partner "are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. This is plainly discrimination based on sexual orientation," the three-judge panel said.

Same-sex domestic partners are also denied the same benefits granted to same-sex married couples in states like California, Hawaii and Washington that have legalized same-sex marriage, violating the principle that federal employees must not be treated unequally "based on the vagaries of state law," the court said.

Here is the Nov. 25th order of the 9th Circuit executive committee. (Links thanks to this How Appealing post.)

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Courts in general

Courts - "Justices Take Companies’ Cases Challenging Contraception Rule"

The SCOTUS has agreed to hear Hobby Lobby (10th Cir.) and Conestoga Wood Specialties (3rd Cir.). As Adam Liptak writes for the NY Times:

WASHINGTON — The Supreme Court on Tuesday agreed to hear a pair of cases on whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners. * * *

The Obama administration has exempted many religious groups from the law’s requirements for contraception coverage. But it said for-profit corporations could not rely on religious objections to opt out of compliance with the law. The lower courts are divided over whether such corporations may object to generally applicable laws on religious liberty grounds.

Earlier this month, the 7th Cir. in a 2-1 opinion in took a position similar to Hobby Lobby in Grote (an Ind. company) and Korte, a combined ruling.

Lyle Denniston of SCOTUSblog has a first take here.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Kelley L. Kelly v. Tiffany L. Kravec

In Barbara J. Pohl v. Michael G. Pohl, a 7-page opinion, Judge Baker writes:

In this case, appellant-respondent Barbara Pohl appeals the trial court’s order denying her Petition to Terminate Post-Dissolution Spousal Maintenance. Barbara argues that because appellee-petitioner Michael Pohl’s disability was a basis on which the court has the authority to issue spousal maintenance without the agreement of the parties, the trial court had the authority to modify the spousal agreement if circumstances have changed in such a manner as to render the original agreement unreasonable. Barbara contends that the trial court used the incorrect legal standard when it required her to show fraud, duress, or mistake at the time the spousal maintenance Addendum was signed.

We conclude that, in considering the evidence, the trial court could have refused to modify the agreement under a standard requiring a showing of fraud, duress, or mistake or a standard requiring a substantial and continuing change of circumstances. We therefore affirm the decision of the trial court.

In Sally Thompson, Widow of Dennis Thompson v. York Chrysler, an 8-page opinion, Judge May writes:
Sally Thompson, widow of Dennis Thompson, appeals the determination by the Indiana Worker’s Compensation Board (“Board”) that Dennis did not prove his injury was compensable. Sally raises two issues, which we restate as whether evidence supported the Board’s findings of fact and whether the findings supported its conclusions of law. We reverse and remand. * * *

The Board determined Sally had not met her burden to show Dennis’s injuries arose out of and occurred in the course of his employment. * * *

The uncontradicted evidence shows the confrontation between Dennis and Blackford stemmed from their work relationship. * * *

The evidence regarding who initiated the single altercation was that Blackford “started into [a] real bad verbal rampage to [Dennis].” (Tr. at 71.) That indicates Blackford was the initial aggressor, and the evidence presented does not support the conclusions to the contrary by the Single Board Member or the Board. An injury from an assault by a co-worker may be compensable under the IWCA, Global Constr., Inc. v. March, 813 N.E.2d 1163, 1165 (Ind. 2004), and the only evidence presented was that Blackford was the aggressor. Thus we must overturn the Board’s finding to the contrary. * * *

For these reasons, we hold the Board’s findings did not support its conclusion Dennis’ injuries did not arise out of or occur in the course of his employment. Sally demonstrated Dennis was entitled to benefits.

In International Business Machines Corporation v. ACS Human Services, LLC, a 27-page opinion, Judge Bailey writes:
International Business Machines Corp. (“IBM”) and the State of Indiana (“the State”) filed lawsuits against one another related to the State’s Family and Social Services Administration (“FSSA”) modernization initiatives. The trial court ordered IBM to pay $709,398.95 in costs related to discovery and production of documents incurred by a non-party, ACS Human Services, LLC (“ACS”). Later, the trial court imposed sanctions totaling $425,178.85 against ACS in favor of IBM.

IBM and ACS each appeal. IBM seeks vacation of the costs assessed against it in favor of ACS. ACS cross-appeals, seeking an increase in the costs assessed against IBM and vacation of the sanctions assessed against it in favor of IBM. We affirm. * * *

The trial court did not abuse its discretion when it awarded ACS some, but not all, of the damages it requested as a result of its participation in discovery as a non-party under Trial Rule 34. Nor did the trial court abuse its discretion when it awarded IBM some, but not all, of the attorneys’ fees and other damages it incurred as a result of ACS’s failure to comply with the trial court’s discovery orders.

Evan Leedy v. State of Indiana

NFP civil opinions today (3):

Georgia Amerson, et al., v. Review Board of the Department of Workforce Development and Durham D&M, LLC. (NFP)

David Jessup and Diane Jessup v. Chicago Franchise Systems, Inc. and Jag's Dough Decor d/b/a Nancy's Pizza (NFP)

In Re the Marriage of Scott Roll and Carol Roll, Carol Roll v. Scott Roll (NFP)

NFP criminal opinions today (7):

Keith Walker v. State of Indiana (NFP)

Brian D. Hodges v. State of Indiana (NFP)

Deandre Watson v. State of Indiana (NFP)

Brandon A. Scott v. State of Indiana (NFP)

Kenneth Galvin v. State of Indiana (NFP)

Arturo Torres v. State of Indiana (NFP)

James Handy v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "David Wyser, former chief deputy prosecutor, sentenced to probation"

Updating this ILB entry from yesterday, a reader has pointed out that the Star story quoted did not mention that Judge Barker has sentenced Wyser to community service. Here are some quotes from a report from Eric Berman of WIBC:

Former Marion County chief deputy prosecutor David Wyser will serve community service but no prison time after pleading guilty to bribery in agreeing to shorten a sentence in a murder-for-hire case.

Wyser could have received as much as two years for accepting a campaign contribution from the father of Paula Willoughby. Prosecutors and Wyser himself characterized that donation as a "reward" for Wyser's agreeing to Willoughby's early release from a 70-year sentence for arranging her husband's murder.

Federal prosecutors wanted Wyser to serve at least 15 months behind bars, despite his cooperation with an investigation of Willoughby's father and defense attorneys, and of former Marion County Prosecutor Carl Brizzi. They argue at least some prison time was necessary as a deterrent to other public officials, and that his information wasn't of much use, since no one else was charged.

But federal judge Sarah Evans Barker suggests prosecutors made Wyser a scapegoat because they lacked evidence to charge anyone else, including Brizzi, their main target. Without being specific, she says there were "a lot of people who did not act honorably." She calls Wyser a "model prosecutor" who was guilty of a single ethical "wobble." Barker fined Wyser 25-hundred dollars and ordered him to perform 240 hours of community service over the next three years.

The reader notes that 240 hours is 6 weeks of 8-hour days "assuming you can find a place that will let you 'volunteer' in blocks like that." More from Berman's story:
Afterward, Wyser lashed out at U-S Attorney Joe Hogsett for giving up on the other cases. Darrell Willoughby's sister Jessie, who spoke at the sentencing, blasted the entire system, both for Wyser's lenient sentence and the lack of charges against anyone else. She charges the judicial deck is stacked in favor of people with money or influence.

Hogsett declined comment on why no one else was charged, other than to say charges were filed where there was enough evidence to do so. He says he's disappointed Wyser won't do time, but emphasizes that Wyser will still have a felony conviction on his record.

Wyser says if he had it to do over, he'd still approve Willoughby's release. He notes the suspected gunman was acquitted, and says he also agreed with concerns about Willoughby's surviving son after another son was killed by a drunk driver. But he says he should have turned down the campaign contribution. He says he was in the midst of intensive fundraising for a bid for Hamilton County prosecutor, and wasn't as "alert" as he should have been to the implications. * * *

Wyser's conviction makes it all but impossible to resume a legal career. Wyser says he hasn't decided what to do next, or where to perform his community service.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on "IBM, state in court Monday" [Updated]

Updating this ILB entry from Nov. 20th, the oral argument took place yesterday morning before the Indiana Court of Appeals. The ILB has not located a post-oral argument story, but you may listen to the entire oral argument in State of Indiana vs. International Business Machines Corporation here.

[Immediately updated] Niki Kelly of the Fort Wayne Journal Gazette reported at length on yesterday's oral argument. Some quotes:

Attorney Peter Rusthoven, representing the state, said the system was plagued with problems from the outset and IBM refused to hire more people to add to the “human dimension.”

He said IBM regularly didn’t meet federal guidelines for delivering services, which led to terminating the contract for cause.

But attorney Jay Lefkowitz, on behalf of IBM, pointed out that Indiana was trying to hire IBM to run the new hybrid system up until the day the company was terminated. The two sides couldn’t agree on the cost, though.

“It wasn’t a failure of the system,” he said. “It was a failure of design.”

Rusthoven spent a lot of time during his argument focusing on the $40 million assignment fees, which he called “arbitrary and unreasonable.” He likened the fees to a penalty multiple times.

But the three-judge panel hearing the case reminded him the state of Indiana signed the contract that included the fees.

“Where is it our job to protect the taxpayers from those who negotiated this?” Judge John Baker asked.

And Lefkowitz said the assignment fees were simply a pre-negotiated price the state could pay to take over the contracts – with existing payment rates – of the multiple subcontractors involved in delivering service.

Rusthoven also argued the state can’t be required to pay interest on the judgment because it has sovereign immunity.

But Lefkowitz said the “contract could not be more clear on interest” and the state doesn’t have immunity from a contract it signed.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Indiana Courts

Ind. Decisions - "Defendant in murder trial seeks bond under new high court ruling"

The Indiana Supreme Court's June 25th opinion in the case of Loren Hamilton Fry v. State of Indiana, which the ILB described as "a 39-page, 3-2 'fractured' set of 4 separate opinions", is the focus of a confusing story today in the NWI Times, reported by Stan Maddux. Here is how the story begins:

LAPORTE | Defense attorneys for a man accused of killing a LaPorte girl in 1993 is using a recent decision by the Indiana Supreme Court to argue for bond to be set for their client.

Jason Tibbs, 38, remains in LaPorte County Jail without bond after LaPorte Circuit Court Judge Tom Alevizos in October denied a request by the defense to establish bail.

In denying the request, Alevizos ruled murder defendants at least in his courtroom traditionally have been ordered held without bond, an option provided under Indiana law.

On Friday, Tibbs' attorneys filed a motion claiming Tibbs is entitled to a hearing on his request for bail and to be denied bond according to the Supreme Court's recent decision the prosecution now must prove its criminal case against him by a "preponderance of the evidence."

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "New state education agency mired in controversy"

Dan Carden of the NWI Times reported yesterday on the the "Center for Education and Career Innovation, a new state agency, was established by Republican Gov. Mike Pence to integrate education and workforce training in Indiana by uniting various school and employment boards and agencies under a single umbrella." More:

The new agency has been directed to coordinate its efforts with the Indiana Department of Education, Commission for Higher Education, Department of Workforce Development and the Indiana Charter School Board -- as well as industry and other private education partners -- "so we can more effectively serve students and adult workers," Pence said.

CECI is funded by $5.8 million that was appropriated to the agencies it oversees and is jointly led by Claire Fiddian-Green, Pence's special assistant for education innovation, and Jaclyn Dowd, Pence's special assistant for career innovation.

It is also the spark at the center of a firestorm that is tearing apart education decision-making at the state level.

Glenda Ritz, the Democratic state superintendent of public instruction, contends Pence created CECI to usurp her authority as state schools chief and lay the groundwork for the governor to take full control of Indiana education, likely under an appointed superintendent.

The conflict between Ritz and CECI has been most pronounced at State Board of Education meetings, where the Republican-appointed board has insisted on consulting CECI staff to verify nearly every claim made by employees of Ritz's Department of Education.

On multiple occasions this has led to Ritz's attorney and the board's CECI attorney standing side by side at the speaker's podium contradicting each other on various points of education law. * * *

Senate Democratic Leader Tim Lanane, D-Anderson, has questioned why Pence, who claims to be a "small government" conservative, would create a new layer of state bureaucracy to oversee other new other agencies Pence also has created during his 11 months in office.

House Democratic Leader Scott Pelath, D-Michigan City, wonders about the high salaries paid to CECI officials.

Fiddian-Green is paid $120,000 a year. That's nearly $9,000 more than Pence makes and $30,000 more than Ritz's salary. Dowd earns $110,000.

Altogether, six of the 16 CECI staffers earn more than $100,000 a year, according to the state auditor.

ILB: It is interesting to think that the Governor has the power as chief executive, without specific statutory authority, to set up an agency like this to "coordinate" the efforts of a separately elected state official. One wonders if the governor could also, on his own, set up an agency to oversee and coordinate the work of another separately elected state official, the attorney general. Both the Superintendent and the AG are elected directly by the citizens of Indiana, but unlike the state auditor, treasurer, and secretary of state, their method of selection is set by statute, not by the constitution.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Indiana Government

Ind. Gov't. - "Public access counselor says ed board didn’t violate law, warns about perception"

That is the heading of Lesley Weidenbener's story for The Statehouse File, posted Nov. 25th. Some quotes from the story:

INDIANAPOLIS – Indiana’s public access counselor said Monday that the State Board of Education did not violate the law when 10 of its members sent a letter to legislative leaders without meeting in public to do so.

But Public Access Counselor Luke Britt also warned in an advisory opinion that “final decisions are mean to be open and transparent” and urged the board and agencies to be careful about following the spirit of the state’s Open Door Law.

“I encourage all public agencies to be especially attentive to the purpose of public access laws to avoid ambiguous situations and arousing suspicions of prohibited activities,” Britt wrote. “Regardless of the intent, the appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.”

The public access counselor was responding to complaints from four Hoosiers –Tony Lux, Ed Eiler, Cathy Fuentes-Rohrer and Julie Hollingsworth – who sought the opinion as a precursor to a possible lawsuit against the state board.

They filed their complaints shortly after Marion Circuit Judge Louis Rosenberg dismissed a lawsuit brought by state Superintendent of Public Instruction Glenda Ritz, a Democrat, who made similar allegations that the board acted illegally. * * *

The state’s Open Door Law requires government boards or commissions to have a public meeting to vote, take other action or even to receive information.

But in his opinion on Monday, Britt said he found no evidence that a majority of the State Board of Education met to approve the letter to legislative leaders. The board’s staff – housed at the state’s Center for Education and Career Innovation – say they crafted the letter and distributed it by email to board members for signature.

Britt said it’s not clear whether a majority of board members directed the staff to write the letter. And he said state law exempts email from a ban on so-called serial meetings, in which members gather privately in small groups to reach consensus outside public view.

Still, Britt said that “even through email, a perceived proactive ratification of an action concerning public interesting is leaning against the public policy intentions of openness and transparency.”

“I firmly believe the call-and-response nature of the email exchange amounted to an endorsement of the action,” he wrote, “but I cannot say it is a vote in the traditional sense.”

Indianapolis attorney William Groth, who represents the individuals who filed the public access complaints, said Britt’s decision “could be viewed as pointing out a gaping hole” in the state’s Open Door law.

He also called the decision “troublesome.”

The public access counselor “apparently believes that any public agency in Indiana can transact business in secret as long as it does so via email, even where the agency later ratifies that action by majority vote,” Groth said.

Groth said attorneys are reviewing the decision and will meet with their clients before deciding how to proceed.

The ILB has received and OCRed what looks to be much of the PAC file on this issue, starting with the PAC's 5-page Nov. 21st Advisory Opinion, followed by a copy of the Nov. 15th response by the counsel to the State Board of Education to the initial complaint, and several exhibits - the SBOE staff e-mail letter asking for board members' approval, and the e-mail response of one member.

Posted by Marcia Oddi on Tuesday, November 26, 2013
Posted to Indiana Government

Monday, November 25, 2013

Ind. Courts - "David Wyser, former chief deputy prosecutor, sentenced to probation"

Updating a long list of earlier ILB entries referencing former Marion County Prosecutor David Wyser, including this one from earlier today, here are quotes from Tim Evans' Indianapolis Star story:

Former deputy prosecutor David Wyser's after-the-fact acceptance of a $2,500 reward for approving the early release of a convicted killer was a "wobble" in an otherwise unblemished career of public service, federal Judge Sarah Evans Barker said Monday as she sentenced Wyser to three years of probation. * * *

Barker cited several factors for handing down the lesser sentence, including the fact Wyser agreed to a sentence modification for Willoughby long before Epperly made the donation.

The judge added that had Wyser not accepted the campaign donation, there would have been no crime.

Barker also noted that no one else involved in arranging the campaign donation — including Epperly and his attorney Jennifer Lukemeyer — was charged in the case. Wyser should not be made a scapegoate, she said, "for all the messiness and questionable behavior."

"There are a lot of people who did not act honorably, in accordance with their duties and responsibilities, who were part and parcel to this," Barker said.

"They could have said something, they should have said something, to derail this."

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit upholds 2012 Indianapolis-Marion County smoking ordinance

In WANDA GOODPASTER et al.v. CITY OF INDIANAPOLIS,et al (SD Ind., Young, CJ), a 20 page opinion, Judge Kanne writes:

Appellants, who own bars in Indianapolis-Marion County, Indiana, filed suit seeking injunctive and declaratory relief against enforcement of the 2012 Indianapolis-Marion County smoking ordinance. The district court denied the bar owners’ motion for a preliminary and permanent injunction and entered judgment in favor of the City. The bar owners now appeal. * * *

The bar owners cannot succeed on the merits of any of their myriad claims detailed above. The injunction the bar owners sought was thus unwarranted. We AFFIRM the district court’s judgment in favor of the City.

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

Ind. Courts - "David Wyser, former Marion Co. chief deputy prosecutor, to be sentenced today" [Updated]

Tim Evans' story this morning in the Indianapolis Star begins:

David Wyser, the former chief deputy prosecutor in Marion County, will be sentenced this morning in federal court for accepting a bribe in exchange for approving the early release from prison of a convicted murderer.
[Updated at 1:30 PM] Tim Evans' story this afternoon begins:
David Wyser, the former chief deputy prosecutor in Marion County, was sentenced this morning in federal court to three years of probation with six months of house arrest for accepting a bribe in exchange for approving the early release from prison of a convicted murderer.

Based on his bribery conviction and lack of criminal history, Wyser was facing a sentence of 18 to 24 months.

In a motion filed Nov. 1 in U.S. District Court, however, federal prosecutors asked Judge Sarah Evans Barker to sentence Wyser to a lesser term than called for under federal guidelines for his crime because of his cooperation into an investigation of his ex-boss, former Marion County Prosecutor Carl Brizzi. Brizzi has not been charged.

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (4):

James L. Graham v. State of Indiana (NFP)

James Mathis v. State of Indiana (NFP)

Dorian Stephens v. State of Indiana (NFP)

Charles E. Norris v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Legislative preview: Lots to do, little time"

That is the heading of Dan Carden's long story today in the NWI Times. It begins:

The Indianapolis 500 always will be the fastest race in the state, but in even-numbered years the legislative sprint by the Indiana General Assembly runs a close second.

For 10 weeks starting in early January, state lawmakers will propose more than 1,100 potential new laws, review them in committees, vote on them, consider measures approved by the opposite chamber, kill those they don't like and ultimately send about 200 or so on to the governor.

It's a no-brakes rush to the mandatory March 14 finish line as lawmakers work furiously to line up support for proposals that may benefit the state, help a local business or bolster their own images ahead of November elections that will see all 100 members of the House and 25 of 50 senators on the ballot.

The issues follow, topped by the marriage amendment, followed by health care, education, and more.

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 22, 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, November 22, 2013. It is two pages (and 23 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - Star public employee database includes state and local government and universities

Access it here. A lot of interesting information. Here is the source. The information is somewhat out of date but still useful. For instance, a search for state employees making $250,000-$100,000 yields 711 entries, with 13 state psychiatrists at the top, followed by Jeffrey Papa, Indiana Senate staffer, making over $166,000 at the time of the report. Next come the Supreme and Appeals Court judges, along with Teresa Lubbers, of the Higher Education Commission and John Ross, then head of LSA, at $150,869.

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Indiana Government

Law - "Under Pressure, N.C.A.A. Weighs Momentous Changes"

In the NY Times this morning, a long overview by Steve Eder and Greg Bishop that begins:

After years of stalemate, uncertainty and bureaucratic delay, the N.C.A.A. is facing the possibility of seismic change on multiple fronts that could reshape the world of college sports.

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to General Law Related

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

From Sunday, November 24, 2013:

From Saturday, November 23, 2013:

Posted by Marcia Oddi on Monday, November 25, 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 11/25/13):

Next week's oral arguments before the Supreme Court (week of 12/2/13):

Thursday, December 5th

This week's oral arguments before the Court of Appeals (week of 11/25/13):

Monday, November 25th

Next week's oral arguments before the Court of Appeals (week of 12/2/13):

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

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

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

Posted by Marcia Oddi on Monday, November 25, 2013
Posted to Upcoming Oral Arguments

Sunday, November 24, 2013

Ind. Decisions - More on: 7th Circuit rules on Robocalls, reversing and remanding

Updating this ILB entry from Nov. 21st, reporting on the 7th Circuit opinion issued that day in the case of Patriotic Veterans v. State of Indiana, Lesley Weidenbener of The Statehouse File had this story on Nov. 22nd:

INDIANAPOLIS – A federal appeals court has ruled that an Indiana law banning most political calls that use automated dialers and recorded messages doesn’t violate federal consumer protection rules.

But the 7th Circuit Court of Appeals sent a case back to a lower court to decide whether the state law violates the First Amendment of the U.S. Constitution.

“This decision confirms the position we have been advocating for over a decade in every forum where our telephone privacy laws have been challenged,” Attorney General Greg Zoeller said in a statement. “Federal law bearing on telemarketing simply does not preclude broader state prohibitions.”

But he acknowledged that the lower court will now be reviewing the law again – this time in light of constitutional questions.

“My office will continue to enforce and defend the state’s telephone privacy laws, but there is more work ahead to ensure Hoosiers are protected from annoying and intrusive robocalls,” Zoeller said.

At issue is an Indiana law that applies to commercial and non-commercial speech and prohibits automated, pre-recorded calls unless a live operator introduces the message. Schools are exempted, as are organizations that receive a consumers’ permission to call.

The General Assembly passed the law more than 25 years ago but it was not initially enforced against political parties, campaigns or special interest groups. Over the years, those groups used robo-calls for a variety of purposes – such as sending reminders for voters to request absentee ballots or go to the polls, delivering endorsements from prominent politicians, or criticizing opponents – because they are cheaper than calls made by volunteers or paid-professionals.

But in 2006, then-Attorney General Steve Carter announced he would enforce the law in regard to political calls, too. The Indiana Republican and Democratic parties went along with the decision, but outside groups continued to make the calls and Carter moved to fine the offenders.

One of those groups – American Family Voices, which was using the autodialing machines in the 9thCongressional District race between Democrat Baron Hill and Republican Mike Sodrel – sued the state, leading to an Indiana Supreme Court ruling that upheld the law.

Then in 2010, Patriotic Veterans, a political advocacy organization based in Illinois, sued the state in federal court, challenging that the law violated the federal Telephone Consumer Protection Act as well as the free speech clause of the U.S. Constitution.

U.S. Judge William Lawrence of Indiana’s Southern District decided in 2011 that the state law violates the federal Telephone Consumer Protection Act, which regulates calls made from one state to another. He did not then rule on the constitutional question.

The state appealed, leading to the appeals court decision on Thursday.

“The plain language (of federal law) dictates that the Indiana statute is not expressly preempted,” the appeals court said. “This is true whether the Indiana statute is one that merely regulates autodialed interstate calls or prohibits them.”

But the ruling said the district court should now have the opportunity to consider the constitutional question.

Posted by Marcia Oddi on Sunday, November 24, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Indiana’s sentencing law raises questions"

Here are quotes from Madeline Buckley's Nov. 16th story in the South Bend Tribune:

Indiana’s new sentencing guidelines too high, too low or just right?

A legislative committee examining the effects of the massive criminal code reform signed into law last year is awaiting two studies that will shed light on prison occupation, costs and funding stemming from the new criminal punishment ranges.

The results of the studies may spur lawmakers to tinker with the sweeping legislation, known as HEA 1006, set to take effect next July.

Meanwhile, though, everyone wants a little something different from the law that still may evolve, so much so that some are talking about postponing its start to 2015.

The Indiana Prosecuting Attorneys Council has voiced concerns with some portions of the legislation, most notably that the sentencing range for drug dealers is too low and that judges have the ability to suspend an entire sentence for what prosecutors say are violent crimes.

But public defenders and other interest groups have mostly lauded the new sentence ranges and argued that suspendability puts the judge back in control of sentencings.

The bottom line, though, lawmakers say, is that potential changes in the legislation will likely depend on the results of two studies that will examine bed space in state prisons and county jails, and the local and statewide cost of the criminal code reform.

Legislators say creating sentencing ranges that are logically proportionate with the crime was a main goal when revising the state’s criminal code, which last happened in the 1970s.

And it’s a goal they believe was more or less achieved, as the state will soon abide by felony ranges numbered from Class 1 to Class 6, rather than the current A through D system. * * *

But, prosecutors say, the law went too far in lowering the penalties for some drug crimes, specifically manufacturing methamphetamine and dealing cocaine and heroin. * * *

But lawmakers point out that although some penalties are lower, the offender is still serving more of the mandated sentence under the new law.

And Larry Landis, executive director of the Indiana Public Defender Council, said most of the dealers caught in the 3- to 28-gram range are low-level offenders dealing to feed a habit, something that requires health and social services to cure.

Landis argued that the highest possible penalty is still too high.

“The real drug dealers don’t touch the product,” Landis said. “The war on drugs has been an absolute, miserable failure.”

Landis said he believes legislators should increase opportunities to use education to reduce sentences (which were limited when the law increased the time that must be served) as a way to counter recidivism and overcrowding in the prisons.

Prosecutors are also asking lawmakers to reconsider giving judges discretion to suspend the minimum term for certain crimes, which allows an offender to serve time on probation or community corrections.

Under the new law, a judge can suspend an entire sentence for all crimes but murder if the offender has no prior criminal history.

The Indiana Prosecuting Attorneys Council is asking lawmakers to mandate that judges can’t suspend sentences for crimes such as rape, child molesting, aggravated battery and armed robbery below the minimum.

“It is not driving up prison incarceration with non-suspendable sentences,” Dvorak said. “It’s simply restoring the non-suspendable crimes under current law.” * * *

But Landis said the question of suspended sentences isn’t one of public safety but, rather, putting a judge in control of a sentencing.

Rigid sentencing guidelines mean offenders are more likely to cop to a binding plea on the prosecutor’s terms, giving the judge almost no discretion to weigh aggravating and mitigating factors during sentencing, he said.

Landis said suspendability makes it more lucrative for an offender to make an open plea and argue a case before a judge based on a wide range of sentencing options..

“Right now, the judges have very little sentencing authority,” Landis said. “The prosecutor really sets the sentence.”

But while groups lobby for changes in portions of the law, lawmakers are first looking at costs and funding, which they hope the ongoing studies will illuminate.

A big concern, they say, is keeping the number of prisoners low enough so the state does not require a new prison.

And secondly, legislators say, the law needs to designate funding for county jails, as they will house the low-level offenders whose sentences were reduced under the new guidelines.

“The most critical part of the entire bill is the funding for the locals,” state Rep. Greg Steuerwald, R-Avon, said. “If we do not fund that properly, there was no sense in doing that bill.”

Steuerwald, who authored the original bill, said any possible changes to sentencing guidelines, including suspendability and time served, could hinge on what the studies indicate the costs of the criminal code reform will be as well as what possible funding options arise when looking at the law.

The story concludes by stating that Sen. Michael "Young's working group, the Criminal Law and Sentencing Policy Study Commission, expects to receive the results of the studies, which will guide further reform on the law, on Dec. 10."

Posted by Marcia Oddi on Sunday, November 24, 2013
Posted to Indiana Law

Ind. Courts - "Jefferson County Courthouse fire liability arguments presented"

Last Thursday Court of Appeals judges Najam, Mathias, and Brown heard oral arguments in the case of Board of Commissioners of Jefferson County v. Teton Corporation, et al. (You may watch the oral argument here.) Evan Shields of the Madison Courier reported Friday:

Attorneys presented their arguments before the Indiana Court of Appeals on Thursday to determine who should be liable for damages that resulted from the 2009 Jefferson County Courthouse fire.

The suit filed by the Jefferson County Commissioners sought a judgment against contractors for the damages.

The contractors include Teton Corp., Innovative Roofing Solution Inc., Gutapfel Roofing Inc. and Daniel Gutapfel, who were claimed to be working on the Courthouse.

A Scott County judge ruled in favor of the defendants in November 2012, ruling that the Commissioners did not obtain a separate insurance plan for the remodeling project, meaning only the county's general insurance plan covered the building.

But the appeal was filed to determine whether or not the county was protected against damages that were not a direct result of the construction being done. This damage would include the contents of the Courthouse, such as desks or files.

The Commissioners contend that they can file claims for damages caused by gross negligence that caused the destruction of the "non-work property."

Richard Mullineaux, who argued on behalf of all the defendants in the case, said there is a distinct difference between when contractors would be liable for damages.

The fire caused damage to a piece of property the county owns, which Mullineaux said means the county is responsible for damages.

"The owner has a responsibility of providing proper insurance ... for the amount of the work. They didn't do that in this case and relied on the plan they had," Mullineaux said.

Maggie Smith, the attorney for the Commissioners, said a waiver applies specifically to work being performed.

"You only waive damage to work property, not non-work property," Smith said.

Posted by Marcia Oddi on Sunday, November 24, 2013
Posted to Indiana Courts

Friday, November 22, 2013

Ind. Decisions - SCOIND decides one today

In Harold O. Fulp, Jr. v. Nancy A. Gilliland, a 9-page, 5-0 opinion, Justice Rush writes:

Revocable trusts are popular substitutes for wills, intended to provide non-probate distri-bution of people’s estates after their deaths, allowing them to retain control and use of their assets during their lifetimes. Here, Ruth Fulp placed her family farm in a revocable trust, reserving the right to revoke or amend the trust and to use its assets—with any remaining trust assets going to her three children upon her death. A few years later, she decided to sell the farm to her son Harold Jr. for a low price, to pay for her retirement-home care and keep the farm in the family. Ruth’s daughter, Nancy Gilliland, argued that a bargain sale would breach Ruth’s fiduciary duty to her children and deprive Nancy of “her share” of the trust.

We granted transfer to address an issue of first impression in Indiana: while a revocable trust is revocable, whom does the trustee serve? Of course, Ruth as trustee owed a duty to herself as the trust’s settlor and primary beneficiary. But the trial court found Ruth also owed that same fiduciary duty to her children as remainder beneficiaries. We conclude, though, that neither the terms of Ruth’s trust nor the Indiana Trust Code require her to serve two masters—her duty as trustee was only to herself. Holding that trustees also owe a duty to remainder beneficiaries would create conflicting rights and duties for trustees and essentially render revocable trusts irrevocable. Ruth was free to sell her farm as trustee for whatever price she desired, without breaching a duty to her children. * * *

Conclusion. We conclude that under the terms of the Trust and the Trust Code Ruth owed her children no fiduciary duties and was free to sell her farm at less than fair market value; and that Harold Jr. is therefore entitled to specific performance. We also conclude that Ruth did not effectively amend the Trust by selling the farm. The judgment of the trial court is therefore reversed and remanded, with instructions to grant specific performance of the purchase agreement.

Posted by Marcia Oddi on Friday, November 22, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Ten Indiana judges awarded 24-year certificates

From The Courts:

This award is presented to judicial officers with 24 years of service on the bench. Ten individuals were honored. See the photos of eight of them.

Judge Christopher L. Burnham (Morgan)

Judge Terry A. Crone (Court of Appeals)

Judge Carr L. Darden (Senior Judge)

Judge Thomas J. Felts (Allen)

Judge Paul D. Mathias (Court of Appeals)

Magistrate Heather M. Mollo (Bartholomew)

Judge Chris D. Monroe (Senior Judge)

Judge William G. Sleva (Lawrence)

Judge Ted R. Todd (Senior Judge)

Judge Kevin P. Wallace (DeKalb)

Posted by Marcia Oddi on Friday, November 22, 2013
Posted to Indiana Courts

Courts - Differences in two cases on searching cell phones reflect the fast-moving evolution of cell phones

Orin Kerr wrote that on August 19th in this post at The Volokh Conspiracy that began:

In recent weeks, two cert petitions have been filed seeking review of how the Fourth Amendment applies to searching a cell phone incident to arrest. Although the two cases raise the same legal issue, the facts of the two cases actually are pretty different. And the difference in the facts reflects the fast-moving evolution of cell phones.
Kerr suggests: "I think it would be very helpful for the Court to take a case involving a smartphone instead of a more primitive model."

On Nov. 20th Kerr posted, again in TVC:

Back in August, I wrote about two pending cert petitions before the Supreme Court involving when the Fourth Amendment allows the government to search a search phone incident to arrest. Today the Court scheduled the two cases for the December 6th conference. In other words, it’s likely (but not certain) that we’ll find out then whether the Court will take one or both of the cases to hear them on the merits. * * *

If the Court grants in either case (or both), it will be the first bona fide computer search case before the Supreme Court. The first of many, I expect.

Not directly related, but relevant, is this Nov. 19th NPR piece by Tom Gjelten, headed "Technology Outpacing Policymakers, Needs Of NSA" that begins:
The controversy over the National Security Agency's surveillance programs has exposed a problem in the oversight of those programs: The development of the relevant technology has outpaced the laws and policies that govern its use.

"The technology is moving very fast," says Joel Brenner, a former NSA general counsel. "Legislation moves very slowly. Policy moves pretty slowly. The people who write policy don't always understand technology, and the people who write legislation almost never understand technology. And so in an era when the technology is moving quickly, it's really hard for the policy to keep up with it."

Posted by Marcia Oddi on Friday, November 22, 2013
Posted to Courts in general

Ind. Gov't. - "A tale of two states: Kentucky shows Indiana the way on health care"

That is the headline to a long editorial published yesterday in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Friday, November 22, 2013
Posted to Indiana Government

Ind. Gov't. - "Hoosiers due $24 million in refunds from Indiana BMV"

Updating this ILB entry from Sept. 30th and this follow-up from Oct. 2nd, Tim Evans of the Indianapolis Star reports:

More than 4.5 million Hoosiers are in line for a share of about $24 million in refunds from the Indiana Bureau of Motor Vehicles, according to a settlement in a unique class-action lawsuit in Marion Superior Court.

The big winner, however, may be the Indianapolis law firm of Cohen & Malad, which uncovered the BMV overcharges and will collect about $6 million for its work representing Hoosiers in the case.

The $30 million settlement deal, said attorney Irwin Levin of Cohen & Malad, means the BMV will refund 100 percent of the overcharges it collected from March 7, 2007, through June 27 from people obtaining or renewing driver’s licenses.

Under the settlement approved this month, individual refunds will range from about $3.50 to $15. * * *

Refunds will be provided in the form of credits on future transactions or checks, which can be requested through the BMV website. Hoosiers who are due a refund but who have not collected it via a transaction or check request will be sent a check when a final accounting is conducted in three years.

Levin filed the lawsuit in March on behalf of Tammy Raab after his firm’s research revealed the BMV was charging more than allowed under Indiana law when Hoosiers obtained or renewed driver’s licenses.

Marion Superior Court Judge Heather Welch granted the case class-action status and named Cohen & Malad as counsel for the class and a settlement was negotiated this fall.

The BMV acknowledged the overcharges in June and cut fees back to the state-approved levels.

Levin said several factors make the case unusual.

“This may be be the most unique class-action case in Indiana,” he said. “That’s because these types of lawsuits are usually brought when it is apparent something is wrong. But in this case, the state was unaware of the problem until we brought it to their attention.”

If the overcharges had not been uncovered, Levin said, it is likely Hoosiers would have continued to pay more than the law allowed for driver’s licenses. He said one expert estimate submitted as part of the case indicated the overcharges could have run as high as an additional $10 million over the next year.

The lawsuit also prompted Gov. Mike Pence to order an independent review of other BMV charges. That examination revealed the agency had been overcharging for some additional services while undercharging for others. * * *

Levin defended his firm’s fee in the case, noting it was approved by the judge and was substantially lower than fees Cohen & Malad typically collects on class-action cases. The $6 million represents about 21 percent of the settlement, he said, while a fee of about 33 percent is closer to the norm.

“Of all the cases we’ve done,” he explained, “this is the smallest percentage” of the settlement the firm has received.

Levin said the case has generated more than cash for the law firm.

“We’ve received more ‘thank-yous’ from people on the street in this case than any other case I’ve done,” he said. “People recognize somebody has to hold government accountable, and we are proud to have done that.”

Posted by Marcia Oddi on Friday, November 22, 2013
Posted to Indiana Government

Thursday, November 21, 2013

Ind. Decisions - 7th Circuit rules on Robocalls, reversing and remanding

In Patriotic Veterans v. State of Indiana (SD Ind., Lawrence), a 23-page ruling, Judge Rovner writes:

Legislators in the State of Indiana believe that the bulk of its citizens find automated telephone messages to be an annoyance, and one worthy of government protection. These types of telephone calls are made by an automatic dialing‐announcing device that (according to Indiana’s definition) selects and dials telephone numbers and disseminates a prerecorded or synthesized voice message to the telephone number called. See Ind. Code § 24–5– 14–1. In common parlance these calls are often referred to as “robocalls.”

This hunch about robocalls is backed by empirical data. * * *

Indiana’s attempt to protect its citizens from these phone calls resulted in the enactment of the state’s Automated Dialing Machine Statute, which bans these autodialed calls unless the receiver has consented to the calls in some manner before the automated message is delivered. Ind. Code § 24– 5–14–1 through § 24–5–14–13. * * *

But for the Indiana statute, the appellant, Patriotic Veterans, Inc., would make calls in Indiana.[3] * * *

The district court found that the TCPA preempted Indiana’s statute as it applies to the interstate use of autodialers and granted Patriotic Veterans’ request for an injunction against the enforcement of the regulation with regard to political messages. Patriotic Veterans, Inc. v. Indiana, 821 F. Supp. 2d 1074, 1079 (S.D. Ind. 2011). Because it found that the statute was preempted, the district court properly declined to rule on the First Amendment question. Upon a motion from the state, this court stayed the district court’s injunction pending appeal. See supra, note 3. We review the district court’s summary judgment decision pertaining to preemption de novo. Ramos v. City of Chicago, 716 F.3d 1013, 1014 (7th Cir. 2013). * * *

Because the district court decided the case on the basis of preemption, it never had reason to address the arguments regarding the constitutionality of the statute. We are a reviewing court and think that the argument would benefit from two‐tiered examination. We thus reverse the ruling on preemption and remand for an evaluation of whether Indiana’s statute violates the free speech rights protected by the First Amendment to the United States Constitution.
[3] The district court refused to stay its injunction prohibiting the State of Indiana from enforcing the law pending appeal. Patriotic Veterans, Inc. v. Indiana, No. 1:10‐cv‐723‐WTL‐TAB (S.D. Ind. Dec. 13, 2011) (order denying Defendant’s Motion to Stay Enforcement of the Judgment Pending Resolution of the Appeal). This court, however, later stayed the district court’s injunction pending appeal. Patriotic Veterans, Inc. v. Indiana, No. 11‐3265 (7th Cir. Dec. 21, 2011) (granting Defendant/Appellants’ Motion for Stay Pending Appeal).

Here are three earlier ILB entries on Robocalls.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Same-sex Indiana couples must file separate tax returns"

Updating this ILB entry from earlier this evening, which sets out the newly issued IDOR guidance, Jon Murray of the Indianapolis Star has just posted a good story reporting on the state action. Some quotes:

The Indiana Department of Revenue will require each member of a same-sex couple to file a single-filer state tax return. But officials stopped short of creating a tax worksheet to help married same-sex couples recalculate their joint income before they file separate state tax forms, as Wisconsin and Michigan have done.

That is the approach recommended by the nonpartisan Tax Foundation to help reduce confusion.

Department of Revenue spokesman Robert Dittmer says the agency's guidance simply follows Indiana's same-sex marriage ban and does not recognize same-sex marriages granted in other states.

Gay-rights advocacy group Indiana Equality Action says the new tax dynamic creates an attempted "separate but equal" system in Indiana that could spur a new legal challenge of the gay marriage ban. The group's attorneys have been researching the matter.

Rick Sutton, the group's director, said he had hoped that state officials would decide to maintain federal parity by allowing joint state tax filing.

That was unlikely, given that Indiana law bans same-sex marriage and the state could vote on a pending constitutional amendment to further enshrine the ban next year. * * *

The state's new guidance, issued on the Department of Revenue's website this afternoon, advises couples who file federal returns with a married filing status to also fill out sample federal single-filer forms. To do so, they must divide their joint income.

They then can refer to those sample federal returns when they fill out Indiana's tax return for single-filers. The website offers some advice for dividing up income and specifies which lines on the federal form affect the state return.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Indiana Law

Ind. Gov't. - Ind. Dept. of Revenue issues same-sex marriage filing guidance

Here is the guidance:

In accordance with IC 31-11-1-1, Indiana does not recognize same-sex marriages. Therefore, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with a filing status of single.

In order to calculate Indiana income tax liability, same-sex spouses who file federal returns with a married filing status must each complete a “sample” federal return (IRS Form 1040), entering information as if single.

Use the information from the “sample” federal return as a basis for completing the Indiana return. Do not file the “sample” return with the IRS or the Department of Revenue. It is recommended that you retain a copy in your records.


I have completed a “sample” federal return. Do I have to send a copy of it to the state?
No. However, you should retain a copy in your files.

For income that is in both of our names, how do we separate that on our single sample federal returns?
In general, income from joint accounts may be split 50/50 unless extenuating conditions exist.

. $100 interest income received from a joint savings account may be separated $50 each.
Example. Taxpayers realized $10,000 net income from jointly held rental property. Taxpayer A provided material service in the receipt of that income; Taxpayer B provided no service. Taxpayer A chooses to report 75%, or $7,500 of that income; Taxpayer B will report the $2,500 difference.

Note – The full $10,000 rental income must be reported between the two tax returns.

If I am filing by paper, do I have to complete the whole sample federal return, even the itemization portion?
No. Just complete the following lines on your sample 2013 federal return:
1040 – line 6 (exemptions); line 7 through line 37 (federal AGI); line 64a (EIC, if applicable)
1040A – line 6 (exemptions); line 7 through line 21 (federal AGI); line 38a (EIC, if applicable)
1040EZ – line 1 through line 4 (federal AGI); line 8a (EIC, if applicable)

However, if you are electronically filing, the software will be able to complete the sample return for you.

Since I cannot file as married filing jointly, can I file as married filing separately?
No. You are required to file with a filing status of single.

(h/t Jon Murray)

ILB: Is this all perfectly clear?

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Indiana Government

Ind. Decisions - SCOIND decides one today

In Danielle Kelly v. State of Indiana, a 14-page, 5-0 opinion, Justice Massa writes:

Danielle Kelly here appeals the denial of her motion to suppress evidence found in a search of her vehicle and inculpatory statements she made to police. We reverse. * * *

At Kelly’s request, the trial court certified that order for interlocutory appeal, and the Court of Appeals accepted jurisdiction. Kelly v. State, 2012 WL 3755693 (Ind. Ct. App. Aug. 30, 2012) at *2. In an unpublished opinion, the panel affirmed the trial court’s order. Id. at *8. Kelly sought rehearing, and the panel granted her request, but affirmed its original opinion in all respects, writing only to confirm that it weighed Chief Kiphart’s references to Kelly’s pre-warning admission during post-warning questioning but found they did not amount to coercion. Kelly v. State, 2013 WL 210275 (Ind. Ct. App. Jan. 18, 2013) at *2. * * *

[The Warrantless Seizure of Kelly’s Person and Search of Her Vehicle Violated Her Constitutional Rights.] All of these circumstances, in the aggregate, likely would have been enough to establish reasonable suspicion for a Terry stop, but that question is not before us today. What we can say is, on these facts, the officers did not have probable cause to arrest Kelly or to search her vehicle. And as we have found her federal constitutional claim dispositive of this issue, we do not address her separate claim that the search and seizure violated rights guaranteed to her by article 1, § 11 of our Indiana Constitution.

[Siebert Prohibits the Admission of Kelly’s Statements to Chief Kiphart.] Kelly argues her statements to Chief Kiphart were obtained involuntarily and should have been suppressed under the rule articulated by the Supreme Court of the United States in Missouri v. Seibert, 542 U.S. 600, 617 (2004) (plurality opinion). The State concedes the statements Kelly made before Chief Kiphart read her the Miranda warning should be suppressed, but it contends that her post-Miranda statements are admissible under Oregon v. Elstad, 470 U.S. 298, 318 (1985) and that Seibert is inapposite here. * * *

These circumstances lead us to conclude, as the Seibert Court did, “that a reasonable person in the suspect’s shoes would not have understood [the Miranda warning] to convey a message that she retained a choice about continuing to talk.” * * *

This does not mean that officers must offer a Miranda warning prior to initiating any conversation with a suspect, nor does it mean that a pre-warning confession necessarily renders a post-warning confession involuntary. Officers may still, under Elstad, cure a good-faith mistake by administering a proper warning before proceeding with further questioning. All we hold today is that such a cure was impossible when it was followed by explicit references to a pre-warning incriminating statement. Finally, as we have found Kelly’s post-warning statements inadmissible under the federal Fifth Amendment, we need not address Kelly’s claim that they are also inadmissible under article 1, § 14 of our own Indiana Constitution.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Decade-long Fieldstone Crossing lawsuit may be over"

Yesterday's NFP Court of Appeals opinion in John S. Paniaguas, Kathy R. Paniaguas, Woodrow Cornett, III, and Kristine E. Cornett v. Endor, Inc. et al is the subject of a story today in the NWI Times, reported by Dan Carden. Some quotes:

INDIANAPOLIS | A bitter 10-year legal battle between the first residents and more recent home purchasers in Crown Point's Fieldstone Crossing subdivision may be over.

The Indiana Court of Appeals on Wednesday affirmed a 2012 ruling by Lake Superior Judge John Pera that found the newer homes comply with the subdivision's restrictive covenants.

Fieldstone Crossing, a 33-acre subdivision southeast of 93rd and Buchanan, originally was developed by Aldon Companies Inc., which built and sold nine homes between 1993 and 2002, court records show.

Aldon sold the remaining lots to Endor Inc., which built 28 homes in the subdivision between 2003 and 2007, according to court records.

John and Kathy Paniaguas and Woodrow and Kristine Cornett, who purchased Aldon-built homes, filed suit in 2003 to stop the construction of Endor homes, which they claimed did not meet the quality and workmanship standards required by the subdivision's restrictive covenants.

In a 3-0 decision, the appeals court determined that most of the Endor homes were not subject to the covenants, and those that were received proper approval from the subdivision's architectural control committee.

"We conclude that the evidence supported the trial court's finding that all of the homes built by Endor complied with the restrictive covenants," wrote Appeals Judge James Kirsch.

At the same time, the court denied a request by the Endor homeowners that the plaintiffs be forced to pay their attorney fees for a lawsuit whose "voluminous" records the appeals court notes fill 18 volumes.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Ind. App.Ct. Decisions

Law - "Boom! What the Senate will be like when the nuclear dust settles"

Here, in the Washington Post, is a definitive report on the Senate's actions this afternoon, by Sarah Binder of George Washington University. It begins:

Senate Majority Leader Harry Reid (D-Nevada) took the Senate “nuclear” this morning. Short version: A Senate majority banned filibusters of executive and judicial branch (save the Supreme Court) nominees. Majorities now need a majority– not a supermajority– to bring the Senate to confirmation vote. Long version: Senate majority set a new precedent (by majority vote) that reinterprets the chamber’s cloture rule to require only a majority to invoke cloture (cut off debate) on nominations rather than requiring 60 votes. So, what changed? The number of votes required to cut off debate on nominations. (Confirmation votes have always been by majority vote.)

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to General Law Related

Law - "Landmark Senate Vote Limits Filibusters"

Jeremy Peters' story this afternoon in the NY Times begins:

WASHINGTON — The Senate voted on Thursday to eliminate the use of the filibuster against most presidential nominees, a move that will break the Republican blockade of President Obama’s picks to cabinet posts and the federal judiciary. The change is the most fundamental shift in the way the Senate functions in more than a generation.

The vote was one that members of both parties had threatened for the better part of a decade, but had always stopped short of carrying out. This time, with little left of the bipartisan spirit that helped seal compromises on filibuster rule changes in the past, there was no last-minute deal to be struck.

The vote was 52 to 48.

From a Washington Post story by Paul Kane and William Branigin:
The rule change means that federal judge nominees and executive-office appointments can be confirmed by a simple majority of senators, rather than the 60-vote supermajority that has been required for more than two centuries.

The change does not apply to Supreme Court nominations. But the vote, mostly along party lines, reverses nearly 225 years of precedent and dramatically alters the landscape for both Democratic and Republican presidents, especially if their own political party holds a majority of, but fewer than 60, Senate seats.

From a story by Janet Hook and Kristina Peterson of the WSJ:
The rule change advanced by Mr. Reid makes it easier to confirm nominations along party lines, by allowing them to proceed with just 51 votes. Currently, Republicans have the power to require 60 votes, by invoking filibusters, in order for a confirmation to proceed. The change would apply to most executive branch and judicial nominations, but not to nominations to the Supreme Court and to legislation. * * *

Shortly after changing the rules, Senate Democrats used the new, 51-vote threshold to advance to a final vote after a Thanksgiving recess the nomination of Patricia Millett to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Ms. Millett's nomination cleared a procedural hurdle with support from 55 senators. Republicans previously had blocked her nomination under the 60-vote requirement. * * *

The last substantial change to confirmation rules came in 1975, when senators established the 60-vote threshold for ending filibusters. Previously, two-thirds were required.

The blog How Appealing has collected a number of stories on this afternoon's actions here.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In B.R., a Minor, by his Guardian, Teresa Todd v. State of Indiana, Indiana Department of Child Services, Morgan County Office of Department of Child Services, and Adult and Child Mental Health Center, a 14-page opinion, Judge Mathias writes:

B.R., by his guardian, Teresa Todd argues that the trial court erred when it granted the Adult and Child Mental Health Center’s (“the Health Center”) Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction. The precise issue presented in this appeal is whether the Health Center was providing “health care” when it placed B.R. in respite therapeutic foster care, and therefore, whether B.R.’s claim was subject to the Indiana Medical Malpractice Act. We reverse and remand for proceedings consistent with this opinion. * * *

Conclusion. The allegations in B.R.’s complaint, i.e. that his case manager negligently placed him with the respite therapeutic foster parents and negligently failed to inform the foster parents that B.R. was an overly active child known to run from adults and escape his home, are not directly related to any medical care B.R. received from the Health Center. Furthermore, the foster care placement was not made by a health care professional. Because B.R.’s claims sound in general negligence, his claims fall outside the Medical Malpractice Act. See Peters, 790 N.E.2d at 576. For all of these reasons, we conclude that the trial court erred when it granted the Health Center’s Trial Rule 12(B)(1) motion to dismiss.

NFP civil opinions today (3):

Keith Eller, Nathaniel Hall, and Jeffrey Tatum v. City of Gary, Gary Police Civil Service Commission, and Vergie Thornton (NFP)

Jennifer K. Stevenson v. David C. Stevenson (NFP)

Stephanie A. Johnson v. Eric Edward Powell (NFP)

NFP criminal opinions today (4):

Germaine Jones v. State of Indiana (NFP)

Arthula Miller v. State of Indiana (NFP)

Matthew Schrock v. State of Indiana (NFP)

Andrew Lee Watts v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to Ind. App.Ct. Decisions

About this blog - ILB has removed the Sitemeter counter

The web counter the ILB had used since the beginning, Sitemeter, started becoming a problem over a year ago. It would often go down. No one ever would respond when you tried to contact Sitemeter. And worse, odd pop-ups began appearing on the Sitemeter counter page I use to check stats.

This morning I received this note from a reader (while I was attending a necessary CLE, so I could not take action until now):

Over the last couple days when I have visited the ILB, I have had music videos pop up in the lower right corner of my browser. It looks like they may be connected to myspace. I closed the one this morning without checking where it was from. I just thought I would let you know that's happening in case you were unaware. Thanks.
That is just not acceptable. The ILB has now removed Sitemeter entirely and will begin looking for a replacement to count the stats. Let me know if you have had issues.

Posted by Marcia Oddi on Thursday, November 21, 2013
Posted to About the Indiana Law Blog

Wednesday, November 20, 2013

Law - "Gay-marriage momentum comes to a sudden halt after Illinois"

That is the headline to this quite comprehensive survey article by Cheryl Wetzstein of the Washington Times. (There is also a video, but it is not worth waiting through the very long ad, IMHO.) With Illinois' law going into effect today, and Hawaii's on Dec. 6, there will be 16 states plus the District of Columbia before year-end. Cheryl Wetzstein's long report begins:

As Illinois becomes the 16th state to approve gay marriage at a public signing ceremony set for Wednesday, the political trench warfare over same-sex unions may be facing a watershed moment: Illinois is the last state where gay-marriage advocates have an advantage in both the governor’s office and statehouse, and defenders of traditional marriage say the political playing field will be far more level in the remaining 34 states in the years ahead.

The days of “easy targets” for gay marriage are over, said Brian S. Brown, president of the National Organization for Marriage, which supports traditional wedlock between a man and a woman.

Gay-marriage activists dispute the idea that their victories have been easy but agree that their struggle is far from over. They expect to be active next year in several states, including Indiana and Oregon.

More from the story:
After a decade of disappointments — at one point, voters in 31 states approved constitutional amendments blocking same-sex marriage — advocates have been riding a remarkable wave of success.

Massachusetts became the first state to issue same-sex marriage licenses in May 2004.

This year alone, Democrat-led legislatures in Rhode Island, Delaware, Minnesota, Hawaii and Illinois moved to legalize same-sex marriage. All of the bills were happily signed by Democratic or independent governors.

The long-contested state of New Jersey recently joined the gay-marriage column when Gov. Chris Christie, a Republican, acquiesced after federal judges signaled their support for marriage equality.

Now, however, no state — except for West Virginia, which has a tradition of conservatism on social issues — where gay marriage is forbidden by law or constitutional amendment has a government wholly dominated by Democrats.

That means those activists “have run out of easy targets,” Mr. Brown said.

The “false narrative of ‘inevitability’ ends here,” he said, because most of the remaining states either have constitutional amendments that recognize only man-woman marriages or have significant popular opposition to same-sex marriages.

The story goes on to look in detail at constitutional battles in Oregon and Indiana.

The story concludes:

Gay couples have mounted legal challenges to these measures in states including Arkansas, Colorado, Idaho, Kentucky, Louisiana, Michigan, Nevada, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah and Virginia.

Three states that do not have constitutional provisions on gay marriage — West Virginia, New Mexico and Pennsylvania — already are embroiled in “freedom-to-marry” lawsuits.

That leaves Wyoming as the only state that doesn’t permit same-sex marriage, doesn’t outlaw it by a voter-passed constitutional amendment and isn’t embroiled in a lawsuit over the issue. [ILB: Well, there is also Indiana in this category.]

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to General Law Related

Environment - "Enbridge oil pipeline project in Ind. delayed"

Supplementing earlier ILB posts on Embridge, here is an AP story today that begins:

GRIFFITH, Ind. (AP) — Enbridge Energy's $300 million project to replace 60 miles of oil pipeline across northern Indiana won't be completed until at least February, months later than planned, due to delays in obtaining needed permits, a company official said.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Environment

Ind. Gov't. - "LaPorte County jail now offers video visitation" - some complaints

From Gabrielle Gonzalez' story in the LaPorte Herald Argus:

La PORTE - Visitation at the La Porte County Jail will become more convenient and reliable for visitors and jail staff.

A new kiosk system for video visitation has been installed in a former storage closet at the jail and has been running for about two weeks with only minor glitches.

"It's been a goal of mine to have video visitation since 2007," said La Porte County Sheriff Mike Mollenhauer. "There have been minor glitches but really, it has been working good. We are excited to have gotten this accomplished."

Since the kiosks have been installed, there have been more than 70 video visits.

Each jail cell block has a touch screen kiosk for the inmate to use. Officers will no longer have to transport each inmate to the visiting lobby on the fourth floor. Mollenhauer said this helps the safety of the jail for the officers who will not have to transport the inmates. He said this will also help the officers in the jail utilize their time more efficiently.

There are eight kiosks available for visitors to use in the visitation room. Two people can visit the inmate at a time. The visitor and inmate speak through a phone receiver and can view one another on the video screen.

Visitors make an appointment and then receive a pin number. The screen has a touch system where you can schedule an appointment to visit or call the other line when at the scheduled visit. Inmates can also view their visiting times, which are scheduled 24 hours in advance.

Visitors have one free visitation a week when they come to the jail. Visitors can also use the online visitation at the convenience of their home.

Account Manager Michael Stump of Securus, the visitation program company, said if the weather is bad, if it is too hard to get to the jail or if someone lives out of town, they can visit with the inmate online. * * *

Video visitation is monitored and recorded to make sure visitors and inmates act appropriately. Two additional cameras will be installed in the visitation room to make sure visits are conducted appropriately or visitation will be banned for the inmate.

The cost for the online visit is $20 for 20 minutes. The jail has a special until Jan. 15. Online visitation until that date is $5.

Attorneys can also use the video visitation as well. Attorney visits will not be recorded.

Mollenhauer said the project has taken a few years to complete due its high cost. The video visitation system is being paid for by the inmates through the commissary fund.

Here is the photo of the system accompanying the story.

From a second Herald-Argus story:

According to the sheriff’s department, one of the advantages of the video visitation system is that the public no longer has to travel to the jail and wait in line for visitation.

Instead, they can schedule visits online and visit remotely when it is convenient for them.

In addition, the new system has allowed La Porte County Jail staff to expand visitation hours while significantly reducing the burden on staff when conducting visitation sessions.

“The new video visitation system has created significant operational efficiencies for staff,” said Capt. Michael Kellems, jail commander. “We no longer have to use resources escorting the public and inmates to the visitation center, which often involved two or three deputies.”

Kellems continued, “An added advantage is that the risk of contraband entering the jail is virtually eliminated as the public will no longer be entering restricted areas of the jail and can instead choose to visit from the lobby visitation center or remotely, which is more convenient for all.”

But, from an April 5th story in the South Bend Tribune by Stan Maddux:
But despite the convenience, some families of loved ones in the jail are opposed to the new plan, preferring the current practice of face-to-face visits.

''Having it on video, that takes everything away from us,'' said Robert Smith, 46, of Michigan City, who was at the jail Wednesday to visit his son, Robert Smith Jr. * * *

Loved ones will have to buy a camera for their computer in order to take part in the video visitation. And even though face-to-face visits will be eliminated, the sheriff said, loved ones can still go to the jail for visitation. They will use a kiosk that will be provided at no charge inside a visitation room on the main level.

Some family members of inmates said they don't have a personal computer and can't afford one. They also don’t like the option of going to the jail and using the kiosk, even at no cost.

''I have to get on a TV screen — it's garbage,'' said 24-year-old LaPorte resident Jared Bealor, who was at the jail to visit his brother, Lucas.

The $20 fee also was not popular with family members such as 23-year-old Michelle Stoever, of LaPorte, who complained about the fees already charged by the jail to speak with loved ones on the telephone.

''I think they just want money out of us,'' she said.

Mollenhauer said all video visits will be recorded so that anyone doing things such as exposing body parts will be caught and their visitation rights permanently revoked.

''If they do anything out of the ordinary, they will never visit again. They monitor it real close,'' Mollenhauer said.

The county spent about $400,000 over the last six years installing the wiring needed to operate video visitation, he added, noting that that money was taken out of a fund derived from the sale of snacks and other products offenders can buy from the jail commissary.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Indiana Government

Ind. Decisions - "IBM, state in court Monday"

As noted in this Monday's ILB "Upcoming Oral Arguments," State v. IBM will be heard by the Court of Appeals next Monday, Nov. 25th. Today Tim Evans reports in the Indianapolis Star:

The Indiana Court of Appeals will hear oral arguments Monday in the legal battle over a $52 million judgment the state has been ordered to pay IBM over the failed attempt to privatize public welfare services under former Gov. Mitch Daniels.

The hearing is scheduled for 1:30 p.m. in the Indiana Supreme Court courtroom, with judges John G. Baker, Ezra H. Friedlander and Nancy H. Vaidik hearing the case. Both sides will get 45 minutes to argue their cases.

The state is appealing a Marion Superior Court judge's 2012 ruling awarding $52 million to IBM after the state canceled a contract Daniels had hailed in 2006 as the solution for fixing one of the nation's worst welfare systems.

Instead, the project ended with the state firing IBM in 2009 after hundreds of millions of dollars were spent for a system that generated widespread complaints of delayed benefits and impersonal interactions.

The dispute ended up in court, with the state trying to recoup more than $150 million of the $437 million it had paid IBM before scrapping the deal and IBM asking for $113 million for breach of contract.

Marion Superior Court Judge David Dreyer ruled in July 2012 that IBM should get $12 million, mostly for equipment the state kept after canceling the contract, on top of the $40 million that he had ordered the state to pay IBM earlier.

In his ruling, Dreyer called taxpayers the losers in a "misguided" privatization experiment. And he cited trial evidence that showed the state, even while publicly praising IBM, was trying to cancel the contract because it would cost additional money the state didn't have to adjust what had been a flawed plan.

"Neither party deserves to win this case," he wrote in his 65-page ruling. "This story represents a 'perfect storm' of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame, and Indiana's taxpayers are left as apparent losers."

At the time the trial concluded, the state had paid Barnes & Thornburg, the Indianapolis law firm that handled the lawsuit, $9.6 million.

The story includes a timeline of the case.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Upcoming Oral Arguments

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Clifford and Judith Ann Garrett v. Paul and Linda Spear, an 18-page opinion, Judge Brown writes:

Clifford and Judith Ann Garrett (collectively, the “Garretts”) appeal from the trial court’s grant of summary judgment in favor of Paul and Linda Spear (collectively, the “Spears”). The Garretts raise two issues which we consolidate and restate as whether the court erred in granting summary judgment in favor of the Spears and denying their own summary judgment motion. We affirm. * * *

As the Indiana Supreme Court held in Adams, “where owners of adjoining premises establish by agreement a boundary . . . and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line . . . .” 167 Ind. at 169-170, 78 N.E. at 652 (emphasis added). We find, based upon the designated evidence, that this is precisely what took place. Accordingly, we conclude that the court did not err in granting summary judgment to the Spears based upon the doctrine of title by acquiescence.

In The City of Fort Wayne v. Consolidated Electrical Distributors, Inc d/b/a All-Phase Electric Supply Co., a 10-page opinion, Judge Vaidik writes:
This case arises from a light-installation project on Courthouse Green, a park owned by the city of Fort Wayne (“the City”). Consolidated Electrical Distributors, Inc., otherwise known as All-Phase Electrical Supply Co. (“All-Phase”), was a subcontractor on the project and supplied thousands of dollars’ worth of materials. Though the City paid the general contractor, the general contractor never paid All-Phase.

All-Phase served notice of its unpaid subcontractor’s claim on the mayor of Fort Wayne and filed suit against the City, seeking payment. Both parties moved for summary judgment. At issue was All-Phase’s compliance with the notice requirements of Indiana Code section 36-1-12-12, which provides a right of recovery to an unpaid subcontractor. The City argued that All-Phase was not entitled to payment because notice was not given within sixty days of the date All-Phase last provided materials and served improperly on the mayor, rather than the parks department. The trial court disagreed and granted summary judgment for All-Phase.

When read in conjunction with relevant statutory provisions, we conclude that Section 36-1-12-12 allowed All-Phase to serve notice of its unpaid subcontractor’s claim on the mayor of Fort Wayne. We also find that All-Phase provided timely notice of its claim. Finding that summary judgment was properly granted for All-Phase, we affirm.

In Thomas Haggerty and Cathy Haggerty v. Anonymous Party 1, Anonymous Party 2, and Anonymous Party 3, a 20-page, 2-1 opinion, Judge Vaidik writes:
In the winter of 2008, pawn-shop owner Thomas Haggerty was hospitalized for complications related to his alcoholism. Immediately after his release from the hospital, he traveled to a treatment facility in Indianapolis, but he became agitated when professionals there recommended in-patient treatment. He refused treatment and informed staff and security officers that he would walk back to his home in Bloomington, despite the fact that it was nighttime and the temperature was well below freezing. Security officers took him to a nearby medical facility, where he was detained and evaluated. He was treated and released four days later.

Thomas and his wife Cathy (collectively, “the Haggertys”) later filed a proposed medical-malpractice complaint against three parties (“the anonymous parties”) involved in Thomas’s detention. The Haggertys also filed an action against the same parties in Monroe Circuit Court. The anonymous parties filed motions for summary judgment, arguing that they were immune from liability under Indiana law. The trial court granted summary judgment for the first anonymous party, AP1, but denied the joint summary-judgment motion of the remaining parties, AP2 and AP3. The Haggertys appealed the grant of summary judgment. AP2 and AP3 filed a belated motion to certify the trial court’s order for interlocutory appeal. The trial court granted the belated motion, and this Court accepted jurisdiction over the combined appeal.

The parties make a number of arguments on appeal. The main arguments, however, pertain to jurisdiction and immunity. The Haggertys argue that the trial court did not have jurisdiction to rule on the issue of immunity because that issue was reserved for the medical review panel. They also argue that none of the anonymous parties are entitled to immunity under Indiana law because they violated Thomas’s personal or civil rights.

We conclude that the trial court had jurisdiction to rule on the issue of immunity because it is an affirmative defense. We also conclude that the Haggertys’ suit against the anonymous parties is barred by statutory immunity. We affirm the trial court’s grant of summary judgment, on immunity grounds, to AP1. We conclude that there is no genuine issue of material fact as to whether immunity also applies to AP2 and AP3; thus, we reverse the trial court’s denial of their motion for summary judgment. We affirm in part and reverse in part. * * *

Thomas Haggerty, a pawn-shop owner living in Bloomington, Indiana, has a long history of alcohol abuse. By age fifty-eight, Thomas consumed twelve beers and a liter of vodka daily. * * *

The Haggertys filed a proposed complaint for medical malpractice in 2010. AP1, AP2, and AP3—a corporate entity related to AP2—were named as defendants in the proposed complaint.[2] The Haggertys also filed an action against the same parties in Monroe Circuit Court. AP1 filed a motion for preliminary determination of law for summary judgment. AP2 and AP3 likewise filed a joint motion for preliminary determination for summary judgment. All three anonymous parties argued that they were immune from liability under Indiana Code section 12-26-2-6, which grants immunity to those who assist or participate in proceedings for an individual’s detention or commitment. * * *

Because the anonymous parties met their burden of establishing that there are no genuine issues of material fact as to their immunity in this case, we affirm the trial court’s grant of summary judgment to AP1. We reverse the denial of AP2 and AP3’s summary-judgment motion and we remand with instructions for the trial court to enter summary judgment for AP2 and AP3. Affirmed in part and reversed in part.

FRIEDLANDER, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion. [which begins at p. 19, and concludes] Here, the facts as alleged by the Haggertys place Thomas in a small bathroom for approximately four hours before being admitted to AP2. The majority concedes that “the parties do not explain the circumstances surrounding Thomas’s placement in a bathroom,
other than noting that he left at one point to talk to Cathy.” In my view, this creates a genuine issue of material fact sufficient to preclude summary judgment and, consequently, immunity as to AP2 and AP3. Indeed, this incident is precisely the type of issue that the medical review panel should assess to determine whether the actions of AP2 were appropriate. Accordingly, I would have affirmed the trial court’s denial of summary judgment.
[2] A health-care provider must be identified in a summons to effect service, but must remain anonymous during the pendency of the medical review panel proceedings in a complaint filed in state court. See Ind. Code § 34-18-8-7; Hubbard v. Columbia Women’s Hosp. of Indianapolis, 807 N.E.2d 45, 60, n.2 (Ind. Ct. App. 2004), reh’g denied.

In In Re The Paternity of B.B., R.B. v. T.J., a 23-page opinion, Judge Brown writes:
R.B. (“Father”) appeals the trial court’s order modifying custody, visitation, and support of B.B. to T.J. (“Mother”). Father raises two issues, which we revise and restate as: I. Whether the court abused its discretion by admitting evidence of text messages purportedly exchanged between Father and Mother; and II. Whether the court abused its discretion by granting Mother’s petition to modify physical and legal custody of B.B. We affirm. * * *

We find that evidence was presented sufficient to support a finding that the Text Messages were what Mother claimed them to be, and that a sufficient foundation was laid for their admission, and accordingly, we conclude that the court did not abuse its discretion when it admitted the Text Messages. * * *

The court ruled that Mother was in the best position to act as B.B.’s primary caretaker and awarded her physical custody. After review, we cannot say that the court’s findings or conclusions were clearly erroneous, and we conclude that the court did not abuse its discretion in granting Mother’s petition to modify custody.

Conclusion. For the foregoing reasons, we affirm the trial court’s order modifying custody, visitation and support of B.B. to Mother.

In Tony Sluder v. State of Indiana, a 7-page opinion, Judge Vaidik writes:
Columbus Police Department Officer Troy Love stopped Tony Sluder after discovering Sluder had an outstanding arrest warrant. Officer Love searched Sluder but did not find anything. When Officer Angela Owens arrived to transport Sluder to the Bartholomew County Jail, she again searched Sluder, finding a syringe in the back pocket of his jeans. Sluder had a bench trial and was convicted of Class A misdemeanor possession of paraphernalia. Sluder appeals his conviction, arguing that the evidence was insufficient to establish that he intended to use the syringe to introduce a controlled substance into his body. Finding that no evidence of intent existed, we reverse.
NFP civil opinions today (2):

John S. Paniaguas, Kathy R. Paniaguas, Woodrow Cornett, III, and Kristine E. Cornett v. Endor, Inc. et al (NFP)

In The Matter of The Estate of Charles W. Merlau, Deceased, Patricia Trout v. C. Thomas Cone, et al (NFP)

NFP criminal opinions today (6):

Dino D. Hickmon, Sr v. State of Indiana (NFP)

Howard Moffitt v. State of Indiana (NFP)

Carlowe Wilson v. State of Indiana (NFP)

Tawon L. Wright v. State of Indiana (NFP)

George Cunitz v. State of Indiana (NFP)

Eric Rasnick v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Ind. App.Ct. Decisions

Environment - "Federal farm bill takes aim at state animal welfare laws "

The Gary Post-Tribune has the lengthy AP story today (as does the LCJ), reported by Mary Clare Jalonick. Some quotes:

WASHINGTON (AP) — The future of state laws that regulate everything from the size of a hen’s cage to the safe consumption of Gulf oysters may be at stake as farm bill negotiators work to resolve a long-simmering fight between agriculture and animal welfare interests.

The House Agriculture Committee added language to its version of the farm bill earlier this year that says a state cannot impose certain production standards on agricultural products sold in interstate commerce. The provision, authored by Rep. Steve King, R-Iowa, is aimed at a California law that will require all eggs sold in the state to come from hens that inhabit cages in which they can spread their wings — a major burden for egg producers in Iowa and other states who don’t use large cages and still want to sell eggs to the lucrative California market. The law goes into effect in 2015. * * *

[O]pponents say that depending on how the language is interpreted, the provision could lead to challenges of dozens of other state laws — including some aimed at food safety, fire safety and basic consumer protections.

Concern over King’s language has the potential to threaten the entire farm bill, which congressional leaders are hoping to finish by the end of the year.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Environment

Courts - "Broader meaning of the Supreme Court’s abortion order" yesterday

Lyle Denniston, normally of SCOTUSblog, apparently has some spare time, and wrote this article today for Constitution Daily. A quote:

The doctors and clinics who took this case to the Supreme Court, to try to get the privileges requirement put on hold while courts review its validity, had contended that this provision amounts to an effective ban on abortion for perhaps 20,000 women in the state, because it will have the effect – in fact, is already having the effect – of forcing the closing of about one-third of all clinics in Texas, mostly in rural areas.

The five Justices who were in the majority to allow the law to remain in effect, while the appeals court moves ahead to decide its constitutionality, were unwilling at this point to second-guess the appeals court’s view of the law’s effect in Texas.

Here is Denniston's report yesterday at SCOTUSblog, headed "Texas abortion law left in effect." Here is the ruling.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Courts in general

Courts - "Michigan Judges Association opted not to take a position on the new Court of Claims law partly because its leaders thought doing so could hurt chances of getting a long-awaited judicial pay increase"

Ingham County, Michigan is the county where the state capital, Lansing, is located. Until this month, the Michigan Court of Claims had been part of the Ingham County Circuit Court. It was the court where claims against the State were brought.

This Nov. 12th story
by Jonathan Oosting at MLive begins:

LANSING, MI -- Michigan Gov. Rick Snyder on Tuesday signed into law a controversial bill that will change the legal venue for lawsuits filed against the state and government officials.

Public Act 164 (SB 652) will end the Ingham County Circuit Court's tenure as Michigan's Court of Claims, a role it has served since the late 1970s. Instead, four Court of Appeals judges selected by the Michigan Supreme Court will preside over major litigation against the state.

Democratic leaders -- who have called the move a political ploy to protect problematic laws approved by the Republican-led Legislature -- joined a handful of legal experts and newspapers calling on the governor to veto the bill. It was introduced just three weeks ago before speeding through both chambers.

This week, on Nov. 18th, Paul Egan of the Detroit Free Press posted this story headed "Michigan judges warned against opposing controversial Court of Claims bill." Some quotes:
LANSING — The Michigan Judges Association opted not to take a position on the new Court of Claims law partly because its leaders thought doing so could hurt chances of getting a long-awaited judicial pay increase, e-mails obtained by the Free Press show.

Oakland County Circuit Judge James Alexander, the association’s legislative co-chair, told members that for the association to oppose the bill would be “a suicide mission that will impact our ability to get compensation,” according to the e-mails obtained Friday.

On Thursday, two days after the law took effect, a long-awaited bill to raise judicial pay was introduced in the Legislature.

Despite that timing, there’s no suggestion in the e-mails that anyone in the Legislature or the executive branch linked judicial pay to the controversial court shake-up bill. * * *

Public Act 164, which Snyder signed into law Tuesday with immediate effect, sailed through the Legislature in two weeks. It moved the Court of Claims, which handles many lawsuits against the state, from the Democratic-leaning Ingham County Circuit Court to a panel of four Michigan Court of Appeals judges. The law also expanded the jurisdiction of the Court of Claims to many cases previously handled in circuit courts around the state.

Opposition to the law — which some critics decried as a Republican court-packing exercise — softened Wednesday when the Michigan Supreme Court, which has a 5-2 majority of Republican-nominated justices, unanimously named two Republican- and two Democratic-nominated justices to the revamped court.

But many concerns remain, including the use of an appeals court as a trial court, having Court of Claims appeals go from one Court of Appeals judge to a panel of three other Court of Appeals judges, and the makeup of the court changing in future.

The story goes on to quote snippets from the judges' e-mails.

Posted by Marcia Oddi on Wednesday, November 20, 2013
Posted to Courts in general

Tuesday, November 19, 2013

Not law - Fun engineering recruiting videos for boys and girls

Compare the infamous Purdue music video "This Is Engineering (with President Mitch Daniels)" with this new music video commercial intended to “disrupt the pink aisle and inspire the future generation of female engineers.”

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to General News

Ind. Gov't. - HJR 6 and the fate of efforts to revise it in 2011

Reporter Lesley Weidenbener @LWeidenbener has just tweeted:

#INlegis Sen Pres Pro Tem Long says if he could rewrite marriage amendment, he'd leave out 2nd sentence.
‏@indyJonMurray tweets:
Sen Prez Long says he's troubled by 2nd sentence of #HJR 6. But doesn't support revising it. His kids have lobbied hard.
Which caused the ILB to look back to 2011, when HJR 6 passed both houses for the first time. In this post from March 28, 2011:
And a loud demonstration is going on, with demonstrators chanting "Jobs, not hate."

President Pro Temp Long has ordered the gallery cleared and the doors of the Senate gallery locked.

Senator Lanane offers Amendment #1 to HJR 6, to remove the second sentence of the proposed constitutional amendment. He also offered this amendment in Senate committee, where it failed on a party line vote.

Also this post from March 29, 2011, which is worth reading in full.

Also of interest, this post from March 23, 2011.

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Indiana Government

Environment - "The attack on Indiana’s environment"

That is the heading to Matt Tully's column today for the IndyStar. It is worth reading in full, and remarkably at this link it is not "paged". A few quotes:

These are tough days for environmentalists in Indiana.

The logging industry seems to drive the Pence administration’s views on how to treat forests, just as it did the Daniels administration’s. Massive corporate-owned meat production facilities continue to grow in size and number. Water and air pollution remain a source of deep concern. And as if Indiana’s regulatory controls weren’t lax enough, the state legislature could soon make things much worse. * * *

Earlier this year the state legislature considered 11 bills that sought to strip the rights of local farmers and homeowners to give more leeway to the owners of concentrated animal feeding operations. CAFO owners have tremendous influence at the Statehouse and the operations are spreading throughout the state, leading to serious concerns about water pollution tied to hog waste and respiratory problems related to poultry facilities. * * *

But things could soon get worse. In coming months, the legislature is expected to debate a constitutional amendment that would give CAFOs unprecedented power to fight everything from state pollution regulations to local zoning controls. Kharbanda said the measure is “one of the most serious threats that has faced Indiana’s environment in at least a decade, or more.”

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Environment

Ind. Gov't. - Coming changes to the General Assembly website

The General Assembly has convened today in its annual November organization session day. It will reconvene in January for the regular session. As I wrote last December 12th, the entire legislative website is undergoing redesign. No changes are evident yet, but sometime between now and January, likely in December of this year, major changes are to occur.

Unfortunately, I know little more now about these upcoming changes than I did when I wrote these posts early in 2013:

One thing that is clear is that all links to bills, Code cites, and the like, as well as links in court opinions, briefs, and other documents, will be broken. This will be true not only for the ILB, but any links elsewhere, going back for at least a decade.

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Indiana Government

Not law - More on: I find the "new, improved" IndyStar site incredibly frustrating

A reader has responded to my comment earlier today at the end of this post about the "new, improved" Star site. The reader, also an attorney who reads the Star for news, writes:

I hate the new Indy star web with every fiber of my being! Can't find anything. Can't do any effective search. So it's definitely not just you!!!
The Star seems to be going out of its way to minimize news, and words, and replace them with photos and videos.

Yet they anticipate that people will pay for a digital subscription. I pay for digital subscriptions to the only two papers which have succeeded in this area, the New York Times, and the Wall Street Journal. Their websites are much different from the Star, their product is news and they display it proudly.

Here is what I see when I click on the NYT "Today's Paper" page. The same holds true for the WSJ "Today's Edition."

Moreover, when you click on a story, both of these papers allow you to scroll through the entire story. This is unlike the Star, which requires you to click through "pages" and "pages" and "pages" (sometimes 6-8) to read the whole of a major story - I'm sure many readers, like myself, give up after the first 2-3 meaningless clicks. The same with their 20-30 click photo displays.

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to General News

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

For publication opinions today (1):

In Anthony Scott Bratcher v. State of Indiana, a 26-page, 2-1 opinion, Judge Pyle writes:

Anthony Scott Bratcher (“Bratcher”) appeals his sentence, following his guilty plea, for Class B felony child molesting. Bratcher also challenges the sex offender probation conditions that restrict his access to the internet and that limit his contact with children, arguing that they are vague, overbroad, and unconstitutional as applied to him. We affirm.

1. Whether Bratcher’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
2. Whether the trial court abused its discretion by imposing sex offender probation conditions that restrict Bratcher’s access to the internet and his contact with children. * * *

[1] Bratcher has not persuaded us that his sentence is inappropriate. Therefore, we affirm the trial court’s sentence.

[2] Bratcher contends that four of his sex offender probation conditions are “unconstitutional as applied to him.” Specifically, Bratcher argues that the two probation conditions that restrict his contact and interaction with children (conditions 15 and 17) are vague or overbroad and that the two conditions relating to restrictions on his internet usage (conditions 21 and 23) are unduly intrusive. Bratcher asks that we order the trial court to vacate these four probation conditions. * * *

[W]e conclude that the trial court did not abuse its discretion by imposing probation condition 15. [same re 17] * * *

Bratcher also challenges the following two sex offender probation conditions that limit or restrict his internet usage * * *

Bratcher contends that these probation conditions that restrict his internet usage are overbroad, unduly intrusive, and violate his First Amendment rights because they place an “entire blanket prohibition” on his access to the internet. * * *

[W]e conclude that Bratcher’s probation conditions 21 and 23 are neither overbroad or vague and that they are reasonably related to attaining the goals of rehabilitation and protecting the public. Indeed, our Court has explained that because “child molesters molest children to whom they have access[,]” conditions of probation that “reduce the potential for access to children are reasonable.” * * * Finally, contrary to Bratcher’s argument, neither condition imposes a complete prohibition on his use of the internet or social networking websites. Condition 21 simply requires him to acquire the approval of his probation officer, and condition 23 specifically applies to websites “frequented by children.” Accordingly, we conclude that the trial court did not abuse its discretion by imposing probation conditions 21 and 23. * * *

BARNES, J., concur.
CRONE, J., concur in part, dissent in part with opinion [which reads in full] I concur in the majority’s opinion except for the affirmance of probation condition 17. Consistent with my position in Collins, I believe that condition is unconstitutionally vague. Therefore, I respectfully dissent as to that issue.

NFP civil opinions today (1):

Fawn McDonald-Woolridge v. Jacob Woolridge (NFP)

NFP criminal opinions today (3):

Lindsey J. Barger v. State of Indiana (NFP)

Laray Carter v. State of Indiana (NFP)

Morgan Govan v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "John Myers denied new trial in appeal of his murder conviction in Jill Behrman's death"

Updating yesterday's brief entry, Laura Lane of the $$ Bloomington Herald-Times reports today at length; here are some quotes:

It looks as if John Myers II will spend the next quarter century in prison, given Monday’s denial of a petition seeking a new trial in the murder of 19-year-old Jill Behrman 13 years ago.

Morgan Superior Court Judge G. Thomas Gray ruled that despite claims of ineffective counsel and prosecutorial misconduct, the 38-year-old Monroe County man received a fair trial in Morgan County back in 2006, when he was convicted of murder and given a 65-year prison term for shooting the Indiana University student in the head with a .12-gauge shotgun. * * *

For seven days in April and May, Gray heard evidence rehashing the 2006 trial and challenging some of the tactics used by defense attorney Patrick Baker. There were 154 exhibits entered into evidence during the post-conviction relief hearing and 39 witnesses, from the grandmother who implicated Myers in the murder to the lead investigator in the case, testified.

Baker’s actions in the case resulted in misconduct charges and sanctions, including a suspension of his license to practice law, from the state’s Supreme Court.

Gray acknowledged several issues with Baker in Monday’s 16-page ruling, but said none rose to the level of casting doubt about the overall substance of the defense and Baker’s commitment to seeking an acquittal for his client.

“The issues raised are interesting and make good reading, but do not re-establish new facts,” Gray wrote. “Monday morning quarterbacking always presents what ifs and why nots. The court’s findings stand. Baker presented a fair trial for Myers. An unfavorable result always brings out these issues.”

The judge conceded there were issues with Baker’s representation, including misstatements made during his opening statements that were not followed through with during the trial. “The court agrees that there were instances where trial counsel may not have performed as we would have hoped,” said Gray, who was not the trial judge. But he said that as he watched and listened to Baker testify during the post-conviction relief hearing, he was convinced “of his sincerity and of his efforts on behalf of the petitioner.”

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "GOP leaders quieter, but still for marriage amendment"

That is the heading of Dan Carden's story today in the NWI Times - it begins:

INDIANAPOLIS | The Republican legislative leaders that used to proudly endorse the pending Indiana marriage amendment are now working hard to minimize it compared to other topics the General Assembly likely will tackle next year.

Speaking Monday at an Indiana Chamber of Commerce luncheon, Senate President David Long, R-Fort Wayne, and House Speaker Brian Bosma, R-Indianapolis, visibly cringed and were reluctant to answer when asked during an open question period if the amendment will be voted on by lawmakers.

"This is not the most important issue facing Indiana, OK? It is not. This is a difficult moment we have to get through and deal with," Long said. "But the most important issues are jobs and the economy and the education of our kids."

Bosma, who who led a 2004 Republican walkout fighting for the amendment against a then-Democratic House majority, said he has no plans to "fast track" the proposal now that he's in charge.

"I don't even know if it's going to be introduced. I presume it is ... it's not a priority," Bosma said. "It will go through the same process as every other bill or resolution: if it's introduced it'll be assigned to a committee, the chairman will make a decision on a committee hearing, if it comes out it will get voted on the floor."

Niki Kelly's story today in the Fort Wayne Journal Gazette is headed "Gay unions ban handed to caucuses
Legislative leaders will not dictate amendment’s future."

Here is the IndyStar story by Barb Berggoetz and Jon Murray, headed "Leaders end silence on same-sex marriage ban ." BTW, I find the "new, improved" IndyStar site incredibly frustrating.

Posted by Marcia Oddi on Tuesday, November 19, 2013
Posted to Indiana Government

Monday, November 18, 2013

Law - "City of Chicago and public-spirited hackers unveil the Chicago City Code"

See the post at BoingBoing.

But it doesn't seem to be searchable, so the ILB can't look up "chicken" or "poultry."

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to General Law Related

Ind. Decisions - "John Myers denied new trial in appeal of his murder conviction in Jill Behrman's death"

Updating this ILB entry from May 24th, re John Myers' 7-day PCR hearing re his conviction in the killing of Jill Behrman of Bloomington, the Herald-Times has tweeted late this afternoon that Myers has been denied a new trial. More coming.

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't - "Purdue University Senate this afternoon approved a resolution that said it was in opposition to House Joint Resolution 6" [Updated]

So reported Hayleigh Colombo at 3:47 PM on the Lafayette Journal-Courier webpage. More:

The University Senate approved a resolution that said it was in opposition to House Joint Resolution 6 * * *.

Opponents of the proposed gay marriage ban say it would be contrary to Purdue's equal opportunity policies and would harm university recruitment.

University Senators approved the resolution by a wide margin. They were originally planning to only discuss the matter but senators temporarily suspended the rules so that the resolution could be voted on.

The ILB does not know the significance of a Purdue University Senate vote, and the story does not explain.

[Updated] The LJC story has been updated. A quote:

Although the move doesn’t express the university’s viewpoint as a whole, President Mitch Daniels said it should give legislators a general idea of where key stakeholders stand.

“This isn’t the only voice of Purdue but it’s the most important single voice we have,” said Daniels, who as Indiana governor in 2007 talked about his support for the constitutional ban. “We’ve heard from two significant groups already. That should express a pretty broad consensus.”

Purdue Student Government passed a resolution last week opposing HJR-6.

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Indiana Government

Ind. Decsions - SCOIND issues per curiam ruling today

In Gersh Zavodnik v. Michela Rinaldi, et al, a 2-page, per curiam ruling with all justices concurring, which reads in part:

The issue in this appeal is whether Zavodnik has shown he has made successful service of his complaint on Rinaldi, who is a resident of Italy. * * *

[The trial court had found: "There are various documents in the file which the Plaintiff purports to be proof of service but they are apparently in Italian, without translation."]

On appeal, the Court of Appeals agreed with Zavodnik that the forms were in both Italian and English, contrary to the trial court's finding. The Court of Appeals nevertheless affirmed, citing Zavodnik's failure to support his argument that he had served Rinaldi with sufficient citations to or quotations from relevant law. Zavodnik seeks transfer.

Under the unique circumstances presented, the Court concludes that the trial court's order of dismissal should be reversed. We grant transfer of jurisdiction, reverse the order of dismissal, and remand to the trial court for further proceedings, without prejudice to dismissal under Trial Rule 41(E) if warranted after further consideration.

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Ind. Sup.Ct. Decisions

Law - "Lesson Is Seen in Failure of Law on Medicare in 1989"

I've been thinking about the failed Medicare Catastrophic Coverage Act and had intended to do some research on it for a post. I remember when I was working in the State Budget Agency in the 70s that then-Governor Otis Bowen was interested in the topic and I was sent off to a conference on state catastrophic insurance plans put on by, I believe, by Kaiser Permanente. Later I discussed the conference with Bowen.

As it turns out, today the New York Times has a long story on the failed federal program, reported by Carl Hulse. Some quotes:

The year was 1989, and the law was the Medicare Catastrophic Coverage Act, which was supposed to protect older Americans from bankruptcy due to medical bills. Instead it became a catastrophe for Democratic and Republican lawmakers, who learned the hard way that many older Americans did not want to be helped in that particular way.

Seventeen months after President Ronald Reagan signed the measure with Rose Garden fanfare, a series of miscalculations and missteps in passing the law became painfully evident, and it was unceremoniously stricken from the books by lawmakers who could not see its demise come quickly enough. * * *

The concept of expanding Medicare originated in the Reagan administration in 1986 under Otis R. Bowen, the secretary of health and human services, who proposed a modest change to add an annual premium while capping annual out-of-pocket costs for co-payments and hospitalization at $2,000. Politically, Republicans were looking for a way to offset damage from a proposal to delay Social Security increases.

Democrats, who controlled Congress, were not about to be outbid by Reagan when it came to a core constituency like retirees. As the Bowen plan moved through the House and the Senate, new benefits were tacked on, including premium protection for low-income Americans, help for spouses of nursing home residents and some limited prescription drug coverage, driving up the cost of the program. * * *

Aides to Reagan grew wary of the final product — approved 328 to 72 in the House and 86 to 11 in the Senate in the summer of 1988 — and pondered a veto. But Vice President George Bush, running for the top job that year, saw the measure as a potential political advantage, and it became law.

But not for long, it was repealed in November of 1989. (Bowen was Secretary of HHS from Dec. 1985-to Jan. 1989.)

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to General Law Related

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

For publication opinions today (1):

In Bart Whitesitt v. Town of Knightstown, an 8-page opinion, Judge Mathias writes:

Bart Whitesitt (“Whitesitt”) appeals the Henry Circuit Court’s order entering summary judgment in favor of the Town of Knightstown (“the Town”) in which the trial court determined that the Town did not violate Indiana Code section 33-35-1-1 when it abolished the Knightstown Town Court (“the Town Court”). As we reach the same conclusion, we affirm. * * *

For all of these reasons, we conclude that Indiana Code section 33-35-1-1(d) provides that a town or city court created prior to January 1, 1986, may be abolished by ordinance at any time. Because the Town Court was in existence well before January 1, 1986, the Town’s enactment of Ordinance 7-2011 abolishing the Town Court was statutorily authorized under Indiana Code section 33-35-1-1. We therefore affirm the judgment of the trial court.

ILB: For background, see this Sept. 14, 2011 ILB post.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of K.H.: E.H. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Bobby Holsey v. State of Indiana (NFP)

Aaron Di-Shon Windom v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 15, 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, November 15, 2013. It is one page (and 2 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Indiana Transfer Lists

Ind. Courts - "Need for two more William Clyde Gibson murder trials questioned in Southern Indiana"

Updating this Oct. 29th ILB entry, headed "Jury recommends death for William Clyde Gibson", Grace Schneider of the Louisville Courier Journal has a long story today. Here are some quotes, but don't miss reading the entire story:

Floyd County prosecutor Keith Henderson’s decision to pursue two more murder trials against convicted killer William Clyde Gibson is raising questions in his Southern Indiana community, where some wonder if it’s worth adding to a $2.9 million budget crisis to try a man already sentenced to death.

“Now that he has gotten the death penalty, why the other trials?” asked Cheryl Mills, who, along with other county employees, has been warned that she could lose her job early next year because of the budget crunch.

The county’s financial crisis is due at least in part to having to spend $2.1 million this year on David Camm’s third murder trial, in which he was acquitted, and an estimated $275,000 on Gibson’s first trial last month.

But Henderson, who declined requests to be interviewed for this story, has insisted that money shouldn’t be the focus when seeking justice for the murder victims and their families.

“I won't trade justice for money,” he said after a jury recommended Gibson receive the death sentence last month in the murder of family friend Christine Whitis, 75. * * *

Joel M. Schumm, a law professor at Indiana University’s McKinney School of Law in Indianapolis, said Henderson’s plan to pursue a second death penalty case against a single defendant is not unheard of, but the practice is becoming less common.

“Lethal injection can only be administered once,” he said. “It’s not like (Gibson) can get a second” injection if he is convicted in a second trial. But Schumm said some prosecutors may seek a second death verdict for victims, or if they’re worried about being reversed.

And Henderson acknowledged after the Whitis verdict that he’s not taking chances. “I’ve learned never to predict what a higher court will do,” he said.

Such references point to the Camm trials. The Georgetown man’s convictions in 2002 and 2006 in the murders of his wife and two children were overturned, leading to the third trial this year.

Henderson prosecuted Camm in the second trial, but the Indiana Supreme Court threw out the conviction after finding the prosecution shouldn’t have been allowed to argue that Camm molested his daughter. The court ruled that the allegation was speculative and prejudicial.

The bills from Camm’s third trial are still rolling in, and estimates are that the county’s costs for all three Camm trials combined could exceed $5.4 million. * * *

In Indiana, of 3,442 murders and non-negligent homicides committed between 2001 and 2010, prosecutors sought the death penalty in 38 homicides, nine of which proceeded to trial and six resulted in death sentences, according to an analysis by the state’s Legislative Service Agency.

Death penalty prosecutions and death sentences have declined, the agency reported, in part because of the availability of a sentence of life without parole.

Only Clark and Floyd counties now have pending death penalty cases, against Gibson and against Richard Hooten of Clarksville, noted Paula Sites, assistant executive director of the Indiana Public Defenders Council, who tracks death penalty cases.

In Gibson’s case, the odds are that after three rounds of automatic appeals extending more than 15 years, Gibson, who is 56, most likely won’t die of lethal injection anyway, Schumm said. “He’ll die of natural causes” on death row.

Here is a list of all the ILB entries mentioning William Clyde Gibson.

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Indiana Courts

Environment - "Hog farm decision expected by end of year"

That is the headline to this $$ Sunday story by Jennifer Decker in the Kendallville KPC News. The teaser reads:

ANGOLA — A determination on a proposed 4,800-hog confined animal feeding operation is expected to be made by the end of the year by the Indiana Department of Environmental Management.

“IDEM will be making a decision before the end of the year. We are considering all the information submitted to us during the course of time the application has been in IDEM’s possession, and we are evaluating all potential additional protective measures,” Barry Sneed, IDEM public information officer, said Thursday.

See also this Aug. 2nd ILB post.

Posted by Marcia Oddi on Monday, November 18, 2013
Posted to Environment

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

From Sunday, Nov. 17, 2013:

From Saturday, Nov. 16, 2013:

From late Friday afternoon, Nov. 15, 2013:

Posted by Marcia Oddi on Monday, November 18, 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 11/18/13):

Next week's oral arguments before the Supreme Court (week of 11/25/13):

This week's oral arguments before the Court of Appeals (week of 11/18/13):

Tuesday, November 19th

Thursday, November 21st

Next week's oral arguments before the Court of Appeals (week of 11/25/13):

Monday, November 25th

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, November 18, 2013
Posted to Upcoming Oral Arguments

Sunday, November 17, 2013

Ind. Gov't. - "Indiana Chamber has no position on same-sex marriage amendment" [Updated]

Rob Earnshaw reported in the NWI Times on Nov. 15th:

PORTAGE │ Taxes, education, energy, environmental, government reform and labor policy were topics addressed by representatives of the Indiana Chamber of Commerce during a legislative preview for local business people and elected officials.

The presentation Friday at the Northwest Indiana Forum offices was part what the Chamber has as its own agenda and what its sees is coming with the Indiana General Assembly.

One topic not on the day’s agenda, however, was what state Sen. Karen Tallian, D-Ogden Dunes, called “the elephant in the room.”

The amendment to write Indiana’s ban on gay marriage into the state constitution.

“I’m trying to figure out why the state chamber has not come out against it,” she said.

Tallian told Indiana Chamber of Commerce President Kevin Brinegar and Vince Griffin, vice president of energy and environmental policy, that the second clause of that amendment is awful for business.

“In terms of making Indiana business friendly, this is just a really bad move,” she said. * * *

Brinegar said the chamber has not come out against the amendment because it has members with strong feelings and positions on both sides. It’s been discussed in committees and the decision has been to not take a position “because we have strong and different views among our membership around the state,” he said. “We do not plan to be involved.”

But then the story reports that Brinegar continues:
“Even if it gets on the ballot and passes, nothing changes because we already have a law that defines marriage in Indiana (same-sex marriage is prohibited),” he said. “But the build-up between the time the Legislature votes to put it on the ballot and a year from now – the Election Day, all that publicity and media coverage and probably paid advertising on both sides is what’s going to give Indiana as a place to do business and a place to live and grow a black eye.”
And in a story dated Nov. 16 in the Louisville Courier-Journal, reported by Lesley Weidenbener. The story begins:
INDIANAPOLIS — The biggest question about the upcoming session of the Indiana General Assembly is how legislative leaders will handle a proposed constitutional amendment to define marriage as the union of one man and one woman.

Referred to by many as a ban on same-sex marriage, the proposal has already passed the legislature once. If it passes again, the amendment goes to the ballot for possible ratification by voters.

But it’s not been clear whether House Speaker Brian Bosma, R-Indianapolis, and Senate President Pro Tem David Long, R-Fort Wayne, plan to allow votes on the proposal at all. And recently, they’ve been avoiding the question.

That might be about to change — and the answer could affect the rest of the legislative session.

The leaders will be part of a panel Monday sponsored by the Indiana Chamber of Commerce, which has not taken a stand on the amendment. In past events, questions for the panel have typically come from the chamber’s president, Kevin Brinegar, and from business leaders in the audience.

[Updated 11/18] See also this Dan Carden story in the NWI Times, that includes:
Lawmakers have three options: reverse their earlier support for the amendment and either don't vote on it or vote it down, eliminating the need for a public vote; change the proposal, restarting the lengthy amendment process and delaying a potential citizen vote until at least 2016; or approve it again and let the voters decide.

If the Republican-controlled Legislature follows the state GOP platform, the third option -- letting Hoosiers decide -- is the most likely outcome. It may also be the safest choice for lawmakers, especially Republicans, up for re-election next year.

That's because the amendment is championed by Republican Gov. Mike Pence; House Speaker Brian Bosma, R-Indianapolis; and Senate President David Long, R-Fort Wayne, each of whom could rustle up primary election challengers for GOP lawmakers that dare to cross party leadership.

At the same time, putting the amendment on the ballot has its own risks. Many polls suggest the majority of Indiana residents now oppose the proposed amendment. Hoosiers who might not otherwise participate in midterm elections could flood polling places to vote it down, and potentially toss out the lawmakers who supported it.

Posted by Marcia Oddi on Sunday, November 17, 2013
Posted to Indiana Government

Environment - "Environmentalists oppose permit for 1,700 acre Indiana strip mine" in Gibson County

From the AP, this story, which appeared in the Nov. 13th Chesterton Tribune, begins:

INDIANAPOLIS (AP) - Two environmental groups have asked the U.S. Army Corps of Engineers to reject a permit Peabody Energy Corp. needs to expand one of its Indiana coal mines, arguing that the company hasn’t fully assessed the project’s environmental impacts.

The Sierra Club and Hoosier Environmental Council said in objections filed Monday with the Army Corps during a public comment period on Peabody Energy’s permit request that the company’s planned expansion of its Somerville mine would destroy local streams and worsen water pollution in southwestern Indiana with coal waste runoff.

Peabody needs a federal permit under the Clean Water Act so that it can fill in nearly 16 miles of local streams as well as wetlands to open up more than 1,700 acres in Gibson County for surface mining, where surface vegetation, soils and rock are removed and underlying coal is dug or blasted away.

The two environmental groups contend that St. Louis-based Peabody has failed in its permit request to provide information on aquatic wildlife, such as frogs, snakes and fish, living in the streams it wants to fill in and hasn’t assessed how those waterways function in the local environment.

Without those and other details, the groups said Peabody cannot properly restore the area’s habitat following mining, as is required under federal law. Peabody has proposed replacing the streams it will fill in with new man-made channels and taking other mitigation steps.

“The near total failure to provide any study of the existing groundwater resources at the site - including how those resources interact with surface streams - makes it all but impossible for the Army Corps to predict how recreated surface streams would function,” Kim Ferraro, the Hoosier Environmental Council’s staff attorney, said in a statement.

Bowden Quinn, conservation director for the Sierra Club’s Hoosier Chapter, said Peabody’s proposal to remove streams in the proposed mining site would inflict “irreversible harm” on local waterways and increase downstream water pollution as coal waste that can include heavy metals such as mercury and arsenic washes downstream.

Posted by Marcia Oddi on Sunday, November 17, 2013
Posted to Environment

Ind. Gov't. - "Sexual harassment training planned for Kentucky lawmakers "

Interesting news re the Kentucky General Assembly, from Tom Loftus of the Louisville Courier-Journal:

FRANKFORT, KY. — State legislators will receive sexual harassment training before the 2014 legislative session begins.

Senate President Robert Stivers, R-Manchester, released a statement Friday saying he will require senators to participate in the training as part of required annual pre-session ethics classes for lawmakers.

The office of House Speaker Greg Stumbo, D-Prestonsburg, responded with a statement that said Stumbo has said sexual harassment training will be required for House members.

The fact that legislative staffers had been required to get annual training on the issue — but legislators themselves had not —came to light in August after three female staff members filed sexual harassment complaints against then-Rep. John Arnold, D-Sturgis.

Posted by Marcia Oddi on Sunday, November 17, 2013
Posted to Indiana Government

Ind. Courts - "California porn firm makes money off lawsuits " Fifty-six lawsuits filed in ND Ind.

Teresa Auch Schultz of the Gary Post-Tribune has a long, important story today about copyright trolls. The story begins:

The dozens of lawsuits filed in northern Indiana by Malibu Media appear, at first, to be basic copyright infringement claims.

The company makes videos, and the suits accuse defendants of downloading some of those videos illegally, without paying for them.

But the videos are pornographic movies, and some of the 56 defendants in U.S. District Court in Hammond say Malibu and its attorneys are using the threat of embarrassment to get them to pay thousands of dollars without a fight.

“What they want to do is scare people and get them to settle,” said Ann Rominger, dean of Indiana University Northwest’s School of Business and Economics.

Faced with having their names publicly connected to explicit film titles, the thinking goes, defendants will instead choose to pay Malibu a quick settlement.

One defendant who Malibu says lives in Hobart, Ind., filed a counterclaim last month, alleging Malibu is a copyright troll — a term for a firm that makes money not by selling a product but through litigation. He claims Malibu intentionally makes it easy to download videos, then sues people who do so.

Malibu is “formed solely for the purpose of creating copyright registrations and suing an extensive number of defendants for financial gain,” the counterclaim says.

More from the story:
Once Malibu has the names of defendants, it sends them letters threatening to make their names public if they don’t pay to settle.

Kurt Opsahl, a senior staff attorney for the San Francisco-based Electronic Frontier Foundation, says the costs of not settling can be considerable. Malibu’s choice of a German IT company means defendants would have to spend thousands of dollars and lots of time just to depose the employee who did the work, he said.

Instead, Malibu likely offers a settlement that’s still tens to hundreds of times more than they would get from selling the movies but is just less than what a basic defense would cost, he said.

Opsahl said Malibu has also been indiscriminate in whom it sues, going after the owner of an Internet account even if they have no evidence that person downloaded the videos.

That’s the case with another local defendant, identified in court filings as “Jane Doe” in Valparaiso. Her attorney, Thomas Vetne, said she never put a password lock on her Wi-Fi, meaning anyone of a dozen neighbors could have used it to download movies. Vetne says he has told Malibu this but the company is still pursuing its lawsuit. That’s why she’s fighting instead of settling, he said.

“She doesn’t mind exposing the fact that these people are trying to get money out of people whether they deserve it or not,” he said. “She doesn’t like the idea of giving in to bullies.”

ILB: Last evening I was listening to This Week in Law, a podcast series which I highly recommend. (Some states allw CLEs for listening to it!) Specifically, program #233 (in its second half) has quite a lot on copyright suits such as described above. And it lists a lot of valuable resources, but unfortunately these are not memorialized on the webpage. However, one of the speakers was from New Media Rights, which has a number of links, including a guide directly related to the issue here, titled "Guide for defendants in mass copyright lawsuits (Bit Torrent Filesharing cases)."

Posted by Marcia Oddi on Sunday, November 17, 2013
Posted to Indiana Courts

Friday, November 15, 2013

Ind. Decisions - 7th Circuit decides an interesting non-Indiana case today

The opinion, out of Illinois, is UNITED STATES OF AMERICA v. RITA A. CRUNDWELL and much of it reads like a news story (or the start of a Gresham novel). The 7-page opinion by Judge Easterbrook begins:

In 2011 a Commissioner of Dixon, Illinois, the childhood home of President Reagan, lauded Rita Crundwell, the City’s Comptroller since 1983, because “she looks after every tax dollar as if it were her own.” How right he was. The next year Crundwell pleaded guilty to embezzling approximately $53 million from the City between 1990 and 2012. She used the money to support more than 400 quarter horses and a lavish lifestyle, which she explained to co-workers as the fruit of the horses’ success. During the final six years of her scheme, the embezzlement averaged 28% of the City’s budget. In exchange for her guilty plea, the prosecutor limited the charge to a single count of wire fraud. See 18 U.S.C. §1343.

Crundwell told other public officials that the City had to tighten its belt. She blamed a downturn in the economy and a reduction in remittances from the state, when her own theft was the real cause. Police went without valuable equipment. The City reduced the staff of its Street Depart ment from nine to six and cut the rate of maintenance. In the decade before Crundwell’s arrest, the City resurfaced only 65 blocks of its more than 100 miles of paved roads. The list of ways in which Crundwell’s crime injured the population of Dixon is long and played a major role in the district court’s decision to sentence her to 235 months’ imprison ment, substantially above the Guideline range of 151 to 188 months.

The scheme was not particularly sophisticated. Crundwell opened an account at a local branch of Fifth Third Bank. The account was called “RSCDA Reserve Fund” and nominally was owned by the City, but Crundwell held sole control over disbursements. She used her authority as Comptroller to move money from the City’s legitimate ac counts to the RSCDA account. Once the money was there she wrote checks for her own benefit. She created bogus in voices to justify the transfers from the legitimate accounts.

For more than 20 years, the bank failed to notice that the funds in the RSCDA account were being put to private ra ther than public use. And the City’s auditors — CliftonLarsonAllen and Samuel Card, a local accountant — failed to detect the scam, even though the spot checks of invoices and disbursements required by auditing standards ought to have turned it up long before 2012. The embezzlement was caught when a bank statement of the RSCDA account reached the Mayor by accident, and he phoned the FBI because the transactions it revealed startled him. The City sued the bank and the two auditors, which recently settled for approximately $40 million. Sales of Crundwell’s assets realized another $10 million, so the City has recovered much of what Crundwell took (if we disregard interest, which over this lengthy period would have been substantial) but lost the benefits, such as well-paved roads and efficient police, that the money could have achieved had it been available be tween 1990 and 2012.

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Indiana League of Women Voters joins fight against HJR-6

From the news release just issued:

The League of Women Voters of Indiana (LWVIN) announced today that it has joined Freedom Indiana, a coalition opposing the amendment to the Indiana Constitution known as House Joint Resolution 6 (HJR-6).

The amendment would permanently alter the Indiana Constitution to define marriage and would remove existing protections under law for unmarried couples and same-sex families.

"The League of Women Voters believes we should protect all Hoosiers. The Indiana Constitution should not be used to deprive any citizen of civil rights," said LWVIN President Susanne Gaudin. * * *

Freedom Indiana campaign manager Megan Robertson welcomed the League of Women Voters and its members across Indiana to the growing coalition.

"We're building the biggest group of grassroots volunteers and advocates Indiana has ever seen, and the League of Women Voters will be a tremendous partner as we move forward with that effort," Robertson said. * * *

The League of Women Voters of Indiana opposes HJR6 based on the national League of Women Voters of the United States (LWVUS) statement of position on Equality of Opportunity that reads: “The League of Women Voters of the United States supports equal rights for all under state and federal laws. LWVUS supports legislation to equalize the legal rights, obligations, and benefits available to same-gender couples with those available to heterosexual couples. LWVUS supports legislation to permit same-gender couples to marry under civil law. The League believes that the civil status of marriage is already clearly distinguished from the religious institution of marriage and that religious rights will be preserved.”

This position was revised by the National Board in January 1989, based on positions announced by the national board in January 1969, adopted by the 1972 Convention, expanded by the 1980 Convention and the 2010 Convention.

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Indiana Government

Ind. Decisions - SCOIND posts one opinion today

In Patrick Austin v. State of Indiana, a 22-page, 5-0 opinion, Justice David writes:

Today we examine the bounds of acceptable police procedure in attempting to interdict interstate narcotics shipments under the Indiana Constitution, and also elaborate on the application of Indiana’s Rules of Criminal Procedure providing for a speedy trial.

In this case, a truck driver was arrested after a deliberate operation conducted by the Indiana State Police uncovered a large quantity of cocaine in the truck driver’s cargo. He requested a speedy trial, and when the trial court was unable to bring him to trial within the time limit because of court congestion he sought to be discharged from pre-trial incarceration. We find no error in the police action or in the continuance of the defendant’s trial, and therefore affirm the trial court.

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - " Further delay expected in Tease ruling: Judge Menges asks for a two-month extension on year-old case"

Some quotes from Scott Smith's story today in the Kokomo Tribune:

Two weeks ago, Howard Superior Court Judge William Menges sounded optimistic he’d rule on a contentious case involving a local strip club within a state-imposed time limit.

But last week, with time running out, Menges asked the Indiana Supreme Court for an extension, frustrating city officials who wanted Menges to rule on the case months ago.

“I’m not sure why this would take so long,” Kokomo Mayor Greg Goodnight said Tuesday.

Menges, appointed as special judge to hear the case, said several pressing personnel issues within the county’s adult probation and drug/alcohol programs required his attention last week, and pushed him up against the deadline.

The owners of the Tease strip club, 107 E. Markland Ave., are continuing to operate the club as an adult business, despite a cease-and-desist request from the Kokomo Plan Commission.

Plan commission director Greg Sheline notified the club owners they were operating in violation of zoning laws, alleging they’d expanded the club without proper permits.

The Kokomo Board of Zoning Appeals upheld Sheline’s notice of violation Dec. 13, and the club owners then filed a court appeal. That appeal is pending.

Also pending is the city’s request for an injunction. City officials asked Menges to bar the owners from offering topless dancing while the appeal is pending. It now appears unlikely Menges will issue any kind of an injunction prior to ruling on the appeal.

Meanwhile, club owners Brett Morrow and Dustin Ogle have ignored the city’s request to stop offering adult entertainment while the matter is pending.

“I don’t feel there’s a lawful reason to preclude us from doing what we’ve been doing the whole time,” Brian Oaks, the attorney representing Ogle and Morrow, said earlier this year.

According to Indiana trial rules, a judge has 90 days to rule once all of the testimony and filings have been received and the matter has been taken under advisement. If a judge either doesn’t rule within that time period or doesn’t ask for an extension, the Indiana Supreme Court can appoint another judge to decide the issue.

Attorneys from both sides submitted written materials supporting their respective arguments Aug. 6, meaning Menges should have ruled by Nov. 4. * * *

Menges said that since he’s filed for an extension, he won’t be able to issue the ruling until the Supreme Court addresses the extension request. He said he anticipates that happening next week, but cautioned that the Supreme Court has no time limit for taking action. [Emphasis by ILB]

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: Inspector General files charges today against Tony Bennett and IG appoints special prosecutor to investigate DNR/Ivy Tech

Updating yesterday's ILB post, Stephanie Wang has a story today in the Indianapolis Star, including:

The Indiana Inspector General filed an ethics complaint today against former Superintendent of Public Instruction Tony Bennett for improperly using state resources during his 2012 re-election campaign, according to a press release.

The complaint moved forward through the Indiana State Ethics Commission at its monthly meeting today. A public hearing is scheduled for Jan. 9. * * *

At the public hearing in January, both Bennett and the inspector general will have an opportunity to present witnesses and evidence to the ethics commission.

The commission could choose to dismiss the complaint or find an ethics violation, which could result in penalties such as fines, reprimands or a ban on future state employment or lobbying.

Julia Vaughn, director of Common Cause Indiana, had this post today in the blog Indiana ForeFront - a quote:
You’ll recall that a cocky Bennett, after resigning his post in Florida, requested that the IG conduct an investigation, no doubt assuming that Thomas, a fellow Republican, wouldn’t take it too far.

That was a bad bet. Pressure has been building on Thomas to prove that his office is capable of enforcing state ethics laws for all state employees, even those who are elected. Fellow blogger Jim Shella asks if David Thomas will also be on trial January 9 when Bennett will get his hearing before the State Ethics Commission.

The answer is obviously yes. Thomas took a big first step in building his office’s credibility when he filed the Bennett complaint. His reputation as an ethics watchdog with real bite will absolutely be enhanced if he can make these charges stick.

[More] Here,via a tweet from Tom LoBianco Associated Press, is the AP's Sept. 11, 2013 story headed "Fundraiser lists, emails raise Bennett questions," with links to related email and calendar entries.

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Indiana Government

Ind. Gov't. - "Ball State joins coalition opposing proposed state amendment against same-sex marriage"

Seth Slabaugh of the Muncie Star-Press reports in a story picked up this morning in the Lafayette C-J:

The University Senate passed a motion reading:

“It is moved that Senate request the university administration make the following statement. In light of the ongoing debates around House Joint Resolution 6, Ball State University reaffirms our commitment to diversity and tolerance. We believe that providing a welcoming and supportive environment is not only morally right but also economically sound. To attract the best and brightest students and the most talented faculty and staff, we need to recognize the diverse needs of the university community. On behalf of its faculty, staff and students, Ball State opposes adoption of House Joint Resolution 6 and supports the goals of the Freedom Indiana organization.”

The administration of President Jo Ann Gora asked University Senate to approve the motion and helped draft its language.

She told The Star Press the only action the administration needs to take now is to publicize BSU’s position, which she noted “represents the interests and concerns of faculty, staff and students.”

Posted by Marcia Oddi on Friday, November 15, 2013
Posted to Indiana Government

Thursday, November 14, 2013

Ind. Courts - Vote submision time for JNC/JQC District 2 attorney representative extended from Nov. 19 to Dec. 3

According to this Nov. 12th order, signed by CJ Dickson:

During the week of November 4, 2013, it came to the Clerk and this Court's attention that while most eligible electors had received their ballots and accompanying materials through the mail, many had not. After further investigation, the Clerk determined that an unidentified issue with the delivery of the mail had caused an unknown number of ballots and accompanying materials not to be delivered to eligible electors. * * *

The ballot submission deadline, which was Tuesday, November 19, 2013 at 4:00 p.m., is hereby EXTENDED to 4:00 p.m. on Tuesday, December 3, 2013. * * *

The Clerk is directed to send a copy of this order to Jan M. Carroll; to Lee C. Christie; to the Gregory Zoeller, Attorney General of Indiana; to Connie Lawson, Indiana Secretary of State; to Adrienne Meiring, Counsel to the Judicial Nominating Commission/Commission on Judicial Qualifications; to Lilia Judson, Executive Director of the Division of Supreme Court Administration; to Kathryn Dolan, Indiana Supreme Court Public Information Officer; and to the Supreme Court Administration Office. The Clerk is further directed to post this order to the Supreme Court's website

Why are the Attorney General and Secretary of State, two separately elected members of the executive branch, to be notified? Because under IC 33-27-2-3(11), "Election Ptrocedure":
(11) The clerk of the supreme court, with the assistance of the secretary of state and the attorney general, shall open and canvass all ballots after 4 p.m. on the last day of the election period in the office of the clerk of the supreme court.

Posted by Marcia Oddi on Thursday, November 14, 2013
Posted to Indiana Courts

Ind. Gov't. - Indiana Inspector General files charges today against Tony Bennett and IG appoints special prosecutor to investigate DNR/Ivy Tech [Updated]

Niki Kelly has a preliminary story here in the FWJG headed "Ethics complaint filed against Tony Bennett."

Ryan Sabalow has a story at IndyStar headed "Indiana ethics cop appoints special prosecutor to investigate DNR, Ivy Tech hiring allegations." From the story:

Ivy Tech hired [Rob Carter Jr., the former director of the Department of Natural Resources] as its chief security officer months after Ivy Tech Trustee V. Bruce Walkup emailed him strongly suggesting he would soon be handling the college’s security issues, The Indianapolis Star reported earlier. The email was sent three months before the job was posted.

Thomas was asked to look into the matter by Gov. Mike Pence’s office, but he stepped aside today.

“This relationship makes an objective review of the allegations difficult, if not impossible,” Thomas wrote in a letter announcing he would be recusing himself. “Under these circumstances, any associated decisions could make the determinations to appear suspect.”

Carter and Thomas once each served together as elected officials in Clay County, Carter as sheriff and Thomas as prosecuting attorney.

Thomas said that Jonathan Parkhurst, the chief deputy prosecuting attorney of Posey County, would handle the investigation.

[Updated at 3:23 PM] Here is the longish AP story on the charges against Bennett, and a link to the one-page, one-paragraph, ethics complaint.

Posted by Marcia Oddi on Thursday, November 14, 2013
Posted to Indiana Government

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

For publication opinions today (2):

In Darliss Wert and Gary Wert v. Meridian Security Insurance Company, an 11-page opinion, Judge Vaidik writes:

Gary and Darliss Wert (collectively “the Werts”) were involved in a car accident with Barbara Offill. After settling with Offill for $100,000, the limit of her liability insurance, the Werts sued their insurance company, Meridian Security Insurance Company (“Meridian”)1, for an underinsured-motorist claim more than two years after the accident. Meridian filed a motion for summary judgment, claiming that the contract barred the Werts from filing a lawsuit against them more than two years after the accident. The Werts appeal from the trial court’s order granting summary judgment to Meridian. They argue that the contract is ambiguous because the two-year contractual limitation provision conflicts with another provision in the contract requiring full compliance with the contract. To comply with the full-compliance provision of the contract, the Werts were required to settle or obtain a judgment before filing a lawsuit against Meridian. Finding that these provisions, when read together, make it unclear when the Werts should have filed a lawsuit to preserve their underinsured-motorist claim and may completely foreclose their ability to file a lawsuit, we reverse.
In The Novogroder Companies, Inc., v. Michael J. Massaro, a 7-page opinion, Judge Bailey writes:
The Novogroder Companies, Inc. brought a nuisance and ejectment action against its commercial tenant Michael Massaro. Novogroder also sought a preliminary injunction to enjoin Massaro from cooking foods at the leased premises. Denied preliminary injunctive relief, Novogroder pursues an appeal of right pursuant to Indiana Appellate Rule 14(A)(5). We affirm.
NFP civil opinions today (2):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of G.H., (Minor Child) and D.H.(Father) v. Marion County Department of Child Services, Child Advocates, Inc. (NFP)

In Re the Matter of D.H., J.H., A.H., N.H., P.H., S.H., D.H., J.H., and D.H.; Children Alleged to be Children in Need of Services, T.H. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

Donald Warren v. State of Indiana (NFP)

Christopher Roberts v. State of Indiana (NFP)

Louis Shepherd, Jr. v. State of Indiana (NFP)

Randy Terrell v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 14, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "City wins state supreme court case"

Yesterday Supreme Court opinion in Kitchell v. City of Logansport (ILB summary here) is the subject of a long story today my Mitchell Kirk in the Logansport Pharos-Tribune that begins:

The Indiana Supreme Court has ruled in favor of Logansport Mayor Ted Franklin and City Council in a lawsuit that alleged the city did not have the authority to enter into negotiations with a power plant developer.

The suit was first filed in Cass County Superior Court II in March by Logansport resident Julie Kitchell, represented by attorney Jim Brugh. It claimed legislation authorizing the city to negotiate with power plant developer Pyrolyzer LLC was invalid because it was adopted out of order in a sequence defined by state statutes.

After being dismissed at the county level, Kitchell appealed to the state appellate court. Before the court could come back with a response, the city's attorneys filed a request with the state supreme court, which heard oral arguments in September.

The suit alleged an ordinance authorizing the city to engage in the public-private agreement process with Pyrolyzer is invalid because it was adopted after issuing a request for proposals regarding the power plant project.

In the suit, Brugh cites the Indiana Code's Home Rule Act, which states "If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise that power must do so in that manner." He applies this to the state's public-private agreement provision, concluding that the city had to first adopt the provision before issuing the request for proposals.

"The question in this case is whether the 'specific manner' required before a city may exercise the power to enter a public-private agreement includes a sequencing requirement," the state supreme court's opinion states. "We think not."

"...Nowhere does the act require a political subdivision to 'adopt' the act before taking any further action consistent with the act," the ruling continues.

Posted by Marcia Oddi on Thursday, November 14, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Can you tell immediately who is the attorney and who is the client in this photo?

Of course. The attorney is the person in the photo carrying the bags.

The story
in today's Indianapolis Star, reported by Chris Sikich, is headed "Steve Hilbert defends deal with Melania Trump in Indianapolis trial testimony over skin-care contract." The attorney accompanying Mr. Hilbert is Linda Pence.

Posted by Marcia Oddi on Thursday, November 14, 2013
Posted to Indiana Law

Wednesday, November 13, 2013

Ind. Decisions - Supreme Court (SCOIND) issues a third opinion today

In Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport, an 11-page, 5-0 opinion in a case which was granted emergency Rule 56(A) transfer, direct from the trial court, and for which oral argument took place on Sept. 5th (the same day as the Rockport argument), Justice Rucker writes:

In this case we address whether Indiana’s Public-Private Agreements statute requires a local legislative body to first adopt the statute before it may issue a request for proposals or begin contract negotiations as provided for under the statute. We hold it does not. * * *

In this case Kitchell contends that Ordinance 2013-07 is invalid because “the City did not have the authority to pass the ordinance.” Kitchell insists that the Public-Private Agreements Act dictates that before the City could issue an RFP to enter into a public-private agreement, the City was first required to have an ordinance in place empowering itself to enter into such agreements. Noting that the City issued the RFP on November 28, 2012 and the Ordinance was not passed until March 4, 2013, Kitchell argues, “[l]egislation enabling a city to use the statutory Public-Private Agreement Law must come first; any RFPs, negotiations, or legislation must follow.” * * *

[N]owhere does the [Public-Private Agreement] Act require a political subdivision to “adopt” the Act before taking any further action consistent with the Act. A reading of the Act as a whole indicates that it is designed to promote economic development which is executed in way that is transparent and open to public input and scrutiny. The record before us reflects that the City complied with the Act in every particular. Viewing the pleadings in the light most favorable to Kitchell, and with every inference construed in her favor, we conclude that as a matter of law Kitchell is not entitled to relief. Thus the trial court properly granted the City’s motion to dismiss for failure to state a claim upon which relief can be granted. * * *

The City requests an award of appellate attorneys’ fees pursuant to Indiana Appellate Rule 66(E), which provides in part: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” But the City makes no argument and cites no authority that would support such an award in these circumstances. We thus decline to exercise our authority to award appellate attorneys’ fees.

Here is a long list of earlier ILB entries on the Kitchell suit.

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court (SCOIND) issues two opinions today

In Jamar Washington v. State of Indiana, a 12-page, 5-0 opinion, Justice David writes:

In this case the defendant alleges that the trial court improperly instructed the jury regarding his claim that he was acting in defense of another. The defendant argues that the Court of Appeals misinterpreted our precedent in this area. Finding that the trial court did not err in its final instructions when it used the existing Indiana Pattern Jury Instruction on defense of another, we affirm the defendant’s conviction but remand the case to the trial court to correct an error in the abstract. * * *

We have granted transfer to address the jury instructions for self-defense and defense of another and the interpretation of Shaw v. State and French v. State. * * *

Conclusion. We affirm the decision of the trial court. Here, the instruction given by the court was a correct statement of law and Washington’s tendered instructions were not required. The trial court did not abuse its discretion in refusing to give them. We hold that the Indiana Pattern Jury Instruction is a correct statement of the law and continues to serve as the primary guide for our trial judges on this issue. It contains language which compliments the self-defense or defense of another statute regarding the factors as they existed in the mind of the defendant balanced against whether such belief was reasonable. Trial courts continue to have the discretion to augment the pattern instructions whenever they deem appropriate and to refuse any tendered instructions consistent with the requirements of Walden. Their decisions will be reviewed for an abuse of discretion.

However, we remand the case to the trial court to correct the abstract of judgment, as conceded by the State and held by the Court of Appeals. Specifically, there was a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction states that Washington was convicted of Class A misdemeanor resisting law enforcement. Therefore, upon remand, the trial court should enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.

In Billy Russell v. State of Indiana, a 7-page, 5-0 opinion, Justice David writes:
In this case, the defendant claims that the trial court should have given his tendered jury instruction on self-defense; however, his tendered instruction would have incorrectly limited the jury’s consideration to his subjective belief without assessing its reasonableness. Further, the defendant alleges that the trial court erred by not completely bifurcating the trial on his Serious Violent Felon (“SVF”) charge from the trial on his murder charge. Finding that the trial court did not err in utilizing the existing Indiana Pattern Jury Instruction on self-defense and in partially bifurcating the trial, we affirm the defendant’s convictions for murder and class B felony possession of a firearm by a SVF. * * *

The trial court did not abuse its discretion by refusing to give Russell’s tendered jury instruction or by partially bifurcating Russell’s trial. Accordingly, we grant transfer and affirm Russell’s convictions.

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Robert Kuntz, Kunodu, Inc., and B-K Interests, LLC v. EVI, LLC, a 17-page opinion, Chief Judge Robb writes:

Appellants Robert Kuntz, Kunodu, Inc., and B-K Interests, LLC (collectively, “Kuntz”) appeal the trial court’s issuance of a preliminary injunction and award of attorney fees in favor of EVI, LLC (“EVI”). Kuntz raises the following issues for our review: (1) whether the trial court erred in granting a preliminary injunction prohibiting Kuntz from competing against EVI; (2) whether the trial court improperly modified the terms of the parties’ covenant not to compete in conjunction with its grant of a preliminary injunction; (3) whether the trial court abused its discretion by awarding attorney fees to EVI; and (4) whether the trial court erred by entering a nunc pro tunc entry modifying its award of attorney fees for EVI.

We conclude that the trial court did not abuse its discretion by granting a preliminary injunction against Kuntz; however, the trial court improperly extended the duration of the parties’ covenant not to compete. Further, we conclude that the trial court erred by awarding attorney fees to EVI at this stage of the proceedings. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

In State of Indiana v. Molly Gray, a 12page opinion, Judge Bradford writes:
Cannelton Police Department Officer Micah Jackson initiated a traffic stop of Appellee-Defendant Molly Gray, during which he conducted a free-air canine sniff around Gray s vehicle. After the canine alerted to the presence of contraband, Officer Jackson searched the vehicle and found a bag of methamphetamine. Appellant-Plaintiff the State of Indiana charged Gray with Class D felony possession of methamphetamine. (App. 1, 10) Gray filed a motion to suppress the evidence, arguing that (1) the initial stop was pretextual and without cause and (2) that Officer Jackson lacked reasonable suspicion to delay the traffic stop in order to conduct a canine sniff, in violation of the Fourth Amendment. (App. 2, 25) The trial court granted the motion, and the State now appeals. Without addressing the validity of the initial stop, we conclude that the free-air canine sniff was not conducted incidental to the traffic stop and so required reasonable suspicion to justify increasing the duration of the stop. Finding that Officer Jackson lacked reasonable suspicion, we hold that the seizure was a violation of the Fourth Amendment and that the trial court did not err in suppressing the evidence. We affirm.
In David Williams v. State of Indiana, a 21-page opinion, Judge Mathias writes:
David Williams (“Williams”) was convicted in Putnam Circuit court of eight counts of Class A felony child molesting and one count of Class B felony incest and was sentenced to an aggregate term of ninety-nine years. Williams appeals and presents four issues, which we restate as:
I. Whether the trial court abused its discretion in admitting into evidence Williams’s statement to the police;
II. Whether Williams’s convictions for child molesting and incest constitute double jeopardy;
III. Whether the trial court abused its discretion in sentencing Williams; and
IV. Whether Williams’s sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm. * * *

[Conclusion] The trial court did not abuse its discretion in admitting Williams’s statement to the police into evidence because his statement was not coerced. Williams’s convictions for Class A felony child molesting and Class B felony incest do not constitute double jeopardy because there was no reasonable possibility that these convictions were based upon the same actual evidence. Lastly, even if the trial court did abuse its discretion in its consideration of certain aggravating factors in sentencing Williams, we need not remand for resentencing because the sentence imposed by the trial court is not inappropriate.

In Charles Cole v. State of Indiana , an 8-page opinion, Judge Brown writes:
Cole asserts that the court abused its discretion by increasing his bail to $10,000 sua sponte without a showing of good cause for the increase, that no new evidence supported the court’s decision, and that the bail amount for a class D felony is unusually high and twice as high as the maximum provided by the bail schedule under the Marion County local rules. The State maintains that the court did not abuse its discretion in setting Cole’s bail. * * *

For the foregoing reasons, we conclude that the trial court abused its discretion in increasing Cole’s bail from $2,500 surety to $10,000 surety, and we therefore reverse the trial court.

NFP civil opinions today (3):

Timothy W. Mackall, and Stephanie K. Mackall v. Cathedral Trustees, Inc., d/b/a Cathedral High School (NFP)

Tammy Price v. Review Board of the Indiana Department of Workforce Development and WC Fern Exposition Services(NFP)

In the Matter of E.B. (Minor Child), Child in Need of Services and R.K. (Mother) v. The Indiana Department of Child Services(NFP)

NFP criminal opinions today (4):

Billy Bulu Gercilus v. State of Indiana (NFP)

Zigfried Davis v. State of Indiana (NFP)

Shaun A. Fry v. State of Indiana (NFP)

Brenda Painter v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: 7th Circuit decides one Indiana case today, and it is big

Updating this ILB entry from Nov. 9th, Sean Gallagher of the Catholic News Service had this report yesterday. The story begins:

INDIANAPOLIS (CNS) -- A Catholic family in Madison that owns a vehicle lighting manufacturing company won an important religious liberty victory in a Nov. 8 ruling handed down by a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago.

Judge Diane Sykes, writing the majority opinion in the 2-1 decision, said that members of the Grote family and Grote Industries, which they own, cannot be compelled to provide abortion-inducing drugs, sterilizations and contraceptives to their employees in their company health plan as required under the Affordable Care Act.

The suit challenged the U.S. Department of Health and Human Services mandate in the health care law that requires most employers to provide such coverage even if they have moral objections to it.

"We hold that the plaintiffs -- the business owners and their companies -- may challenge the mandate," Sykes wrote. "We further hold that compelling them to cover these services substantially burdens their religious exercise rights."

More from the story:
Matt Bowman, senior legal counsel of Alliance Defending Freedom, has helped represent the Grote family in their suit. * * *

Currently before the high court are four petitions asking it to review lower court rulings related to the HHS mandate.

Bowman said that the fact that the ruling in the Grote case was handed down during the Supreme Court's considering of the petitions might persuade the justices to take up one or more of the cases, perhaps including the Grote case.

"The timing of this case adds importance to the issue, and shows that the government is trying to deny religious freedom to people in businesses all over the country," Bowman said. "The U.S. Courts of Appeals are, by and large, not letting the government do that."

Whether the Supreme Court chooses to hear the Grote case in particular, though, Bowman is confident that it will take up one or more cases related to the HHS mandate.

"The same issue is in front of the court in those other three cases," he said. "So the Supreme Court is most likely going to decide by June whether to deny religious freedom to people in most of their daily working lives."

Here is a long list of earlier ILB entries on the Grote Industries case.

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Dismissal of Ritz’s lawsuit leaves underlying question unanswered"

Updating this ILB entry from Nov. 8th, the Fort Wayne Journal Gazette has this good editorial this morning:

Attorney General Greg Zoeller should address the question left unanswered when Glenda Ritz’s lawsuit against the Indiana State Board of Education was dismissed. If board members took official action in pursuing an end run around the state superintendent, how can they also claim not to have violated the open meetings law?

Zoeller himself should be eager to see the question resolved. He has proved himself a champion of open government. He received the Hoosier State Press Association’s annual Frank O’Bannon Sunshine Award for a ruling in a lawsuit challenging the South Bend Tribune’s right to publish an audiotape of a call to the Department of Child Services hotline. The prior restraint created by the state’s injunction would violate the newspaper’s First Amendment rights, he said, clearing the way for release of the audiotape and subsequent improvements in child protection.

On Friday, a Marion County judge ruled that only the Indiana attorney general – Zoeller – can represent an elected state official in court, dismissing the suit filed by the state superintendent charging the state board of education violated the Indiana Open Door Law. An attorney representing the state superintendent, in the hearing before the Marion County judge, noted that Ritz’s office had asked Zoeller to file the lawsuit – or to allow her to hire outside counsel – but he refused.

That leaves Hoosiers with a troubling question: Can an appointed board simply sign a letter to take official action not approved at a public meeting? If it can, what are the implications for open government?

Ed Feigenbaum, editor of Indiana Legislative Insight, points out that an attorney recently advised the Central Indiana Regional Transit Authority that its plan to issue a recommendation after receiving more information outside a meeting would not be a legal action.

A complaint related to the Ritz matter was filed with the Indiana Public Access Counselor and could address the State Board of Education case. The complaint was made by Julie Hollingsworth, a member of the Fort Wayne Community Schools board, along with Bloomington parent Cathy Fuentes-Rohwer and former superintendents Ed Eiler of Lafayette and Tony Lux of Crown Point. They allege that 10 of the State Board of Education members violated the Indiana Open Door Law “by meeting and conducting public business in secret” in drafting a letter requesting legislative leaders to pursue release of the A-F school letter grades.

“To take this official action, the individual board members would have had to consult with and receive information from one another, deliberate, make recommendations, establish policy, make decisions or take final action,” according to the complaint.

The public access counselor, Luke Britt, hasn’t yet issued an opinion. But because his office has quickly addressed recent complaints, a ruling should be available soon. His opinion, though, would simply be advisory.

Aside from the confusion of legal standing, Hoosiers need clear direction on the State Board of Education’s disputed action. Unchallenged, it invites boards and commissions across Indiana to conduct business outside public view. Zoeller has stepped up to ensure transparency and protect taxpayers from unnecessary legal costs in other cases. He should do so again.

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Indiana Government

Ind. Gov't. - "Indiana utility regulator's job move raises new questions" - but are they really with the law itself?

Late yesterday John Russell of the Indianapolis Star posted this story. Some quotes:

The newest member of the powerful Indiana state agency that approves utility rates is resigning after less than three years on the job to take a job with a private organization that represents dozens of utilities across the Midwest in controlling the region’s electrical grid.

Kari A.E. Bennett plans to leave the Indiana Utility Regulatory Commission on Nov. 22 to take a job as senior corporate counsel with the Midcontinent Independent System Operator, better known as MISO. * * *

Indiana’s inspector general cleared Bennett to take the MISO job, saying the move would not violate Indiana’s revolving door rules because she would not be lobbying the IURC in her new capacity. * * *

MISO, based in Carmel, represents more than 40 utilities, including Duke Energy, Indianapolis Power & Light Co., Vectren and Northern Indiana Public Service Co., all of which appear before the IURC to seek approval for utility rates and projects. It also represents some citizens’ groups and consumer advocates.

Bennett is one of five commissioners on the IURC that sets utility rates and reviews requests for new power plants. She was appointed in January 2011 by then-Gov. Mitch Daniels to fill the unexpired term of David Lott Hardy. * * *

MISO is responsible for overseeing nearly 66,000 miles of transmission lines that make up the electric grid throughout the Midwest and part of Canada.

At the IURC, Bennett served as liaison between the agency and MISO over such things as ironing out transmission boundaries that involved Indiana utilities.

Indiana law requires state employees to wait for a year after leaving government to take a job as a lobbyist or with an organization with whom they negotiated any contracts or made decisions that affected their new employer.

The IURC’s general counsel and ethics officer, Doug Webber, told The Star that Bennett would not lobby the IURC or any other of Indiana’s executive offices in her new job.

Webber said he sought and received informal approval from the Indiana Inspector General’s office to clear Bennett to make the move, in an effort to avoid any possible ethics issues.

Later in the story:
The IURC issued a press release on Friday about Bennett’s resignation, but did not say where she was going.

Then for several hours on Tuesday, the agency and the ethics commission both said that request for an informal ethics opinion, as well as the response, were confidential under state law. The IURC ultimately agreed to release both documents.

Julia Vaughn, program director for Common Cause/Indiana, said the IURC continues to suffer from credibility issues.

“It’s discouraging that the IURC and the ethics commission seem to have forgotten all about the dark cloud of impropriety that continues to hang over the utility commission,” she said.

Reporter Russell has now provided a link to the IURC's request to the Inspector General for an informal opinion on Kari Bennett's move to MISO, along with the response from the Inspector General's office.

The Star story ends with this:

Julia Vaughn, program director for Common Cause/Indiana, said the IURC continues to suffer from credibility issues.

“It’s discouraging that the IURC and the ethics commission seem to have forgotten all about the dark cloud of impropriety that continues to hang over the utility commission,” she said.

ILB: However, it appears that the critics' issues should be with the law itself, not with its implementation in this case.

For background, here is Gov. Daniels' announcement of his appointment of the highly qualified Ms. Bennett to the IURC on Jan. 13, 2011. Her term would have ended on March 31, 2014. The ILB, for one, is sorry to see her go.

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Indiana Government

Ind. Gov't. - HJR 6: Saying "let the people decide" is a false choice

"Lawmakers not ready to fold on same-sex marriage ban: It should be up to voters, they say," is the heading to this Dave Bangert column in the Lafayette Journal Courier. Some quotes:

[N]o matter how many universities (IU, Wabash and DePauw so far), how many city councils (the Indianapolis City-County Council was the latest, on Monday) and how many businesses line up against House Joint Resolution 6, the next move really belongs to 150 people in the Indiana House and Senate.

And to hear Sen. Brandt Hershman, a Buck Creek Republican who has been instrumental in guiding the same-sex marriage question to a public referendum, tell it, the more people line up to protest, the more reason there is to keep going. * * *

“I will happily abide by whatever decision the general public makes. And I think the increased discussion that has occurred on this is a very healthy thing. I will say, my personal views on the matter aren’t nearly as important to me as allowing the public to speak their piece.”

Hershman, who represents much of the Lafayette area, carried a similar measure in 2008. It died when Democrats in the Indiana House refused to let it out of committee. * * *

Hershman’s view — let the people decide — has become a landing zone for lawmakers as attitudes shift under their feet since they voted overwhelmingly in favor of the constitutional referendum in 2011.

ILB: Here is the problem with the Hershman position of putting HJR 6 on the ballot next November and "letting the people decide." All that the people will be deciding is whether in the future our Indiana constitution's bill of rights will include a prohibition against same-sex marriage and any "legal status identical or substantially similar to that of marriage for unmarried individuals." But the statutory prohibition against same-sex marriage, IC 31-11-1-1, will remain on the Indiana statute books.

So what is the General Assembly really looking at?

So with HJR 6 the voters are deciding only whether to take the "belt and suspenders" approach to same-sex marriage in Indiana, they are not deciding on whether same-sex marriage should be permitted in Indiana.

In a June 26th post headed "HJR 6: Will the voters really "have their say" on marriage equality? Or is this a Hobson's choice?," I wrote:

... the General Assembly should tie together repeal of the existing statute banning same-sex marriage with placing the marriage equality constitutional amendment (HJR 6) before the voters in 2014.

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

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

Posted by Marcia Oddi on Wednesday, November 13, 2013
Posted to Indiana Government

Tuesday, November 12, 2013

Ind. Courts - Following up on the federal suit against the way Marion County judges are selected

The lawsuit is Common Cause Indiana v. Indiana Secretary of State. It challenges the way Marion County judges are selected. The ILB has had a number of posts, including links to a number of documents:

Posted by Marcia Oddi on Tuesday, November 12, 2013
Posted to Indiana Courts

Environment - "Obama's green energy drive comes with an unadvertised environmental cost"

Ethanol is much in the news today, due to an AP ethanol investigation, disclosing the unsurprising facts that the lure of ethanol $$$ has led to environment damage, while the use of ethanol does not have the touted environmental benefits. Some quotes from the very long story reported by Dina Cappiello and Matt Apuzzo, as printed in the Lafayette Journal Courier:

[T]he ethanol era has proven far more damaging to the environment than politicians promised and much worse than the government admits today.

As farmers rushed to find new places to plant corn, they wiped out millions of acres of conservation land, destroyed habitat and polluted water supplies, an Associated Press investigation found.

Five million acres of land set aside for conservation — more than Yellowstone, Everglades and Yosemite National Parks combined — have vanished on Obama’s watch.

Landowners filled in wetlands. They plowed into pristine prairies, releasing carbon dioxide that had been locked in the soil.

Sprayers pumped out billions of pounds of fertilizer, some of which seeped into drinking water, contaminated rivers and worsened the huge dead zone in the Gulf of Mexico where marine life can’t survive.

The consequences are so severe that environmentalists and many scientists have now rejected corn-based ethanol as bad environmental policy. But the Obama administration stands by it, highlighting its benefits to the farming industry rather than any negative impact.

Farmers planted 15 million more acres of corn last year than before the ethanol boom, and the effects are visible in places like south central Iowa.

The hilly, once-grassy landscape is made up of fragile soil that, unlike the earth in the rest of the state, is poorly suited for corn. Nevertheless, it has yielded to America’s demand for it.

“They’re raping the land,” said Bill Alley, a member of the board of supervisors in Wayne County, which now bears little resemblance to the rolling cow pastures shown in postcards sold at a Corydon pharmacy.

All energy comes at a cost. The environmental consequences of drilling for oil and natural gas are well documented and severe. But in the president’s push to reduce greenhouse gases and curtail global warming, his administration has allowed so-called green energy to do not-so-green things.

In some cases, such as its decision to allow wind farms to kill eagles, the administration accepts environmental costs because they pale in comparison to the havoc it believes global warming could ultimately cause.

Ethanol is different.

The government’s predictions of the benefits have proven so inaccurate that independent scientists question whether it will ever achieve its central environmental goal: reducing greenhouse gases. That makes the hidden costs even more significant.

“This is an ecological disaster,” said Craig Cox with the Environmental Working Group, a natural ally of the president that, like others, now finds itself at odds with the White House.

A second AP story today begins:
A new Associated Press investigation, which found that ethanol hasn't lived up to some of the government's clean-energy promises, is drawing a fierce response from the ethanol industry.

In an unusual campaign, ethanol producers, corn growers and its lobbying and public relations firms have criticized and sought to alter the story, which was released to some outlets earlier and is being published online and in newspapers Tuesday. The Agriculture secretary, Tom Vilsack, told the Des Moines Register that the AP project included "a number of inaccuracies and errors." Vilsack said farmers were engaged in other conservation practices, including wetland reserve programs, wildlife habitat incentive programs and EQIP, a program that helps farmers adopt conservation practices.

The industry's efforts, which began one week before the AP project was being published and broadcast, included distributing fill-in-the-blank letters to newspapers editors that call the AP's report "rife with errors." Industry officials emailed newspapers and other media, referring to AP's report as a "smear," ''hatchet job" and "more dumpster fire than journalism."

Ryan Cooper writes today in the Washington Post blog, The Plum Line:
On the climate and environmental side, corn ethanol is turning out to be worse than anyone imagined. On the conservative side, corn ethanol only survives due to a government mandate that it be included in American fuels — the stuff of free market nightmares.

Today, the Environmental Protection Agency is expected to release its latest ethanol inclusion mandate, which for the first time would reduce its size. This is a good first step, but it’s high time Congress acted to kill the mandate altogether.

Environmentalists have always been rather skeptical about corn ethanol in general. Under ideal conditions, it provides a slight climate advantage over gasoline, but with only a small departure from best practices, that advantage evaporates. Corn needs fertilizer, and ethanol factories need energy, both of which typically come from natural gas. Finally, an ethanol mandate would increase the price of corn, which could spark new planting of corn in previously undisturbed areas, a process which releases huge amounts of greenhouse gases.

It’s been clear for some time now that corn ethanol was not living up to its promises. But a recent blockbuster report from AP makes crystal clear that all the skeptics were right. Not only are the theoretical benefits smaller than predicted, the price of corn has skyrocketed (also due in part to commodity speculators). The feared massive new planting has indeed happened, and much of it on marginal land that is eroding fast and washing millions of tons of toxic fertilizer into nearby waterways. Compounding everything, this is all happening during a prolonged and terrible drought, sharply increasing the amount of land dedicated to fuel at a time of food scarcity.

The mandate was supposed to spark the development of cleaner biofuels (like “cellulosic” ethanol), which are compelling in theory. But it’s been six years with no result, and the current situation is doing so much damage that it’s time to just cut our losses. Besides, a thriving biofuels industry already exists in the form of Brazilian sugarcane ethanol, which is unambiguously a big win on climate change. Biofuels research will continue, especially if the EPA manages new regulation on carbon dioxide.

Posted by Marcia Oddi on Tuesday, November 12, 2013
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Matthew Townsend v. Lyvonda Townsend (NFP)

NFP criminal opinions today (6):

James Edward Banks, Jr. v. State of Indiana (NFP)

Bill R. Clark v. State of Indiana (NFP)

Derek Lee Morris v. State of Indiana (NFP)

John R. Tyrrell v. State of Indiana (NFP)

Larry Harris v. State of Indiana (NFP)

Mitchell A. Barnes v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 8, 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, November 8, 2013. It is two pages (and 25 cases) long. Three cases were granted transfer last week:

A notable transfer denial on the list is the case of Robert E. Redington v. State of Indiana. This was an August 6th, 2-1 COA decision with three separate opinions on the decision by the trial court to removal Redington's gun arsenal. He "would, on numerous occasions, travel to Bloomington from Indianapolis and park in a third story parking lot where he would use a range finder to scope out the distance from the parking lot to different locations around Kilroy’s Bar-N’Grill. He did so in the hopes of seeing Lauren Spierer or communicating with spirits whom he believed could provide him with information to help him find Spierer or avenge her disappearance."

Posted by Marcia Oddi on Tuesday, November 12, 2013
Posted to Indiana Transfer Lists

Monday, November 11, 2013

About this blog - SCOTUSblog for sale, say it isn't so

Or, no good thing lasts forever.

The ABA Journal is confirming the AP report that SCOTUSblog, the touchstone of law blogs, will be for sale next year. Tom Goldstein, the blog's founder, is reported as saying his current expenses to run the blog are $500,000 a year! Hmmm, the ILB budget is about 7% of that.

Posted by Marcia Oddi on Monday, November 11, 2013
Posted to About the Indiana Law Blog

Ind. Courts - The significance of a denial of transfer by the Supreme Court

According to Appellate Rule 58(B):

B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court.
The ILB has written in the past about the import of a Court of Appeals opinion for which the Supreme Court has denied transfer. I can't locate any of those posts right now. But the question that reoccurs is, if the Supreme Court has denied transfer, does that mean the Court of Appeals holding is correct? The question recurred to me in reading this story by Dan Carden in today's NWI Times, headed "Litigants face long road to Indiana Supreme Court." Some quotes:
[O]nly 868 [cases] eventually were appealed to the Supreme Court, which declined to hear most of them. The court issued just 78 rulings between July 1, 2012, and June 30, 2013, excluding attorney discipline orders. * * *

The Court of Appeals last year decided 2,155 cases. That means about one out of every two-and-a-half Court of Appeals decisions was further appealed to the Supreme Court.

[Chief Justice Brent Dickson], who has served on the state's top court since 1986 and became chief justice in 2012, said numerous factors go into the Supreme Court's decision to "grant transfer," or hear an appeal of a Court of Appeals ruling.

"It depends on the case," Dickson said. "The court of last resort ... has a particular responsibility to make sure the precedent for the state is headed in the right direction."

He explained when the justices are reviewing cases to hear, they distinguish between "law making" and "error correction" cases.

"If the case involves making law, or making sure that the principles of law that are in a published opinion are correct or incorrect, they're more inclined to take the case," Dickson said.

He said error correction cases are heard less frequently, because often a lower court has more or less satisfactorily resolved a situation that is unlikely to come up again.

"If ... the Court of Appeals reaches a decision in which they make a call, the Supreme Court may well say, 'They may or may not have gotten that right, but we don't want to take resources away from our other responsibilities and address that," he said.

It takes agreement by at least three of the five justices to grant transfer of a Court of Appeals ruling.

Dickson said a decision to not grant transfer also sends a message to appellate judges. Such as, "This case doesn't make the grade but we'd like to see it again," or, "We're not altogether sure it's right, but we're going to let it go this time," he said.

Posted by Marcia Oddi on Monday, November 11, 2013
Posted to Ind. Sup.Ct. Decisions

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

" Indiana court asks legislature to tackle same-sex custody: Elkhart women split up, fight for rights to 5-year-old" is the heading to a lengthy story by Madeline Buckley in the Sunday, Nov. 10 South Bend Tribune, re a custody battle involving a same sex couple:

The couple split when the boy was 2, and Jasinski took full custody of the child.

So Carpenter filed for joint custody and asked for visitation rights in Elkhart Superior Court.

Judge Stephen Bowers denied the petition, stating Indiana law is not clear on the rights and obligations of same-sex partners who had a child together but have not gone through the adoption process.

"She considers this little boy her son, even though she didn't legally adopt him," Carpenter's attorney, Lesa Duvall, said. "He's her son and she's his mommy."

Through her attorney, Carpenter declined to give an interview for this story.

In a plea to the Indiana Court of Appeals, Carpenter argued she has acted as a parent in the boy's life and it is in the child's best interest for that relationship to continue.

But Jasinski argued that Carpenter has no legal standing for custody under current Indiana laws.

The Indiana Court of Appeals handed down a precedent-setting decision in the case last week that somewhat clarifies this lightning rod of an issue, but the judges asked the legislature to further address the matter, suggesting lawmakers enact "laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings."

The little boy's situation isn't unprecedented in Indiana -- quite the opposite -- but there are few legal guidelines from the courts or legislature to help guide trial judges through these cases.

"I know that this looks like I'm fighting against gay rights, but I'm not," Jasinski told The Tribune. "It's about my son and what's best for him, and what's going to protect him in the long run."

The right to visit

In a unanimous decision issued Oct. 31, the appeals court ruled that Carpenter does not have legal standing to ask for joint custody, but it said she could ask for visitation, which a judge in Elkhart County could grant if he or she decided that was in the best interest of the child.

"Before this case, if you were not parent, stepparent or grandparent, you did not have standing to ask for visitation," Amy Griner, Jasinski's attorney, said. "Now, after this case, they have extended that right to same-sex partners."

The parties could appeal the decision to the Supreme Court, but both said they don't plan to do so, and will argue the issue of whether visitation is best for the child in Elkhart Superior Court.

The appeals court position clarified a 2005 Indiana Supreme Court decision on a case with almost identical circumstances in which two women ended a domestic partnership during which one woman gave birth to a child from sperm her partner's brother donated.

In that case, the appeals court had ruled the partner who did not give birth to the child should be a legal parent, but the Supreme Court later nulled the opinion, though it left some room for future courts to grant standing for visitation, if not custody. * * *

State Sen. Carlin Yoder, R-Middlebury, released a statement agreeing with the appeals court that the issue needs legal clarification.

"It's the legislature's responsibility to set public policy in these situations," Yoder said. "I don't know whether or not any legislature can develop a comprehensive custody policy for every possible family scenario, but I'm willing to say this is an area of Indiana law we need to review."

Yoder led a summer study committee on child services oversight and said he believes the biggest issue in such cases is ensuring the best situation for the child.

Gay advocacy groups say they hope for laws to protect same-sex parents and the children they raise. * * *

What's best for the child?

Judge Nancy Vaidik posed the question during oral arguments in the Jasinski-Carpenter case: "Where does the best interest of the child fit in here?"

The attorneys argued a question of law, specifically, whether Indiana law allows any rights to a non-biological parent in a same-sex relationship who has not gone through the adoption process.

But what about the child?

Both women in this case believe they are doing what is best for the little boy. That matter will now be settled in the courts in Elkhart County.

For more, see this long Oct. 31st ILB post, plus this follow-up from the same day.

Posted by Marcia Oddi on Monday, November 11, 2013
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Oct. 26th, Jeff Wiehe reported Nov. 5th in the Fort Wayne Journal Gazette:

A little more than a week after firing a magistrate in Allen Superior Court’s Family Relations Division, Judge Dan Heath has found a replacement.

Dan Pappas was named as the new magistrate in the division, replacing Karen Springer, who was terminated late last month for undisclosed reasons.

Heath and Judge Charles Pratt named Pappas as the new magistrate in a statement Monday.

Pappas has been the chief public defender in DeKalb County since 2001. He’s also served stints in the Allen County Prosecutor’s office and as a public defender in Allen County in the late 1980s and early 1990s, according to the statement from the judges.

Posted by Marcia Oddi on Monday, November 11, 2013
Posted to Indiana Courts

Ind. Courts - The Brown Trial Concluded Sunday; Professor Schumm's Summary and Reflections

Closing arguments in the Kimberly Brown judicial ethics trial concluded at 3:30 Sunday afternoon, following a day of testimony from thirteen witnesses for the Respondent. Judge Kimberly Brown did not testify as part of the Respondent’s case; however, she had been called as the Commission’s first witness on Monday.

Her sister, Judge Linda Brown, also a member of the Marion County trial bench, was a witness for the Respondent on Saturday, a day that also included several other Marion County judicial officers (judges, magistrates, commissioners), individuals who are not accustomed to receiving subpoenas or being forced to wait long periods of time to testify in a proceeding. It’s unclear how that testimony helped Judge Brown’s case. Based on Sunday’s closing arguments, counsel for the Commission seemed to rely on that testimony even more than the Respondent did.

The Commission’s Closing

Ms. Meiring, counsel for the Commission, emphasized the case did not involve “an isolated mistake” or “simply a bad day” but rather urged the masters to consider: (1) the totality of the circumstances, (2) Judge Brown’s failure to act (and promptly fix mistakes even in the face of more than one request), (3) Judge Brown’s retaliation against those who brought errors or issues to her attention, and (4) her evasion. Meiring went through each of the 47 counts and identified the witness or witnesses (sometimes several) whose testimony supported each allegation. She mentioned specific exhibits for some of the counts, many of which involved delayed releases from jail, as well as moving a case to the end of the court session and then leaving the bench without listening to a public defender’s arguments about a jury trial that was being continued (Count 24). Meiring ended her closing argument by discussing "white-out" found on a box of a minute sheet during the course of the investigation, explaining she did not allege lightly that only one person (Judge Brown) had a “motive” to alter the minute sheet.

The Respondent’s Closing

Mr. Haith’s closing was in many ways the antithesis of Ms. Meiring’s. She was meticulous in citing evidence to support each count; I don’t believe Haith mentioned a single count or made a specific argument for why the Commission had not proven any one of the counts. Instead, he spoke more broadly and concluded by thanking the Commission for reviewing the evidence “thoroughly.”

A major thrust of Haith's closing argument was what he called the “complex” JUSTIS electronic case management system used in Marion County criminal courts.* He never seemed to deny that the errors alleged were made during Judge Brown’s tenure but instead emphasized that errors occurred in other courts and oddly pointed out that no “report” or “study” of errors had been prepared by the Marion County courts. He noted that Judge Brown had “constantly made changes to address issues” and to work on reducing errors.

As to the allegations relating to Judge Brown’s demeanor, Mr. Haith again did not focus on specifics but rather suggested that courtroom actions are “subject to many interpretations.” Alluding to testimony of private counsel called by him and a court-line deputy who was often in the courtroom, Haith argued there was no showing that any lawyers were treated better or differently than others.

Near the end of his closing, Haith returned to the she’s-no-worse-than-the-others’ theme: “when we look at the whole this could be any judge subjected to an eighteen-month inquiry.”

As someone who knows many of the Marion County judges and places externs in many of their courts, I couldn’t disagree more emphatically with the suggestion that an investigation of any length would reveal misconduct, much less the pervasive and multiple instances alleged in this case.

The Commission’s Rebuttal

Ms. Meiring responded directly and forcefully to the she’s-no-worse argument, noting the other judges who testified identified far fewer errors and “acted immediately” in response to the errors, specifically pointing to responses from Judges Rubick, Crawford, and Pierson-Treacy. She pointed out that it only takes five minutes to review records at the end of the day to make sure release paperwork was done correctly.

Ms. Meiring ended by noting the many opportunities afforded to Judge Brown to provide information during the investigation, and by returning to Judge Brown’s behavior even after the filing of charges, specifically her belief she was “above” taking the oath at her deposition. Meiring asked if this was conduct becoming of a judicial officer in our state, and answered a “resounding no.”

A Different, More Vocal Bench

I wrote on Friday about the special masters: “Although the judges are working long hours, they have been remarkably patient even when the proceeding appears to be needlessly dragging on.” Patience is never without limit, and the masters (especially Judge McClure) were more vocal and active in moving the proceedings along on Sunday. The masters would sometimes intervene and rephrase a question from counsel that was confusing or occasionally rule a question impermissible before an objection was made.

Mr. Haith tested the limits of their patience in questioning an employee of Judge Linda Brown about the opinion one of Judge Kimberly Brown’s bailiffs had expressed of the intelligence of Judge Kimberly Brown’s court reporter. Mr. Haith appeared confused by the sustaining of hearsay objections and then rephrased his question, “What did you hear?” Even before Ms. Meiring could object, Judge McClure correctly noted, again, that the question called for hearsay.

What Next?

The Supreme Court’s September 27 order required the case be resolved on an expedited basis and directed the masters to submit their report and a transcript of the hearing no later than December 30, 2013. At the end of Sunday’s hearing, the masters noted the court reporter would complete the entire transcript by November 27 but would send parts of it as completed before that date. Although counsel are not required to prepare proposed findings of fact and conclusions of law, they may do so no later than noon on November 27 (just in time to enjoy Thanksgiving festivities the following day).

Two Key Players

Friday’s post discussed the masters and counsel. Two other people played critical roles—and worked incredibly long hours. The court reporter who expected a Monday through Friday assignment during normal business hours ended up working a seven-day week, sometimes approaching twelve-hour days. And her job isn’t close to over. She now has to complete a transcript of the week-long hearing in less than two and a half weeks. (The Indiana Appellate Rules give court reporters 90 days to complete any transcript, many of which are a tiny fraction of the length of this one.)

Indiana Supreme Court Sheriff Gary Miller wore several hats during the past week. Sunday morning after opening the courtroom and library he was at the guard gate in the north parking lot to allow the special masters access to park. He was then in the courtroom with several pitchers of water for counsel and the masters, a special delivery of coffee for one of the masters, and started and ended the court sessions throughout the day (and week).

An Odd Tuesday Return to the Bench

Presumably Judge Brown will return to the bench on Tuesday, November 12. (Monday is a court holiday.) Although the Commission had requested Judge Brown's interim suspension when it filed the 45 charges of misconduct, “a majority” of the Supreme Court on September 27 denied that request. Based on that language, presumably one or two of the justices disagreed. Although the staff members and lawyers who provided the strongest testimony against Judge Brown are no longer in her court, it is somewhat difficult to see her presiding over important proceedings that affect our citizen’s liberty in light of the evidence at the hearing, including her very own conduct regarding the refusal to take the oath. Perhaps the Commission will renew its request for an interim suspension. The Indiana Supreme Court emphasized in a 2004 judicial ethics opinion “that judicial discipline proceedings are designed not simply to punish wrongdoing. Rather, they also help to ensure that judges are fit for judicial duty, restore public confidence in the administration of justice, and preserve the integrity and independence of the judiciary.”

Are Exhibits Public Records?

The ILB is requesting copies of a few noteworthy exhibits from the trial and will post them if/when they are provided.

Not Newsworthy?

Although the filing of charges against Judge Brown generated a headline, the trial has received sparse coverage in the Indianapolis media. Hundreds, if not thousands, of Indianapolis residents have appeared in Judge Brown’s court as defendants or victims throughout her nearly five years on the bench. A seven-day trial would require a significant investment of reporter time to cover in its entirety, but these hearings have revealed a great deal about the operations of the Marion County courts. The functioning of our trial courts receives far less coverage than fairly mundane happenings with the mayor or city council.
*I believe JUSTIS was created in the 1980s. It was firmly entrenched and easily understood by court staff when I worked in the Marion County clerk’s office during part of my 1L year (1994) and in Criminal Court Five during the remainder of law school (1995-98).

Posted by Marcia Oddi on Monday, November 11, 2013
Posted to Schumm - Commentary

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

From Sunday, Nov. 10, 2013:

From Saturday, Nov. 9, 2013:

From Friday afternoon, Nov. 8, 2013:

Posted by Marcia Oddi on Monday, November 11, 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 11/11/13):

Next week's oral arguments before the Supreme Court (week of 11/18/13):

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

Tuesday, November 12th

Next week's oral arguments before the Court of Appeals (week of 11/18/13):

Tuesday, November 19th

Thursday, November 21st

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, November 11, 2013
Posted to Upcoming Oral Arguments

Sunday, November 10, 2013

Courts - Measure to raise the retirement age for justices on NY's highest court to 80 fails referendum of voters

Currently to retirement age for the highest NY court (the Court of Appeals) is 70, per the NY constitution, and it will stay that way now for the foreseeable future.

Two stories on this issue from the NYT, both reported by James C. McKinley, Jr., detailing the competing interests:

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Courts in general

Ind. Decisions - "Supreme Court allows parents of molested boy to sue YMCA"

The Supreme Court's Nov. 5th decision in Jason Wilson v. Kelly (Wilson) Myers (ILB summary here) was the subject of a Nov. 8th story in the Indianapolis Star, reported by Vic Ryckaert. From the story:

The Indiana Supreme Court upheld a lower court ruling that allows the parents of a day camper who was sexually assaulted by a stranger in 2006 to sue the YMCA of Greater Indianapolis.

The boy, then 8, was among 20 children on a YMCA Day Camp outing when he was assaulted by a sexual predator at Creekside Park in Zionsville.

The Supreme Court on Thursday upheld a July 19 Indiana Court of Appeals decision clearing the way for the parents to sue the YMCA for damages. * * *

Marion Superior Court Judge Heather Welch dismissed the parents’ lawsuit in September 2012. The Supreme Court ruling means the case is headed back to Welch’s court.

Daniel Chamberlain, the family’s attorney, filed a motion for an expedited jury trial on Friday. The family did not specify a damage amount.

“(Y counselors) lost an 8-year-old boy in the woods who was sexually attacked,” Chamberlain said. “It’s really an issue of accountability.”

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Same-sex marriage battle brewing: Lobbyists, PACs part of 2-phase fight over state’s constitution"

Niki Kelly has this long story in the Sunday Fort Wayne Journal Gazette. Some quotes:

The two-phase fight is already revving up and could last a year. The clash starts in the legislature and may well end in a ballot battle next November.

It’s been years since Indiana has had a significant campaign on a public question – the last big one in 1988 when the issue of eliminating the constitutional ban on gambling arose.

The move to amend the Indiana Constitution to prohibit same-sex marriage began in 2004 and has been stymied multiple times over the years. It takes two separately elected General Assemblies to approve the amendment before sending it to a vote.

It passed both the Indiana House and Senate in 2011. Then an election occurred in 2012, meaning it has to pass again this year or the process must start over.

Republicans are under immense pressure as the public sentiment has shifted. The party is struggling to please both social conservatives who support it and business interests that oppose.

One House Republican member last week said his vote in support two years ago was a mistake and he won’t support it again.

“For us to put that amendment in the constitution and to lock down generations with bigotry is wrong,” Rep. Sean Eberhart, R-Shelbyville, told the Shelbyville News.

ILB: Here is the complete quote from the Nov. 5th ShelbyNews:
In 2011, Eberhart voted in favor of the ban. Today, he considers that vote a "mistake."

"I won't support it again. I made a mistake in 2011, and I have reversed my stance completely. My kids were a big reason why, and they enlightened me on how their generation feels about the issue. For us to put that amendment in the Constitution and to lockdown generations with bigotry is wrong. It is flat out wrong. This issue has changed. In 2006, when I was elected, I think a wide majority supported putting it in the Constitution, but times change. There is nothing wrong with changing your stance, and you have to re-evalute issues from time to time. I will not support it if it comes up again," Eberhart said.

More from the FWJG story:
Freedom Indiana, a bipartisan coalition fighting against the amendment, is hoping to avoid the trip to the polls by swaying more lawmakers like Eberhart. * * *

To that end, the group has put together a lobbying team that includes two employees and 11 lobbyists from five high-profile law firms.

Charles Harris, executive director of the Indiana Lobby Registration Commission, said the key filing date for lobbying activity during the session will be May 31.

Lobby reports have to include all expenses, such as entertainment and gifts for specific legislators, if they hit the threshold of $50 in one day or $250 in a reporting year. * * *

If the amendment passes both the House and Senate the second part of the battle begins – trying to swing Hoosier voters for or against the ban.

Brad King, the Republican co-director of the Indiana Election Division, said this is where campaign finance law is applied.

He said federal law requires more reporting for issue advocacy than state law. And state campaign finance requirements start only when there is officially something on the ballot to advocate for or against. King expects several political action committees on both sides of the issue to be created.

Some of the conservative groups already have existing PACs that can be used, and Freedom Indiana will create one if need be, Wagner said.

PACs must report who contributes money and how it is spent. The most important filing date will likely be October 2014.

There are many more details relating to lobbying and PACs in the long story.

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Indiana Government

Ind. Decisions - More on: "Elkhart teen begins appeal of his murder conviction"

Updating this ILB entry from Oct. 10, 2013, where the ILB quoted an Elkhart Truth story from Oct. 3rd reporting that attorney Cara Weineke had asked to the trial court "to find her client indigent, so that he can obtain a copy of the trial transcript free of charge", the trial court denied the request, although Weineke explained that the cost of the transcript alone ($5,000 ) would be far more than the fee the defendant's clients had agreed to pay her. Weineke appealed the ruling. Last week she told the ILB:

Thought you might like to know that the Court of Appeals granted my request for Blake Layman to proceed in forma pauperis for purposes of appeal.

The order states, "Appellant is relieved of the obligation to pay for the transcript, the Clerk's Record, and the filing fee on appeal."

A lot of attorneys don't know that even if you are private counsel, you can still get funds for other expenses if your client is indigent. Which is a good thing or I would have been doing this appeal for free.

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Ind. App.Ct. Decisions

Courts - "Kentucky attorney general fears court ruling could cripple his powers"

Andrew Wolfson had this lengthy story this weekend in the Louisville Courier Journal. Some quotes:

In a case Kentucky Attorney General Jack Conway says is so important he will argue it himself, the state Supreme Court Thursday will consider whether his office has the power to investigate drug trafficking and other crimes statewide.

Two Court of Appeals panels have said it doesn’t. Reversing trafficking convictions in two Eastern Kentucky cases investigated by Conway’s office, the panels said the attorney general can investigate drug crimes only when requested by local officials or the governor.

In court papers, Conway says that if they rulings stand, his office could be stripped of its power to fight crimes including cyber crimes and child pornography, putting the safety of Kentucky residents at risk.

It will be the first case Conway has argued personally since taking office in 2008. Sixteen attorneys general from other states have filed a friend-of-the-court brief supporting him, saying the Court of Appeals rulings undermines the inherent power to protect life and public safety that attorneys general have enjoyed since the middle ages in England.

In another brief, Kentucky’s elected prosecutors, state police and other law enforcement groups say the sworn officers of the attorney general’s office must be able to help investigate crimes that do not stop at the city or county line. * * *

The attorney general’s office has 32 sworn officers who investigate drug offenses, computer crimes, Medicaid fraud and public integrity allegations, and together, they have 766 pending cases, according to spokeswoman Allison Martin.

But Assistant Public Advocate Emily Holt Rhorer says in a brief for convicted trafficker Floyd Grover Johnson that “criminal investigations need to be conducted by those who know the county in which the crime has taken place.”

“It is not disputed that the attorney general can, an even should, taken an active interest in drug offenses across the commonwealth” — but only when they are invited, she says. * * *

While the attorney general is by law the state’s chief law enforcement officer, she notes that he is also the state’s chief prosecutor, yet that doesn’t mean he can prosecute all cases.

And she argues that the General Assembly has specifically given the attorney general the power to investigate certain crimes, including identity theft and environmental offenses, which would be unnecessary if it already had the power to investigate crimes statewide.

The LCJ story includes a link to the Kentucky Court of Appeals opinion in Johnson v. Kentucky.

It appears that one can watch oral arguments live before the Kentucky Supreme Court here.

What about Indiana? Within my direct memory of state government, which extends back to 1965, the Attorney General of Indiana's jurisdiction did not always extend to the prosecution of county cases. However, the AG law has been much expanded by the General Assembly over recent years. See IC 4-6-2.

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Courts in general

Ind. Courts - "Newest justice lends court wise counsel"

From the Fort Wayne Journal Gazette today, a long editorial marking the first anniversary of Loretta Rush's taking a seat on the Indiana Supreme Court:

The Indiana Supreme Court is a better institution today than it was a year ago for one simple reason: Justice Loretta Rush. In her first year on the bench, she’s settled any doubts about the value of a judicial system more representative of the state’s population.

As one legal scholar notes, the former Tippecanoe County jurist has “wowed the legal community and beyond with her thoughtfully crafted and impactful opinions, incisive questions at oral argument and her many speaking engagements and administrative work.”

Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law, points to some of those opinions, including one overturning an adoption order granted in favor of the foster parents after a mother successfully appealed termination of parental rights for her twins.

“We understand the trial court’s concern for a speedy, permanent placement for the twins,” Rush wrote in an opinion that also chided the Indiana Department of Child Services for a three-year delay in resolving the mother’s challenge of the adoption. “But a fit parent’s rights are fundamental and constitutionally protected. …(L)etting the adoption stand would be an overreach of State power into family integrity.”

“Justice Rush has demonstrated a knack for writing opinions that lay out a clear roadmap for the lawyers and judges to follow in future cases to avoid the same issues, especially in cases involving the termination of parental rights and juvenile delinquency,” noted Kaarin Leuck, a public defender and juvenile advocate in Wayne County. “(Her opinions) always seem to drive home the point that procedural safeguards are there for a reason and must be followed in order to have a fair and just system.”

Rush’s perspective also informs the important work of the Commission on Improving the Status of Children in Indiana. The panel, which she chairs, includes the top administrators of virtually every public agency with responsibility for the state’s children. Its early work is focusing on a long-neglected topic: mental health issues involving children.

“I think sometimes our system can be a bit of a barge. It’s tough to get it to move,” the Supreme Court justice recently told the Indianapolis Business Journal, which named her a 2013 Woman of Influence. “But you can when you have people collectively passionate about issues working on those issues.”

Identifying and prioritizing those issues is as important as addressing them. Rush’s influence already is making a difference in that respect. A General Assembly dominated by men and state agencies disproportionately directed by white males have too often placed economic issues over health, safety and family issues. Some vexing legal cases have arisen as a result.

The new justice’s appointment begins to lend proper balance to an institution that routinely weighs matters shaped by gender differences.

After 13 years without a female on the Supreme Court, all Hoosiers should recognize and appreciate Rush’s impressive contributions.

ILB: See also this ILB post from Nov. 4th, written by Prof. Joel Schumm, headed "A Remarkable First Year for Justice Loretta Rush."

Posted by Marcia Oddi on Sunday, November 10, 2013
Posted to Indiana Courts

Saturday, November 09, 2013

Ind. Decisions - More on: 7th Circuit decides one Indiana case today, and it is big

Lyle Denniston of SCOTUSblog has a post this morning on yesterday's 7th Circuit decision in Grote/Korte. It begins:

In the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law, a divided Seventh Circuit Court panel decided on Friday that two profit-making companies and their Roman Catholic owners are likely to win their constitutional challenges. The decision temporarily blocking the mandate is here: sixty-four pages in the majority ruling, ninety pages in the dissent.

While other circuit courts have ruled in favor of challenges either by profit-making companies or by their owners individually, none before Friday had provided protection for both companies and owners under the federal Religious Freedom Restoration Act. Other circuit courts have turned down the challenges. The Supreme Court is scheduled to consider three cases on the mandate at its private Conference on November 26.

Here is a story by Joe Palazzolo in the $$ WSJ. A quote:
The move by the Seventh U.S. Circuit Court of Appeals in Chicago marked the first time a federal appeals court has issued a ruling preventing the federal government from enforcing the provision. Federal appeals courts in Washington, D.C., and Denver have sided with plaintiffs challenging the provision on religious grounds but stopped short of issuing injunctions. Federal appeals courts in Philadelphia and Cincinnati, meanwhile, have sided with the Obama administration.

Posted by Marcia Oddi on Saturday, November 09, 2013
Posted to Ind. (7th Cir.) Decisions

Friday, November 08, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today, and it is big

Today the 7th Circuit issued a consolidated opinion in the Grote (SD Ind, Barker) and the Korte (SD Ill.) challenges to the affordable health care act "contraception mandate". In a 154-page opinion, including a 90-page dissent by Judge Rovner, in Cyril Korte v. HHS and William Grote, III v. Kathleen Sebelius, Judge Sykes [joined by J. Flaum] writes:

These consolidated appeals challenge the federal government’s “contraception mandate,” a regulatory requirement imposed by the Department of Health and Human Services (“HHS”) to implement the terms of the 2010 Patient Protection and Affordable Care Act. The mandate requires employers to provide coverage for contraception and sterilization procedures in their employee health-care plans on a no-cost-sharing basis. Noncompliance carries heavy financial penalties and the risk of enforcement actions.

The plaintiffs are two Catholic families and their closely held corporations—one a construction company in Illinois and the other a manufacturing firm in Indiana. The businesses are secular and for profit, but they operate in conformity with the faith commitments of the families that own and manage them. The plaintiffs object for religious reasons to providing the mandated coverage. They sued for an exemption on constitutional and statutory grounds.

Center stage at this juncture is the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., which prohibits the federal government from placing substantial burdens on “a person’s exercise of religion,” id. § 2000bb-1(a), unless it can demonstrate that applying the burden is the “least restrictive means of furthering … [a] compelling governmental interest,” id. § 2000bb-1(b). Focusing primarily on their RFRA claims, the plaintiffs in each case moved for a preliminary injunction. The district judges denied relief, holding that the claims were not likely to succeed. We provisionally disagreed and enjoined enforcement of the mandate pending appeal.

The appeals have now been briefed and argued and are ready for decision. Plenary review has confirmed our earlier judgment. These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religiousexercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protecting the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them. * * *

[Judge Rovner's opinion, beginning on p. 65] The court’s holding in these cases is as remarkable for its reasoning as for its result. The Kortes and the Grotes are business owners: Korte & Luitjohan Contractors is a construction firm, and Grote Industries manufactures motor vehicle turn signals, reflectors, emergency lighting, and other safety systems. Neither company has a declared religious purpose or mission. Both are subject to the full range of regulatory demands and constraints that government imposes on all such businesses. These include the Affordable Care Act’s (ACA’s) requirement that employers provide comprehensive health insurance to their employees that includes fully subsidized access to contraceptive care for women who choose to use it. The Kortes and the Grotes are Catholic and, consistent with the teachings of their religion, view the use of contraceptives as immoral. Invoking the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb- 1 (“RFRA”), they object to the contraception mandate of the ACA as a substantial burden on their right to the free exercise of religion.

In exempting (preliminarily) the two corporations from the contraception mandate, the court equates the business activities of these secular, for-profit firms with the religious exercise of its owners. Because the Kortes and the Grotes declare that they run the corporations in a manner consistent with their religious beliefs, the court views the burdens that government imposes on the corporations and the company health plans as burdens on the religious consciences and exercise of the individual owners. Not only that: the court attributes to the corporations religious exercise rights of their own, rights that the companies themselves can assert, as informed by the religious beliefs of their owners. Because the Kortes and the Grotes oppose the use of contraception, the companies’ obligation to include contraceptive coverage in their workplace health insurance plans is understood as a burden on the owners’ free exercise rights and in turn on the companies’ free exercise rights. The court declares off-limits any inquiry into the nature and degree of the burden imposed on these rights; instead, rewriting both the terms of RFRA and free exercise clause jurisprudence, the court declares it sufficient that the ACA compels the two corporations to comply with a requirement to which its owners object on religious grounds. Thus reasoning that the contraceptive mandate substantially burdens the free exercise rights of the individuals and their companies, the court then subjects the mandate to strict scrutiny and concludes that it fails that demanding standard.

So it is that, in the name of free exercise of religion, the court has relieved two secular corporations from a statutory obligation to provide health insurance to their employees that includes coverage of contraceptive care for the companies’ female employees. Realistically, the only religious interests at stake are those of the corporations’ owners—their faith is the source of the objection to contraception. * * *

ILB: The ILB has a very long list of entries on this issue - here are some of them.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "Gay Marriage Is Booming. Where Does That Leave Civil Unions?"

A very interesting article today in Slate, by John Culhane, discusses hetro marriage, same-sex marriage, and civil unions (and "domestic partnerships), which in some jurisdictions currently are available to both same-sex, and opposite-sex couples.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to General Law Related

Ind. Decisions - SD Ind. orders IDOH to act by Nov. 13 on PPINK requests that have been pending before it for almost 4 months

Updating this most recent ILB entry on the dispute, from Oct. 31st, today federal Judge Magnus-Stinson has issued a 5-page ruling in the case of Planned Parenthood (PPINK) v. Comm., Ind. Dept. Health (IDOH), that concludes:

Because the IDOH has not yet acted on PPINK’s application or waiver requests, there is currently no indication whether PPINK’s Lafayette clinic will be considered an “abortion clinic” on January 1, 2014, I.C. § 16-18-2-1.5(a), such that it would be subject to the surgical-related physical plant requirements that it contends it does not currently meet. But this uncertainty is not due to delay on PPINK’s part, considering that it filed its application and waiver requests within two weeks of the effective dates of the challenged statutes. PPINK’s application and waiver requests have been pending before the IDOH for almost four months, and it is undisputed that the challenged statutes modify the definition and regulation of what is an “abortion clinic” in a way that could impact PPINK’s Lafayette clinic in approximately seven weeks. Given this time frame, the Court ORDERS the State to file a report by November 13, 2013, detailing the status of PPINK’s abortion clinic application and waiver requests, why those requests have not yet been ruled on, the average amount of time it has taken the IDOH to rule on similar requests, and when the IDOH anticipates ruling on PPINK’s pending requests.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Marion Circuit Court Judge Louis Rosenberg today dismissed a lawsuit filed by Sup. Glenda Ritz against the state board of education"

Niki Kelly of the FWJG has a preliminary story here. From the story:

The state attorney general contended Ritz was not allowed to file the suit without his permission, and the court agreed.

Rosenberg said as a general proposition statute clearly vests in the attorney general's hands the sole responsibility for the legal representation of the state.

Ritz's attorneys argued that are exceptions to the statute but the "court finds those arguments unpersuasive."

ILB: The ILB has obtained a copy of Judge Rosenberg's 9-page ruling. In addition, here is a copy of the 1978 Sendak ruling, which the opinion cites on p. 5.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case Nov. 5th

In ERIC GRANDBERRY v. STEVE KEEVER (SD Ind., Lawrence), a 6-page opinion, Judge Hamilton writes:

Eric Grandberry petitioned for habeas corpus relief under 28 U.S.C. §2254. His petition did not seek relief from his criminal conviction, but from a disciplinary sanction that a state prison had imposed against him. The sanction was a loss of “good-time” credits that will extend by 30 days the time he spends in custody. He has alleged that the Indiana prison’s disciplinary proceedings failed to provide him with the minimal due process protections required under the Fourteenth Amendment. The district court exercised jurisdiction under 28 U.S.C. §2254(a) and denied Grandberry’s petition on the merits. Grandberry has appealed.

We address here a preliminary question of appellate procedure for appeals from denial of habeas corpus relief from state prison disciplinary actions. Under the governing statute, appeals from denials of habeas relief under §2254 require a certificate of appealability if “the detention complained of arises out of process issued by a State court.” 28 U.S.C. §2253(c)(1)(A). In Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000), and many later cases, we have held that when a habeas petitioner challenges a prison disciplinary action rather than his or her underlying conviction, the certificate of appealability requirement of §2253(c)(1)(A) does not apply. In accord with those precedents, Grandberry filed a notice of appeal without first obtaining a certificate of appealability. We have jurisdiction over his appeal under 28 U.S.C. §2253(a).

Our reasoning has not changed, the reasoning of our colleagues in other circuits has not changed, and our respectful disagreement with our colleagues on this issue has not changed. We could go on at considerable length rehearsing the arguments for and against the Walker holding. The panel opinion in Walker and the dissent from denial of rehearing en banc have already done so ably, as have the Ninth Circuit majority and dissent in Hayward, among a number of other published opinions. We would add little to the debate by further repetition. We hold that Walker v. O’Brien is still good law in this circuit. In this matter, because petitioner Grandberry seeks to challenge a prison disciplinary decision and not his underlying conviction, he was not required to obtain a certificate of appealability under 28 U.S.C. §2253(c)(1)(A). Walker, 216 F.3d at 637–39.

Petitioner Grandberry’s appeal will proceed without a certificate of appealability. By separate order, we will establish a new schedule for briefing on the merits of his appeal.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Hitesh Seth v. Midland Funding, LLC, as an Assignee of Columbus Bank and Trust as Issuer of Aspire Visa, an 8-page opinion, Judge Najam writes:

Hitesh Seth appeals the trial court’s entry of summary judgment in favor of Midland Funding, LLC (“Midland”) on Midland’s complaint against Seth for nonpayment of credit card debt. Seth presents a single dispositive issue for our review, namely, whether the trial court erred when it concluded that Midland had satisfied its burden of proof under Trial Rule 56(C) We reverse and remand. * * *

Seth contends that Midland did not satisfy its burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. In particular, Seth maintains that much of Midland’s designated evidence is inadmissible hearsay or otherwise insufficient to support summary judgment. We must agree. * * *

We hold that Midland has failed as a matter of law to designate evidence to make a prima facie case that it is entitled to summary judgment on its complaint. Accordingly, the burden of proof did not shift to Seth to show that there exist questions of material fact precluding summary judgment. We reverse the trial court’s entry of summary judgment and remand for further proceedings.

In Ryan R. Schroeder v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Ryan Schroeder appeals his convictions for five counts of Class A felony child molesting and his aggregate sentence for five counts of Class A felony child molesting, one count of Class C felony child molesting, seven counts of Class C felony child exploitation, one count of Class D felony theft, seven counts of Class D felony possession of child pornography, and two counts of Class D felony voyeurism. We affirm.

Schroeder raises two issues, which we restate as:
I. whether the evidence is sufficient to sustain his Class A felony child molesting convictions; and
II. whether his fifty-four-year sentence is inappropriate in light of the nature of the offense and the character of the offender. * * *

The evidence is sufficient to sustain Schroeder’s convictions for the Class A felony child molestation, and his fifty-four-year sentence is not inappropriate. We affirm.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Eric D. Smith v. State of Indiana (NFP)

James D. Minnich v. State of Indiana (NFP)

Jan A. Riddle v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Amazon Passes Tax Milestone " What about Indiana?

Greg Bensinger of the WSJ Digits Blog $$ wrote Nov. 1st in a story that begins:

Beginning Friday, the majority of U.S. consumers will have to pay sales tax on their Amazon.com purchases.

That’s a milestone of sorts for the retail giant, which has spent years trying to avoid collecting the tax, a leg up over brick-and-mortar retailers. Laws that take effect in Massachusetts, Connecticut and Wisconsin Friday mean about 163 million Americans in 16 states will have to pay tax on their diapers, books and other goods on Amazon.

Later in the story:
Still, Amazon seems to believe that it’s worth fighting to protect its tax-free status for as long as possible in the remaining 34 states.
Indiana isn't mentioned in the story.

The ILB had a post on Jan. 9, 2012, headed "State, Amazon.com, reach sales tax agreement", where the governor (Daniels) stated that under an agreement between Amazon and the Dept. of Revenue, Amazon will "voluntarily begin to collect and remit Indiana sales tax beginning January 1, 2014 or 90 days from the enactment of federal legislation, whichever is earlier. The state will not assess the company for sales tax for other periods."

A follow-up post on Jan. 18th noted that WRTV 6 was reporting: "State budget officials have refused to release Indiana's much talked about agreement with Amazon.com."

Any more up-to-date information out there?

A reader has sent me this YouTube video from Jan. 9, 2012.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Indiana Government

Ind. Courts - "Ritz’s right to sue now up to judge: Ruling could toss complaint of education board’s miscue"

Updating this ILB post from Oct. 26th, Niki Kelly reported yesterday in the Fort Wayne Journal Gazette:

Marion Circuit Judge Louis Rosenberg could decide by Friday whether Superintendent of Public Instruction Glenda Ritz can sue the State Board of Education.

He heard about an hour’s worth of arguments on the case Tuesday but seemed to be leaning toward dismissing a complaint she filed because of legal precedent.

Ritz sued in October, alleging that the 10 other members of the State Board of Education violated the state’s open meeting law by sending a letter to legislative leaders asking them to intervene in calculating A-F school grades.

That letter was emailed around for the members to sign – except for Ritz.

Board members contend no meeting occurred in person or by phone, so therefore there was no violation.

The next meeting of the State Board of Education is also Friday, which will be the first time the group has met since the tensions boiled over into the legal arena.

Attorney General Greg Zoeller intervened in the case, moving to strike the complaint, saying he doesn’t believe Ritz has the legal authority to sue without his approval.

He points to a state statute that says he has the sole legal authority to represent the state in court.

David Arthur, the attorney arguing on behalf of Zoeller, said there are two previous Supreme Court rulings on the matter, including one in which the governor was not permitted to sue the alcoholic beverage commission on his own.

Michael Moore, representing Ritz in the case, said there is an exemption in the law for constitutional officers such as herself. He said she is also a member of the board and runs the Department of Education.

But Rosenberg said one of the Supreme Court opinions discussed that possible exception and did not find in its favor.

“It’s a tough case to get around for you,” the judge said to Moore. “I don’t see a distinction.”

Moore also noted that Ritz’s office asked Zoeller to file the lawsuit – or to approve outside counsel to file it – but he refused.

So even if the complaint is tossed, he argued that Zoeller’s decision was “arbitrary and capricious” and is subject to review by a judge.

Arthur said he hadn’t heard about that issue until Tuesday.

See also this post in the blog School Matters, headed "Open Door Law: 'Any person' can sue … or not?"

[Updated] Just as the above was posted, I saw this tweet from Niki Kelly, who is attending this morning's state board of education meeting:

Conflicts already arising at #INSBOE - parliamentarian issues and the board not wanting SPI Ritz to have attorney at the table.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Indiana Courts

Ind. Decisions - "David Bisard's sentence could vary from 3 to 31 years"

John Tuohy has a long, Nov. 6th story in the Indianapolis Star on the Bisard sentencing. Some quotes:

Convicted Indianapolis police officer David Bisard could spend as few as three years in prison or as many as 31, legal observers said Wednesday.

Bisard, 39, is scheduled to be sentenced in Allen Superior Court on Nov. 26. He was convicted Tuesday of nine felony counts of drunken driving, reckless homicide and criminal recklessness.

The most serious charge, driving with a blood-alcohol content above 0.15 while in a fatal accident, is a Class B felony that carries a sentence of six to 20 years.

As a result, Judge John Surbeck must sentence Bisard to at least six years, and none of that minimum sentence can be suspended, served out of prison but under probation.

But with time off for good behavior — one day subtracted for every day served — Bisard could be a free man in three years.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Update/Reflections on Judge Kimberly Brown Judicial Qualifications Hearing

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

The many days I spent blogging interviews of the Judicial Nominating Commission in the Indiana Supreme Court conference room are very different from the approximately six hours I spent over the course of Monday, Wednesday, and Thursday observing portions of the trial of Judge Kimberly Brown on allegations of ethical violations brought by the Judicial Qualifications Commission.* The proceeding before three special masters is not the fast-paced, wide-ranging world of JNC interviews where multiple commissioners ask questions and a new interviewee arrives every twenty or thirty minutes. At the Brown trial witnesses are sometimes on the stand much longer, there are a lot of objections (mostly from Respondent’s counsel), and the overall pace is slower and the mood more sedate. Although I remained wide awake, a couple of spectators at times appeared to be “resting their eyes.”

The Room/Setting

The hearing is being held in the Supreme Courtroom. The three special masters are seated at the bench. A court reporter is seated behind the lower-level bench, between the masters and counsel. The lawyers for the Commission and the Respondent are at the tables normally used by counsel at oral arguments. A third table with three large binders and a microphone is between the two tables. Witnesses testify from that table and are regularly asked to turn to one of the 185 Commission exhibits in responding to questions.

Spectators/Media Coverage

There have been few spectators at the proceedings. Monday morning had about ten; the portions I attended on Wednesday and Thursday had fewer. Although a court official announced Monday morning that tweeting was permitted, this policy appeared to change at the beginning of Wednesday afternoon’s session. Judge Taliaferro announced that tweeting was not permitted, although she made clear she had never used Twitter and did not entirely understand how it worked. (It’s not clear why Twitter has been singled out; any concern that witnesses are reading about testimony would seemingly be better addressed by a prohibition on witnesses reading tweets, blogs, and newspaper articles.)

The Special Masters

All three special masters appear to be incredibly engaged in the proceeding while constantly taking notes. Although Judge Taliaferro primarily speaks and responds to objections, the other masters at times engage in the colloquy about an objection. (Although I’m not certain of this, it appears at times that Judge McClure and Judge Moss may offer input on some rulings by passing notes or cards to Judge Taliaferro.) Although the judges are working long hours, they have been remarkably patient even when the proceeding appears to be needlessly dragging on.

The Lawyers

Adrienne Meiring (along with two co-counsel who have not taken a vocal role in the proceedings I’ve observed) represents the Commission. She is former prosecutor and very comfortable in her role. She is clearly well-prepared and has been effective in taking witnesses through testimony and exhibits.
Judge Brown is represented by Aaron Haith (along with law partner Belle Choate, who has not taken an active role in the proceedings I’ve observed). I must admit a bit of confusion about Mr. Haith’s theory of defense, which is not clear to me through the opening statement or cross-examination of witnesses I’ve seen. He has lodged scores of objections, the vast majority of which are quickly overruled.

The Witnesses and Testimony

I saw some of the testimony of Judge Brown on Monday morning and the testimony of lawyers (public defenders and a prosecutor) and a former staff member later in the week.

The testimony of Judge Brown, some of which was highlighted in Monday morning tweets (before the ban), was not what one would expect of a judicial officer. She was shown a video deposition in which she refused to be sworn because she’s “an officer of the court.” Her (non)explanation that she “made a decision” and “that is how I felt” does not instill confidence in the judiciary. Judge Brown’s answers to questions about her responses to pre-hearing requests for admission—admitting all the underlying facts but denying she committed misconduct—were similarly surprising. Introducing Judge Brown to the special masters at the beginning of the hearing in this defensive and uncooperative light was an effective strategy by Ms. Meiring. It cannot be easy to set aside those initial impressions as the Commission presents its many witnesses that detailed the alleged poor management of the court and mistreatment of staff and lawyers.

The testimony of other witnesses touched on a variety of topics, which I would break into two broad categories. First, through witnesses and exhibits, the Commission went through specific cases in which Judge Brown took weeks to rule on motions or where errors in court documents led to the wrongful, prolonged incarceration of defendants.

One of the more glaring and interesting examples of a delayed ruling involved the Joseph Barker disciplinary case in which Judge Brown was appointed as the hearing officer. A staff member explained how Judge Brown kept files locked in her office and retained the two exhibits admitted at the approximately forty-minute hearing. In response to inquiries from others (apparently the Disciplinary Commission), the staff member testified she requested the exhibits and reminded the judge of deadlines that had passed. A second email reminder led to Judge Brown allegedly responding, “you need not remind me anymore.”

The second broad category of testimony concerned Judge Brown’s interpersonal communications. A public defender explained she discouraged a prosecutor from setting up a meeting with the judge because she “knew it wouldn’t go well.” Judge Brown was reportedly “rude” and “impolite” in the “awkward” meeting, which was held in a closet-type area outside the judge’s office.

A former court employee compared her job to “an abusive relationship” where the person did not like or value her. She recounted “looks of disgust” and the impression, “I don’t want to be bothered by you.” The judge allegedly would not speak to her or some other staff members, communicating only by email. The staff member recounted that the judge did not like certain lawyers and had an attitude some people were “beneath her.” The former employee also believed requests by some of the disliked public defenders were “quickly denied” but believed private attorneys were generally treated better.

Progress of the Hearing

As of 4:30 p.m. on Thursday, the Commission had called 26 of its expected approximate 40 witnesses. The trial was expected to continue into the evening. The Commission was expected to conclude its case on Friday, when the case would then turn to the Respondent. The proceeding is expected to last through the weekend with the planned hours of Friday 8:30 a.m. to 8:00 p.m.; Saturday and Sunday 9:00 a.m. to 5:00 p.m.; and if necessary Monday (Veteran’s Day) from 9:00 a.m. to 5:00 p.m.
*The Indiana Commission on Judicial Qualifications (aka as the judicial disciplinary commission) investigates allegations of judicial ethical misconduct, prosecutes violations of the Code of Judicial Conduct, and advises judges and judicial candidates about their ethical obligations. The Judicial Nominating Commission recruits and interviews applicants to fill vacancies on Indiana's appellate courts. The two entities have the same membership and staff.

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to Schumm - Commentary

About this ILB - We're back!!!

The ILB is back, after an unavoidable three-day absence. It turns out to have been a busy three days, legal news-wise. An attorney reader wrote:

What a time to "send a message" and go dark: Bisard, Brown, appellate decisions, the Ritz case re: "can the state sue itself"; and on and on. If this doesn't get a reaction from the Bar shame on the cheap tightwads and a pox on their house!
Another reader, a member of the judiciary, wrote re the J. Brown hearing:
Any details on who has already testified or summaries of what was said?? I didn’t want to watch or know originally, but after I got the tweets on Monday, I was hooked! Now, it’s gone dark.
The ILB will try to catchup. I posted the appellate opinion lists last evening, I hope to add the "for publication" summaries over the weekend. There is little I can add to the excellent John Tuohy coverage of the Bisard trial in the Indianapolis Star except links. Prof. Schumm will have more on the Brown trial later this morning. Judge Rosenberg should be ruling on an issue in the Ritz open meeting dispute sometime today. And yes, beyond this list, there is more that I intend to post ...

Also during this period, the Indiana Trial Lawyers Association formally awarded me, for the Indiana Law Blog, their Journalist of the Year award. I was unable to attend the awards luncheon, which was yesterday, but I am very appreciative of the award. As I wrote to the ITLA: "Thank you very much to the ITLA, I am honored to receive this award! Thank you also for recognizing that a law blog can be a journalistic endeavor." (The award is now listed prominently in the ILB's right column.)

Posted by Marcia Oddi on Friday, November 08, 2013
Posted to About the Indiana Law Blog

Thursday, November 07, 2013

Ind. Decisions - More on: So what has happened with Morgan County Prosecutor to challenge expungement

Updating this ILB entry from Nov. 2nd, Tim Evans of the Indianapolis Star had a long story Nov. 5th headed "Indiana expungement law challenge is rejected, but judge says provision violates constitution." Some quotes:

A judge has rejected the Morgan County prosecutor’s challenge to the constitutionality of the state’s new expungement law but left the door open to a future challenge.

The order Morgan Circuit Court Judge Matthew G. Hanson issued says a section of the law addressing victim input “violates the Indiana Constitution.”

“However, in this particular case, there really is no victim,” Hanson explained in his order last week. “The invitation to challenge the victim’s right portion of this statute in this case is therefore denied.”

Prosecutor Steve Sonnega said he does not plan to appeal Hanson’s ruling.

Instead, the veteran prosecutor said he is shifting his focus to another pending challenge to the law in which there is a victim of the underlying crime. * * *

The next case Sonnega plans to fight, which has been set for a court date in January, involves a child molestation allegation resolved 20 years ago with a misdemeanor battery plea after a jury could not reach a verdict on the more serious felony charge. Had the man been convicted of child molesting, he would not be eligible for expungement.

As part of the plea deal, he admitted to touching a girl "in a rude, insolent, or angry manner," the legal definition of battery. He also was ordered to pay $1,336 to the girl's mother for the costs of the counseling the girl received and was ordered not to have any contact with the girl or her mother.

The battery conviction — which can be wiped away under the law — is the only stain on the man's otherwise clean criminal record. But his victim continues to struggle with the trauma of what happened to her as a child. * * *

Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said Sonnega still faces an uphill battle on the victim’s right issue.

“The court’s order cites no cases, and I’m not aware of any cases that would support a finding of unconstitutionality,” Schumm said.

“Allowing the victims ‘to have a say’ may be more dignified or respectful, but I would be surprised if an appellate court held it was required under these circumstances.”

If an expungement is denied in the future based on the victim’s rights argument, the defendant will surely appeal, Schumm said.

And that will set up an odd legal dynamic, basically pitting one arm of the state, the prosecutor, against another arm, the attorney general, who is charged with defending challenges to state law. But it also is the attorney general who represents prosecutors in appellate cases.

“The state will be represented on appeal by the attorney general — not the Morgan County prosecutor,” Schumm explained. “The attorney general will argue the statute is constitutional. Neither side on appeal will agree with the trial court’s ruling, which makes a finding of unconstitutionality especially unlikely.”

Attorney General Greg Zoeller believes “the discussion concerning the expungement statute raised by the county prosecutor involving victims’ rights should be addressed with the Legislature, and we will advise our state government clients in the Legislature of the ruling,” spokesman Bryan Corbin said.

ILB: Here is a copy of 7-page, Oct. 28th ruling by Judge Matthew G. Hanson of the Morgan Circuit Court.

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Indiana could feel impact as neighboring Illinois adopts same-sex marriage"

Jon Murray of the Indianapolis Star reports in this long Nov. 6th story that an Illinois' adoption of marriage equity will not necessarily mean that same sex non-Illinois residents may be granted marriage licenses and wed in Illinois.

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Indiana Government

Courts - "Analysis: At Supreme Court hearing, passions over religion and its rules"

The SCOTUS on Wednesday heard oral argument in Town of Greece v. Galloway. The ILB has had five earlier entries on this New York case, challenging the constitutionality of prayer at town meetings.

Today Joan Biskupic of Reuters has a good analysis of the oral argument, sub-headed "When the U.S. Supreme Court talks about religion, all hell breaks loose." A few quotes:

A dispute over an upstate New York town's prayer before council meetings produced an unusually testy oral-argument session on Wednesday that recalled the decades of difficulty Supreme Court justices have had drawing the line between church and state.

Court decisions involving freedom of religion tend to be closely decided with many separate opinions rather than clear-cut majority statements. The case of Town of Greece v. Galloway appears to be headed that way. * * *

Justice Elena Kagan asserted that, "Every time the court gets involved in things like this, it seems to make the problem worse rather than better."

Overall, the justices' remarks were more pessimistic than positive regarding a possible consensus. They voiced frustration with the lawyers who appeared before them and with each other as well.

When Breyer asked the town's lawyer if officials could take more steps to invite non-Christians and even people who are not religious to offer the equivalent of a prayer, Justice Antonin Scalia mockingly asked what sort of invocation "somebody who is not religious" could offer. As lawyer Thomas Hungar, representing the town of Greece, began to suggest a chant "of guidance and wisdom," Breyer interjected with some annoyance toward Scalia, "Perhaps he's asking me that question and I can answer it later."

SCOTUSblog today in the first paragraph of this post has collected several reports of yesterday's oral argument.

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Debra Minott, Faith Laird, Patti Bailey v. Lee Alan Bryant Health Care Facilities, Inc.; Parkview Residential Care Center, L.L.C.; Parke County Residential Care Center, L.L.C., et al., an 11-page opinion, Chief Judge Robb writes:

The State of Indiana appeals from the trial court’s order denying its request for restitution for damages paid under a judgment reversed by this court, raising the following issue for our review: whether the trial court improperly denied the State’s request for restitution. Concluding the trial court erred in denying the State’s motion for restitution, we reverse and remand for further proceedings not inconsistent with this opinion. * * *

The State’s request for restitution was timely, and the Law Firms, Cole Taylor Bank, and CIBM Bank were judgment creditors or their lawful equivalent and are therefore liable for restitution. Accordingly, we conclude that the trial court erred by denying the State’s request for restitution. Reversed and remanded.

NFP civil opinions today (1):

Anthony Tsikouris, Diann Tsikouris, and the 601 Building, Inc., v. LaPorte Savings Bank (NFP)

NFP criminal opinions today (6):

State of Indiana v. Jerramy Bushong (NFP)

Michael P. Stafford v. State of Indiana (NFP)

Michael Schepers v. State of Indiana (NFP)

Michael Kelley v. State of Indana (NFP)

David Fields v. State of Indiana (NFP)

Jeffrey V. McCloud v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 2 (and 6 NFP) on Wednesday, Nov. 6th

For publication opinions Nov. 6 (2):

Kimberly Kubina v. State of Indiana

Christopher Cross v. State of Indiana

NFP civil opinions Nov. 6 (1):

Keianna Rae Harrison v. Cynthia L. Wells (NFP)

NFP criminal opinions Nov. 6 (5):

Curtis McGrone v. State of Indiana (NFP)

Cleve Stone v. State of Indiana (NFP)

Dexter Stacy, Sr. v. State of Indiana (NFP)

Joshua Doan v. State of Indiana (NFP)

John Garbacz v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issued 7 (and 5 NFP) on Tuesday, Nov. 5th

For publication opinions Nov. 5 (7):

In the Matter of the Termination of the Parent-Child Relationship of: S.L. & D.L. (Minor Children) and K.M., (Mother) & D.L.,(Father) v, The Indiana Department of Child Services

Anthony E. Boyd v. WHTIV, Inc. and Walter Tarr, IV

Heather Herren v. Jerry Dishman

D.B., Et Al., v. Review Board of the Indiana Department of Workforce Development, Department of Workforce Development, and Anderson Transit System, Inc.

State of Indiana v. William Gilbert

Ritchie Hodges v. State of Indiana

Andrew Wann v. State of Indiana

NFP civil opinions Nov. 5 (1):

James W. Avery v. Cynthia L. (Avery) Howe (NFP)

NFP criminal opinions Nov. 5 (4):

Brandon Titus v. State of Indiana (NFP)

Eric Powell v. State of Indiana (NFP)

Dawn Willsey v. State of Indiana (NFP)

A.C. James, Jr., v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issued one opinion on Tuesday, Nov. 5th

In Jason Wilson v. Kelly (Wilson) Myers, a 9-page, 5-0 opinion, Justice David writes:

When parents fight each other, it is often the children who suffer. When parents litigate against each other, however, the laws and legal system have explicit mechanisms and considerations aimed specifically at protecting the children caught in the middle. Here, those mechanisms and considerations were ignored and a father was summarily ordered to give up custody of the two children who had been living in his care for over five years. Under the facts and circumstances of this case, we find that this summary resolution, without an evidentiary hearing where witnesses would be sworn and testimony heard, and without the consent of the parties and their counsel, was an abuse of the trial court’s discretion, and we therefore remand for the proper proceedings. * * *

The Court of Appeals affirmed in an unpublished memorandum decision. Wilson v. Myers, 979 N.E.2d 1072 (Ind. Ct. App. 2012) (table). We granted transfer, thereby vacating the Court of Appeals opinion, see Ind. Appellate Rule 58(A), and now remand. * * *

We remand this case for a proper evidentiary hearing and inquiry into in-camera interviews to address Myers’s motion for modification of custody. At the same time, however, we are aware that A.W. and B.W. have already been pulled from the school and community they were in when living with Wilson, and are now in school in Michigan and living with Myers. Without condoning this change, or expressing any indication that we believe Myers’s motion should (or should not) ultimately be granted, we order this status quo to continue in order to minimize further disruption to A.W. and B.W., until further order of the trial court. Therefore, while we vacate the trial court’s order, we cannot easily “reverse” what the order has already done. Simply put, the current living arrangement was not properly established, but at this point it is what it is and it is our obligation, in the best interests of the children, not to exacerbate the problem or to encourage the practice followed here.

Timeline of Appeal:

Posted by Marcia Oddi on Thursday, November 07, 2013
Posted to Ind. Sup.Ct. Decisions

Monday, November 04, 2013

About this Blog - The ILB to go silent for 72 hours

See post from earlier today.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to About the Indiana Law Blog

Ind. Gov't. - Two more "Ind. colleges say they'll oppose gay-marriage ban plan"

See Barb Berggoetz's Indy Star story here, in USA Today. DePauw University and Wabash College join with Indiana University:

Both DePauw, in Greencastle, and Wabash, in Crawfordsville, are about 30 miles away from one another and 50 miles west of Indianapolis. DePauw has almost 2,400 students; Wabash has less than 1,000.

The two colleges join Indiana University, a public university that's the largest in the state with more than 110,000 students on eight campuses statewide. On Oct. 28, IU announced its opposition to the ban.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 1, 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, November 1, 2013. It is two pages (and 20 cases) long.

Also of interest, transfer was denied 4-1 in In the Matter of the Paternity and Maternity of Infant T., a July 11, 2013 COA opinion. J. Rush, who dissented, issued a separate opinion, available here. The dissent begins:
I respectfully dissent from the denial of transfer. The relief the petitioner seeks would result in the court enforcing what amounts to a surrogacy agreement. Here the parties agreed that a surrogate will carry to term an anonymously-donated egg fertilized in vitro and will effectively “[w]aive parental rights [and] duties to [the] child” upon birth. Ind. Code § 31-20-1-1(6) (2008). The General Assembly has stated that such agreements are void and unenforceable. Id.; I.C. § 31-20-1-2 (2008). Though current parentage legislation does not contemplate assisted reproductive technologies, it is clear about not recognizing surrogacy agreements—and the Court of Appeals need not have made the issue more complicated than that. * * * I would therefore grant transfer and decide this case on the narrow basis of Indiana Code section 31-20-1-1, and leave it to the General Assembly to consider broader legislation to guide and protect future children and families through the still-uncharted waters of assisted reproductive technologies.
Here, from the July 13th ILB, is more on the Infant T opinion.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Transfer Lists

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

In CHRISTIAN SERINO v. ALEC HENSLEY AND CITY OF OAKLAND CITY, INDIANA (SD Ind., Young, CJ), a 14-page opinion, Judge Flaum writes:

In September 2008, Oakland City Chief of Police Alec Hensley arrested Christian Serino for trespass and resisting law enforcement. The charges were eventually dropped. In March 2012, Serino filed suit against Hensley and Oakland City in federal district court. He alleged that Hensley violated his constitutional rights and committed multiple state‐law torts. The district court dis missed each of Serino’s federal and state claims at the Rule 12(b)(6) stage. We now affirm.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - A Few Thoughts on the Indiana Supreme Court’s Just-Released Annual Report

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

The Supreme Court’s 2012-13 annual report was released today in an online format with more graphics and numerous embedded links to external sources. I encourage everyone to take a look, and I commend Kathryn Dolan and those in the Office of Communication, Education and Outreach who worked on the impressive report.

Although the report earns high marks on style, I am a little disappointed with a couple of substantive differences from earlier years. First, gone is the narrative section categorizing and summarizing the Court’s opinions from the prior year. The summary ran from page 5 to 7 in last year’s report and offered a concise but very useful review of the Court’s important work. Some helpful transfer statistics appear to be gone as well. Although page 16 includes some of the numbers, I did not see a paragraph similar to this one from last year anywhere in this year’s report:

In fiscal year 2012, the Court disposed of 1,096 cases, 892 of which had first been appealed to the Court of Appeals. Of these 892 petitions to transfer, 345 (38.7%) were civil cases and the remaining 547 (61.3%) were criminal cases. The Court accepted jurisdiction and issued opinions in approximately 7.8% of all transfer cases (9.0% in civil cases and 7.1% in criminal cases). In the remaining 92.2%, the Supreme Court denied transfer, rendering the opinion of the Court of Appeals final.
This year’s report includes a list of majority and non-majority opinions for each justice, which appears to be a first. The list starts on page 22 but does not include a summary of the cases. Of the four justices who served the entire year, each wrote an average of fifteen majority opinions: Justice David (17), Chief Justice Dickson (16), Justice Massa (13), and Justice Rucker (12).

Finally, as previously discussed in this blog, the past year included an unusually high number of oral argument on whether to grant transfer—9 criminal cases and 5 civil/tax cases. The report does not include statistics on cases in which transfer was vacated after hearing oral argument.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - A Remarkable First Year for Justice Loretta Rush

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

One year ago Thursday, Justice Loretta Rush began her service as the 108th justice of the Indiana Supreme Court. Unlike her colleagues who faced early criticism because of a controversial opinion or refusal to recuse*, Justice Rush’s first year has not simply been free of controversy. She has wowed the legal community and beyond with her thoughtfully crafted and impactful opinions, incisive questions at oral argument, and her many speaking engagements and administrative work.

Majority Opinions

Justice Rush’s opinions have tackled a wide variety of issues in both criminal and civil law. Her majority opinions (in chronological order) are as follows:

Not surprisingly some of the opinions are in areas in which Justice Rush spent fourteen years on the trial bench; two cases involve juvenile delinquency and another involves an adoption following a termination of parental rights proceeding. But other opinions fall far outside that realm, including criminal cases, the Contracts Clause of the Indiana Constitution, and issues of puffery and civil fraud.

Whatever the topic, Justice Rush’s opinions are especially readable, particularly with their carefully crafted opening paragraph(s). A lawyer, local generalist newspaper reporter, or high school drop-out litigant can easily understand the Court’s rationale without investing much time or energy. As law students (and even some law professors) lament, the same cannot be said of every court opinion, some of which provoke head-scratching and confusion even after multiple readings.

Finally, all nine opinions have been unanimous. None of Justice Rush’s colleagues have seen the need to write separate concurring or dissenting opinions in any of these cases.

Impactful Opinions

Two of the opinions called for a possible legislative response, and a swift response followed. In response to K.W. v. State, Senate Enrolled Act 1 added the following to the definition of law enforcement officer: "Law enforcement officer," for purposes of IC 35-44.1-3-1 and IC 35-44.1-3-2, includes a school resource officer (as defined in IC 20-26-18.2-1) and a school corporation police officer appointed under IC 20-26-16.

In response to the adoption case, the Commission on Courts has recommended legislation that would prohibit trial courts from hearing or granting a petition for adoption while a termination of parental rights appeal is pending.

An Independent Voice

The newest Justice often aligns most frequently with the Chief Justice. Many expected the same of Justice Rush, especially in light of her long-standing professional relationship with Chief Justice Dickson. Although the Court has had an unusually high number of unanimous opinions since Justice Rush joined the Court, she has shown her independence, dissenting from the denial of transfer in this criminal case in late March and most notably in the legislative fines case in June, where she joined Justice Rucker in dissent.

Oral Argument

Since the retirement of Justice Sullivan, questioning during oral argument falls fairly equally among the justices. Justice Rush’s questions generally cut to the heart of the case, probing the important weaknesses of each side. Like her opinions, her questions are carefully crafted and precise.

The Many Other Functions

Although writing opinions and questioning lawyers are two of the most notable things a justice does, they also spend much of their week on administrative tasks and speaking with various groups.

Justice Rush’s work includes chairing the Commission on Improving the Status of Children, something she has been advocating for years to allow “better coordination of services for children who ended up in the court system.”

She has spoken at numerous bar functions and public events, impressing people who are not easily impressed. She is engaging, genuine, and clearly enjoys what she is doing (but humble in reminding audiences she is still learning). It’s difficult to imagine how much better she will become when her first year has been so remarkable.

The Next Chief Justice?

I will gladly be the first to write what some others have been saying privately. In light of everything discussed above, Justice Rush would be an exceptional choice as Indiana’s next Chief Justice when Chief Justice Dickson retires within the next few years.
*Questions about Justice Massa’s possible recusal in the Rockport Coal Gasification plant began to surface in early May of 2013, a little beyond his first year on the bench.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Schumm - Commentary

Ind. Courts - Supreme Court grants direct transfer in Marion County redistricting case

Here is the order.

Here is a list of earlier ILB entries. The most recent, from Aug. 6th, is headed " Mayor Ballard seeks early appeal of redistricting ruling won by Democrats."

The Supreme Court granted a Rule 56(A) expedited transfer. The transcript is due Nov. 22nd. Oral argument to be scheduled by separate order.

[More] BTW, just noticed this was file-stamped Friday, Nov. 1 at 3 PM.]


Rule 56. Requests To Transfer To The Supreme Court

A. Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. ***

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Notes on much of the first morning in Judge Brown trial

Thanks to the reader who has sent 3 pages of notes taken this morning at the start of Marion County Judge Kimberly Brown's disciplinary hearing.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - A moment in the Judge Brown disciplinary trial

Tim Evans of the Indianapolis Star tweets:

Judge Taliaferro lays into Judge Brown for evasive responses and refusal to answer questions from pros. Judge T clearly peeved.
ILB: BTW, as I had intended to write before, Judge Viola Taliaferro is highly respected and revered by her peers, a legend in the Indiana judiciary and in the community.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

About this Blog - The ILB to go silent for 72 hours

Because of other pending matters, the ILB will go silent, for the most part, beginning at 5 PM tonight and extending to 5 PM Thursday. There may be an occasional post, tweet, or retweet, but nothing like the wall-to-wall coverage you have come to expect.

Although certainly not the purpose, if this 3-day absence causes you to ask yourself, "what will I do without the ILB?" this would be a good time for you, your firm, organization or business to sign on to become ILB supporters! For details, see this April 25th ILB post. (The post also covers how to make anonymous individual donations.)

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to About the Indiana Law Blog

Ind. Law - Expungement pros and cons

Supplementing this ILB post from Saturday, the Fort Wayne Journal Gazette has a long editorial today listing pros and cons of the new expungement law. Some quotes:

Those who pushed for the law argued that people who want and need to work but are never hired because of old criminal convictions are punished long after they have paid their debt to society. On the other hand, there are some uneasy rumblings from the legal community. * * *

But in some cases, the complex new law takes away the ability of victims, prosecutors and even judges to influence whether a particular case should be banished from official memory.

Marion County Prosecutor Steve Sonnega has filed a legal challenge to the constitutionality of the law, pointing out that conviction in a child-molestation case may be expunged without challenge because the charge was battery, a D-category felony that qualifies for automatic expungement as long as the petitioner meets certain criteria. “That basically makes the concerns and input of victims meaningless,” he told The Indianapolis Star.

St. Joseph County Prosecutor Michael Dvorak told the South Bend Tribune’s Madeline Buckley that he believes the expungement law should always allow for some discretion.

“It ought to be done on a case-by-case basis, not one size fits all,” Dvorak said. The problem, he said, “would simply be cured by changing the ‘shall’ provision to a ‘may’ provision.”

Allen County Prosecutor Karen Richards has some worries, too, but is going to wait and see.

“We have not seen that many expungement petitions yet,” she said Friday.

“There is,” she said, “a troubling side and a compassionate side.”

On the troubling side, Richards said, she is worried about the effect expungements may have on employers hiring people for jobs without knowing about convictions that might be highly relevant to their work: bank tellers who have past theft convictions, for instance, or truck drivers with substance-abuse problems. “Are you trying to get a commercial driver’s license and you’ve had alcohol and drug issues?”

The new law may make it harder for prosecutors to get defendants to agree to treatment. If a conviction can be easily expunged, she asked, “what’s the impetus to go into a drug program?”

The new state law says employers can’t be held negligent for hiring decisions based on criminal records that have been closed to them. But it’s not clear, Richards said, how well the law will mesh with federal regulations about who can work in some health care jobs, or whether it will clash with some insurance companies’ coverage requirements.

On the compassionate side of the ledger, Richards agrees there are cases in which expungement makes sense.

“For some people who made stupid mistakes when they were young, it’s a great thing,” she said.

Even serious felonies might deserve obliteration at some point, Richards said. “I could see a situation where someone is 48 years old and he had one burglary charge when he was 19 and hasn’t had anything since.”

Like so many Indiana legislative ventures, the Second Chance Law may need some retuning in the coming session.

Those who’ve paid their debt to society deserve a chance to get back into the game of life. But common sense needs a seat at the table, too.

ILB: And there is another point. The supporters of the law originally intended that it be easy enough that the petitioner would not need to hire a lawyer. But, as the editorial points out, it is now a very complex law.

If the petition is properly presented, then under the current law, there is no discretion, it is to be granted. Various prosecutors and judges are calling for some discretion.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Law

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

For publication opinions today (2):

In Claire's Boutiques, Inc. v. Brownsburg Station Partners LLC, a 17-page opinion, Judge Najam writes:

Brownsburg Station Partners, LLC (“Brownsburg Station”) filed a complaint against Claire’s Boutiques, Inc. (“Claire’s”) alleging that Claire’s had breached its lease (“Lease”) for commercial retail space in Brownsburg Station Shopping Center. The parties filed cross-motions for summary judgment and, after a hearing, the trial court issued its order, with findings of fact and conclusions thereon, granting Brownsburg Station’s motion for summary judgment and denying the cross-motion filed by Claire’s (“Summary Judgment Order”). Claire’s filed a motion to reconsider, which the trial court granted, vacating the Summary Judgment Order (“Reconsideration Order”). Following a two-day bench trial, the court issued findings of fact and conclusions thereon and entered judgment in favor of Brownsburg Station but denied its request for consequential damages (“Judgment”).

Claire’s appeals the Reconsideration Order and the Judgment, and Brownsburg Station cross-appeals the Judgment denying consequential damages. We address two dispositive issues on appeal:

1. Whether the trial court erred when it construed the operating co-tenancy provision in the Lease to allow Claire’s to terminate the Lease if the occupancy level fell below seventy percent of the gross leasable area rather than “70% of the non-department retail store tenants in Buildings A1 and A3.”
2. If the trial court erred in its construction of the co-tenancy provision, whether the trial court also erred when it determined that Claire’s had not terminated the Lease by vacating the premises before Brownsburg Station terminated the Lease by written notice.

We reverse and remand with instructions.

In Gregory A. Harris v. State of Indiana, a 12-page opinion where both the State and the defendant petitioned for rehearing, the Court denies both. Judge Crone writes:
Both Gregory A. Harris and the State have petitioned for rehearing of our opinion in Harris v. State, 992 N.E.2d 887 (Ind. Ct. App. 2013), in which we held that (1) Harris’s acquittal on a rape charge did not preclude relitigation of a hung charge of sexual misconduct with a minor for the same act of sexual intercourse and (2) the State could not amend the charging information to add “or deviate sexual conduct” to the sexual misconduct charge. We grant rehearing for the limited purpose of addressing a subsequent decision by the Indiana Supreme Court on the issue of double jeopardy but affirm our opinion in all other respects.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert M. King v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Latest Indiana trial and appellate court statistics online

Released today. Here is the news report.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - More on: Marion County Judge Kimberly Brown's disciplinary trial begins today

The opening statements are over, the Disciplinary Commision now has called Judge K. Brown as its first witnesses. Follow the ILB feed on Twitter ....

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - Bisard trial closing statements this morning, a wrap-up

John Tuohy of the Indianapolis Star has a very long and comprehensive review of the David Bisard trial to-date, and in a side-bar lists the 9 charges. Worth reading.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - "Document reveals how bribery of former Marion County Deputy Prosecutor David Wyser unfolded"

Tim Evans' long story was in the Nov. 2 Indianapolis Star. It begins:

A little before noon on May 29, 2009, Indianapolis defense attorney Jennifer Lukemeyer’s telephone rang.

The caller was Marion County Chief Deputy Prosecutor David Wyser.

Lukemeyer had been pushing Wyser and his boss, former Marion County Prosecutor Carl Brizzi, for nearly five years for a sentence modification to free convicted murderer Paula Epperly Willoughby from prison.

“I want (Willoughby’s father),” Wyser said, “to give, and you can tell him.”

So early that afternoon, Lukemeyer called Willoughby’s father, Indianapolis businessman Harrison Epperly, and passed along Wyser’s request for a “campaign contribution.”

Epperly didn’t hesitate.

He took out his checkbook and wrote a $2,500 check to Wyser’s campaign fund in his bid for the GOP nomination for Hamilton County prosecutor.

It was a check, Wyser admitted in July when pleading guilty to a federal bribery charge, that bought Willoughby’s freedom.

Brizzi was not charged in the case. Lukemeyer declined to comment Friday. She has not been accused of any criminal or professional misconduct.

Wyser’s phone conversation with Lukemeyer that day — as well as the finagling that went on before and after — are detailed in a sentencing memorandum filed Friday by federal prosecutors in U.S. District Court for the Southern District of Indiana.

Wyser, who will be sentenced Nov. 25, faces up to 24 months in prison.

The 21-page report lays out, publicly for the first time, the behind-the-scenes story of how Wyser facilitated Willoughby’s release after she had served just 18 years of a 70-year prison sentence in the killing of her husband.

The Star included links to the documents, the ILB has straightened and OCRed them: the 21-page Wyser sentencing memorandum and to the 8-page federal prosecutor's request for leniency for Wyser due to cooperation.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Courts - Marion County Judge Kimberly Brown's disciplinary trial begins today

Updating this ILB entry from Oct. 31st, as of this writing the docket has not been updated since the Oct. 30th entry.

I'm told the disciplinary trial will commence at 9:00 AM. Not only is there no videocast, but no transmission will be permitted from the courtroom. This is not surprising, as this is a trial, not an oral argument.

The ILB expects that several readers may attend - observations on the setting, the witnesses, the spectators, etc. could be helpful.

[Update at 9:26 AM] Apparently tweeting is allowed.

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Courts

Ind. Gov't. - "The Policy and Politics of the Indiana Marriage Amendment"

Today at noon at Maurer School of Law, IU Bloomington:

What is the fight over HJR 6 about? What effect could the amendment have on IU and domestic partner benefits? Why are leaders of Indiana’s corporate community opposed to an anti-gay amendment to Indiana’s constitution?

The Policy and Politics of the Indiana Marriage Amendment
12 noon Monday, Nov. 4, Maurer School of Law, IU Bloomington
Moot Court Room, 211 S. Indiana Ave.


Sponsored by Maurer Outlaw and the Maurer chapter of the American Constitution Society

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Indiana Government

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

From Sunday, November 3, 2013:

From Saturday, November 2, 2013:

Posted by Marcia Oddi on Monday, November 04, 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 11/4/13):

Thursday, November 7th

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

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

Monday, November 4th

Wednesday, November 6th

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

Tuesday, November 12th

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

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

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

Posted by Marcia Oddi on Monday, November 04, 2013
Posted to Upcoming Oral Arguments

Sunday, November 03, 2013

Ind. Gov't. - Muncie Star-Press: "Our View: No to same-sex amendment"

The Star-Press has a long and thoughtful editorial today that concludes:

Indiana’s constitution should not be amended purely on a whim, but that’s exactly what House Joint Resolution 6 (banning same sex marriage) does. Our constitution should not be used to solidify discrimination against any group. It should remain silent on the issue, or else speak to protecting the rights of everybody.

A coalition against the amendment is gathering steam. Indiana University last month became the first higher education institution to oppose the amendment. Purdue and Ball State are avoiding the debate so far. However, Ball State allows same-sex domestic partners (but not opposite sex) to be included on an employee’s health insurance coverage. Why the difference? Ball State says opposite sex partners have the option to marry.

Eli Lilly and Co. and Cummins Inc., among two of the state’s high profile and high tech businesses, have joined the coalition and each has contributed $100,000 in the fight. They have stressed that an amendment that makes the state anti-gay friendly will threaten a loss of talent and investment. Politicians on both sides of the aisle would be wise to listen to these business interests, especially when the state has been mired with an unacceptably high unemployment rate, and suffers from “brain drain” of educated professionals.

Hoosiers do not need a bruising fight over this issue when there are other concerns, such as the economy, education, health and environment that deserve the attention of our lawmakers.

This is a fight that will only divide the state, and still might not settle the issue as other states’ amendments banning same sex marriage have landed in the courts.

HJR6 should go away quietly.

Posted by Marcia Oddi on Sunday, November 03, 2013
Posted to Indiana Government

Ind. Gov't. - "5 years ago, Chicago sold off ownership and management of 36,000 parking meters for 75 years for a lump sum payment of $1.2 billion -- a move that caused the city to have the highest urban parking charges in America."

Alan Ehrenhalt writes in Governing, in an article headed " Meter Shock in Cincinnati: Privatizing parking meters was a disaster for Chicago. So why is Cincinnati doing it?" Here is a great quote from the long article:

In the words of urban planning professor Donald Shoup of UCLA, the nation’s leading expert on parking, “What Chicago did was like burning all your furniture to stay warm on a cold night.”

Posted by Marcia Oddi on Sunday, November 03, 2013
Posted to Indiana Government

Ind. Gov't. - "Michigan City adopts adult business restrictions"

Stan Maddux reports for the NWI Times:

MICHIGAN CITY | Driven by a proposal for a gentleman's club just outside its borders, Michigan City has adopted restrictions to discourage adult entertainment businesses from locating within city limits.

The City Council on Wednesday adopted the ordinance after eight months of research, which included how strip clubs and other adult businesses throughout Northwest Indiana operate.

Officials knew of no adult businesses that have expressed any official interest in Michigan City, but said they think it's just a matter of time.

"We want to be prepared for it," Mayor Ron Meer said.

The ordinance allows businesses such as strip clubs and adult book stores only in areas zoned for manufacturing.

Those type of establishments also must be at least 700 feet away from neighborhoods, churches, schools and playgrounds.

The ordinance was drafted with help from Duncan Associates, a Muncie-based consulting firm that presented statistics on the ill effects adult establishments have on property values and youths.

Posted by Marcia Oddi on Sunday, November 03, 2013
Posted to Indiana Government

Courts - "First 'gay divorce' attempted in Kentucky"; Overview of marriage equality efforts from USA Today

Andrew Wolfson had the long story in the Louisville Courier-Journal yesterday, Nov. 2. Some quotes:

The case of Romero vs. Romero would seem to be a routine divorce. The couple have no children and already have divided their assets.

But both Alysha Romero and her spouse, Rebecca Sue Romero, are women — and so, in Kentucky, their divorce is anything but routine.

Family Court judges and divorce lawyers say Alysha’s petition — filed Oct. 25 in Jefferson Family Court — is the state’s first involving a same-sex couple who were married in another state where same-sex marriages are legal, and want to end their marriage in Kentucky.

Alysha’s lawyer, Louis Waterman, said they should have the right to divorce here, rather than endure the disruption and expense of going back to Massachusetts, where they were wed, and living there for one year to meet that state’s residency requirement.

“I have a career here, a life here, and I think I should have the same right as a heterosexual to divorce here,” said Alysha Romero, 29, an administrative assistant in the University of Louisville’s radiology department.

But both opponents and supporters of gay marriage — including Waterman — say the court will have no choice but to dismiss the petition because Kentucky’s marriage amendment bans not only gay marriage, but the recognition of such marriages performed elsewhere as well.

Waterman said he intends to appeal the likely dismissal and then ask the Kentucky Supreme Court to throw out the marriage amendment on the grounds that it violates equal protection of law guaranteed under the U.S. Constitution.

Gay rights advocates, including Beth Littrell, a staff attorney for Lambda Legal, a national gay rights organization that isn’t involved in the case, say it makes no sense for a state to ban gay marriage, then require a same-sex couple to remain permanently wed. * * *

With 14 states and the District of Columbia now allowing gay marriage — and 20, including Kentucky, refusing to even recognize those performed legally elsewhere — gay divorce may become the next battleground in the fight over marriage equality. * * *

Attorneys who aren’t involved with the case agreed with Waterman that Family Court Judge Joseph O’Reilly, to whom the case was assigned, will have no choice but to dismiss it.

Diana Skaggs, the former president of the Kentucky chapter of the American Academy of Matrimonial Attorneys, said the couple’s best hope of dissolving their marriage likely will come in an appeal to federal court. * * *

If the Romeros aren’t able to divorce, it will have some very pragmatic consequences. For example, the Internal Revenue Service recently announced it will recognize same-sex marriages performed in states such as Massachusetts, where it is legal, meaning that the Romeros must continue to file federal taxes as if they are married.

Some quotes from Marisol Bello's story yesterday in USA TODAY, with the title, "Emboldened, gay marriage activists eye 50 states: Same-sex couples file more lawsuits, and more public officials defy gay marriage bans after Supreme Court's ruling on DOMA."
The Supreme Court ruling that struck down parts of the Defense of Marriage Act in June opened the door to an explosion of activity by gay marriage proponents.

Today, they are waging their campaign on several fronts: filing lawsuits, encouraging public officials to defy state bans on gay marriage, and stepping up a push for state legislation.

Since June, couples have filed 23 lawsuits to end bans in 21 states; governors and state attorneys general in at least three states have refused to defend their state bans in court; and county clerks in four states have issued marriage licenses to gay couples despite laws against it. Hawaii is considering legislation to allow gay marriage, and advocates are pushing for Oregon and Nevada to do the same next year. * * *

Recent developments:

• On Oct. 21, New Jersey became the 14th state to allow gay marriage after a court ruled that a ban was unconstitutional. Republican Gov. Chris Christie dropped his opposition because he thought he would lose in the state Supreme Court, where the justices have ruled in favor of gay marriage in previous cases.

• On Oct. 17, Oregon's Department of Justice ruled that state agencies must recognize the unions of same-sex couples married legally in other states or countries, even though the state has a ban. That means treating gay married couples the same as straight couples for tax purposes and other state benefits, such as property rights and child custody. Activists hope to get a measure on the 2014 ballot to overturn the ban.

• Since August, some county clerks in Pennsylvania, North Carolina and New Mexico have challenged state laws banning gay marriage by issuing licenses to same-sex couples. * * *

Statistician Nate Silver, famous for accurately predicting the 2012 presidential vote in all 50 states, used a statistical analysis to forecast that by 2016, 31 states would be likely to favor gay marriage in a referendum, and by 2020, only six states — all in the South — would still be likely to vote against it.

"This is demonstrably inevitable," Klarman says.

Opponents of gay marriage are not convinced.

Thirty-five states ban same-sex marriage, most through constitutional amendments, notes Peter Breen, senior counsel at the Thomas More Society, a Chicago law firm that advocates for traditional marriage.

Illinois demonstrates that legalizing gay marriage is not a slam dunk, Breen says.

"When you look at Illinois, it was assumed they'd go for same-sex marriage," because the state leans liberal and Democratic, he says. But repeated efforts this year to pass a law recognizing same-sex marriage failed; a bill passed in the state Senate but not the House.

Breen represents five county clerks defending the state's ban on gay marriage in a lawsuit filed by 25 same-sex couples. The clerks entered the case after Gov. Pat Quinn and Attorney General Lisa Madigan, both Democrats, refused to act.

California is another example of a liberal state that voted against gay marriage when it passed Prop 8 in 2008 with 52% of the vote. State courts overturned the law after a lawsuit by same-sex couples. The case reached the U.S. Supreme Court, which ruled in June that the private parties defending the ban did not have standing to do so. The high court's decision allowed gay marriage to resume in California but did not settle the question of whether states can impose such bans.

Posted by Marcia Oddi on Sunday, November 03, 2013
Posted to Courts in general

Saturday, November 02, 2013

Ind. Decisions - Indiana case before the SCOTUS on Monday

The case is Sandifer v. U.S. Steel Corporation, and here is the SCOTUSblog casepage, linking to Judge Posner's 7th Circuit opinion, arising out of an appeal from the USDC, ND Ind., by Judge Miller, Jr.

Samuel Bagensto, a law prof at the University of Michigan Law School, writing as a guest at SCOTUSblog, has an argument preview today, that begins:

What constitutes “changing clothes”? A simple question, perhaps, but one the Court is poised to decide in Sandifer v. United States Steel Corporation, to be argued on Monday. In Sandifer, the Court will interpret a provision of the Fair Labor Standards Act that allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time “any time spent in changing clothes or washing at the beginning or end of each workday.”

Posted by Marcia Oddi on Saturday, November 02, 2013
Posted to Indiana Decisions

Ind. Decisions - 7th Circuit decides one Indiana case on Nov. 1st

In EUGENE DEVBROW v. STEVEN GALLEGOS and JASON SMILEY (ND Ind., Moody), an 8-page opinion, Judge Hamilton writes:

Eugene Devbrow, an Indiana prisoner, challenges the grant of summary judgment against him in this action under 42 U.S.C. § 1983 asserting that prison officials denied him access to the courts by confiscating and then destroying his legal papers in retaliation for a prior lawsuit he filed. Because Devbrow failed to show that prison officials actually destroyed his legal documents or took his papers for retaliatory reasons, we affirm.

Posted by Marcia Oddi on Saturday, November 02, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "Purdue Exponent: Opposition surrounds same-sex marriage ban" and more about New Jersey

The Purdue Exponent ran this story on Oct. 31st. Several corrections in the otherwise informative story may be in order. First some quotes:

Jennifer Wagner, communications director for Freedom Indiana, a bipartisan coalition group opposing House Joint Resolution 6, said, “More than 70 percent of Hoosiers believe some legal protections should exist for same-sex couples. This amendment would permanently prohibit civil unions, domestic partnerships or other relationships substantially similar to marriage.”

According to the Indiana General Assembly website, the amendment provides that only marriage between one man and one woman should be valid or recognized as a marriage in Indiana. It also says a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

Despite the fact the amendment has the possibility for a widespread effect on the state, some students on campus were shocked to learn of the situation.

“I had no idea,” said Megan Cramer, a senior in the College of Agriculture. “I don’t approve.”

This amendment follows New Jersey’s passage of a law allowing same-sex couples to marry. Indiana and New Jersey are both considered red states, and both have conservative governors. This raises the question of the difference between the states and the laws that they are passing.

Wagner thinks a lack of discussion could be to blame.

“Right now, the only conversation we’re having in Indiana is a conversation about HJR-6, which would permanently ban any legal protections for same-sex and unmarried couples,” Wagner said.

Cramer thinks a lack of motivation as well as a lack of protests could also add to the situation.

“I never hear or see anyone here in Indiana fighting for gay rights,” Cramer said. “I know they’re out there, but I don’t see anyone in Indiana fighting for them on the political end.”

Wagner said the amendment would not just affect a select group of people, but would affect Indiana as a whole, and he [sic.] encourages Indiana residents to take action.

“This amendment permanently threatens liberty for all Hoosiers, and sends the message that our state is an unwelcoming place that values neither fairness nor freedom,” said Wagner. “The issue affects everyone, and common sense Hoosiers know this is not the direction we want to take our state.”

ILB: Indiana and New Jersey are not both red states, New Jersey is a blue state. Both state do have republican governors, but some might classify Governors Pence and Christie at opposite ends of the term "conservative."

Although New Jersey's legislature passed a bill in 2012 allowing same-sex couples to marry, Governor Christie vetoed the bill. Last month a trial court in New Jersey issued a ruling making gay marriage legal, and the NJ supreme court issued a ruling indicating it would uphold the trial court. (See ILB entry from Oct. 18.) Gov. Christie on Oct. 21 withdrew his court challenge. 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.

Yesterday, Nov. 1, Matt Friedman of the Newark Star-Ledger reported in a story headed "Legislative leaders consider not writing gay marriage into N.J. law, for now at least." The interesting story explains that rather than trying to override the vetoed 2012 bill, legislative leaders are looking at doing nothing, relying instead on the court opinion. Some quotes:

TRENTON — When Republican Gov. Chris Christie dropped his appeal of a Superior Court judge’s decision to legalize gay marriage in New Jersey, the prospect of the Democrat-led Legislature simply letting the decision stand without writing it into state law was considered unlikely.

But now, as legislative leaders weigh their options, the idea of doing nothing at all — at least for the time being — is gaining momentum.

At issue, lawmakers and gay rights advocates say, is that gay couples have more rights under the court ruling than they would under the bill (S1) that Democrats passed in 2012, which Christie promptly vetoed.

"Overriding the veto will take away certain rights that currently exist based on the court decision, or let’s put it this way, have not been eliminated," said Senate Majority Leader Loretta Weinberg (D-Bergen), one of prime sponsors of the gay marriage bill in the upper house.

Weinberg was referring to a religious exemption included in the bill that is not addressed in the court decision. Under the 1st Amendment, clergy will never be forced to perform gay marriages, Weinberg said. But the bill the Democrats passed would have also allowed any religious "society, institution or organization" to deny gay couples "space, services, advantages, goods, or privileges related to the solemnization, celebration or promotion of marriage."

Under the bill, a group affiliated with a religion — such as the Knights of Columbus — would have been allowed to refuse to rent a hall to a gay couple who wanted to be married or have a reception. Under the court decision, that question is not addressed.

After Christie dropped his appeal of Superior Court Judge Mary Jacobson’s decision to legalize gay marriage, the Legislature had three options. They could do nothing, attempt to override Christie’s 2012 veto, or pass a new, "clean" bill that would make gay marriage state law that Republicans could support without overriding Christie.

Posted by Marcia Oddi on Saturday, November 02, 2013
Posted to General Law Related

Ind. Decisions - So what has happened with: Morgan County Prosecutor to challenge expungement [Updated]

The ILB has had a number of posts under the heading: "Morgan County Prosecutor to challenge expungement" The most recent is from Oct. 30th. Stories on the challenge were published throughout the State.

In the meantime, it appears that the case was decided Monday, Oct. 28th, but no one has picked up on the pay-walled story that day in the Martinsville Reporter-Times. Here is the teaser:

Judge affirms expungement law

MARTINSVILLE: Morgan County Circuit Court Judge Matthew Hanson has determined that in the case of Jayson Daniel Combs, Indiana’s new expungement law is constitutional.

This morning the pay-walled Mooresville-Decatur Times has a story with this teaser:
Next expungement fight to be in January

The decision by Morgan County Circuit Court Judge Matthew Hanson affirming Indiana's new expungement law could be challenged as soon ...

ILB: Can anyone provide more information?

[Updated at 11:52 AM] Apparently picking up on this ILB post from earlier this morning, and with access to the pay-walled Martinsville Reporter-Times, IndyPolitics.org is now reporting on the Oct. 28th R-T story:

Judge Matthew Hanson however ruled, according to the Reporter-Times,that a plea agreement does not require the conviction to be a public record “forever.” and the legislature does have the ability to require the record be expunged.

The judge did caution, however, law could put Indiana at odds with the federal government on motor vehicle driving records and that Indiana could be jeopardy of losing federal dollars because driving records may not be up to federal standards.

Posted by Marcia Oddi on Saturday, November 02, 2013
Posted to Ind. Trial Ct. Decisions

Friday, November 01, 2013

Ind. Decisions - Use of Initials in Indiana Appellate Opinions: Inconsistency and Its Consequences

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

A recent motion filed with the Indiana Court of Appeals on behalf of a woman who was the victim of invasion of privacy (violation of a protective order) highlights significant concerns with the protection of crime victims and others whose names often appear in very public, easily accessible, appellate opinions.

A Long-Standing Problem

Several years ago I wrote the following in an introduction to a law review article: “Appellate courts are leading purveyors of incredibly intimate and embarrassing information about both adults and children who happen to be pulled into the judicial system. . . . In light of the nature of information disclosed and the ease with which it can be obtained, one might expect carefully crafted rules or procedures to protect the privacy of persons thrust into the judicial system, such as the use of initials or pseudonyms instead of names. There are, however, few and sometimes inconsistent rules or procedures applied by appellate courts in deciding whose identity will be protected and whose will be exposed in very public judicial opinions that will follow them for the rest of their lives.”*

When the article was written Indiana appellate courts were doing a good job of preserving the anonymity of victims of sexual assault and juveniles in delinquency cases, but protection for others, such as respondents in civil commitment proceedings and victims of other crimes likely to cause embarrassment, was at best inconsistent.

Indiana Administrative Rule 9

Indiana Administrative Rule 9 has been a marked improvement, but is not a panacea. That rule restricts public access to many records. As regards appeals, Rule 9(G)(4) provides (my emphasis added in underline):

in cases as of or commencing after January 1, 2009, parties, counsel, the courts on appeal, and the Clerk of the Supreme Court, Court of Appeals, and Tax Court (“Clerk”) shall have the following obligations:

(a) Cases in which the entire record is excluded from public access by statute or by rule. In any case in which all case records are excluded from public access by statute or by rule of the Supreme Court,

(i) the Clerk shall make the appellate chronological case summary for the case publicly accessible but shall identify the names of the parties and affected
persons in a manner reasonably calculated to provide anonymity and privacy; and

(ii) the parties and counsel, at any oral argument and in any public hearing conducted in the appeal, shall refer to the case and parties only as identified in the appellate chronological case summary and shall not disclose any matter excluded from public access.

(b) Cases in which a portion of the record is excluded from public access by statute or by rule. In any case in which a portion (but less than all) of the record in the case has been excluded from public access by statute or by rule of the Supreme Court,
(i) the parties and counsel shall not disclose any matter excluded from public access in any document not itself excluded from public access; to the extent it is necessary to refer to excluded information in briefs or other documents that are not excluded from public access, the reference shall be made in a separate document filed in compliance with Trial Rule 5(G); and

(ii) the parties, counsel, and the Clerk shall have the respective obligations set forth in (a)(i) and (a)(ii) to the extent necessary to comply with the statute or rule.

(c) Cases in which any public access is excluded by trial court order. * * *

(d) Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.

Does subsection (d) impose a duty on the appellate courts to exclude the names of individuals in opinions “except as essential to the resolution of litigation . . . .” in all appellate cases? Or must it be read in conjunction with subsections (a) – (c), applying only to those cases in which public access has been restricted? (The more recent approach to identifying parties in unemployment compensation cases, for example, seems to suggest the latter.)

The Motion

A recent motion seeking to redact an opinion issued more than a year earlier, though, takes the broader view of subsection (d). On September 3, this motion, which I have redacted, was filed by counsel on behalf of the victim in Slavin v. State, No. 49A04-1111-CR-569 (Ind. Ct. App. Aug. 7, 2012), a not-for publication memorandum decision. The motion noted the woman’s full name was used in the court’s opinion, which “became available on-line and has caused [her] embarrassment.” The motion explained:

a simple search for her name in search engines such as Google and Yahoo will reveal the memorandum decision as one of the first listed results. A search through the Westlaw database reveals not only the memorandum decision but parties’ briefs. The briefs set forth additional facts that potentially harm [her] social standing. Additionally, [she] believes that the revelation of the details surrounding this case will adversely affect her employment prospects.
The motion cited other cases where the Court of Appeals had used initials to identify victims of invasion of privacy. Asserting she was an “affected” person under Administrative Rule 9(G)(4)(d), the motion posited that initials or some other identifier could be used in the place of her name to explain the court’s ruling.

The Court’s Order

The Court of Appeals granted the motion on October 1, issuing a redacted opinion and directing the Clerk “to send a copy of this order to all parties and counsel of record, the trial court, Thomson Reuters West Publishing Company, all other sources to which decisions and opinions of this Court are sent, and the Marion Circuit and Superior Courts Clerk.” Judges Bailey and Mathias concurred; Chief Judge Robb dissented.**

A Month Later

A month after the Court of Appeals issued its redacted opinion, the opinion on Lexis has been redacted. The Westlaw opinion has not been changed. It is unclear how many entities may pull opinions from the Court’s website and would not have been notified of the Court’s October 1 unpublished order, which is not posted anywhere. M.M’s full name remains on at least one prominent site, which I will not link to here.

Concerns in Other Cases

The opinion in Slavin was not-for-publication, which limits its reach in some ways. There is no bound N.E.2d volume with M.M.’s full name, which could never be changed. (Very few people go to the library to look at those anymore, though.) More concerning, if the case had been published and citable, is the prospect that a later opinion would have used M.M.’s name in discussing the Slavin case. Withdrawing and replacing the Slavin opinion would not change those later opinions.*** Finally, if media stories or blogs had excerpted the original opinion, issuing a redacted opinion is very unlikely to fix the problem. The bell can’t be unrung.

Looking Forward

The concerns highlighted above could be addressed in at least a couple of different ways. First, one of the parties (or a non-party, as in the Slavin case) could petition the appellate court to use only initials when referring to a person likely to be embarrassed by the use of their name in an opinion. This should happen early in a case. Once the appellate opinion is posted on the web, it will be very difficult, if not impossible, to put the genie back in the bottle.

Second, if broader protection is desired the Indiana Supreme Court could amend Administrative Rule 9(G)(4) to make clear it applies to all cases—not just those impacted by subsections (a)-(c). The Court could also delineate certain categories of offenses (perhaps crimes such as invasion of privacy, stalking, domestic battery) where the victim’s name should not be used. In the absence of a more specific rule, it seems likely that lawyers and appellate judges will continue to take different approaches to the use of initials in some types of cases.

*Joel M. Schumm, No Names Please: The Virtual Victimization of Children, Crime Victims, the Mentally Ill, and Others in Appellate Court Opinions, 42 Ga. L. Rev. 471 (2008). Unfortunately, the article is not available on the Georgia Law Review website. It is available on Westlaw, Lexis, Hein Online, etc.

**The motion also sought to prohibit access to the court’s records in the case. The panel unanimously denied that request, noting “[t]he public record for this matter is not available online and M.M. provides no specific reason why her request should be granted under the parameters of the [sic] Administrative Rule 9(H).

***An August 8 post highlights similar concern raised by provisions of the 2013 expungement statute.

Posted by Marcia Oddi on Friday, November 01, 2013
Posted to Schumm - Commentary

Ind. Gov't. - Looking for historical documents for the 1970 amendment to Art. 7 of the Indiana Constitution

The Debates and Journal of our 1851 Indiana Constitution are available online. Also available are the four volumes titled "Constitution Making in Indiana." But they end with the fourth volume of source books of constitutional documents, which covers 1930-1960.

Much like the complete history of the deliberations of the Indiana Statute Revision Commission, covering the course of its existence - 1969-1970, which led to the passage of the Indiana Code of 1971, that I made available through the ILB a few years ago, I am now endeavoring to put together online the history of Article 7 of the Indiana Constitution, which was ratified by the voters on Nov. 3, 1970.

With the help of the great Supreme Court librarians, I am now working with electronic copies of the 175-page 1966 Report of the Judicial Study Commission, which is one is the key document. (Hermann Wells was the Chair.)

And the 1967-68 Report, also essential history. And 72-73 and 74.

We are missing the period 69-71. I do have the Report of the Constitutional Revision Commission from 1969 (yellow booklet), it is marked as "Vol. I". At p. 28, it says "Because the report of the Judicial Study Commission (published separately) covers the proposed new judicial article ...). So there must be one more booklet. Maybe it is titled Vol. II of the Constitutional Revision Commission report.

There may be old guys out there (my contemporaries) who can help provide documents that could enhance this project? Someone may even have leads to minutes and memoranda.

Here is the title page of the 1966 Report of the Judicial Study Commission.

Posted by Marcia Oddi on Friday, November 01, 2013
Posted to Indiana Const. Revision | Indiana Government

Environment - "Purdue University was involved in Nuclear Physics research during the Manhattan Project"

That is an interesting fact from the WS Journal's interactive feature, "Waste Lands: America's Forgotten Nuclear Legacy." Indiana has 8 sites that made the list, New York ranks highest with 78. Here is the page devoted to Indiana, one cleanup is reported as ongoing, Joslyn Manufacturing Supply Co. in Fort Wayne, which according to the Dept. of Energy, “Extruded natural uranium billets into uranium rods.” There is a wealth of information on the Joslyn page.

Posted by Marcia Oddi on Friday, November 01, 2013
Posted to Environment

Environment - 2013 Edition of Indiana Environmental Statutes now available!

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

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

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

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

Posted by Marcia Oddi on Friday, November 01, 2013
Posted to Environment

Courts - Constitutionality of prayer before town council meeting before SCOTUS next week

SCOTUSblog notes this morning:

The Oyez Project and ISCOTUS preview next week’s argument in Town of Greece v. Galloway, in which the Court will consider the constitutionality of the town’s practice of having a prayer at the beginning of its town council meetings.
The preview tells you most everything you might want to know about the case.

Posted by Marcia Oddi on Friday, November 01, 2013
Posted to Courts in general